IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. C.W.P. (T) No. 14001 of 2008. Decided on: 06.04.2011. _____________________________________________________ Urmila Devi. …Petitioner. -Versus- State of Himachal Pradesh and Others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Trilok Jamwal, Advocate. For respondents No. 1 and 2. : Mr. A. K. Bansal, Additional Advocate General with Mr. Vikas Rathore, Deputy Advocate General and Mr. R.P. Singh, Assistant Advocate General. For respondents No. 3 and 4. : Mr. Y. W. Chauhan, Advocate. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Material facts necessary for adjudication of this petition are that the petitioner has applied for the post of Part Time Water Carrier in Government Primary School, Kando Bhatnol, Tehsil Shilai, District Sirmaur under Rule 12 of the policy framed for the purpose of appointment of Part Time Water Carrier in the year 2001. Petitioner belongs to I.R.D.P. category and her disability has been assessed to the extent of 75% as per Annexure A-2. Case of the petitioner was favourably considered on 9th May, 2006 by the Hon’ble Chief Minister. Thereafter, the Director (Primary Education) directed respondent No. 2 to take steps towards the appointment of petitioner. Respondent No. 2, 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - i.e., Deputy Director of Education, District Sirmaur directed the petitioner to submit the certificates/ documents. These documents were duly supplied to the respondent No. 2, however, in the meantime, respondent-State has considered the case of respondent No. 4 and he was offered appointment to the post of Part Time Water Carrier by the Pradhan on 6th July, 2006. 2. Mr. Trilok Jamwal, learned counsel for the petitioner has strenuously argued that since the case of the petitioner has been approved by the Hon’ble Chief Minister prior to the case of respondent No. 4, his client should have been offered appointment to the post of Part Time Water Carrier in Government Primary School Kando Bhatnol. 3. Mr. A.K. Bansal, learned Additional Advocate General has vehemently argued that the case of respondent No. 4 was also considered for appointment and the earlier notifications/letters were cancelled on 29.06.2006, whereby it was decided to appoint respondent No. 4 to the post in question. 4. Mr. Y.W. Chauhan, learned counsel for respondents No. 3 and 4 has supported the selection of respondent No. 4. 5. I have heard the learned counsel for the parties and gone through the pleadings carefully. 6. It is not in dispute that the petitioner belongs to I.R.D.P. category. She is physically handicapped to the extent of 75%. Case of the petitioner was duly considered by the Hon’ble Chief Minister on 9th May, 2006. Thereafter, only codal formalities were to be gone into by the respondent No. 2 and the Pradhan of the Gram Panchayat. Petitioner was directed by respondent No. 2 to furnish the certificates/documents. She has - 3 - complied with this directive by supplying the documents on 26th June, 2006. Surprisingly, though the case of petitioner had already been approved on 9th May, 2006, the respondents have initiated the process for filling up the post of Part Time Water Carrier in Government Primary School Kando in Kando Bhatnol by considering the case of respondent No. 4, under Rule 12 of the policy. Case of the respondent No. 4 has been approved subsequent to the approval granted to the petitioner’s case on 9th May, 2006. Once the process has been initiated, which has culminated into approval by the Hon’ble Chief Minister, fresh process should not have been initiated by respondents No. 1 and 2 for filling up the post of Part Time Water Carrier in Government Primary School Kando in Kando Bhatnol. Case of respondent No. 4 has been approved, as per the pleadings, on 29th June, 2006. Thereafter, the Pradhan was directed by respondent No. 2 to do the needful on 6th July, 2006. Respondent No. 4 has joined his duties on 7th July, 2006. 7. The purpose of making appointment under Rule-12 is to mitigate the hardship of the candidates, who are either widows, destitutes or physically disabled. In this case, the petitioner is physically challenged to the extent of 75% as per Annexure A-2. The disability of respondent No. 4 has been assessed at 60% as per Annexure R-4/1. There are no reasons assigned by respondents No. 1 and 2 why the earlier process initiated for appointing the petitioner, has been scuttled mid- way. Case of the petitioner, as noticed above, was approved on 9th May, 2006 and only appointment letter was to be issued to her by the Pradhan of the Gram Panchayat, i.e., respondent No. - 4 - 3. Other codal formalities had already been gone into. In view of this, there was no occasion for the State to initiate the fresh process for filling up the post of Part Time Water Carrier by considering the candidature of respondent No. 4. In fact, the respondents have also approved the name of one Shri Babu Ram under Rule 12 after the selection of petitioner. This course adopted by respondents No. 1 and 2 was arbitrary. State Government has superseded all the earlier orders on 29th June, 2006 to favour the appointment of respondent No. 4, pursuant to which he has joined on 7th July, 2006. 8. 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: “20. 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.” - 5 - 9. The action of the respondents to initiate the fresh process for appointing respondent No. 4 was arbitrary and, thus, violative of Articles 14 and 16 of the Constitution of India. 10. It is true that the person, who has been selected, has no indefeasible right for appointment, however, the employer has to give cogent and convincing reasons why the person has not been appointed, though selected. In this case, it is reiterated that there is no reason assigned for not offering the appointment to the petitioner under Rule 12 of the policy once her case stood already approved by the Hon’ble Chief Minister on 9th May, 2006. 11. Consequently, in view of the observations and discussions made hereinabove, the petition is allowed. The selection of respondent No. 4 to the post of Part Time Water Carrier in Government Primary School, Kando Bhatnol, Tehsil Shilai, District Sirmaur is quashed and set aside forthwith. The respondents No. 1 to 3 are directed to offer appointment letter to the petitioner, within a period of one month from the date of production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge April 06, 2011. (bhupender) - 6 - `