Rishi Chandel Vs Hon''ble High Court of H.P.

Tarlok Singh Chauhan, J.@mdashBy way of this writ petition, the petitioner has prayed for the following substantive reliefs:--

"i) That the petitioner may be held entitled for the post of Clerk against the vacancy available with the Hon''ble High Court of Himachal Pradesh on the acceptance of resignation of Mr. Saurav Banyal, in the month of October, 2013, with all consequential benefits.

A(i) That rejection conveyed to the petitioner vide rejection dated 2.4.2014 supplied to the petitioner on 2nd December, 2014 may kindly be quashed and set aside with all consequential benefits."

The facts in brief may be noticed.

2. The respondent issued an advertisement on 11.5.2012, inviting applications for 21 clear-cut vacancies of clerks and few anticipated vacancies. The petitioner, after clearing the test, was placed at Sr. No. 6 of the waiting list. Vide order, dated 5th December, 2012, 25 persons came to be appointed as clerks. Few of the appointed persons thereafter resigned and persons from Sr. No. 1 to 5 of the waiting list came to be appointed in their place.

3. One vacancy of clerk became available on 15.10.2013 with resignation of one of the appointed candidates. The petitioner, who was next in the waiting list, was not offered appointment and the post was sought to be filled up by way of fresh selection, for which an advertisement was issued in the daily newspaper. It is this action of the respondent that is being challenged by the petitioner as being illegal, unjust and against Article 14 of the Constitution of India. It is claimed that the petitioner has an indefeasible right of being appointed and cannot be deprived of the same by giving an arbitrary and step-motherly treatment.

4. The respondent has contested the claim of the petitioner by filing a reply, wherein preliminary objections regarding maintainability of the petition, the same being bad for non-joinder of necessary parties, the petitioner having no right and the vacancies having been exhausted, have been raised. On merits, these preliminary objections have been elaborated and it is stated that merely because name of the petitioner found mentioned at Sr. No. 6 of the waiting list, would not in itself confer any right upon the petitioner, more particularly when the panel prepared had already exhausted on 5/6th December, 2012. It is further stated that the respondent had taken a conscious decision for inviting fresh applications for the post of clerks instead of filling up these posts from the waiting list.

5. I have heard learned counsel for the parties and have gone through the record of the case.

6. Mrs. Ranjana Parmar, learned counsel for the petitioner has strenuously argued that in absence of reasons, the impugned order is not sustainable. On the other hand, Mr. Ajay Mohan Goel, learned counsel for the respondent has vehemently argued that in such like cases, there is no duty cast upon the respondent to give reasons and the same can be gathered from the records.

7. There can be no dispute that there is no rule or administrative order for recording reasons for rejecting the representation, but then the competent authority cannot act arbitrarily and is required to act in a fair and just manner. If the representation is rejected after its consideration in a fair and just manner, the order of rejection would not be rendered illegal merely on the ground of absence of reasons. In the absence of any statutory and administrative instructions requiring the competent authority to record reasons or to communicate reasons, no exception can be taken to the order rejecting representation merely on the ground of absence of reasons. Therefore, no order of an administrative authority communicating its decision is rendered illegal on the ground of absence of reasons ex-facie and it is not open to the Court to interfere with such orders merely on the ground of absence of such reasons. However, it does not mean that the administrative authority is at liberty to pass orders without there being any reasons for the same, more particularly, when the matter like in the present case is considered at various levels and the reasons and opinions are contained in the nothings of the file. The reasons contained in the file would otherwise enable the competent authority to formulate its opinion. But, when the competent authority passes an order bereft and devoid of any reasons and contrary to the recommendations made on the file, then the position would definitely be different. In all other cases where such an order is challenged in a Court of law, it is always open to the competent authority to place reasons before the Court which may lead to the rejection of the representation. It is always open to the administrative authority to produce evidence aliunde before the Court to justify its action, but as observed earlier, this course would only be open in case the records support such a conclusion. But, in the present case not only the respondent has failed to place reasons before this Court, there is no contemporaneous official records or nothings which may show what reasons prevailed in passing the impugned orders. The reasons are not only forthcoming but are also not discernible from the records produced before the Court. The records produced by the respondent before the Court for perusal would show that the name of the petitioner was recommended by all the officials concerned, but was turned down by the respondent holding that no appointment of Clerks could be made from the waiting list.

8. It cannot be disputed that rejection of the representation of the petitioner has affected his right. Therefore, in such a situation, it was imperative upon the respondent to have rejected his claim by passing a speaking order. In taking this view, I am supported by the decision of the Hon''ble Supreme Court in Kranti Associates Pvt. Ltd. and Another Vs. Sh. Masood Ahmed Khan and Others, (2010) 9 JT 362 : (2010) 9 SCC 496 : (2010) 10 SCR 1070 : (2010) 8 UJ 4022 wherein it has been held as under:--

"12. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of demarcation between administrative orders and quasi-judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak and Others Vs. Union of India (UOI) and Others, AIR 1970 SC 150 : (1969) 2 SCC 262 : (1970) 1 SCR 457 .

13. In The Keshav Mills Co. Ltd. and Another Vs. Union of India (UOI) and Others, AIR 1973 SC 389 : (1973) 1 SCC 380 : (1973) 3 SCR 22 : (1973) 5 UJ 502 , this Court approvingly referred to the opinion of Lord Denning in R vs. Gaming Board for Great Britain ex p Benaim (1970) 2 WLR 1009 and quoted him as saying "that heresy was scotched in Ridge v. Boldwin, 1964 AC 40".

14. The expression ''speaking order'' was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of Writ of Certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a speaking order. (See pp. 1878-97 Vol. 4 Appeal Cases 30 at 40 of the report).

15. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the "inscrutable face of a Sphinx".

16. In Harinagar Sugar Mills Ltd. Vs. Shyam Sundar Jhunjhunwala and Others, AIR 1961 SC 1669 : (1961) 31 CompCas 387 : (1962) 2 SCR 339 , the question of recording reasons came up for consideration in the context of a refusal by Harinagar to transfer, without giving reasons, shares held by Shyam Sunder. Challenging such refusal, the transferee moved the High Court contending, inter alia, that the refusal is mala fide, arbitrary and capricious. The High Court rejected such pleas and the transferee was asked to file a suit. The transferee filed an appeal to the Central Government under Section 111(3) of Indian Companies Act, 1956 which was dismissed. Thereafter, the son of the original transferee filed another application for transfer of his shares which was similarly refused by the Company. On appeal, the Central Government quashed the resolution passed by the Company and directed the Company to register the transfer. However, in passing the said order, Government did not give any reason. The company challenged the said decision before this Court.

17. The other question which arose in Harinagar was whether the Central Government, in passing the appellate order acted as a tribunal and is amenable to Article 136 jurisdiction of this Court.

18. Even though in Harinagar the decision was administrative, this Court insisted on the requirement of recording reason and further held that in exercising appellate powers, the Central Government acted as a tribunal in exercising judicial powers of the State and such exercise is subject to Article 136 jurisdiction of this Court. Such powers, this Court held, cannot be effectively exercised if reasons are not given by the Central Government in support of the order (AIR pp 1678-79, para 23).

19. Again in Bharat Raja Vs. The Union of India (UOI) and Others, AIR 1967 SC 1606 : (1967) 3 SCR 302 , the Constitution Bench of this Court examined the question whether the Central Government was bound to pass a speaking order while dismissing a revision and confirming the order of the State Government in the context of Mines and Minerals (Regulation and Development) Act, 1957, and having regard to the provision of Rule 55 of Mineral and Concessions Rules. The Constitution Bench held that in exercising its power of revision under the aforesaid Rule the Central Government acts in a quasi-judicial capacity (AIR para 8 p. 1610). Where the State Government gives a number of reasons some of which are good and some are not, and the Central Government merely endorses the order of the State Government without specifying any reason, this Court, exercising its jurisdiction under Article 136, may find it difficult to ascertain which are the grounds on which Central Government upheld the order of the State Government (See AIR para 9 page 1610). Therefore, this Court insisted on reasons being given for the order.

20. In Mahabir Prasad Santosh Kumar Vs. State of Uttar Pradesh and Others, AIR 1970 SC 1302 : (1970) 1 SCC 764 : (1971) 1 SCR 201 , while dealing with U.P. Sugar Dealers License Order under which the license was cancelled, this Court held that such an order of cancellation is quasi-judicial and must be a speaking one. This Court further held that merely giving an opportunity of hearing is not enough and further pointed out where the order is subject to appeal, the necessity to record reason is even greater. The learned Judges held that the recording of reasons in support of a decision on a disputed claim ensures that the decision is not a result of caprice, whim or fancy but was arrived at after considering the relevant law and that the decision was just. (See AIR para 7 page 1304).

21. In Travancore Rayon Ltd. Vs. Union of India (UOI), AIR 1971 SC 862 : (1978) 2 ELT 378 : (1969) 3 SCC 868 : (1970) 3 SCR 40 , the Court, dealing with the revisional jurisdiction of the Central Government under the then Section 36 of the Central Excise and Salt Act, 1944, held that the Central Government was actually exercising judicial power of the State and in exercising judicial power reasons in support of the order must be disclosed on two grounds. The first is that the person aggrieved gets an opportunity to demonstrate that the reasons are erroneous and secondly, the obligation to record reasons operates as a deterrent against possible arbitrary action by the executive authority invested with the judicial power (See AIR para 11 page 865-866).

22. In Woolcombers of India Ltd. Vs. Woolcombers Workers Union and Another, AIR 1973 SC 2758 : (1973) LabIC 1613 : (1974) 1 LLJ 138 : (1974) 3 SCC 318 : (1974) 1 SCR 504 , this Court while considering an award under Section 11 of Industrial Disputes Act insisted on the need of giving reasons in support of conclusions in the Award. The Court held that the very requirement of giving reason is to prevent unfairness or arbitrariness in reaching conclusions. The second principle is based on the jurisprudential doctrine that justice should not only be done, it should also appear to be done as well. The learned Judges said that a just but unreasoned conclusion does not appear to be just to those who read the same. Reasoned and just conclusion on the other hand will also have the appearance of justice. The third ground is that such awards are subject to Article 136 jurisdiction of this Court and in the absence of reasons, it is difficult for this Court to ascertain whether the decision is right or wrong (See AIR para 5 page 2761).

23. In Union of India (UOI) Vs. Mohan Lal Capoor and Others, AIR 1974 SC 87 : (1973) 2 LLJ 504 : (1973) 2 SCC 836 : (1974) 1 SCR 797 , this Court while dealing with the question of selection under Indian Administrative Service/Indian Police Service (Appointment by Promotion) Regulations held that the expression "reasons for the proposed supersession" should not be mere rubber stamp reasons. Such reasons must disclose how mind was applied to the subject matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons in such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two (See AIR paras 27 - 28 page 97-98).

24. In The Siemens Engineering and Manufacturing Co. of India Ltd. Vs. The Union of India (UOI) and Another, AIR 1976 SC 1785 : (1976) 2 SCC 981 : (1976) SCR 489 Supp , this Court held that it is far too well settled that an authority in making an order in exercise of its quasi-judicial function, must record reasons in support of the order it makes. The learned Judges emphatically said that every quasi-judicial order must be supported by reasons. The rule requiring reasons in support of a quasi-judicial order is, this Court held, as basic as following the principles of natural justice. And the rule must be observed in its proper spirit. A mere pretence of compliance would not satisfy the requirement of law (See AIR para 6 page 1789).

25. In Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another, AIR 1978 SC 597 : (1978) 1 SCC 248 : (1978) 2 SCR 621 , which is a decision of great jurisprudence significance in our Constitutional law, Chief Justice Beg, in a concurring but different opinion held that an order impounding a passport is a quasi-judicial decision (AIR Para 34, page 612). The learned Chief Justice also held when an administrative action involving any deprivation of or restriction on fundamental rights is taken, the authorities must see that justice is not only done but manifestly appears to be done as well. This principle would obviously demand disclosure of reasons for the decision.

26. Y.V. Chandrachud, J. (as Hs Lordship then was) in a concurring but a separate opinion also held that refusal to disclose reasons for impounding a passport is an exercise of an exceptional nature and is to be done very sparingly and only when it is fully justified by the exigencies of an uncommon situation. The learned Judge further held that law cannot permit any exercise of power by an executive to keep the reasons undisclosed if the only motive for doing so is to keep the reasons away from judicial scrutiny. (See AIR para 39 page 613).

27. In Rama Varma Bharathan Thampuram Vs. State of Kerala and Others, AIR 1979 SC 1918 : (1979) 4 SCC 782 : (1980) 1 SCR 136 : (1979) 11 UJ 743 , V.R. Krishna Iyer, J. speaking for a three-Judge Bench held that the functioning of the Board was quasi-judicial in character. One of the attributes of quasi-judicial functioning is the recording of reasons in support of decisions taken and the other requirement is following the principles of natural justice. Learned Judge held that natural justice requires reasons to be written for the conclusions made (See AIR para 14 page 1922).

28. In Gurdial Singh Fijji Vs. State of Punjab and Others, AIR 1979 SC 1622 : (1979) LabIC 1186 : (1979) 2 SCC 368 : (1979) 3 SCR 518 , this Court, dealing with a service matter, relying on the ratio in Capoor (supra), held that "rubber-stamp reason" is not enough and virtually quoted the observation in Capoor (supra) to the extent that: (Capoor Case, SCC p. 854, para 28)

"28....Reasons are the links between the materials on which certain conclusions are based and the actual conclusions" (See AIR para 18page 377).

29. In a Constitution Bench decision of this Court in H.H. Shri Swamiji of Shri Amar Mutt and Others Vs. Commissioner, Hindu Religious and Charitable Endowments Department and Others, AIR 1980 SC 1 : (1979) 4 SCC 642 : (1980) 1 SCR 368 , while giving the majority judgment Y.V. Chandrachud, CJ, referred to (SCC p. 658, 29) Broom''s Legal Maxims (1939 Edition, page 97) where the principle in Latin runs as follows:

"Cessante Ratione Legis Cessat Ipsa Lex"

30. The English version of the said principle given by the Chief Justice is that:(H.H. Shri Swamiji case, SCC p. 658, para 29)

"29......'' reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself''." (See AIR para 29 page 11)

31. In Bombay Oil Industries Pvt. Ltd. Vs. Union of India (UOI) and Others, AIR 1984 SC 160 : (1984) 1 CompLJ 57 : (1983) 2 SCALE 816 : (1984) 1 SCC 141 : (1984) 1 SCR 815 , this Court held that while disposing of applications under Monopolies and Restrictive Trade Practices Act the duty of the Government is to give reasons for its order. This court made it very clear that the faith of the people in administrative tribunals can be sustained only if the tribunals act fairly and dispose of the matters before them by well considered orders. In saying so, this Court relied on its previous decisions in Capoor (supra) and Siemens Engineering (supra), discussed above.

32. In Ram Chander Vs. Union of India (UOI) and Others, AIR 1986 SC 1173 : (1986) 2 LLJ 334 : (1986) 1 SCALE 998 : (1986) 3 SCC 103 : (1986) 2 SCR 980 : (1986) 2 SLJ 249 , this Court was dealing with the appellate provisions under the Railway Servants (Discipline and Appeal) Rules, 1968 condemned the mechanical way of dismissal of appeal in the context of requirement of Rule 22(2) of the aforesaid Rule. This Court held that the word "consider" occurring to the Rule 22(2) must mean the Railway Board shall duly apply its mind and give reasons for its decision. The learned Judges held that the duty to give reason is an incident of the judicial process and emphasized that in discharging quasi-judicial functions the appellate authority must act in accordance with natural justice and give reasons for its decision (AIR Para 4, page 1176).

33. In Star Enterprises and Others Vs. City and Industrial Development Corporation of Maharashtra Ltd. and Others, (1991) 71 CompCas 1 : (1990) 2 CompLJ 138 : (1990) 2 JT 401 : (1990) 98 PLR 264 : (1990) 3 SCC 280 : (1990) 2 SCR 826 : (1990) 1 UJ 728 , a three-Judge Bench of this Court held that in the present day set up judicial review of administrative action has become expansive and is becoming wider day by day and the State has to justify its action in various field of public law. All these necessitate recording of reason for executive actions including the rejection of the highest offer. This Court held that disclosure of reasons in matters of such rejection provides an opportunity for an objective review both by superior administrative heads and for judicial process and opined that such reasons should be communicated unless there are specific justification for not doing so (see SCC Para 10, page 284-85).

34. In Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others, (1991) 2 JT 296 : (1991) 1 SCALE 187 : (1991) 2 SCC 716 : (1991) 1 SCR 773 , this Court held that even in domestic enquiry if the facts are not in dispute non-recording of reason may not be violative of the principles of natural justice but where facts are disputed necessarily the authority or the enquiry officer, on consideration of the materials on record, should record reasons in support of the conclusion reached (see SCC para 22, pages 738-39)

35. In M.L. Jaggi Vs. Mahanagar Telephones Nigam Ltd. and others, (1996) 1 AD 454 : AIR 1996 SC 2476 : (1996) 1 JT 215 : (1996) 1 SCALE 247 : (1996) 3 SCC 119 : (1996) 1 SCR 25 : (1996) 1 UJ 531 , this Court dealt with an award under Section 7 of the Telegraph Act and held that since the said award affects public interest, reasons must be recorded in the award. It was also held that such reasons are to be recorded so that it enables the High Court to exercise its power of judicial review on the validity of the award (see SCC para 8, page 123).

36. In Charan Singh Vs. Healing Touch Hospital and Others, AIR 2000 SC 3138 : (2000) 1 JT 26 Supp : (2000) 6 SCALE 431 : (2000) 7 SCC 668 : (2000) 3 SCR 337 Supp : (2001) 1 UJ 329 : (2000) AIRSCW 3409 : (2000) 6 Supreme 321 , a three-Judge Bench of this Court, dealing with a grievance under CP Act, held that the authorities under the Act exercise quasi-judicial powers for redressal of consumer disputes and it is, therefore, imperative that such a body should arrive at conclusions based on reasons. This Court held that the said Act, being one of the benevolent pieces of legislation, is intended to protect a large body of consumers from exploitation as the said Act provides for an alternative mode for consumer justice by the process of a summary trial. The powers which are exercised are definitely quasi-judicial in nature and in such a situation the conclusions must be based on reasons and held that requirement of recording reasons is "too obvious to be reiterated and needs no emphasizing". (See AIR Para 11, page 3141 of the report)

37. Only in cases of Court Martial, this Court struck a different note in two of its Constitution Bench decisions, the first of which was rendered in the case of Som Datt Datta Vs. Union of India (UOI) and Others, AIR 1969 SC 414 : (1969) CriLJ 663 : (1969) 2 SCR 177 , where Ramaswami, J. delivering the judgment for the unanimous Constitution Bench held that provisions of Sections 164 and 165 of the Army Act do not require an order confirming proceedings of Court Martial to be supported by reasons. The Court held that an order confirming such proceedings does not become illegal if it does not record reasons. (AIR Para 10, page S 421-22 of the report).

38. About two decades thereafter, a similar question cropped up before this Court in the case of S.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 : (1990) CriLJ 2148(1) : (1990) 3 JT 630 : (1990) 4 SCC 594 : (1990) 1 SCR 44 Supp : (1991) 1 SLJ 1 . A unanimous Constitution Bench speaking through S.C. Agrawal, J. confirmed its earlier decision in Som Datt in S.N. Mukherjee case, SCC p. 619,para 47 of the report and held reasons are not required to be recorded for an order confirming the finding and sentence recorded by the Court Martial.

39. It must be remembered in this connection that the Court Martial as a proceeding is sui generis in nature and the Court of Court Martial is different, being called a Court of Honour and the proceeding therein are slightly different from other proceedings. About the nature of Court Martial and its proceedings the observations of Winthrop in Military Law and Precedents are very pertinent and are extracted herein below:

"Not belonging to the judicial branch of the Government, it follows that courts-martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as Commander-in-Chief to aid him in properly commanding the Army and Navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives."

40. Our Constitution also deals with Court Martial proceedings differently as is clear from Articles 33, 136(2) and 227(4) of the Constitution.

41. In England there was no common law duty of recording of reasons. In Marta Stefan vs. General Medical Council, (1999) 1 WLR 1293, it has been held (WLR page 1300)

the established position of the common law is that there is no general duty imposed on our decision makers to record reasons.

It has been acknowledged in the Justice Report, Administration Under Law (1971) at page 23 that

"No single factor has inhibited the development of English administrative law as seriously as the absence of any general obligation upon public authorities to give reasons for their decisions".

42. Even then in R. vs. Civil Service Appeal Board, ex p Cunningham (1991) 4 All ER 310, Lord Donaldson, Master of Rolls, opined very strongly in favour of disclosing of reasons in a case where the Court is acting in its discretion. The learned Master of Rolls said: (All ER page 317)

".... ''..... It is a corollary of the discretion conferred upon the board that it is their duty to set out their reasoning in sufficient form to show the principles on which they have proceeded Adopting Lord Lane CJ''s observations (in R vs. Immigration Appeal Tribunal, ex p Khan (Mahmud) , [1983] 2 All ER 420 at 423, (1983) QB 790 at 794-795) , the reasons for the lower amount is not obvious. Mr. Cunningham is entitled to know, either expressly or inferentially stated, what it was to which the board were addressing their mind in arriving at their conclusion. It must be obvious to the board that Mr. Cunningham is left with a burning sense of grievance. They should be sensitive to the fact that he is left with a real feeling of injustice, that having been found to have been unfairly dismissed, he has been deprived of his just desserts (as he sees them).''"

43. The learned Master of Rolls further clarified by saying: (Civil Service Appeal Board Case, All ER 317)

"..... ''....Thus, in the particular circumstances of this case, and without wishing to establish any precedent whatsoever, I am prepared to spell out an obligation on this board to give succinct reasons, if only to put the mind of Mr. Cunningham at rest. I would therefore allow this application.''"

44. But, however, the present trend of the law has been towards an increasing recognition of the duty of Court to give reasons (See North Range Shipping Limited vs. Seatrans Shipping Corporation, , (2002) 1 WLR 2397) . It has been acknowledged that this trend is consistent with the development towards openness in Government and judicial administration.

45. In English vs. Emery Reimbold and Strick Limited, , (2002) 1 WLR 2409, it has been held that justice will not be done if it is not apparent to the parties why one has won and the other has lost. The House of Lords in Cullen vs. Chief Constable of the Royal Ulster Constabulary, (2003) 1 WLR 1763 , Lord Bingham of Cornhill and Lord Steyn, on the requirement of reason held:(WLR p. 1769, para 7)

"7......First, they impose a discipline ... which may contribute to such decisions being considered with care. Secondly, reasons encourage transparency ... Thirdly, they assist the Courts in performing their supervisory function if judicial review proceedings are launched."

46. The position in the United States has been indicated by this Court in S.N. Mukherjee in SCC p. 602, para 11 of the judgment. This Court held that in the United States the Courts have always insisted on the recording of reasons by administrative authorities in exercise of their powers. It was further held that such recording of reasons is required as "the Court cannot exercise their duty of review unless they are advised of the considerations underlying the action under review". In S.N. Mukherjee this court relied on the decisions of the U.S. Court in Securities and Exchange Commission vs. Chenery Corporation, (1942) 87 Law Ed 626 and Dunlop vs. Bachowski, (1975) 44 Law Ed 377 in support of its opinion discussed above.

47. Summarizing the above discussion, this Court holds:

(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.

(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 life blood 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 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 Harward 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, wherein the Court referred to Article 6 of European Convention of Human Rights which requires.

"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 apart of "Due Process".

9. The necessity of recording reasons by the administrative authority was re-empahsised by the Hon''ble Supreme Court in Ravi Yashwant Bhoir Vs. District Collector, Raigad and Others, AIR 2012 SC 1339 : (2012) 3 SCALE 303 : (2012) 4 SCC 407 : (2012) 2 SLJ 353 : (2012) AIRSCW 1877 : (2012) 2 Supreme 506 wherein it has been held as under:--

"38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order.

39. In Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others, AIR 1991 SC 537 : (1990) 4 JT 211 : (1991) 1 SCC 212 : (1990) 1 SCR 625 Supp : (1991) 1 UJ 645 this Court has observed as under: (SCC p. 243, para 36).

"36......Every State action may 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 the trite law that ''be you ever so high, the laws are above you''. This is what men in power must remember, always."

40. In LIC of India and Another Vs. Consumer Education and Research center and Others, AIR 1995 SC 1811 : (1995) 84 CompCas 168 : (1995) 4 JT 366 : (1995) 3 SCALE 627 : (1995) 5 SCC 482 : (1995) 1 SCR 349 Supp : (1995) 2 UJ 442 this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision. "Duty to act fairly" is part of fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India (UOI) Vs. Mohan Lal Capoor and Others, AIR 1974 SC 87 : (1973) 2 LLJ 504 : (1973) 2 SCC 836 : (1974) 1 SCR 797 and Mahesh Chandra Vs. Regional Manager, U.P. Financial Corporation and others, AIR 1993 SC 935 : AIR 1992 SC 935 : (1993) 78 CompCas 1 : (1992) 2 CompLJ 89 : (1992) 2 JT 326 : (1992) 1 SCALE 388 : (1993) 2 SCC 279 : (1992) 1 SCR 616 .

41. In State of West Bengal Vs. Atul Krishna Shaw and Another, AIR 1990 SC 2205 : (1990) 2 SCALE 406 : (1991) 1 SCC 414 Supp : (1990) 1 SCR 91 Supp : (1990) 2 UJ 681 , this Court observed that : (SCC p. 421, para 7)

"7.... Giving of reasons is an essential element of administration of justice. A right to reason is, therefore, an indispensable part of sound system of judicial review."

42. In S.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 : (1990) CriLJ 2148(1) : (1990) 3 JT 630 : (1990) 4 SCC 594 : (1990) 1 SCR 44 Supp : (1991) 1 SLJ 1 , it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for requirement to record reasons as to it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.

43. In Krishna Swami Vs. Union of India and another, AIR 1993 SC 1407 : (1992) 5 JT 92 : (1992) 1 SCALE 484 : (1992) 4 SCC 605 : (1992) 1 SCR 53 Supp , this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne out from the record The Court further observed: (SCC p. 637, para 47).

"47......Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21".

44. This Court while deciding the issue in Sant Lal Gupta and Others Vs. Modern Co-operative Group Housing Society Ltd. and Others, (2010) 11 JT 273 : (2010) 11 SCALE 27 : (2010) 13 SCC 336 : (2010) 9 UJ 4781 : (2011) AIRSCW 31 : (2010) AIRSCW 7184 : (2010) 6 Supreme 795 , placing reliance on its various earlier judgments held as under: (SCC pp. 345-46, para 27).

"27. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice.

''3.... The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind''.

The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before the higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected must know why his application has been rejected."

45. In Institute of Chartered Accountants of India Vs. L.K. Ratna and Others, AIR 1987 SC 71 : (1987) 61 CompCas 266 : (1986) 3 CompLJ 352 : (1986) 57 CTR 121 : (1987) 164 ITR 1 : (1986) 1 JT 671 : (1986) 2 SCALE 614 : (1986) 4 SCC 537 : (1986) 3 SCR 1049 , this Court held that on charge of misconduct the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: (SCC p. 558, para 30).

"30..... In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under Section 22-A of the Act. To exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilty of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a ''finding''. Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding."

46. The emphasis on recording reason 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 reason is an indispensable part of a sound judicial system, reasons at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out the reasons for the order made, in other words, a speaking out. The inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance."

10. 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 exercise powers of judicial review in adjudging the validity of the decision. This was so held by the Hon''ble Supreme Court in Director, Horticulture Punjab and Others Vs. Jagjivan Parshad, (2008) 3 CLT 122 : (2008) 117 FLR 777 : (2008) 4 JT 571(1) : (2008) 6 SCALE 103 : (2008) 5 SCC 539 : (2008) 2 SCC(L&S) 121 : (2008) AIRSCW 2858 : (2008) 7 Supreme 479 , the relevant paragraphs read thus:--

"7. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court''s judgment not sustainable.

8. We find that the writ petition involved disputed issues regarding eligibility. The manner in which the High Court has disposed of the writ petition shows that the basic requirement of indicating reasons was not kept in view and is a classic case of non-application of mind. This Court in several cases has indicated the necessity for recording reasons.

9. "15.......Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union (1971) 1 All ER 1148 observed: (All ER p. 1154h) ''The giving of reasons is one of the fundamentals of good administration.'' In Alexander Machinery (Dudley) Ltd. v. Crabtree (19741 CR 120) it was observed:

"Failure to give reasons amounts to denial of justice. 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 reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The ''inscrutable face of the sphinx'' is ordinarily incongruous with a judicial or quasi-judicial performance (See: Chairman and Managing Director, United Commercial Bank and Others Vs. P.C. Kakkar, AIR 2003 SC 1571 : (2003) 96 FLR 1067 : (2003) 2 JT 78 : (2003) 2 LLJ 181 : (2003) 2 SCALE 42 : (2003) 4 SCC 364 : (2003) SCC(L&S) 468 : (2003) 1 SCR 1034 : (2003) 2 SLJ 65 : (2003) AIRSCW 944 : (2003) 2 Supreme 93 ."

11. The juristic basis underlying the requirement that the Courts and indeed all such authorities as exercise the power to determine the rights and obligations of individuals must give reasons in support of their orders has been examined in detail by the Hon''ble Supreme Court in Maya Devi (dead) through Lrs. Vs. Smt. Raj Kumari Batra (dead) through Lrs. and Others, (2011) 111 CLT 118 : (2010) 9 JT 602 : (2010) 9 SCC 486 : (2010) 10 SCR 1113 wherein it has been held as under:--

"22........In M/s. Hindustan Times Limited Vs. Union of India and Others, (1998) 1 JT 18(1) : (1998) 1 SCALE 34 : (1998) 2 SCC 242 : (1998) 1 SCR 4 : (1998) 1 UJ 368 : (1998) AIRSCW 352 : (1998) 1 Supreme 174 the need to give reasons has been held to arise out of the need to minimize chances of arbitrariness and induce clarity.

23. In Arun Damka Vs. Additional Inspector-general of Police and Another, AIR 1986 SC 1497 : (1986) 2 LLJ 302 : (1986) 1 SCALE 796 : (1986) 3 SCC 696 : (1986) 2 SCR 1101 : (1986) 2 SLJ 263 : (1986) 2 UJ 89 the recording of reasons in support of the order passed by the High Court has been held to inspire public confidence in administration of justice, and help the Apex Court to dispose of appeals filed against such orders.

24. In Union of India (UOI) and Others Vs. Jai Prakash Singh and Another, AIR 2007 SC 1363 : (2007) 4 SCALE 299 : (2007) 10 SCC 712 : (2007) AIRSCW 1692 , reasons were held to be live links between the mind of the decision maker and the controversy in question as also the decision or conclusion arrived at.

25. In The Secretary and Curator, Victoria Memorial Hall Vs. Howrah Ganatantrik Nagrik Samity and Others, AIR 2010 SC 1285 : (2010) 2 JT 566 : (2010) 2 SCALE 739 : (2010) 3 SCC 732 : (2010) 4 SCR 190 : (2010) 3 UJ 1540 , reasons were held to be the heartbeat of every conclusion, apart from being an essential feature of the principles of natural justice, that ensure transparency and fairness, in the decision making process.

26. In Ram Phal Vs. The State of Haryana and Others, (2009) 121 FLR 735 : (2009) 2 SCALE 285 : (2009) 3 SCC 258 : (2009) 1 SCC(L&S) 645 : (2009) AIRSCW 5076 , giving of satisfactory reasons was held to be a requirement arising out of an ordinary man''s sense of justice and a healthy discipline for all those who exercise power over others.

27. In Director, Horticulture Punjab and Others Vs. Jagjivan Parshad, (2008) 3 CLT 122 : (2008) 117 FLR 777 : (2008) 4 JT 571(1) : (2008) 6 SCALE 103 : (2008) 5 SCC 539 : (2008) 2 SCC(L&S) 121 : (2008) AIRSCW 2858 : (2008) 7 Supreme 479 , the recording of reasons was held to be indicative of application of mind specially when the order is amenable to further avenues of challenge.

28. It is in the light of the above pronouncements unnecessary to say anything beyond what has been so eloquently said in support of the need to give reasons for orders made by Courts and statutory or other authorities exercising quasi judicial functions. All that we may mention is that in a system governed by the rule of law, there is nothing like absolute or unbridled power exercisable at the whims and fancies of the repository of such power. There is nothing like a power without any limits or constraints. That is so even when a Court or other authority may be vested with wide discretionary power, for even discretion has to be exercised only along well recognized and sound juristic principles with a view to promoting fairness, inducing transparency and aiding equity.

29. What then are the safeguards against an arbitrary exercise of power? The first and the most effective check against any such exercise is the well recognized legal principle that orders can be made only after due and proper application of mind Application of mind brings reasonableness not only to the exercise of power but to the ultimate conclusion also. Application of mind in turn is best demonstrated by disclosure of the mind And disclosure is best demonstrated by recording reasons in support of the order or conclusion.

30. Recording of reasons in cases where the order is subject to further appeal is very important from yet another angle. An appellate Court or the authority ought to have the advantage of examining the reasons that prevailed with the Court or the authority making the order. Conversely, absence of reasons in an appealable order deprives the appellate Court or the authority of that advantage and casts an onerous responsibility upon it to examine and determine the question on its own. An appellate Court or authority may in a given case decline to undertake any such exercise and remit the matter back to the lower Court or authority for afresh and reasoned order. That, however, is not an inflexible rule, for an appellate Court may notwithstanding the absence of reasons in support of the order under appeal before it examine the matter on merits and finally decide the same at the appellate stage. Whether or not the appellate Court should remit the matter is discretionary with the appellate Court and would largely depend upon the nature of the dispute, the nature and the extent of evidence that may have to be appreciated, the complexity of the issues that arise for determination and whether remand is going to result in avoidable prolongation of the litigation between the parties. Remands are usually avoided if the appellate Court is of the view that it will prolong the litigation."

12. Reverting to the facts, it would be noticed that the petitioner possessed the same merit as the candidate placed at Sr. No. 5 and the petitioner was placed lower in merit only on the basis of his being younger in age. Now when a person of equal merit is appointed, there must be cogent reason as to why a similarly situated person is being denied appointment.

13. The contention of the respondent that the life of the panel had come to an end is contradicted by the record. As per the decision of the administrative committee dated 4th December, 2012, the merit list was ordered to be prepared on the basis of the marks obtained in the preliminary examination and main examination combined and the vacancies were ordered to be filled up as per the merit list. The merit list of all candidates, who appeared in the main examination, was ordered to be kept waited till 31st December, 2014. No doubt, the waiting list is not a recruitment list, but then once a person with a equal merit has been appointed from this very waiting list, I see no reason why the petitioner should be denied appointment especially when the life of the panel had not come to an end.

14. A similar question came up for consideration before a learned Division Bench of this Court in LPA No. 10 of 2011, titled as Smt. Suman Thakur vs. State of Himachal Pradesh and others, decided on 12.10.2011, wherein it was held as under:--

"4. The suitability of the petitioner was adjudged by a duly constituted Selection Committee and her name was included in the panel Petitioner''s case was recommended by the Director of Primary Education to the Block Primary Education Officer for appointment to the post of Primary Assistant Teacher on 17.11.2006. Thereafter, it was incumbent upon respondent No. 4 to issue appointment letter to the petitioner to the post of Primary Assistant Teacher in Government Primary School, Nahan. Learned Single Judge while dismissing the petition has referred to the scheme under which the appointments are made to the post of Primary Assistant Teacher called "Himachal Pradesh Prathmik Sahayak Adhyapak/Primary Assistant Teacher (PAT) Scheme, 2003". According to learned Single Judge, there was no provision for making panel. It is settled law under the service jurisprudence that when the appointments are made, panel is also made. Generally, life of the panel depends on the service rules. It is not the case of the respondent-State that fresh selection process was initiated after Mr. Sandeep Thakur left the job on 29.8.2006. It is true that a person, who has been selected, has no indefeasible right to appointment However, it is also well settled by now that the employer has to assign cogent and convincing reasons while denying the appointment to the selected candidate. In the case in hand, no convincing reasons have been given by respondent No. 4 why the petitioner, who was at Sr. No. 1 in panel, has not been offered appointment after Mr. Sandeep Thakur has left the job."

15. Yet again a similar question came up for consideration before a learned Division Bench of this Court in Harpal Singh and Others Vs. HRTC and Another, (2013) LabIC 4422 : (2013) 3 ShimLC 1222 wherein it was held as under:--

"12. In this backdrop the action of the respondent-Corporation now to issue an advertisement to fill up 600 vacant posts of drivers on contract basis, by initiating fresh selection process cannot be said to be reasonable or in consonance with the settled position of law. The action smacks of arbitrariness and unreasonableness apart from being illegal Persistently, this Court, in the aforesaid decisions, has directed the respondent-Corporation to first exhaust the panel of selected candidates and only thereafter initiate the process for fresh recruitment.

13. In the teeth of such directions, the action of the respondent-Corporation can only be held to be illegal, arbitrary, capricious and without due and proper application of mind Not only that, once having taken the decision in its 121st meeting of Board of Directors to exhaust the panel, with respect to the years in question, in the subsequent 122nd meeting, the respondent-Corporation could not be decided to issue an advertisement for filling up the vacant posts by initiating fresh selection process.

14. Noticeably, respondents have placed on record communication dated 11th April, 2013 seeking approval of the State Government to give employment to 340 candidates, who have successfully completed their 15 days training. The respondents in the very said communication have admitted that 392 vacancies of drivers, to be filled upon contract basis, exist as on 31.12.2012. As such, without giving appointment to the successful candidates, out of the panel so prepared by the respondent-Corporation, the action of the respondents in issuing a fresh advertisement can only held to be illegal and is accordingly quashed and set aside."

16. A perusal of the aforesaid decisions would show that though a person, who has been selected, has no indefeasible right to appointment. However, it is equally well settled that the employer has to assign cogent and convincing reasons for denying appointment to such a candidate, more particularly, when the candidate of equal merit has already been appointed only on the ground of his being elder in age to the present petitioner.

17. In view of the aforesaid discussion, this writ petition is allowed and the rejection conveyed to the petitioner vide rejection dated 02.04.2014, supplied to the petitioner on 02.12.2014, is quashed and set aside and the respondent is directed to consider afresh the case of the petitioner for appointment to the post of Clerk in accordance with law.

18. With these observations, the writ petition is disposed of, so also the pending application(s), if any, leaving the parties to bear their own costs.