IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No.: 6818 of 2011. Decided on: 20.09.2011. ___________________________________________ Lal Hussain. … Petitioner. Versus State of Himachal Pradesh and others. … Respondents. Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting?1 No. For the Petitioner : Mr. Naresh Kaul, Advocate. For the Respondents : Mr. Vikas Rathore, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General for respondents No.1 and 2. Mr. Imran Khan, Advocate for respondent No.3. Rajiv Sharma, Judge, (Oral): Petitioner was posted at BTC Government Senior Secondary School (Girls), Nurpur in the month of August, 2007. Respondent-State took a conscious decision to shift the surplus teachers due to rationalization vide office order dated 24th June, 2011. Respondent No.3 was also shifted being 1 Whether the reporters of Local Papers may be allowed to see the judgment? No. - 2 - surplus Lecturer (Chemistry) from Government Senior Secondary School (B), Nurpur (KGR) to Government Senior Secondary School, Chhatri (MND). It is apparent from the record that she made a representation, which led to the issuance of office order dated 12th August, 2011, whereby she was adjusted at BTC Government Senior Secondary School (G) Nurpur (KGR) and the petitioner was transferred to Government Senior Secondary School, Chhatri (MND). 2. Mr. Naresh Kaul, learned counsel for the petitioner has argued that his client has been transferred from BTC Government Senior Secondary School (G) Nurpur to Government Senior Secondary School, Chhatri (MND) to accommodate respondent No.3. He then argued that respondent No.3 has been shifted after rationalization being declared surplus. According to him, office order dated 12th August, 2011 has been issued at the behest of respondent No.3. He also argued that the family life of the petitioner will be disturbed due to this transfer order. 3. Mr. Vikas Rathore, learned Deputy Advocate General has argued that transfer of the petitioner is on administrative grounds. 4. Mr. Imran Khan, learned counsel representing respondent No.3 has supported the issuance of office order dated 12th August, 2011. - 3 - 5. I have heard learned counsel for the parties and gone through the pleadings carefully. 6. It is true that the petitioner has already completed his normal tenure at BTC Government Senior Secondary School (G), Nurpur. His results are up to the mark. Respondent No.3 has been shifted as per Annexure P-1, dated 24th June, 2011 after rationalization. The post, respondent No.3 was holding, has been declared surplus. She was required to join her duties pursuant to Annexure P-1 at Government Senior Secondary School, Chhatri (MND). 7. According to the averments contained in the reply filed by her, she made a representation to the competent authority, which led to the issuance of office order dated 12th August, 2011. Mr. Imran Khan has also argued that the transfer has been effected in mid-academic sessions since his client’s son is pursuing his studies in 10+2 at Nurpur. He also argued that his client has only two years for retirement and it is in these circumstances she has been adjusted at Government Senior Secondary School (G), Nurpur. 8. Mr. Naresh Kaul, learned counsel for the petitioner submitted that petitioner’s wife is posted as T.G.T. (Science) at Govt. High School, Keerian under Chief Education Officer, Kathua in Jammu and Kashmir and his minor children are pursuing their studies at Pathankot. - 4 - 9. The shifting of respondent No.3 to Government Senior Secondary School, Chhatri (MND) was not a transfer order. She has been rather shifted after the post of Lecturer (Chemistry) in Government Senior School (B), Nurpur was declared surplus. The very purpose of rationalization will be defeated if the incumbents, who are declared surplus do not join their duties at the new places and get their transfer orders cancelled. The State has to protect the interest of the students. The decision to rationalize has been taken on the basis of relevant material. It is the person, who is declared surplus with post, has to be shifted out as per the rationalization policy. The very purpose of rationalization will become irrational if the norms prescribed therein are not followed in letter and spirit. Respondent No.3 has been shifted out vide office order dated 24th June, 2011 and there is no material on record to suggest that she has joined her duties at Government Senior Secondary School, Chhatri (MND). According to Mr. Naresh Kaul, she has not attained the age of 56 years at the time when office order dated 24th June, 2011 was issued. 10. In view of the observations and discussion made above, the issuance of office order dated 12th August, 2011 is wholly irrational and arbitrary. What is arbitrary, has been succinctly explained by their Lordships of the Hon’ble Supreme - 5 - Court in East Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 as under (paras 20, 21 and 23): “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 upon one’s will, and not upon any course of reasoning and exercise of judgment; bound by now; 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, non-rational, 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, 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’.” There is no precise statutory or other definition of the term “arbitrary”. In Shrilekha Vidyarthi V. State of U.P. this Court explained that the true import of the expression “arbitrariness” is more easily visualized than precisely stated or defined and that whether or - 6 - not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed: (SCC p. 243, para 36) “36. 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. The 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 above you’. This is what men in power must remember, always.” 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 - 7 - 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.” 11. Consequently, for the foregoing reasons, the petition is allowed. Annexure P-2, dated 12th August, 2011 is quashed and set aside. Respondents No.1 and 2 are directed to permit the petitioner to discharge his duties at BTC Government Senior Secondary School (G), Nurpur (KGR). However, taking into consideration that the respondent No.3 has now attained the age of 56 years, she may be accommodated in and around Nurpur, if any vacancy is available. The pending application(s), if any, also stands disposed of. No costs. (Rajiv Sharma), Judge. September 20, 2011. (sck).