Himachal Pradesh High Court
State Of Himachal Pradesh And vs Man Mohan Kapoor And Another on 3 August, 2018
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
CWP No.2198 of 2016.
Date of decision :03.08.2018.
State of Himachal Pradesh and
others .......Petitioners.
Versus
Man Mohan Kapoor and another .......Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No For the Petitioners : Mr. Ashok Sharma, Advocate General with Mr. Vinod Thakur, Mr. Sudhir Bhatnagar, Additional Advocate Generals and Mr. Bhupinder Thakur, Deputy Advocate General.
For the Respondents : Mr. J.L.Bhardwaj, Advocate, for respondent No.1.
Mr. Sanjeev Bhushan, Senior Advocate with Mr. Rakesh Chauhan and Ms. Abhilasha Kaundal, Advocate, for respondent No.2.
Tarlok Singh Chauhan, Judge (Oral).
Shorn of un-necessary details, the factual background of this petition is as follows:
1Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 2
2. During the year 2015, the petitioners (State) were to make recruitment of 504 police constables .
throughout the State, which is made on the basis of population percentage basis. Accordingly, the aforesaid posts were distributed among all the districts of the State and on that basis 60 post came to be allotted to Shimla District. In accordance with the reservation policy, the posts were further reserved vertically and horizontally, the break up of which is as under:-
Category Breakup Breakup of posts as per Horizontal Reservation.
of posts as Ex. Antoda- Sports Wards Home Others.
vertical
Service ya/IRDP men of Guards
reservati
men Freedom 15%
on
Fighter
General 33 5 5 2 1 5 15
SC 13 1 2 - - 2 08
ST 3(-)1=2 1 1 - - - 1(-)1=0
OBC 11 2 2 - - 2 5
Total 60(-)=59 9 10 2 1 9 29(-)1=
28
3. Admittedly, there were only three post that
were reserved for ST candidates and out of these three post, two post were further reserved by way of horizontal reservation, one each for Ex-serviceman and the candidate belonging to ST (IRDP) category. As per State, only one post was meant for ST (unreserved) category ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 3 which again was earmarked for appointment of Shri Ajay Kumar(brother of respondent) in pursuance to the .
judgment dated 16.12.2014 passed in CWP No.7978 of 2013. Respondent No.1 applied for the post of constable under the category of ST(unreserved), which according to the petitioners, was not available and, therefore, not advertised. However, it is not in dispute that respondent No.1 qualified the physical efficiency and written test, but, was not finally selected only on the ground that there was no vacancy for the ST (unreserved) candidate because respondent No.1 had been considered as a general category candidate, therefore, he was not entitled to the relaxation in the age that was otherwise available to the ST (unreserved candidate).
4. This action of the petitioners was assailed by respondent No.1 before the learned Tribunal by filing OA No.2456 of 2015, wherein he sought the following reliefs:-
"(i) That the original application of the applicant may kindly be allowed throughout with cost and the respondents may kindly be directed to consider the candidature of the applicant for the posts of Constable as open category candidate ignoring the upper age limit or in the alternative, the ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 4 respondents may kindly be directed to reserve some seats for scheduled tribe category as per .
the mandate of the Constitution of India and justice be done.
(ii) That the instructions issued by the State Government of Himachal Pradesh dated 12.12.2011 to the effect that the relaxation of age limit is also relaxation of standard and the candidates from reserve categories have to be considered and counted only against the reserve vacancies may kindly be quashed and set-aside
(iii) That in case during the pendency of the Original Application, the representation made by the applicant is rejected, the said order may also be quashed and set-aside after directing the respondents to place the same on record, since till date, neither the applicant has been informed about the rejection of the same, nor the order has been supplied to him for which he humbly prays."
5. The petitioners herein were arrayed as respondents before the learned Tribunal wherein it was averred that the application of respondent No.1 had been erroneously entertained and he was allowed to appear and take the physically efficiency and written test inadvertently. It was further averred that the age prescribed for the recruitment of constables is 18 to 23 ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 5 years for general category, whereas, date of birth of respondent No.1 is 09.11.1990 and as such has crossed .
the age limit of 23 years and thus being overage was not entitled for being considered in the general category. It was further averred that respondent No.1 was not entitled for age relaxation as the Rule 12.12 appendix of Punjab Police Rules notified on 11.03.2011 which governs the recruitment rules do not provide for any relaxation for general category. Therefore, respondent No.1 was not called for interview, notwithstanding, the fact that he has secured 68 marks i.e. (65 marks in written and 3 marks for height).
6. As regards respondent No.2, he too contested the Original Application by filing reply wherein it was averred that as there was no seat for schedule tribe, the candidature of respondent No.1 was required to be cancelled at the threshold and, therefore, Original Application was liable to be rejected on this count alone.
7. The learned Tribunal vide its order dated 22.03.2016 (for short 'impugned order') disposed of the Original Application by directing the petitioners to interview respondent No.1, preferably by the same Board ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 6 which was constituted for that purpose during the process under reference and in case after the interview, he .
crosses the bar, to consider his case for appointment as police constable in terms of the orders passed on 22.03.2016 in OA No. 2417 of 2015, titled 'Manohar Lal versus State of Himachal Pradesh and others'.
It is this order of the learned Tribunal that has been assailed by the petitioners before this Court.
8. It is vehemently argued by the learned Advocate General as also learned counsel for respondent No.2 that the order passed by the learned Tribunal is not at all sustainable as none of the contentions raised by them have been noticed by the learned Tribunal and despite that the Original Application has been allowed.
9. On the other hand, Shri J.L. Bhardwaj, learned counsel for respondent No.1, would support the impugned order on the ground that the same being in conformity with law, requires no interference.
We have heard the learned counsel for the parties and have perused the material placed on record.
10. We may, at the outset, observe that the order passed by the learned Tribunal absolutely sans reasons is ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 7 bereft of analysis and is shorn of appreciation. Why we observe so is because after reproducing the pleadings of .
the parties in paragraphs 1 to 8 of the impugned order, the learned Tribunal has thereafter adverted to the respective contentions of the parties and without analyzing and evaluating these contentions has straightaway proceeded to dispose of the Original Application by observing as under:-
r "14. In view of the above, the original application is disposed of with a direction to respondents No.1 to 5/competent authority to interview the applicant, preferably by the same board, which was constituted for that purpose during the process under reference and in case after the interview he crosses the bar, to consider his case for appointment as Police Constable in terms of the above order of the day (22.03.2016) passed by this Tribunal in OA No.2417 of 2015, within thirty days from the date of production of certified copy of this order by the applicant before the said authority."
11. Apparently, the plea of respondent No.1 at the time of hearing before the learned Tribunal appears that his case was squarely covered by the judgment passed by the learned Tribunal on that very day i.e. 22.03.2016 in ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 8 OA No. 2417 of 2015, titled 'Manohar Lal versus State of Himachal Pradesh and others. However, this .
position was not conceded to either expressly or impliedly by the opposite party i.e. the petitioners. That apart, even the learned Tribunal itself has not arrived at a definite and firm conclusion that the case of respondent No.1 was in fact squarely covered by its decision in Manohar Lal's r case (supra), yet despite this, it proceeded to allow the Original Application and issued the directions as aforesaid.
12. It is more than settled that reason is the heart-
beat of every conclusion and without the same, it becomes lifeless. Right to reason is an indispensable part of a judicial system. Providing of reasons in the order is an essence in judicial proceedings. Every litigant, who approaches the Court with a prayer, is entitled to know the reasons for acceptance and rejection of such request.
Either of the parties to the lis has a right of an appeal and, therefore, it is essential for them to know the considered opinion of the Court/Tribunal to make the remedy of appeal meaningful. It is the reason which ultimately culminates into final decision which may be ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 9 subject to examination of the appellate or other higher Courts. It is not only desirable, but mandatory for the .
Courts and Tribunals to pass orders while recording reasons in support thereof, however, brief they may be.
Brevity in reasoning cannot be understood in legal parlance as absence of reasons. It is settled canon of legal jurisprudence that the Courts and Tribunals are vested with discretionary powers, but such powers are to be exercised judicially, equitably and in consonance with the settled principles of law. Whether or not, such judicial discretion has been exercised with accepted norms, can only be reflected by the reasons recorded in the order impugned before the higher Court.
13. The order has to be reflective of due cogitation and requisite rumination. It must reflect application of mind, consideration of facts in proper perspective and appropriate ratiocination. The reasons ascribed may not be lengthy, but they should be cogent, germane and reflective. It is to be borne in mind, to quote from Wharton's Law Lexicon:
::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 10"The very life of law, for when the reason of a law once ceases, the law itself generally ceases, .
because reason is the foundation of all our laws."
14. The necessity for giving reasons and making the order a speaking one has travelled all along to be a necessary ingredient in a justice delivery system. The Hon'ble Supreme Court has repeatedly stressed that an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties must be a speaking one.
15. In Daya Ram vs. Raghunath (2007) 11 SCC 241, the Hon'ble Supreme Court held as under:
"Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reasons is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind to the matter before court. Another rationale is that the affected party can know why the decision has ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 11 gone against him. One of the salutary requirements of natural justice is spelling out .
reasons for the order made, in other words, a speaking order. The "inscrutable face of a sphinx"
is ordinarily incongruous with a judicial or quasi-
judicial performance."
16. In Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagdish Sharan Varshney and others (2009) 4 SCC 240, the Hon'ble Supreme Court held that "whether there was an application of mind or not can only be disclosed by some reasons."
17. Towards the impressing need to inform reasons for a decision and the manner in which they are to be informed, the Hon'ble Supreme Court has succinctly summarized the legal position in Kranti Associates Private Limited and another Vs. Masood Ahmed Khan and others (2010) 9 SCC 496, in the following terms:-
"(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 12
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice .
must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 13 important for sustaining the litigants' faith in the justice delivery system.
.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harvard Law Review 731-37).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v.Spain (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405 (CA), wherein the Court referred to Article 6 of European Convention of Human Rights which requires, ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 14 "adequate and intelligent reasons must be given for judicial decisions".
.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of 'due process'."
18. Thus, what can be taken to be settled, in view of the law expounded above, is that it is not only appropriate, but is solemn duty of every adjudicatory authority including the Tribunals, to state the reasons in support of its decision. Reason is the soul of a judgment and embodies one of the three pillars on which the very foundation of natural justice jurisprudence rests.
19. As the impugned order is bereft of reasons and laconic, the same cannot stand a moment's scrutiny and is accordingly set aside and the matter is remitted back to the learned Tribunal for a decision afresh. The parties through their respective counsel(s) to appear before the learned Tribunal on 07.08.2018.
20. Looking to the nature of the controversy, we request the learned Tribunal to decide the instant lis, as expeditiously as possible and preferably by 31st August, ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP 15 2018 for the reason that it is not only the claim of respondent No.1, who for the time being is employed in .
the bank, but even the claim of respondent No.2, who is unemployed and is at Serial No.1 of the waiting list, that has to be adjudicated.
21. Before parting, it needs to be clarified that any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the learned Tribunal shall decide the matter uninfluenced by any observation made hereinabove.
22. The petition stands disposed of in the aforesaid terms, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
Copy 'dasti'.
(Tarlok Singh Chauhan) Judge 3rd August, 2018. (Chander Bhusan Barowalia) (krt) Judge ::: Downloaded on - 04/08/2018 22:59:58 :::HCHP