IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 14018/2008 Decided on:14.6.2011 _____________________________________________ Sanjiv Kumar. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the petitioner : Mr. J.R. Poswal, Advocate. For the Respondents: Mr. Anil Jaswal, Dy. A.G. with Mr. R.P. Singh, Asstt. A.G. for respondents No. 1 to 5. None for respondent No.6. _____________________________________________________ Justice Rajiv Sharma, Judge (oral). Petitioner is a matriculate as per Annexure A-2. He submitted an application for considering his candidature for the post of Part Time Water Carrier in the Government Primary School Lamlehri, Tehsil and District Una. Case of the petitioner was approved by the Government as per reply on 1.4.2006 and the same was sent by respondent No.2 to respondent No.3 for 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 taking necessary action. Respondent No.3 sent Annexure A-1 to respondent No.6 for issuing appointment letter in favour of the petitioner; however, till date the appointment letter has not been issued by respondent No.6. 2. Mr. J.R. Poswal has vehemently argued that the action of respondent No.6 of not issuing appointment letter to the petitioner pursuant to Annexure A-1 is illegal. He then contended that it is the duty cast upon the Pradhan of the Gram Panchayat as per the scheme notified on 27.7.2001 to issue appointment letter. 3. Mr. Anil Jaswal, learned Deputy Advocate General has argued that as far as the State is concerned, necessary directions were issued to respondent No.6 vide letter dated 16.5.2006. 4. No appearance has been put up on behalf of respondent No.6 though reply has been filed. 5. I have heard the learned counsel for the parties and have perused the pleadings carefully. 6. It is evident from Annexure A-3 that the petitioner belongs to I.R.D.P. family. Sub Divisional Magistrate, Una has also issued certificate Annexure A-4 in favour of the petitioner certifying therein that the 3 petitioner’s family was living in extreme indigent circumstances. It is in these circumstances that the petitioner has submitted an application for considering his candidature for the post of Part Time Water Carrier in the Government Primary School, Lamlehri under clause 12 of the scheme. State Government has approved his appointment and thereafter respondent No.2 sent communication to respondent No.3 on 1.4.2006. Respondent No.3, as noticed above, vide Annexure A-1 dated 16.5.2006 requested respondent No.6 to issue appointment letter in favour of the petitioner. It was the duty cast upon respondent No.6 to issue appointment letter to the petitioner once his appointment was approved by the State Government as per clause 12 of the scheme. The reason assigned by respondent No.6 for not issuing appointment letter to the petitioner is that he has obtained false certificate to the effect that his family belongs to I.R.D.P. family. According to respondent No.6, petitioner owns 75 kanals of land and that he has also fabricated his date of birth certificate. The certificate has been issued by the competent authority and in case according to respondent No.6 the certificate was false, he was required to file a complaint before the competent 4 authority. There is no material placed on record by respondent No.6 how the petitioner has changed his date of birth from 1978 to 1979. In the certificate Annexure A-2, placed on record, the date of birth of the petitioner has been shown to be 15.7.1979. 7. Mr. J.R. Poswal has also brought to the notice of the Court that respondent No.6 has also stated to have convened the meeting of the Gram Panchayat Lamlehri on 10.5.2006 whereby the name of one Sh. Dharam Pal son of Sh. Chint Ram was recommended. However, it is evident from the certificate issued by the Secretary, Gram Panchayat, Lamlehri, Development Block Una dated 20.7.2006 that the meeting of the Gram Panchayat is held on 5th and 25th day of every month and if that day is holiday, it is convened on the next working day. He has also stated in Annexure A-7 that the proceedings of the meeting held on 10.5.2005 have not been recorded and the meeting had been held by the Panchayat itself at its own level. It is not understandable why respondent No.6 has not issued appointment letter to the petitioner once his name has been approved by the State Government and he has been informed about this fact vide letter dated 16.5.2006. The action of the respondent No.6 not to 5 issue appointment letter to the petitioner is arbitrary, thus, violative of Articles 14 of the Constitution of India. What is arbitrary has been succinctly explained by their Lordships of the Hon’ble Supreme Court in East Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 as under: “18. What then is meant for arbitrary/arbitrariness and how far can the decision of the competent authority in the present case be described as arbitrary? 19. Black's Law Dictionary describes the term "arbitrary" in the following words: "1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious." 20. To the same effect is the meaning given to the expression "arbitrary" by Corpus Juris Secundum which explains the term in the following words: "ARBITRARY - Based alone upon one's will, and not upon any course of reasoning and exercise of judgment; bound by no law; capricious; exercised according to one's own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, nonrational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, 6 despotic, or tyrannical; harsh and unforbearing. When applied to acts, "arbitrary" has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with "willful". 21. There is no precise statutory or other definition of the term "arbitrary". In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. (AIR 1991 SC 537), this Court explained that the true import of the expression "arbitrariness" is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed: "The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that `be you ever so high, the laws are 7 above you'. This is what men in power must remember, always." 22. Dealing with the principle governing exercise of official power Prof. De Smith, Woolf & Jowell in their celebrated book on "Judicial Review of Administrative Action" emphasized how the decision-maker invested with the wide discretion is expected to exercise that discretion in accordance with the general principles governing exercise of power in a constitutional democracy unless of course the statute under which such power is exercisable indicates otherwise. One of the most fundamental principles of rule of law recognized in all democratic systems is that the power vested in any competent authority shall not be exercised arbitrarily and that the power is exercised that it does not lead to any unfair discrimination. The following passage from the above is in this regard apposite: "We have seen in a number of situations how the scope of an official power cannot be interpreted in isolation from general principles governing the exercise of power in a constitutional democracy. The courts presume that these principles apply to the exercise of all powers and that even where the decision-maker is invested with wide discretion, that discretion is to be exercised in accordance with those principles unless Parliament clearly indicates otherwise. One such principle, the rule of law, contains within it a number of requirements such as the right of the individual to access to the law and that power should not be arbitrarily exercised. The rule of law above all rests upon the principle of legal certainty, which will be considered here, along with a principle which is partly but not wholly contained within the rule of law, namely, the 8 principle of equality, or equal treatment without unfair discrimination." 23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non- application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 8. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Respondent No.6 is directed to issue appointment letter to the petitioner pursuant to Annexure A-1 dated 16.5.2006 within a period of four weeks after the production of certified copy of this judgment by the petitioner. It is made clear that in case respondent No.6 is not the present incumbent, in that event, the incumbent now holding the post of Pradhan, Gram Panchayat is directed to issue appointment letter to the petitioner within the period stipulated hereinabove. Petitioner is held entitled to costs, which are quantified 9 at Rs. 5,000/- to be paid by respondent No.6. In case the costs are not paid to the petitioner, it shall be open to the Deputy Commissioner, Una to recover the same by way of land revenue and pay the same to the petitioner. The copy of this judgment be sent to the Deputy Commissioner, Una by the office of the Advocate General to facilitate its due implementation punctually. (Justice Rajiv Sharma), Judge. 14.6.2011 *awasthi*