,,,,,,
Tarlok Singh Chauhan, J",,,,,,
1. It was more than four decades back that the Hon’ble Supreme Court had observed that “it must, therefore, be taken to be the law that",,,,,,
where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or issuing quotas or licences or granting",,,,,,
other forms of largesses, the Government cannot act arbitrarily at its sweet will and, like a private individual, deal with any person it pleases, but its",,,,,,
action must be in conformity with standard or norm which is not arbitrary, irrational or irrelevant. The power or discretion of the Government in the",,,,,,
matter of grant of largesses including award of jobs, contracts quotas, licenses etc., must be confined and structured by rational, relevant and nonÂ‐",,,,,,
discriminatory standard or norm and if the government departs from such standard or norm in any particular case or cases, the action of the",,,,,,
Government would be liable to be struck down, unless it can be shown by the Government that the departure was not arbitrary, but was based on",,,,,,
some valid principle which in itself was not irrational, unreasonable or discriminatory (Refer: Erusian Equipment and Chemicals Ltd. vs. State of West",,,,,,
Bengal, AIR 1975 SC 26).",,,,,,
2 The principles laid down above would equally apply to the allotment of the government residences to be made by the respondentÂCorporation in,,,,,,
accordance with the Himachal Pradesh Allotment of Government Residencies (General Pool) Rules, 1994.",,,,,,
3 The instant case depicts sordid, despotic and nepotic functioning of respondentÂCorporation, which unfortunately despite observations made by this",,,,,,
Court, as far as back as on 2.9.2015 in Shashi Bhushan vs. State of Himachal Pradesh & ors. 2016(1) Shim.L.C. 302 CWP No. 9492Â2014 does not",,,,,,
seem to have learnt its lessons well.,,,,,,
4 While deciding the said case, which pertained to selection for the posts of Transport Multipurpose Assistants (Conductors) in the respondentÂ‐",,,,,,
Corporation, the Court adversely commented on its working and observed as under:Â",,,,,,
27. It is more than settled that public offices, both big and small, are sacred trusts. Such offices are meant for use and not abuse and in case large",,,,,,
scale fraud is committed so as to shock the conscious of the Court, then the law is not that powerless and would step into quash the entire selection.",,,,,,
This was so observed by the Hon’ble Supreme Court in Krishan Yadav and another Vs. State of Haryana and others (1994) 4 SCC 165 as,,,,,,
under:Â,,,,,,
16.Having regard to all the above, the irresistible conclusion is ""fraud has reached its crescendo"". Deeds as foul as these are inconceivable much less",,,,,,
could be perpetrated. We are reminded of the words of Shakespeare: ""Thus much of this, will make Black, white; foul, fair; wrong, right; Base, noble;",,,,,,
Ha, you gods! why this?""",,,,,,
(Timon of Athens, Act IV, Sc. 3)",,,,,,
17.It may not be too much to draw an inference that all these were motivated by extraneous considerations. Otherwise, how does one account for",,,,,,
selection without interview, fake and ghost interviews, tampering with the final records, fabricating documents, forgery? Each of this would attract the",,,,,,
penal provisions of Indian Penal Code.,,,,,,
They have been done with impunity.,,,,,,
18. The story does not end here. From out of the ""selection list"" secret Communications have been sent to the candidates. Selections were made",,,,,,
without medical test or verification of antecedents.,,,,,,
19.It is highly regrettable that the holders of public offices both big and small have forgotten that the offices entrusted to them are sacred trusts. Such,,,,,,
offices are meant for use and not abuse. From a Minister to a menial everyone has been dishonest to gain undue advantages. The whole examination,,,,,,
and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode. It shocks our,,,,,,
conscience to come across such a systematic fraud. It is somewhat surprising the High Court should have taken the path of least Resistance stating, in",,,,,,
view of the destruction of records, that it was helpless. It should have helped itself. Law is not that powerless.",,,,,,
29. Respondent No. 2 being creation of statute is admittedly a State within the meaning of Article 12 of the Constitution of India and cannot therefore,",,,,,,
act like a private individual, who can act in a manner whatsoever he likes, unless it is interdicted or prohibited by law. Rather its power as an employer",,,,,,
are more limited than that of a private employer inasmuch as it is subject to constitutional limitations and cannot be exercised arbitrarily. It is trite that,,,,,,
the State and its instrumentalities have to act strictly within the four corners of law and all its activities are governed by rules, regulations and",,,,,,
instructions. It is more then settled that when a statutory authority is required to do a thing in a particular manner then the same must be done in that,,,,,,
manner or not at all.,,,,,,
5 The issue in question relates to allotment of government accommodation and aggrieved by the nonÂallotment, the petitioner has approached this",,,,,,
Court for grant of following substantive reliefs:Â,,,,,,
“a) That impugned office order dated 22.08.2020, Annexure PÂ3, may very kindly be quashed and set aside with directions to respondents No.1 &",,,,,,
2 to allow office order dated 14.08.2020, Annexure PÂ2, remain in force and allotment of Set No.12, BlockÂA, Divisional Workshop, Taradevi,",,,,,,
Shimla 171010 in favour of the petitioner in vogue, to secure the ends of law and justice;",,,,,,
b) That respondents No. 1 & 2 may kindly be directed to post the House Allotment Rules, applications received for allotment of quarters, proceedings",,,,,,
of the meetings of the House Allotment Committee and office orders issued consequently on the website of the respondentÂCorporation so that there,,,,,,
is transparency in making allotment of houses to the employees.,,,,,,
c) That respondents No. 1&2 may kindly be directed to produce record pertaining to the allotment of houses in favour of employees of the,,,,,,
respondent Corporation posted at Shimla from January, 2014 onwards along with proceedings of the meetings of the House Allotment Committee",,,,,,
and consequent orders as issued before this Hon’ble Court for its kind perusal.â€,,,,,,
6 The petitioner joined respondentÂCorporation as Driver on 31.5.2007 and is working as such since then. On 5.4.2019, he was elected as President",,,,,,
of the Himachal Path Parivahan Nigam Drivers' Union, H.P. On 14.5.2020, the petitioner applied for the allotment of government accommodation and",,,,,,
vide order, dated 14.8.2020, Set No. 12, BlockÂA, situated in Divisional Workshop Taradevi, was allotted in favour of the petitioner, however the",,,,,,
respondents thereafter issued office order, dated 22.8.2020, whereby aforesaid allotment was cancelled and the same was made in favour of",,,,,,
respondent No.3 and aggrieved thereby, the petitioner has filed the instant petition seeking reliefs, as quoted hereÂinÂabove.",,,,,,
SN,Name (Sh./Smt.),DESIG.,PRESENT POSTED,"Date of receipt
of application","Date of
existing
allotment",Grounds
1.,Ravi Kumar,Dvr,DW Tdvi,7.4.2014,Not Allotted,
2.,Pritam Singh,Clerk,HO,2.4.2015,Not Allotted,
3.,Ranvir Singh,Condt.,Unit-III,4.1.2017,Not Allotted,
4.,Kuldeep Kumar,Condt.,Unit-II,15.9.17,Not Allotted,
5.,Tilak Raj,Dvr.,DW Tdvi,18.9.17,Not Allotted,
6.,Daljeet Singh,DM,DO,27.12.18,Not Allotted,
7.,Vikram-II,Dvr.,DW Tdvi,17.4.19,Not Allotted,
8.,Ramesh Chand-II,Dvr.,DW Tdvi,17.5.19,Not Allotted,
9.,Joginder Singh,Dvr.,DW Tdvi,29.6.19,Not Allotted,
10.,Ram Krishan,Dvr.,Unit-1,9.7.19,Not Allotted,
11.,Man Singh,Dvr.,Local,5.8.19,Not Allotted,
12.,Hans Raj,Sr. Asstt.,HO,17.8.19,Not Allotted,
13.,Bhuteshwar,Dvr.,Local,29.8.19,Not Allotted,
14.,Pyare Lal,Dvr.,Local,22.10.19,Not Allotted,
15.,Tej Singh,Mech.,DW Tdvi,13.11.19,Not Allotted,
16.,Desh Raj,Dvr.,DW Tdvi,18.12.19,Not Allotted,
17.,Gian Singh,Dvr.,Unit-I,3.2.2020,Not Allotted,
18.,Ashok Kumar,Dvr.,HO,22.5.2020,Not Allotted,
19.,Chander Prakash,Condt.,DW Tdvi,4.5.2020,Not Allotted,
20.,Vivek Mehta,Elect,Unit-I,17.6.2020,Not Allotted,
21.,Pawan Kumar,AM (Store),Unit-I,20.6.2020,Not Allotted,
Sr No.,Name of Emp.,DESIG,Unit,D/o Apply,,
1.,Poonam Thakur,Clerk,D/W Tdv.,8.10.15,,
2.,Madan Lal,Driver,DM Office,2.4.18,,
3.,Ram Chand,H.M.,Tara Devi Unit,29.11.18,,
4.,Daljeet Singh,"DM, Hzr.",Head Office,27.12.18,,
5.,Rajesh Kumar,Jr. Tech.Electt.,Tdvi Unit,28.3.19,,
6.,Vikram Singh II,Driver,D/Tdvi,17.4.19,,
7.,Ramesh Chand II,Driver,D/W Tdvi,17.5.19,,
8.,Joginder Singh,Driver,D/W Tdvi,29.6.19,,
9.,Ram Krishan,Driver,Tara Devi Unit/I,9.7.16,,
10.,Man Singh,Driver,Local Unit II,5.18.19,,
11.,Tilak Raj,Driver,D/W Tdvi,18.9.17/9.8.19,,
12.,Hans Raj,Sr. Asstt,Head Office,17.8.19 changed,,
13.,Bhutashwer Dutt,Driver,HIN Tdv,29.8.19,,
14.,Pyare Lal,Driver,Local Unit,22.10.19,,
15.,Tej Singh,Mech,D/W Tdvi,13.11.19 changed,,
16.,Raju,Sweeper,HO,13.919,,
17.,Hem Raj,Driver,Taradevi Unit,23.9.19,,
18.,Pawan Kumar,DDM(T),D/W Tdv.,1.2.2020,,
(Man Singh),,,,,,
Driver HRTC, Local Unit,",,,,,,
DhalliÂShimla.â€,,,,,,
19 This application appears to have been placed before the Vice Chairman of the respondentÂCorporation, who made following endorsement:Â",,,,,,
“D.M. please do the needful. Sd/ 5.8.2019â€,,,,,,
20 Obviously, such a course could not have been adopted even by the Vice Chairman of the respondentÂCorporation and the allotment had to be",,,,,,
made strictly in accordance with the Rules.,,,,,,
21 Here it shall be apposite to refer to the observations made in para 1 and 46 of the judgment of the Hon'ble Supreme Court in Shiv Sagar Tiwari vs.,,,,,,
Union of India and ors. (1997) 1 SCC 444, being a land mark judgment qua allotment of government residences on out of turn basis, which read as",,,,,,
under:Â,,,,,,
1. The administrative law has of late seen vast increase in discretionary powers. But then, the discretion conferred has to be exercised to advance the",,,,,,
purpose to subserve which the power exists. Even the Minister, if he/she be the repository of discretionary power, cannot claim that either there is no",,,,,,
discretion in the matter or unfettered discretion. This proposition was rejected emphatically by the House of Lords in landmark decision of Padfield,,,,,,
1968 AC 997. This apart, as pointed out in United States v. Wunderlish 342 US 98:",,,,,,
Law has reached its finest moments, when it has freed man from unlimited discretion of some ruler, some...official, some bureaucrat.... Absolute",,,,,,
discretion is a ruthless master. It is more destructive of freedom than any of man's other invention.,,,,,,
1A. These high principles of administrative law have been placed at the forefront because, as would appear from what is being stated later, in the",,,,,,
present case there was gross misuse of discretionary power relating to allotment of accommodation to government employees. As against the,,,,,,
discretionary quota of 10 per cent, it shot up to 70 per cent; and on top of that 8,768 houses were allotted by stating that the same was being done on",,,,,,
Special Compassionate Ground"". This naturally led to uproar and serious objection from those who were denied accommodation as per rules. After",,,,,,
the present petition was entertained and the Court went into the matter in depth, it was found that what had taken place was a scam, and a big scam",,,,,,
at that. In the present case, we do not propose to say anything regarding the allegation that the allotments were made for extraneous consideration, as",,,,,,
investigation relating to that is under progress. What we propose to examine rather is how best we can take care of illegality which had described,,,,,,
following outÂofÂturn allotments a galore.,,,,,,
46. The arbitrary exercise of power by the authorities in a big way had led almost to the collapse of the whole system of allotment. There was a crisis,,,,,,
like situation and this Court had to deal with an extraÂordinary situation and a special procedure had to be devised to do justice to all concerned.,,,,,,
Natural justice being a flexible principle and we being concerned with the issue of outÂofÂturn allotment in thousands, it was felt by us that a",,,,,,
collective hearing would meet the requirement of natural justice as the Committee had given individual hearing to those who appeared before it. This,,,,,,
view was taken because the basic question to be determined was whether the allotment given to an employee was on outÂofÂturn basis or not. In,,,,,,
case it were to be so, it is apparent that unless an exception is made, the allottee has no right to stay, no right to occupy the premises. The hearing",,,,,,
given by us on two occasions brought eloquently to us that the outÂofÂturn allottees were notified and had appeared, had two principal contentions to",,,,,,
advanceÂthe same being the plea not to evict either on the ground of serious illness of one or the other close relatives, or to include them in the",,,,,,
functional category. Nothing else could have really been pleaded not to evict them. These two aspects have been adequately borne in mind by us as,,,,,,
would appear from the aforesaid discussion.,,,,,,
22 We have also found that certain D.O. notes have been issued by the other politicians, who otherwise have no concern with the respondentÂ‐",,,,,,
Corporation and, thus, could not have been acted upon. Such a course is clearly in violation of the guidelines that have been laid down in Shiv Sagar",,,,,,
Tiwari's case (supra).,,,,,,
23 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 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 netÂwork 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.†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 have taken into account, then the decision cannot stand. No matter that the statutory body may have acted",,,,,,
in good faith, nevertheless, the decision will be setÂaside.â€",,,,,,
24 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.,,,,,,
25 The concept of reasonableness and nonÂarbitrariness 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.,,,,,,
26 Thus, what can be deduced from the aforesaid exposition of law is that procedure for allotment has to be fair, reasonable, nonÂdiscriminatory,",,,,,,
transparent, nonÂcapricious and should not suffer from favouritism or nepotism and must not be violative of the mandate of Article 14 of the",,,,,,
Constitution.,,,,,,
27 We could have conveniently disposed of the petition by dismissing the same as the petitioner has failed to substantiate his plea for allotment of,,,,,,
government accommodation on out of turn basis, but the mode and manner, in which records so also Annexure RÂ2 have been prepared by the",,,,,,
respondentÂCorporation, constrains us to proceed further in the matter.",,,,,,
28 As observed above, while dealing with cases relating to house allotment, the respondentÂCorporation has prepared a list of applicants, which has to",,,,,,
be based and drawn on the basis of date of application and the records have to be prepared strictly in accordance with the provisions of the Office,,,,,,
Manual, more particularly, Chapter IX thereof, which deals with filling system. The same not only have not been maintained in terms of the aforesaid",,,,,,
provisions, but even the list now prepared on the basis of so called record does not tally with Annexure RÂ2 or with the list prepared in August 2019",,,,,,
and thus, irresistible conclusion that may be drawn by us is that a fraud is being played with the Court when false and fabricated documents, more",,,,,,
particularly, Annexure RÂ2, is being placed before the Court for being accepted as the one based on records.",,,,,,
29 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? This is clearly evident from",,,,,,
the fact that both the President and Vice President of respondent No. 1 have recently resigned from the office purportedly because of a video widely,,,,,,
circulated showing them accepting bribe from the Contractor.,,,,,,
30 As observed earlier, it is highly regrettable that the holders of the office of respondentÂCorporation have been completely oblivious to the fact that",,,,,,
the office entrusted to them is sacred trust and is meant for use and not for abuse.,,,,,,
31 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.",,,,,,
32 It is because of sharp and illegal practices being followed by the respondentÂCorporation that the petitioner, even though had no right to have",,,,,,
government accommodation on out of turn basis, was initially allotted accommodation and the order was subsequently superseded. Riding high on",,,,,,
power being President of Himachal Path Parivahan Nigam Drivers' Union, the petitioner had managed to push through application and have allotment",,,,,,
made in his favour, which act has rightly been rectified by the respondentÂCorporation by cancelling the allotment.",,,,,,
33 The matter cannot be permitted to rest here because the manner in which the records are being prepared and thereafter submitted to this Court,",,,,,,
not only by the respondentÂCorporation, but the other departments/corporations under the State Government reveals that the records are not being",,,,,,
maintained in accordance with the office manual and tabulated information containing data on the basis of so called record is then being submitted to,,,,,,
the Court as being authentic, whereas many times these are fudged, fabricated and not even based on the actual record.",,,,,,
34 We in India inherited a hierarchical system of administration from the colonial regime. The aim of the system was to ensure that there are adequate,,,,,,
checks and balances at every successive stage, but unfortunately, this Court invariably finds that notings of the dealing hand are dittoed and approved",,,,,,
that too without application of mind as it is till the highest authority.,,,,,,
35 If the decision making is left at hands of the dealing hand alone and approved as such without due application of mind by the higher authority, then",,,,,,
the same would play havoc with the entire system.,,,,,,
36 It is here that role of Advocate comes into play. Lawyers cannot simply be mouth piece of his client and being officer of the Court has to make,,,,,,
best efforts to restrain and prevent his client from resorting to sharp or unfair practices.,,,,,,
37 This is so provided in Section 1 of Chapter II of PartÂVI of the Rules framed by the Bar Council of India lays down therein the standard of,,,,,,
professional conduct and etiquette to the Advocates.,,,,,,
38 It is, thus, duty of each Advocate to check the veracity, correctness of the pleading as also every document before filing the same in the Court.",,,,,,
39 As observed above, a deliberate attempt has been made by the respondentÂCorporation to mislead this Court by filing and creating documents,",,,,,,
which are not only fabricated, but not even incorrect as per the actual record, therefore, this Court left with no other option but to issue show cause",,,,,,
notice to Vijay Kashyap, dealing hand and Pyare Lal, Section Officer, so also the deponent of the affidavit, Sh. Madan Sharma, Regional Manager",,,,,,
(Legal), as to why they should not be prosecuted and punished under the Contempt of Courts Act for having deliberately and wilfully tried to mislead",,,,,,
this Court by submitting fabricated documents to this Court.,,,,,,
40 At the same time, it needs to be reiterated that this is not an isolated or solitary case, where the records are not being maintained properly,",,,,,,
therefore, the Chief Secretary to the Government of Himachal Pradesh is directed to issue necessary instructions to all the departments/corporations",,,,,,
under the State Government toÂ,,,,,,
 (i) maintain office files and records strictly in accordance with the provisions of Office Manual and other instructions issued from time to time.,,,,,,
(ii) impart training to all officials/officers regarding maintenance of official records and filing of affidavits/replies in the Courts.,,,,,,
(iii) Sufficient copies of office manual be made available to each department offline and online.,,,,,,
41 The petition is dismissed, in the aforesaid terms, so also the pending application(s), if any. Annexure I shall form part of this judgment. Pending",,,,,,
application (s), if any, also stands disposed of.",,,,,,