Himachal Pradesh High Court
Sumit Sharma vs Noida & Ors on 28 July, 2022
Bench: Tarlok Singh Chauhan, Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH, AT SHIMLA
.
ON THE 28TH DAY OF JULY, 2022.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
&
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL WRIT PETITION No. 7597/2021
BETWEEN:-
SUMIT SHARMA,
SON OF SHRI SANSAR CHAND,
RESIDENT OF HATNALA BAZAR,
P.O. AND TEHSIL SANDHOLE, DISTRICT MANDI,
H.P., AT PRESENT DRIVER HIGH COURT OF
HIMACHAL PRADESH AND RESIDENT OF
SET NO.54, BLOCK-H, TYPE-II,
NABHA ESTATE, SHIMLA.
......PETITIONER
(BY SURINDER SAKLANI, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY (GAD) TO THE
GOVT. OF H.P., SHIMLA-2.
2. DIRECTOR, DIRECTORATE OF ESTATE,
TO THE GOVT. OF H.P., SHIMLA-2.
3. CHAMAN LAL,
DRIVER, RESIDENT OF SET NO.56, BLOCK-J,
TYPE-II, NABHA ESTATE, SHIMLA.
......RESPONDENTS
(BY MR. MR. VINOD THAKUR, MR. SHIV PAL
MANHANS, ADDL. A.GS., MR. YUDHBIR SINGH
THAKUR AND MR. BHUPINDER THAKUR, DY.A.GS. FOR
R-1 & R-2)
RESERVED ON: 25.7.2022
____________________________________________________________
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2
This petition coming on for admission after notice
this day, Hon'ble Mr. Justice Tarlok Singh Chauhan,
.
passed the following:
ORDER
How an illegal action, resting on inflated ego of a high-ranking officer of the State, can result in prolonged litigation causing immense suffering to the petitioner is best reflected in the instant case.
2 The petitioner is employed as a driver in the High Court of Himachal Pradesh and was allotted accommodation i.e. Set No.54, Block-H, Type-II, Nabha Estate in the year 2021. Since the accommodation (as per the petitioner) did not suit to him as it was away from the road and there were stairs making it difficult for his aged and ailing parents to live with him in the said accommodation, accordingly, he applied for change of accommodation through proper channel on 22.3.2021.
3 The petitioner was informed by the Deputy Registrar of the High Court vide letter dated 17.4.2021 that his request for change of accommodation could not be acceded to as the accommodation was in possession of one Rajesh Sharma, who was due to retire on 30.4.2022 and as ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 3 such his request could in accordance with the instructions be considered only after retirement of said Rajesh Sharma.
.
4 Subsequently, respondent No.2 i.e. Director, Directorate of Estate to the Government of Himachal Pradesh informed the petitioner vide letter dated 11.8.2021 that the respondent-Department had not received any intimation from Rajesh Sharma regarding vacation of the accommodation and it was further reiterated that the respondent-Department was already in receipt of the request made by the petitioner and one Rajesh Kumar for change of accommodation.
5 The petitioner remained under impression that his request for change of accommodation would be dealt with in accordance with law, but he was surprised to know that on 23.8.2021, respondent No.2 issued a letter to respondent No.1 conveying approval for change of accommodation in favour of respondent No.3, Chaman Lal.
6 The petitioner thereafter applied for information under Right to Information Act to know as to under what circumstances the accommodation had not been allotted to him. Relevant portion of the information so supplied to the petitioner reads as under:-
::: Downloaded on - 28/07/2022 20:04:11 :::CIS 4"PUC (Page-129): The instant proposals relate to allotment of Government Accommodation for change/alternate in favour of following applicants.
.
Sr. Name of Allotted house Requested Grounds
No. Applicants & House
Designation
1 xxx xxx xxx xxx
2 Sh. Chaman Set No.1/16, Set No. S- He has to
Lal-III, Driver, Royal Hotel, II/156, perform his
H.P. Secretariat Nabha Estate Type-II, duty in odd
(Applied on on out of turn Nabha hours and he
19.8.2021 in basis on Estate (for is facing
this office) 17.8.2021 (not alternate) hardship to
accepted, match up his
telephonically duty hours in
confirmation exigencies of
from Estate services.
r office)
3 xxx xxx xxx xxx
4 Sh. Sumit Set No. H- Set No. S- Allotted
Kumar, Driver, II/54, Type-II, II/156, accommodation
H.P. High Court Nabha Estate Type-II, in note situated
(Page-47/C) on out of turn Nabha on the road
(Applied on basis and Estate (for side and it
24.3.2021) occupied on change) becomes
30.5.2020 difficult for his
old age parents
to reach home.
N-101/ante: The case is regarding allotment of Govt. accommodation as an alternate in favour of Sh. Chaman Lal, Driver. The ACS (Forest & Ayurveda) to the GoHP has requested to allot Set No.156, top floor, Block S, Type-II, Nabha as an alternate in lieu of allotted Set No.1/16, Royal Hotel, Type-II, Nabha in favour of Sh. Chaman Lal, Driver. The matter has already been dealt/explained at Ns.97- 99/ante. However, file is re-submit, to higher authorities for kind orders, please."::: Downloaded on - 28/07/2022 20:04:11 :::CIS 5
7 Aggrieved by the action of the official respondents in allotting the accommodation in favour of respondent No.3, .
the petitioner has filed the instant petition for grant of the following substantive reliefs:-
(i) that a writ in the nature of certiorari may very kindly be issued thereby quashing and setting aside the impugned allotment dated 23.8.2021.
(ii) that writ in the nature of mandamus may very kindly be issued by directing the respondents to allot Set No.156, Block-J, Type-II in favour of the petitioner.
8 The official respondents contested the petition by filing reply, wherein factual matrix has not been denied.
However, it is averred that respondent No.3 was working as a Driver with H.P. Secretariat and on 17.8.2021 had been allotted Set No.1/16, Royal Hotel (on vacation) on out of turn basis. Accordingly, respondent No.2 issued a letter dated 17.8.2021 to respondent No.3 with a direction to accept allotment within 5 days as per provisions of Rule 9 of H.P. Allotment of Government Residential (General Pool) Rules, 1994 (for short, the Rules) and submit the requisite undertaking, acceptance letter duly attested by the head of Office and also hard copy of online application.
::: Downloaded on - 28/07/2022 20:04:11 :::CIS 69 However, with reference to the above letter dated 17.8.2021, respondent No.3 applied for an alternate .
accommodation i.e. Set No. S-II/156, Type-II, Nabha Estates vide application dated 19.8.2021 on the ground that vacation of the allotted accommodation was uncertain and in view of exigencies of his services. It is further averred that "the case of respondent No.3 was also recommended by Additional Another Chief Secretary (Forests) to the Government of H.P., vide D.O. No. PS/ACS (Fts., Ayur) 21, dated 23.8.2021".
10 ground put-forth for allotting the
accommodation to respondent No.3 is that the
accommodation i.e. Set No.1/16, Royal Hotel, Type-II, Nabha Estate, was still in occupation of one Sh. Kushal Singh, who retired on superannuation on 30.6.2021 and was entitled to retain the allotted accommodation for a further period of 4 months i.e. upto 31.10.2021 as permissible under the Rules and further that Kushal Singh had requested for retention of accommodation upto 31.3.2022 on the medical grounds of his mother, which was duly allotted for a period of 2 months i.e. upto 31.12.2021.
11 Lastly, it is contended that since the petitioner was already residing in Set No.54, Type-II, Block H from ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 7 31.5.2020, whereas respondent No.3 was fresh allottee and without a government accommodation, therefore, he was .
allotted accommodation in question taking into consideration the profile of his work and exigencies of duties.
12 We have heard the learned counsel for the parties and have also gone through the material placed on record.
13 At the outset, it needs to be observed that during the course of hearing, held continuously from time to time w.e.f. 10.12.2021 on various dates, the official-respondents, after realizing that their action was not in accordance with the law, had sought time so as to put their house in order as is evident from 22 hearings that were held in the instant case.
14 It is rather unfortunate, as observed above, that the official respondents, despite knowing fully-well their action to be in contravention of the provisions of the Rules, which provide for change of accommodation on the basis of first come first serve, have tried to justify their action by stating that since the petitioner was already in occupation of government accommodation, therefore, the accommodation in question was granted to respondent No.3.
::: Downloaded on - 28/07/2022 20:04:11 :::CIS 815 What is still worse is that the official-respondents tried to justify the grant of accommodation in favour of .
respondent No.3 on the basis of exigencies of his service.
16 Firstly, there is no provision in the entire rules, which may debar the right of consideration of petitioner for change of accommodation on the ground that he is already in possession of government accommodation. That apart, we really fail to understand how respondent No.3, who, like the petitioner is working as a driver in H.P. Secretariat, is performing more arduous task or duties than the petitioner.
17 As stated above, the allotment in favour of respondent No.3 was made on the basis of D.O. note, (Annexure R-4) issued by the Additional Chief Secretary (Fts.
& Ayur) to the Government of Himachal Pradesh, which was addressed to the Chief Secretary, and a note dated 24.8.2021 appears on the left side of this D.O. note which states "pl. do it", which was marked to Secretary (GAD).
18 This fact has otherwise not been denied during the course of the arguments, meaning thereby that the then Chief Secretary to the Government of Himachal Pradesh has left little or rather no scope for any discretion or decision for the competent authority i.e. Secretary (GAD).
::: Downloaded on - 28/07/2022 20:04:11 :::CIS 919 Additionally, we are at complete loss to appreciate as to how and on what basis, the then Additional Chief .
Secretary (Fts. & Ayur) claimed the premises which were otherwise allotted to respondent No.3 to be in dilapidated condition (refer D.O. Note at Annexure R-4) and how he/she could have directed the allotment of a specific accommodation i.e. Set No. 156 to respondent No.3. Exercise of such extra 20 r to constitutional power does not auger well either with the system much less with the Court.
Despite all this, the official-respondents would have this Court believe that everything was hunky-dory, whereas there has been impropriety, gross irregularity and illegality in the allotment of the accommodation in favour of respondent No.3.
21 It is more than settled that power vested by the State in a public authority should be viewed as a trust coupled with duty to be exercised in larger public and social interest. Power is to be exercised strictly adhering to the statutory provisions and fact-situation of a case. "Public Authorities cannot play fast and loose with the powers vested in them". A decision taken in arbitrary manner contradicts the principle of legitimate expectation. An Authority is under ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 10 a legal obligation to exercise the power reasonably and in good faith to effectuate the purpose for which power stood .
conferred. In this context, "in good faith" means "for legitimate reasons". It must be exercised bona fide for the purpose and for none other. (Refer: Noida entrepreneurs Association vs. Noida & ors., (2011) 6 SCC 508).
22 To say the least, respondent-Department, which is 'State' within the meaning of Article 12 of the Constitution of India and is a public institution has conducted itself of untrustworthiness out of its own mouth by resorting to litigation like a cantankerous litigants by raising technical plea despite knowing fully-well that its decision was wrong.
23 Respondents No. 1 and 2 have acted irresponsibly though they were expected to litigate within expected judicial norms. They like belligerent litigants could not resist the temptation of litigation and have fought their legal battle as if it was a war. The battle otherwise is "uneven" as on one side is a public institution whereas on the other side is a private individual.
24 It must be remembered that the State defined within the ambit of State under Article 12 of the Constitution of India, is not an ordinary party trying to win a case against ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 11 one of its own citizens by hook or by crook. The State's interest is to meet honest claims, vindicate a substantial .
defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity.
25 This Court has no hesitation to conclude that public money has been wasted because of the adamant behaviour of one of the high-ranking officer of the State, who has compelled the official respondents to indulge in litigation only to satisfy his/her personal ego.
26 In Urban Improvement Trust, Bikaner vs. Mohan Lal (2010) 1 SCC 512, the Hon'ble Supreme Court observed that it is a matter of concern that such frivolous and unjust litigations by Governments and statutory authorities are on the increase. It was further observed that statutory authorities which existed for to discharge statutory functions in public interest should be responsible litigants and cannot raise frivolous and unjust objections nor act in a callous and high-handed manner. It would be apposite to refer to the relevant observations, which reads thus:
::: Downloaded on - 28/07/2022 20:04:11 :::CIS 12"5. It is a matter of concern that such frivolous and unjust litigation by governments and statutory .
authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They can not behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.
6. This Court has repeatedly expressed the view that the governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.
7. In Dilbagh Rai Jarry vs. Union of India [1974 (3) SCC 554] where the Hon'ble Supreme Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court (P.P. Abubacker vs. Union of India, AIR 1972 Ker 103, AIR pp. 107-08, para
5)]:(SCC p.562, para 25) "25.......'5. ....."The State, under our Constitution, undertakes economic activities in a vast and widening ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 13 public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for .
the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court.
The lay-out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show-downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957.' "
8. In Madras Port Trust v. Hymanshu International, (1979) 4 SCC 176 the Hon'ble Supreme Court held:
(SCC p. 177, para 2):
"2. .... It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable...."::: Downloaded on - 28/07/2022 20:04:11 :::CIS 14
9. In a three Judge Bench judgment of Bhag Singh & Ors. v. Union Territory of Chandigarh through LAC, .
Chandigarh [(1985) 3 SCC 737]: the Hon'ble Supreme Court held: (SCC p. 741, para 3) "3... The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen."
10. Unwarranted litigation by governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are:
(i) All claims against the government/statutory authorities should be viewed as illegal and should be resisted and fought up to the highest court of the land.
(ii) If taking a decision on an issue could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secures a decision.
The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers in charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision making. Unless their insecurity and fear is addressed, officers will continue to pass on the ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 15 responsibility of decision making to courts and Tribunals."
.
27 In Mahanadi Coalfields Ltd. and another vs. Mathias Oram and others (2010) 11 SCC 269, the Hon'ble Supreme Court observed as under:-
10. The counter argument goes like this. It is very often the process of development that most starkly confirms the fears ex pressed by Dr. Ambedkar about our democracy. A blinkered vision of development, complete apathy towards those who are highly adversely affected by the development process and a cynical unconcern for the enforcement of the laws lead to a situation where the rights and benefits promised and guaranteed under the constitution hardly ever reach the most marginalized citizens.
11. This is not to say that the relevant laws are perfect and very sympathetic towards the dispossessed. There are various studies that detail the impact of dispossession from their lands on tribal people. It is pointed out that even when laws relating to land acquisition and resettlement are implemented perfectly and comprehensively (and that happens rarely!), uncomfortable questions remain. For a people whose lives and livelihoods are intrinsically connected to the land, the economic and cultural shift to a market economy can be traumatic.
28 In Gurgaon Gramin Bank vs. Khazani and another (2012) 8 SCC 781, the Hon'ble Supreme Court ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 16 considered the approach of the Government to litigate and observed as under:-
.
2. Number of litigations in our country is on the rise, for small and trivial matters, people and sometimes Central and State Governments and their instrumentalities Banks, nationalized or private, come to courts may be due to ego clash or to save the Officers' skin. Judicial system is over- burdened, naturally causes delay in adjudication of disputes. Mediation centers opened in various parts of our country have, to some extent, eased the burden of the courts but we are still in the tunnel and the light is far away. On more than one occasion, this court has reminded the Central Government, State Governments and other instrumentalities as well as to the various banking institutions to take earnest efforts to resolve the disputes at their end. At times, some give and take attitude should be adopted or both will sink.
Unless, serious questions of law of general importance arise for consideration or a question which affects large number of persons or the stakes are very high, courts jurisdiction cannot be invoked for resolution of small and trivial matters. We are really disturbed by the manner in which those types of matters are being brought to courts even at the level of Supreme Court of India and this case falls in that category.
29 In Punjab State Power Corporation Ltd., Patiala and others vs. Atma Singh Grewal (2014) 13 SCC 666, the Hon'ble Supreme Court noted the facts that Courts ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 17 are burdened with unnecessary litigation primary for the reason that the Government or Public Sector Undertakings .
etc. decide to litigate even when there is no merit in the claim.
It would be apposite to refer to the relevant observations, which read thus:-
8. It is not the first time that the Court had to express its anguish. We would like to observe that the mind set of the Government agencies/undertakings in filing unnecessarily appeals was taken note of by the Law Commission of India way back in 1973, in its 54th report. Taking cognizance of the aforesaid report of the Law Commission as well as National Litigation Policy for the States which was evolved at an All India Law Ministers Conference in the year 1972, this Court had to emphasize that there should not be unnecessary litigation or appeals. It was so done in the case of Mundrika Prasad Singh v. State of Bihar, 1979 4 SCC
701. We would also like to reproduce the following words of wisdom expressed by Justice V.R. Krishna Iyer, who spoke for the Bench, in Dilbagh Rai Jarry v.
Union of India and Ors., 1974 3 SCC 554.
25............. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, government shows a willingness to settle the dispute regardless of prestige and other lesser ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 18 motivations which move private parties to fight in court. The lay out on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is .
involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic show downs where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of government some initiative and authority in this behalf.
9. In its 126th Report (1988), the Law Commission of India adversely commented upon the reckless manner in which appeals are filed routinely. We quote hereunder the relevant passage therefrom:
2.5. The litigation is thus sometimes engendered by failing to perform duty as if discharging a trust. Power inheres a kind of trust. The State enjoys the power to deal with public property. That power has to be discharged like a trust keeping in view the interests of the cesti que trust. Failure on this front has been more often commented upon by the court which, if it was taken in the spirit in which it was made, would have long back energised the Government and the public sector to draw up its litigation policy. When entirely frivolous litigation reaches the doorsteps of the Supreme Court, one feels exasperated by the inaction and the policy to do nothingness evidenced by blindly following litigation from court to court. Dismissing a Special Leave Petition by the State of Punjab, the Court observed that the deserved defeat of the State in the courts below demonstrates the gross indifference of the administration towards litigative diligence. The court then suggested effective remedial measures. It may be extracted:
4. We would like to emphasize that Government must be made accountable by parliamentary Social audit for wasteful litigative expenditure inflicted on the community by inaction. A statutory notice of the proposed action under Section 80 Code of Civil Procedure is intended to alert the state to negotiate a just settlement or at least have the courtesy to tell the ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 19 potential outsider why the claim is being resisted. Now Section 80 has become a ritual because the administration is often unresponsive and hardly lives up to the parliament's expectation in continuing Section .
80 in the Code despite the Central Law Commission's recommendations for its deletion. An opportunity for setting the dispute through arbitration was thrown away by sheer inaction. A litigative policy for the State involves settlement of governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed, it should be a directive on the part of the State to empower its law officer to take steps to compose disputes rather than continue them in court.
We are constrained to make these observations because much of the litigation in which governments are involved adds to the case load accumulation in courts for which there is public criticism. We hope that a more responsive spirit will be brought to bear upon governmental litigation so as to avoid waste of public money and promote expeditious work in courts of cases which deserve to be attended to.
Nearly a decade has passed since the observations but not a leaf has turned, not a step has been taken, and the Law Commission is asked to deal with the problem.
2.6. A little care, a touch of humanism, a dossier of constitutional philosophy and awareness of futility of public litigation would considerably improve the situation which today is distressing. More often it is found that utterly unsustainable contentions are taken on behalf of Government and public sector undertakings.
10. Even when Courts have, time and again, lamented about the frivolous appeals filed by the Government authorities, it has no effect on the bureaucratic psyche. It is not that there is no realisation at the level of policy makers to curtail unwanted Government litigation and there are deliberations in this behalf from time to time. Few years ago only, the Central Government formulated National Litigation Policy, 2010 with the ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 20 "vision/mission" to transform the Government into an efficient and responsible litigant. This policy formulated by the Central Government is based on the recognition .
that it was its primary responsibility to protect the rights of citizens, and to respect their fundamental rights and in the process it should become "responsible litigant". The policy even defines the expression 'responsible litigant' as under:
Responsible litigant" means-
(i) That litigation will not be resorted to for the sake of litigating.
(ii) That false pleas and technical points will not be taken and shall be discouraged.
(iii) Ensuring that the correct facts and all relevant documents will be placed before the Court.
(iv) That nothing will be suppressed from the Court and there will not attempt to mislead any court or tribunal.
2. That Government must cease to be a compulsive litigant. The philosophy that matters should be left to the courts for ultimate decision has to be discarded. The easy approach, "Let the Court decide", must be eschewed and condemned.
3. The purpose underlying this policy is also to reduce government litigation in courts so that valuable court time would be spent in resolving other pending cases so as to achieve the goal in the national legal mission to reduce average pendency time from 15 years to 3 years. Litigators on behalf of the Government have to keep in mind the principles incorporated in the national mission for judicial reforms which includes identifying bottlenecks which the Government and its agencies may be concerned with and also removing unnecessary government cases. Prioritisation in litigation has to be achieved with particular emphasis on welfare legislation, social reform, weaker sections and senior citizens andother categories requiring assistance must be given utmost priority.
11. This policy recognises the fact that its success will depend upon its strict implementation. Pertinently there is even a provision of accountability on the part of the ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 21 officers who have to take requisite steps in this behalf. The policy also contains the provision for filing of appeals indicating as to under what circumstances .
appeal should be filed. In so far as service matters are concerned, this provision lays down that further proceedings will not be filed in service matters merely because the order of the Administrative Tribunal affects a number of employees. Also, appeals will not be filed to espouse the cause of one section of employees against another.
12. The aforesaid litigation policy was seen as a silver living to club unnecessary and uncalled for litigation by this Court in the matter of Urban Improvement Trust, Bikaner v. Mohan Lal, 2010 1 SCC 512in the following manner:
11. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby eliminating unnecessary litigation.
But it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigations. Vexatious and unnecessary litigations have been clogging the wheels of justice for too long, making it difficult for courts and tribunals to provide easy and speedy access to justice to bona fide and needy litigants.
13. Alas, inspite of the Government's own policy and reprimand from this Court, on numerous occasions, there is no significant positive effect on various Government officials who continue to take decision to file frivolous and vexatious appeals. It imposes unnecessary burden on the Courts. The opposite party ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 22 which has succeeded in the Court below is also made to incur avoidable expenditure. Further, it causes delay in allowing the successful litigant to reap the fruits of the .
judgment rendered by the Court below.
14. No doubt, when a case is decided in favour of a party, the Court can award cost as well in his favour. It is stressed by this Court that such cost should be in real and compensatory terms and not merely symbolic. There can be exemplary costs as well when the appeal is completely devoid of any merit. [See Rameshwari Devi and Ors. v. Nirmala Devi and Ors., 2011 8 SCC 249]. However, the moot question is as to whether imposition of costs alone will prove deterrent? We don't think so. We are of the firm opinion that imposition of cost on the State/PSU's alone is not going to make much difference as the officers taking such irresponsible decisions to file appeals are not personally affected because of the reason that cost, if imposed, comes from the government's coffers. Time has, therefore, come to take next step viz. recovery of cost from such officers who take such frivolous decisions of filing appeals, even after knowing well that these are totally vexatious and uncalled for appeals. We clarify that such an order of recovery of cost from the concerned officer be passed only in those cases where appeal is found to be ex-facie frivolous and the decision to file the appeal is also found to be palpably irrational and uncalled for.
30 In Subrata Roy Sahara vs. Union of India and others (2014) 8 SCC 470, it was observed by the Hon'ble Supreme Court that State and its agencies litigate endlessly ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 23 just because lack of responsibility to take decision. It was observed as under:-
.
This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly up to the highest Court just because of the lack of responsibility to take decisions. So much so that we have started to entertain the impression that all administrative and executive decision-making are being left to courts just for that reason. In private litigation as well, the litigant concerned would continue to approach the higher Court, despite the fact that he had lost in every court hithertobefore. The effort is not to discourage a litigant in whose perception his cause is fair and legitimate. The effort is only to introduce consequences if the litigant's perception was incorrect and if his cause is found to be not fair and legitimate, he must pay for the same. In the present setting of the adjudicatory process, a litigant no matter how irresponsible he is suffers no consequences. Every litigant, therefore, likes to take a chance even when counsel's advice is otherwise.
31 The observations of the Hon'ble Supreme Court in the judicial precedents noted above squarely apply to this litigation generated because of and by the officer, as referred to above.
32 Now adverting to the another facet of the case, The Hon'ble Supreme Court, in Shiv Sagar Tiwari vs. Union of ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 24 India & ors. (1997) 1 SCC 444, has held that even the Minister, if he/she be the repository of discretionary power, .
cannot claim that either there is no discretion or unfettered discretion in the matters regarding allotment of government accommodation.
33 The facts and circumstances of the present case do indicate that it is of utmost public importance that this Government r to matter is examined thoroughly by this Court to ensure that all agencies, entrusted with the discharge their functions and obligations in accordance with duty to law, do so, bearing in mind constantly the concept of equality enshrined in the Constitution and the basic tenet of rule of law, reproducing the words of Thomas Fuller: "Be you ever so high, the law is above you".
34 It is trite that the holders of public offices are entrusted with certain powers to be exercised in public interest alone and, therefore, the office is held by them in trust for the people. Any deviation from the path of rectitude by any of them amounts to a breach of trust and must be severely dealt with instead of being pushed under the carpet.
It is the duty of the judiciary to enforce the rule of law and, therefore, to guard against erosion of the rule of law.
::: Downloaded on - 28/07/2022 20:04:11 :::CIS 2535 Issuance of D.O. note at the instance of aforesaid Additional Chief Secretary is clearly in violation of the Rules .
as also law laid down in Shiv Sagar Tiwari's case (supra).
36 It was observed by Wades Administrative Laws, 5th Edition at page 347 that "The first requirement is the recognition that all powers have legal limits, the next requirement, no less vital, is that the Court should draw this r to limit in a way which strikes the most suitable balance between executive efficiency and legal protection of the citizen.
Parliament consistently confers upon public authorities powers which on their face seem absolute and arbitrary. But arbitrary power and unfettered discretion are what the Courts refuse to countenance. They have woven a net-work of restrictive principles which require statutory powers to be reasonable and in good faith and in accordance with the spirit and letter of the empowering Act."
37 At page 359, it was also observed that "Discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law. That amounts at least to this that the statutory body must be guided by relevant consideration and not irrelevant. If its decision is influenced by extraneous consideration which ought not to have taken into ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 26 account, then the decision cannot stand. No matter that the statutory body may have acted in good faith, nevertheless, the .
decision will be set-aside."
38 Here, it shall be apposite to make a reference to the judgment of the Hon'ble Supreme Court in New India Public School vs.Huda (1996) 5 SCC 510, wherein it was observed that when public authority discharges its public duty, it has to be consistent with the public purpose and clear and unequivocal guidelines or rules are necessary and the same cannot be acted at the whim and fancy of the public authorities or under their garb or cloak for any extraneous consideration.
39 The concept of reasonableness and non-
arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution. Thus, Article 14 read with Article 16(1) of the Constitution accords right to an equality or an equal treatment consistent with principles of natural justice.
Therefore, any law made or action taken by the employer, corporate statutory or instrumentality under Article 12 must act fairly and reasonably. Right to fair treatment is an essential inbuilt of natural justice.
::: Downloaded on - 28/07/2022 20:04:11 :::CIS 2740 Thus, what can be deduced from the aforesaid exposition of law is that procedure for allotment has to be .
fair, reasonable, non-discriminatory, transparent, non-
capricious and should not suffer from favouritism or nepotism and must not be violative of the mandate of Article 14 of the Constitution.
41 Deeds as foul as these are inconceivable much less could be permitted to be perpetrated. Shakespeare aptly described such sordid affairs in the following manners: thus much of this, will make Black, white; foul, fair; Wrong, right;
Base, noble; Ha, you gods: why this?
42 As observed earlier, it is highly regrettable that the high-ranking officer of the State has been completely oblivious to the fact that the office entrusted to him/her is sacred trust and is meant for use and not for abuse.
43 The holders of the office cannot act as despots or monarchs and are obliged to act in accordance with the principles of democracy, equity, equality and solidarity and above all, in accordance with the Rules governing the field.
44 It is because of sharp and illegal practices being followed by such officer that the petitioner has been deprived of accommodation to which, he was legitimately entitled to.
::: Downloaded on - 28/07/2022 20:04:11 :::CIS 2845 The entire scenario shocks the conscious of this Court to come across such a systematic fraud committed by .
those who are at the helm of these affairs. The allotment of accommodation, as observed above, had to be in accordance with the Rules, that too, in a fair and transparent manner without indulging in any favourtism or nepotism.
46 Respondents No. 1 and 2 have failed to take into consideration that discretion can only be exercised if there is a power to do so and the same otherwise cannot be contrary to law. The absence of arbitrary power is the first postulate of rule of law upon which whole constitutional edifice is based.
In a system governed by law, discretion when conferred upon an executive authority must be confined within clearly defined limits. If the discretion is exercised without any principle or without any rule, it is a situation amounting to the antithesis of rule of law. Discretion means sound discretion guided by law or governed by known principles of rules, not by whim or fancy or caprice of the authority.
47 Thus, what can be taken to be well settled is that an unfettered discretion is a sworn enemy of the constitutional guarantee against discrimination. No authority, be it administrative or judicial has any power to exercise the ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 29 discretion vested in it unless the same is based on justifiable grounds supported by acceptable materials and reasons .
thereof.
48 The concept of equality before law means that among equals the law should be equal and should be equally administered, and that like should be treated alike. There must not be discrimination among equals unless there is reasonable classification. When something is to be done within the discretion of the authorities, it must not be done according to the whims of the authorities. Article 14 of the Constitution is violated by powers and procedures which in themselves result in unfairness and arbitrariness. It must be remembered that our entire constitutional system is founded in the rule of law, and in any system so designed it is impossible to conceive of legitimate power which is arbitrary in character and travels beyond the bounds of reason.
49 Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 30 of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic .
and constitutional law and it therefore violative of Article 14.
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non- arbitrariness pervades Article 14 like a brooding omnipresence.
50 Unfortunately, this is not a solitary case, where the official-respondents have been found to be openly and shamelessly violating the Rules. There have been many occasions, where this Court has been constrained to even suspend the powers of the government in the matter of allotment of accommodation only because there were large scale of bungling and irregularities in the same and it is nothing short of a "scam".
51 We may refer to few of decisions of this Court -
CWP No.2879/2019, titled as Kamlesh Gautam vs. State of H.P. & ors., decided on 8.7.2021, CWP No. 139/2020, titled as Vandana Sharma vs. State of H.P. & ors., decided on 30.10.2020, CWPOA No.4599/2019, titled as Harbans Lal vs. State of H.P. & ors, decided on ::: Downloaded on - 28/07/2022 20:04:11 :::CIS 31 22.10.2021, CWP No. 146/2001, titled as Shashi Vikrant, decided on 4.3.2008 - where the action of the .
official-respondents has been successfully questioned and set aside.
52 In view of the aforesaid discussions and for the reasons stated hereinabove, we find merit in the instant petition and the same is accordingly allowed and the respondents No. 1 and 2 are directed to vacate the accommodation of respondent No.3 on or before 2.8.2022 at 10.00 A.M. by handing over the vacant and peaceful possession to respondent No.2, who, thereafter shall ensure that the accommodation in question is fully habitable with proper electricity and water connection and hand over the same to the petitioner latest by 16.8.2022.
53 For compliance, to come up on 18.8.2022.
54 The official-respondents are directed to ensure that henceforth there is a fair and transparent procedure adopted by them in matters of allotment of accommodation which shall be strictly in conformity and compliance of the H.P. Allotment of Government Residential (General Pool) Rules, 1994.
::: Downloaded on - 28/07/2022 20:04:11 :::CIS 3255 The details of application as per "first come first serve" and other details shall, along with the order(s) of .
allotment made from time to time, be uploaded on the official website within 24 hours of the order(s) of allotment.
(Tarlok Singh Chauhan) Judge 28th July 2022.
(Pankaj)
r to (Sandeep Sharma)
Judge
::: Downloaded on - 28/07/2022 20:04:11 :::CIS