Case: Common Cause A Regd. Society Vs. U.O.I

be sustained.48. We are further of the view that Capt. Satish Sharma acted in a wholly biased manner inasmuch as he unfairly regarded with favour the cases of 15 allottees before him. The relevant circumstances available from record and discussed by us leave no manner of doubt in our mind that Capt. Satish Sharma deliberately acted in a biased manner to favour these allottees and as such the allotment orders are wholly vitiated and are liable to be set aside. 49. The orders of the Minister reproduced above read: "the applicant has no regular income to support herself and her family", "the applicant is an educated lady and belongs to scheduled tribe community, "the applicant is unemployed and has no regular source of income," "the applicant is an uneducated, unemployed scheduled tribe youth without regular source of livelihood", "the applicant is a housewife whose family is facing difficult financial circumstances" etc. etc. There would be literally millions of people in the country having these circumstances or worse. There is no justification whatsoever to pick up these person except that they happen to have won the favour of the Minister on mala fide considerations. None of these cases fall within the categories placed before this Court in writ petition (civil) No. 886/93 titled Centre for public interest litigation v. Union of India and another decided on March 31, 1995 but even if we assume for argument sake that these cases fall in some of those or similar guidelines the exercise of discretion was wholly arbitrary. Such a discretionary power which is capable of being exercised arbitrarily is not permitted by Article 14 of the Constitution of India. While Article 14 permits a reasonable classification having a rational nexus to the objective sought to the achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling in the same category. A transparent and objective Criteria/procedure has to evolved so that the choice among the members belonging to the same class or category is based on reason, fair play and non-arbitrariness. It is essential to lay down as a matter of policy as to how preferences would be assigned between two persons falling in the same category. If there are two imminent sportsman in distress and only one petrol pump is available, there should be clear, transparent and objective criteria/procedure to indicate who out of the two is to be preferred. Lack of transparency in the system promotes neptosism and arbitrariness. It is absolutely essential that the entire system should be transparent right from the stage of calling for the applications upto the stage of passing the orders of allotment. The names of the allottees, the orders and the reasons for allotment should be available for public knowledge and scrutiny. Mr. Shanti Bhushan has suggested that the petrol pumps, agencies etc. may be allotted by public auction category wise amongst the eligible and objectively selected applicants. We do not wish to impose any procedure on the Government. It is a matter of policy for the Government to lay down. We, however, direct that any procedure laid down by the Government must be transparent, just, fair and non-arbitrary. 50. This Court in The Centre for Public Interest Litigation case (supra) has endorsed the guidelines submitted by the Attorney General for allotment of petrol pumps, gas agencies etc. The Court in that case did not have before it the actual manner of exercise of discretion by the Minister in the allotment of pumps/agencies. The allotment orders which are now before the Court clearly indicate that leaving the authorities to enjoy absolute discretion even within the guidelines would inevitably lead to gross violation of the constitutional norms when the persons for allotment are picked up arbitrarily and discriminatorily. 51. This Court as back as in 1979 in Ramana Shettys case (supra) held "it must, therefore, be taken to be the law... that even in the matter of grant of largesses including award of jobs, contracts, quotas and licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of the land." Mr. Satish Sharma has acted in utter violation of the law laid-down by this Court and has also infarcted Article 14 of the Constitution of India. As already stated a Minister in the Central Government is in position of a trustee in respect of the public property under his charge and discretion. The petrol pumps/gas agencies are a kind of wealth which the Government must distribute in a bona fide manner and in conformity with law. Capt. Satish Sharma has betrayed the trust reposed in him by the people under the Constitution. It is high time that the public servants should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. This court in Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 , approved "Misfeasance in public offices" as a part of the Law. Tort. Public servants may be liable in damages for malicious, deliberate or injurious wrong-doing. According to wade : "There is, thus, a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury". With the change in socio-economic outlook, the public servants are being entrusted with more and more discretionary powers even in the failed of distribution of Government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say "you may set aside an order on the ground of mala fide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]44. All the 15 allotmentse have been madeby the Minister in a stereotyped manner. The applications have not been officially received by the Petroleum Ministry. There is noon any of the applications. The applicants seem to have approached the Minister directly. None of the applications have been dealt with by any of the branches of the Ministry. There is nothing on the record to indicate that the Minister kept any criteria in view while making that allotments. How the applicants came to know about the availability of the petrol pumps is not known. No advertisement was made to invite the applications. There is nothing on the record to show that any other method of inviting applications was adopted. There is no indication in theor anywhere in the record to show that the Minister kept any guidelines in view while making these allotments. The allotments have been made in a cloistered manner. The petrol pumpsy have beendoled out in a wholly arbitrary manner.The allotments have been made by the Minister either on the ground of poverty or unemployment. Assuming that the allottees belong to either of these two categories then how the Minister has selected them out of millions of poor and unemployed in this country. As mentions above no criteria was fixed, no guidelines were kept in view, none knew how many petrol pumps were available for allotment, applications were not invited and the allotments of petrol pumps were made in arbitrary and discriminatoryis obvious that Capt. Satish Sharma was personally interested in making allotments of petrol pumps in favour of all these 15 persons. He made allotments in favour of relations of his personal staff under the influence of the staff on wholly extraneous considerations. The allotments to the sons of Ministers were only to oblige the ministers. The allotments to the members of the Oil Selection Boards and their chairmens relations have been done to influence them to have favours from them. All these allotments are wholly arbitrary, nepotistic and are motivated by extraneoushave no hesitation in holding that Capt. Satish Sharma in his capacity as a Minister for Petroleum and Natual Gas deliberately acted in a wholly arbitrary and unjust manner. We have no doubt in our mind that Capt. Satish Sharma knew that the allottees were relations of his personal staff, sons of Ministers, sons/relations of Chairman and members of the Oil Selection Boards and the members of the Oil Selection Boards themselves. The allotments made by him were wholly mala fide and as such cannot be sustained.48. We are further of the view that Capt. Satish Sharma acted in a wholly biased manner inasmuch as he unfairly regarded with favour the cases of 15 allottees before him. The relevant circumstances available from record and discussed by us leave no manner of doubt in our mind that Capt. Satish Sharma deliberately acted in a biased manner to favour these allottees and as such the allotment orders are wholly vitiated and are liable to be setThis Court as back as in 1979 in Ramana Shettys case (supra) held "it must, therefore, be taken to be the law... that even in the matter of grant of largesses including award of jobs, contracts, quotas and licences, the Government must act in fair and just manner and any arbitrary distribution of wealth would violate the law of the land." Mr. Satish Sharma has acted in utter violation of the lawby this Court and has also infarcted Article 14 of the Constitution of India. As already stated a Minister in the Central Government is in position of a trustee in respect of the public property under his charge and discretion. The petrol pumps/gas agencies are a kind of wealth which the Government must distribute in a bona fide manner and in conformity with law. Capt. Satish Sharma has betrayed the trust reposed in him by the people under the Constitution. It is high time that the public servants should be held personally responsible for their mala fide acts in the discharge of their functions as public servants. This court in Lucknow Development Authority v. M.K. Gupta (1994) 1 SCC 243 , approved "Misfeasance in public offices" as a part of the Law. Tort. Public servants may be liable in damages for malicious, deliberate or injuriousAccording to wade : "There is, thus, a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate maladministration, and perhaps also other unlawful acts causing injury". With the change inoutlook, the public servants are being entrusted with more and more discretionary powers even in the failed of distribution of Government wealth in various forms. We take it to be perfectly clear, that if a public servant abuses his office either by an act of omission or commission, and the consequence of that is injury to an individual or loss of public property, an action may be maintained against such public servant. No public servant can say "you may set aside anorder on theground of mala fide but you cannot hold me personally liable". No public servant can arrogate to himself the power to act in a manner which is arbitrary.