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2013 DIGILAW 317 (HP)

Himachal Pradesh Home Guards v. State of H. P.

2013-04-16

R.B.MISRA, RAJIV SHARMA

body2013
JUDGMENT : Rajiv Sharma, J. "Key facts" necessary for the adjudication of this writ petition are that the respondent-State has framed the Recruitment and Promotion Rules under Article 309 of the Constitution of India called "The Himachal Pradesh Home Guards, Civil Defence and Fire Services Department Company Commander/Senior Instructor/Store Officer Recruitment and Promotion Rules, 1988" (hereinafter referred to as the "old rules" for brevity sake) on 15.2.1989. According to these old rules, the minimum educational qualification for filling up the post of Company Commander/Senior Instructor/Store Officer was matriculation from recognised Board of School Education/University or its equivalent or the candidate should have passed Army Special Certificate. The incumbent should have been released/retired officer of the Indian Army who has held the rank of Lieutenant (other than honorary) with Commissioned Officer or should be a serving regular Civil Defence Instructor/Chief Instructor/ Administrative Officer/ Platoon Commander/Assistant Store Officer, who has been serving as such for the last five years in the Himachal Pradesh Home Guard and Civil Defence Department. 50% posts were to be filled up by promotion and remaining 50% by direct recruitment. 2. Respondent-State has framed the new Recruitment and Promotion Rules under Article 309 of the Constitution of India vide notification dated 14.10.2011 called "The Himachal Pradesh Home Guards and Civil Defence Department, Company Commander/Senior Instructor/Store Officer/Centre Commander, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2011" (hereinafter referred to as the "new rules" for brevity sake). Rule 7 of the new rules provides for minimum educational qualification and other qualifications required for direct recruits, which reads as under: (i) "Should have passed Plus Two (10+2) Examination from a recognised University/Board of School Education or its equivalent. AND Should be a released/Retired Officer of the Indian Army who has held the rank of Lieutenant (other than Honorary) with at least three years service as Commissioned Officer. OR Should be holding honorary Rank of Company Commander in the Home Guards Organization and continuous service as such for the last three years. OR Should be a serving regular Civil Defence Instructor/Chief Instructor/Platoon Commander/Administrative Officer/Assistant Store Officer, who has been serving as such for the last five years in the Himachal Pradesh Home Guards and Civil Defence Department. Desirable qualification Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar condition prevailing in the Pradesh." 3. OR Should be a serving regular Civil Defence Instructor/Chief Instructor/Platoon Commander/Administrative Officer/Assistant Store Officer, who has been serving as such for the last five years in the Himachal Pradesh Home Guards and Civil Defence Department. Desirable qualification Knowledge of customs, manners and dialects of Himachal Pradesh and suitability for appointment in the peculiar condition prevailing in the Pradesh." 3. According to rule 8, the Educational Qualification for promotees would be the same as shown in column No. 7 (i) reproduced herein above. 60% posts are to be filled up by way of promotion and 40% by direct recruitment on a regular basis or by recruitment on contract basis, as the case may be. In case of recruitment by promotion, deputation and transfer from amongst Civil Defence Instructors/Chief Instructor/Administrative Officer/Platoon Commanders/ Assistant Store Officers, candidate must possess at least five years regular service or regular combined with continuous ad hoc service rendered, if any, in the grade. 4. Petitioners had earlier approached this Court by filing CWP No. 362 of 2012. The same was withdrawn with liberty to file fresh petition on 13.1.2012. 5. Mr. Subhash Sharma has vehemently argued that inclusion of Honorary Company Commander in the new Recruitment and Promotion Rules notified on 14.10.2011 for filling up the post of Company Commander by way of direct recruitment, prescribing 10+2 qualification, five years experience for Civil Defence Instructor/Chief Instructor/Platoorn Commander/ Administrative Officer/ Assistant Store Officer instead of three years is arbitrary, discriminatory, unjustifiable, thus, violative of Articles 14 and 16 of the Constitution of India. He has contended that the inclusion of the category of Honorary Company Commander for direct recruitment is actuated with mala fide. He has further argued that the entire exercise has been undertaken to favour respondents No.3 to 5. 6. Mr. Shrawan Dogra, learned Advocate General and Mr. Ajay Mohan Goel have strenuously argued that the scope of judicial review in these matters is very limited. They have further contended that the Recruitment and Promotion Rules framed under Article 309 of the Constitution do not violate Articles 14 and 16 of the Constitution of India. They have further contended that qualification 10+2 has been prescribed taking into consideration job requirements, duties and responsibilities of the post of Company Commander. They have also contended that the experience of three years required for Honorary Company Commander has been made taking into consideration the rank status. 7. They have further contended that qualification 10+2 has been prescribed taking into consideration job requirements, duties and responsibilities of the post of Company Commander. They have also contended that the experience of three years required for Honorary Company Commander has been made taking into consideration the rank status. 7. We have heard the learned counsel for the parties and have perused the pleadings carefully. 8. Respondents No. 3 to 5 have approached this Court by filing CMP No. 2621/2012 for impleading them as party-respondents. The same was disposed of by this Court on 26.3.2012. Respondents No. 3 to 5 have also filed reply to the writ petition. 9. Respondent-State has framed the rules called "The Himachal Pradesh Home Guards and Civil Defense Department, Havildar Instructor/Quarter Master Havildar, Class-III (Non-Gazetted) Recruitment and Promotion Rules, 2009". The minimum educational qualification for filling up these posts is matric standard examination from a recognised Board of School Education and the candidate holding honorary rank of Havildar or above in the Home Guards organisation and continuous service as such for the last three years are also eligible. The post is to be filled up 100% by direct recruitment on regular basis. Similarly, as per Himachal Pradesh Home Guards, Civil Defence and Fire Services Department, Civil Defence Instructor/Chief Instructor/Platoon Commander/ Administrative Officer/ Assistant Store Officer, Class-III, (Non-Gazetted) Recruitment and Promotion Rules, 2010, person holding Honorary Rank of Platoon Commander or above in the Home Guards Organization and with continued service as such for the last three years for direct recruitment is eligible. These posts are to be filled up 60% by promotion and remaining 40% by direct recruitment. It is, thus, evident that the Honorary Havildar or above in the Home Guards Organization having continuous service of three years is also eligible for appointment as Havildar Instructor by direct recruitment. Honorary Platoon Commander or above in the Home Guards Organization having continuous service for the last three years is also eligible for direct recruitment as Platoon Commander. 10. Initially, the posts of Company Commander as per the Recruitment and Promotion Rules notified on 15.2.1989 were to be filled up 50% by promotion and remaining 50% by direct recruitment. Honorary Platoon Commander or above in the Home Guards Organization having continuous service for the last three years is also eligible for direct recruitment as Platoon Commander. 10. Initially, the posts of Company Commander as per the Recruitment and Promotion Rules notified on 15.2.1989 were to be filled up 50% by promotion and remaining 50% by direct recruitment. The minimum educational qualification was matriculation examination from a recognised Board of School Education/University or its equivalent or Army Special Certificate or released/retired officer of the Indian Army who has held the rank of Lieutenant (other than Honorary) with at least three years service as a Commissioned Officer or serving regular Civil Defence Instructor/ Chief Instructor/ Administrative Officer/ Platoon Commander/ Assistant Store Officer who has been serving as such for the last five years in the Himachal Pradesh Home Guard and Civil Defence Department were eligible for recruitment. According to new rules notified on 14.10.2011, the essential qualification has been increased from matriculation to 10+2 and new category of Honorary Company Commander has also been included for direct recruitment as Company Commander. Respondents No.3 to 5 are working as Honorary Company Commanders. The minimum educational qualification for filling up the post of Platoon Commander by way of direct recruitment is also 10+2. The Honorary Company Commanders having continuous three years service have been made eligible for appointment as Company Commanders. This period of service has been prescribed according to the rank status. Rank of Honorary Company Commander is higher vis-à-vis the Civil Defense Instructor/Chief Instructor/Platoon Commander etc. The essential service for direct recruitment and for promotion for the Civil Defence Instructor/Chief Instructor/Platoon Commander/ Administrative Officer/ Assistant Store Officer is five years. 60% posts are to be filled up by promotion and remaining 40% by direct recruitment. The category of Platoon Commander can also be considered against the direct quota, fulfilling the minimum eligibility criteria prescribed under rules 7 and 8 of the new rules notified on 14.10.2011. The qualification of 10+2 has been provided taking into consideration the job requirement, duties and responsibilities of the post of the Company Commander. The post of Commandant is gazetted post. The Post of Company Commander is in feeder category for the post of Commandant. There is no illegality whereby the category of Honorary Company Commander has been included in the zone of consideration for direct recruitment for the post of Company Commander. The post of Commandant is gazetted post. The Post of Company Commander is in feeder category for the post of Commandant. There is no illegality whereby the category of Honorary Company Commander has been included in the zone of consideration for direct recruitment for the post of Company Commander. There is no quota/source provided for the Honorary Company Commanders for promotion as Company Commander. They can only be considered against direct recruitment. However, the category of Platoon Commander can be considered for promotion as well as for direct recruitment. 11. Framing of Recruitment and Promotion Rules is a legislative act. The Courts have very limited jurisdiction. The Courts intervene only if the Recruitment and Promotion Rules framed are violative of Articles 14 or 16 of the Constitution of India. 12. Their Lordships of the Honble Supreme Court in Malikarjun Rao and others v. State of Andhra Pradesh and others, (1990) 2 SCC 707 have held that the Power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the Constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. Their Lordships have held as under: "13. The Special Rules have been framed under Article 309 of the Constitution of India. The power under Article 309 of the Constitution of India to frame rules is the legislative power. This power under the constitution has to be exercised by the President or the Governor of a State as the case may be. The High Courts or the Administrative Tribunals cannot issue a mandate to the State Government to legislate under Article 309 of the Constitution of India. The Courts cannot usurp the functions assigned to the executive under the constitution and cannot even indirectly require the executive to exercise its rule making power in any manner. The Courts cannot assume to itself a supervisory role over the rule making power of the executive under Article 309 of the Constitution of India" 13. Their Lordships of the Honble Supreme Court in Sanjay Kumar Manjul v. Chairman, UPSC and others, (2006) 8 SCC 42 have held that qualifications for recruitment to a post are laid down in terms of the statutory rules. Their Lordships of the Honble Supreme Court in Sanjay Kumar Manjul v. Chairman, UPSC and others, (2006) 8 SCC 42 have held that qualifications for recruitment to a post are laid down in terms of the statutory rules. The statutory authority is entitled to frame the statutory rules laying down the terms and conditions of service as also the qualifications essential for holding a particular post. Their Lordships have held as under: "25. The statutory authority is entitled to frame statutory rules laying down terms and conditions of service as also the qualifications essential for holding a particular post. It is only the authority concerned who can take ultimate decision therefor. 26. The jurisdiction of the superior courts, it is a trite law, would be to interpret the rule and not to supplant or supplement the same. 27. It is well-settled that the superior courts while exercising their jurisdiction under Articles 226 or 32 of the Constitution of India ordinarily do not direct an employer to prescribe a qualification for holding a particular post." 14. In the instant case, petitioners have failed to substantiate how the rules framed under Article 309 of the Constitution of India are unconstitutional or bad in law. The decision to include Honorary Company Commander in the zone of consideration has been made taking into consideration their length of service. There is no merit in the contention of Mr. Subhash Sharma that this category has been included in a mala fide manner. There is no specific mala fide alleged against the functionaries of the State. Whenever mala fide is alleged, legal or factual, there must be pleading to this effect and thereafter the same is required to be proved. Ordinarily, the legislation cannot be challenged on the ground of mala fide. Providing of qualifying service of five years qua Platoon Commander and restricting the same to three years qua Honrary Company Commander has object sought to be achieved. The object sought to be achieved is that the person higher in rank should have less service vis-à-vis lower rank. In view of this, petitioners cannot claim that their qualifying service should also be reduced to three years for direct recruitment as Company Commander. It is for the employer to lay down the terms and conditions of service and also the minimum essential qualifications taking into consideration the nature of duties. 15. In view of this, petitioners cannot claim that their qualifying service should also be reduced to three years for direct recruitment as Company Commander. It is for the employer to lay down the terms and conditions of service and also the minimum essential qualifications taking into consideration the nature of duties. 15. Their Lordships of the Honble Supreme Court in State of M.P. and others v. Nandlal Jaiswal and others, (1986) 4 SCC 566 have held as under: "39. Before we part with this case we must express our strong disapproval of the observations made by B. A Lal, J. in paragraphs 1, 9, 17, 18, 19 and 34 of his concurring opinion. The learned Judge made sweeping observations attributing mala fides, corruption and underhand dealing to the State Government. These observations are in our opinion not at all justified by the record. In the first place it is difficult to appreciate how any such observation could be made by the learned Judge without any foundation for the same being laid in the pleadings. It is true that in the writ petitions the petitioners used words such as 'mala fide', 'corruption' and ,corrupt practise' but the use of such words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations. The requirement of law is not satisfied in so far as the pleadings in the present case are concerned and in the absence of necessary particulars and material facts, we fail to see how the learned Judge could come to a finding that the State Government was guilty of factual mala fides, corruption and underhand dealing. The learned Judge observed that amount was spent by respondents Nos. 5 to 11 "in working out the contract in approaching the concerned authorities of the State". This observation carried a direct allegation that money passed from respondents Nos. 5 to 11 to "the concerned authorities" for getting the licences. The learned Judge observed that amount was spent by respondents Nos. 5 to 11 "in working out the contract in approaching the concerned authorities of the State". This observation carried a direct allegation that money passed from respondents Nos. 5 to 11 to "the concerned authorities" for getting the licences. But no such allegation was at any time made by the petitioners and when the petitioners did not make any such allegation in the pleadings, nor even stated as to which authority took monies by way of illegal gratification, it is difficult to understand how the learned Judge could possibly make such an observation. The petitioners also did not make any specific imputation of underhand dealing in the writ petitions and yet the learned Judge inexplicably came to the conclusion that the State Government was guilty of 'sinister underhand dealing', the learned Judge was clearly not justified in doing so. 39. But, quite apart from this objection based on lack of proper and adequate pleading, we think that even on merits the observations made by B. M. Lal J. were clearly unjustified. There is not an iota of evidence to establish or even as much as to indicate that the State Government was actuated by any collateral purpose or was guilty of any 'sinister underhand dealing' or was prompted by any corrupt motive in reaching the policy decision dated 30th December, 1984. What the learned Judge has said is based entirely on conjecture and suspicion and approach which does not go well with judicial disposition of a case. There are two important factors which throw considerable light in determining whether a policy decision is mala fide or motivated by improper considerations. One relates to the manner and method of reaching the policy decision and the other to the circumstances in which the policy decision is taken and the considerations, which have entered into the making of it. There are two important factors which throw considerable light in determining whether a policy decision is mala fide or motivated by improper considerations. One relates to the manner and method of reaching the policy decision and the other to the circumstances in which the policy decision is taken and the considerations, which have entered into the making of it. Now, it is clear from the detailed statement of facts which we have given at the commencement of this judgment that the entire process commencing with the representation of the M.P. Distillers' Association in July 1983 and culminating in the policy decision dated 30th December 1984 was spread over a period of about 17 months and it included gathering of information, on spot inspection of the sites, collegiality of deliberations, candour of interdepartmental and intra-departmental communication and a dialectical interaction of different multilateral viewpoints. The policy decision was an informed and reasoned decision arrived at after detailed inquiries, fact-finding efforts and reports spreading over a period of more than a year and a half. Several queries and issues were raised by the Finance Department boldly and fearlessly and these queries and issues were fully and frankly dealt with, clarifications were given and the entire matter was fully considered. There was no attempt at any stage to suppress discussion and debate or to avoid or sidetrack or push under the carpet any doubts or questions raised by any of the' parties involved in the deliberations. It is also significant that the policy decision was not arrived at by a single individual in the secrecy of his chamber but it was by the entire Cabinet and it was based on the recommendations made by the Cabinet Sub-Committee which was composed of four Ministers assisted by officers from different departments belonging to the highest scholars of the civil service. It may also be noted that the Cabinet Sub-Committee considered the matter from different angles, obtained relevant information, sent a Committee of officers for spot inspection, took stock of the valuation and the likely investment, reviewed the problem and worked out the solution and made its recommendations to the Cabinet. The entire proceedings of the Cabinet Sub-Committee were before the Cabinet including the reasons for which the recommendations were made and it was after considering these recommendations that the Cabinet reached the policy decision. The entire proceedings of the Cabinet Sub-Committee were before the Cabinet including the reasons for which the recommendations were made and it was after considering these recommendations that the Cabinet reached the policy decision. The entire proceedings show that there was complete openness of discussion and deliberation. There was no suddenness of decision, no impulsive caprice or arbitrariness in reaching the decision. The policy decision was plainly and avowedly an informed and institutionalised decision and the manner in which it was reached is clearly indicative that it was neither mala fide nor guided by any corrupt or collateral considerations. 40. We have already discussed the circumstances under which the policy decision dated 30th December, 1984 came to be made. We need not repeat what we have said in the preceding paragraphs in regard to the making of the policy decision and the circumstances under which it was made. These circumstances plainly and unmistakably point to the bona fides of the policy decision. It is not possible to discern any mala fides or any improper or corrupt motive on the part of the State Government in reaching the policy decision. It is significant to note that the State Government did not concede whatever was demanded by the existing contractors. The existing contractors wanted the land and buildings of the existing distilleries to be transferred to them at a valuation but the Cabinet Sub-Committee did not agree to this suggestion. and insisted that the existing contractors would have to acquire land at new sites, construct buildings for setting up new distilleries, and the land and buildings in which the existing distilleries were housed would come back to the State Government. The Cabinet Sub-Committee also insisted on the existing contractors to make the necessary arrangements for removing air and water pollution in the new distilleries as also to construct a laboratory with modern equipment. The State Government also changed the mode of rate fixation. Originally the rates for supply of liquor to the retail vendors were fixed on the basis of tenders every five years with the result that the rates accepted by the excise authorities on the basis of the tenders continued to prevail for a period of five years. Now it is a fallacy to assume that the lowest rates quoted by the tenderers would necessarily be the cheapest and the best. Now it is a fallacy to assume that the lowest rates quoted by the tenderers would necessarily be the cheapest and the best. If the tenderers form a syndicate they can push up the rates for supply of liquor and in fact it is obvious from the rates which were accepted by the excise authorities for the five years period, 1st April, 1981 to 31st March, 1986, that these were not the most reasonable rates. The Cabinet Sub-Committee therefore felt that the system of rate fixation prevalent in West Bengal was the most beneficial to the State Government because it provided for rate fixation by an expert committee which would take into account the escalation or de-escalation in the price of raw materials, varying labour cost and fluctuating market conditions every year and arrive at a reasonable rate, fair both to the licencee and to the State Government. The Cabinet Sub-Committee also did not recommend taking over of the plant and machinery of the old distilleries from the existing contractors against payment of its value with the result that the old plant and machinery remained with the existing contractors and obviously it would have no value because they would not be able to sell it to anyone and it would be dead junk in their hands and the price paid by them to the out-going licencee would be totally lost. It is indeed difficult to see how it can at all be said that in making its recommendations, the Cabinet Sub-Committee was guilty of any mala fides or underhand dealing or was actuated by any corrupt motive. The Cabinet merely accepted the recommendations made by the Cabinet Sub-Committee and in fact when the deed of agreement came to be executed with each of the existing contractors, the State Government actually introduced a provision that D.2 licences would be given only for a period of five years. We are therefore unable to appreciate how B. M. Lal, J. could possibly pass strictures against the State Government attributing mala fides, underhand dealing and corruption to the State Government. 16. Their Lordships of the Honble Supreme Court in Shivajirao Nilangekar Patil v. Dr. We are therefore unable to appreciate how B. M. Lal, J. could possibly pass strictures against the State Government attributing mala fides, underhand dealing and corruption to the State Government. 16. Their Lordships of the Honble Supreme Court in Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi and others, (1987) 1 SCC have held that when allegations of mala fides and misuse of power are made, burden of proof is on the person making the allegation and the evidence adduced by affidavit must contain clear and specific statements. Their Lordships have held as under: "38. Our attention was drawn by learned counsel Dr. Singhvi on the observations of this Court in The Barium Chemicals Ltd. v. The Company Law Board, ( AIR 1967 SC 295 ), where at page 352 (of SCR) (at p. 319 of AIR) of the report the Court observed that where evidence was adduced by affidavits, such affidavits might be properly verified either on knowledge or from sources. But the basis of such knowledge or source of information must be clearly stated. This was laid down as early as 1909 by Jenkins, C.J. and Woodroffe, J. in Padmabati Dasi v. Rasik Lal Dhar (1909) ILR 37 Cal 259, where the Division Bench of the Calcutta High Court observed that the provisions of Order XIX, Rule 3 of the Code of Civil Procedure must be strictly observed : every affidavit should clearly express how much is a statement of the deponent's knowledge and how much of the statement was in his belief, and the grounds of belief must be stated with sufficient particularity. This has been followed more or less universally by courts in matters where reliance is placed on affidavits. This view has been reiterated by this Court in State of Bombay v. Purushottam Jog Naik ( AIR 1952 SC 317 ). It is on this principle that Dr. Singhvi urged that the original petition should not have been entertained because of the defective affidavit in this case. Undoubtedly the affidavit and the petition were defective as mentioned hereinbefore. But the court has taken cognizance of the matter and certain inferences followed from the inherent nature of facts apparent from the facts brought before this Court. 39. Reliance was also placed on the observations of this Court in E. P. Royappa v. State of Tamil Nadu ( AIR 1974 SC 555 ). But the court has taken cognizance of the matter and certain inferences followed from the inherent nature of facts apparent from the facts brought before this Court. 39. Reliance was also placed on the observations of this Court in E. P. Royappa v. State of Tamil Nadu ( AIR 1974 SC 555 ). The facts of that case need not be referred in detail except to mention that there allegation was made against the Chief Minister by a member of the Indian Administrative Service in the cadre of the State of Tamil Nadu for not appointing him as the Chief Secretary. Ray, C. J. noted in the judgment several facts which were alleged as instances indicating mala fide. It was stated that these instances gave rise to the wrath of the Chief Minister against the petitioner in that case. After noting the alleged incidents, the Chief Justice rejected these events and indicated that from the affidavit evidence it could not have been said that the Chief Minister had committed acts of violence or intimidation and the entire affidavit evidence established beyond any measure of doubt that the allegations of the petitioner in that case imputing mala fides against the Chief Minister were baseless. In a judgment concurring Bhagwati, J. as the learned Chief Justice then was, observed at page 389 (of SCR) : (at p. 586 of AIR) of the report that in dealing with the allegations of mala fide, it was necessary to bear in mind two important considerations; that the court was not concerned to investigate into the acts of maladministration by the political Government headed by the Chief Minister at that time. It was not within the province of the court to embark on a far flung enquiry into the acts of commission and omission charged against the Chief Minister in the administration of the affairs of Tamil Nadu. That was not the scope of the inquiry before the court and the court must decline to enter upon any such inquiry. It was one thing to say that the Chief Minister had malus animus against the petitioner in that case. The court was only concerned with the later limited issue and not with the former popular issue. That was not the scope of the inquiry before the court and the court must decline to enter upon any such inquiry. It was one thing to say that the Chief Minister had malus animus against the petitioner in that case. The court was only concerned with the later limited issue and not with the former popular issue. The court cannot permit the petitioner to side track the issue and escape the burden of establishing hostility and malus animus on the part of the Chief Minister by diverting courts attention to incidents of suspicious exercise of executive power. It is perhaps on this basis that the Division Bench of the Bombay High Court in the instant case rejected the application for additional evidence and rejected the contention in support of the view of misrule or misconduct by the erstwhile Chief Minister of Maharashtra, Nilangekar Patil, the appellant in the first appeal. The same principles in respect of affidavit evidence were reiterated in different context by this Court in Tara Chand Khatri v. Municipal Corpn. of Delhi ( AIR 1977 SC 567 ). This Court reiterated that the High Court was not too wrong in dismissing the writ petition in limine in that case because a prima facie case, requiring investigation had not been made out by the appellant. This Court reiterated, that the High Court would be justified in refusing to carry on investigation into the allegations of mala fide if necessary particulars of the charge making out a prima facie case were not given in the petition. Since the burden of establishing mala fide lay very heavily on the person who alleged and the allegations made in regard thereto in the writ, petition were not sufficient in that case to establish malus animus, this Court found that the High Court was justified in dismissing the petition without issuing notice. Dr. Singhvi submitted that precisely the same was the position in the instant case. 48. Dr. Singhvi submitted that precisely the same was the position in the instant case. 48. The Division Bench noted that this Court had in the case of State of Uttar Pradesh v. Mohammad Naim ( AIR 1964 SC 703 ) (supra) had, exhaustively dealt with the limitation in making these remarks i.e. (1) whether a party whose conduct in question was before the court had an opportunity of explaining or defending himself; (2) whether there was evidence on record bearing on that conduct justifying the remarks; (3) whether it was necessary for the decision of the case as an integral part thereof to refer to that conduct; and (4) the observations must be judicial in nature. These tests, the Division Bench observed were satisfied in respect of the remarks made by the learned single judge. The Division Bench was of the view that the circumstances relied before the learned single judge formed a reasonable and cogent basis for the adverse comment on the conduct of the appellant herein in the first appeal. However, the Division Bench made it clear that it was merely in the nature of an adverse comment based on the material on record and at the hearing of a proceeding which involved the taking of evidence merely on affidavit. A fuller enquiry might lead to a conclusion that the comment was not justified. In that view of the matter the Division Bench asked the learned counsel whether the appellant in the first appeal desired that there should be a full-fledged factual enquiry into the charge of the grades of respondent No. 4 having been altered as aforesaid. Such enquiry, however, must be done by a body, the Division Bench suggested, nominated by the Chief Justice of Bombay High Court. Counsel for the appellant in the first appeal before us made no request for such an enquiry before the High Court. In other words, he was not willing to invite an enquiry to clear his image." 17. Similarly, their Lordships of the Honble Supreme Court in Prabodh Sagar v. Punjab State Electricity and others, (2000) 5 SCC 630 have held that mala fide depends upon its own facts and circumstances. Mere user of word mala fide would not by itself make a petition entertain able. Their Lordships have held as under: "10. Similarly, their Lordships of the Honble Supreme Court in Prabodh Sagar v. Punjab State Electricity and others, (2000) 5 SCC 630 have held that mala fide depends upon its own facts and circumstances. Mere user of word mala fide would not by itself make a petition entertain able. Their Lordships have held as under: "10. Having dealt with the issue of authority as above, it would be convenient to advert to the two specific counts of challenge as noticed above. The basis of this charge is malice which in common acceptation, means and implies spite or ill will and the same is a question of fact. 13. As noted above, the High Court has not highlighted this aspect of the matter, though the same were brought to the notice of the High Court, we do not know for what reasons, neither we intend to delve into it but the fact remains that the comment of the learned Advocate appearing for the Board during the course of hearing before this Court that the litigatious spirit of the petitioner has, in fact brought into effect the exercise of jurisdiction of the writ Court to a ludicrous extent. We do find some justification in the criticism of the learned Advocate for the Board vis-a-vis the conduct of the petitioner/appellant herein. The petitioner has been, as noted above, from 1989 onwards engaged himself in the law Courts rather than exerting himself in an effort to improve his capability as the employee of the Board so that the Board and the State obtain maximum benefit from out of the services of the petitioner-appellant but unfortunately his litigatious spirit prevailed upon him and as noticed above we do find some justification as regards the comment made by the learned Advocate appearing for the Board. Mala fides have been alleged against the statutory Board (Punjab State Electricity Board) but the contextual fact negates such an allegation. Incidentally, be it noted that the expression 'mala fide' is not a meaningless jargon and it had its proper connotation. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. Malice or mala fides can only be appreciated from the records of the case in the facts of each case. There cannot possibly be any set guidelines in regard to the proof of mala fides. Mala fides, where it is alleged, depends upon its own facts and circumstances. We ourselves feel it expedient to record that the petitioner had become more a liability than an asset and in the event of there being such a situation vis-a-vis an employee, the employer will be within its liberty to take appropriate steps including the cessation of relationship between the employer and the employee. The service conditions of the Board's employees also provides for Voluntary Retirement, a person of the nature of the petitioner, as more fully detailed herein before, cannot possibly be given any redress against the order of the Board for Voluntary Retirement. There must be factual support pertaining to the allegations of mala fides, unfortunately there is none. Mere user of the word 'mala fide' by the petitioner would not by itself make the petition entertain able. The Court must scan the factual aspect and come to its own conclusion i.e. exactly what the High Court has done and that is the reason why the narration have been noted in this judgment in extenso. Tampering of the Annual Confidential Rolls have been alleged but there is no evidence in regard thereto or even to link up the two private respondents therewith. While it is true that the earlier relationship between an employer and employee or between the employees was that of mutual trust, confidence or welfare, presently the situation in general stands polluted and may be even one degree higher than the pollution of the environment, but that does not however clothe the Court to come to a conclusion of mala fide without there being any evidence being made available to the Court." 18. Their Lordships of the Honble Supreme Court in a recent judgment in Ratnagiri Gas and Power Private Limited v. RDS Projects Limited and others, (2013) 1 SCC 524 have held that a person alleging mala fides has to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. Their Lordships have held as under: "24. Their Lordships have held as under: "24. This question no longer survives for consideration in view of what has been observed by us while answering question no.1 above. If writ petition no. 534 of 2011 could not have reagitated issues touching the validity of annulment of the tender process, there was no occasion for the High Court to go into the question whether or not the decision to refer to the bid and annul the process was vitiated by malice in law or fact. The findings recorded by the High Court on the question of mala fides are, therefore, liable to be set aside on that ground alone. 25. Even otherwise the findings recorded by the High Court on the question of mala fides do not appear to us to be factually or legally sustainable. While we do not consider it necessary to delve deep into this aspect of the controversy, we may point out that allegations of mala fides are more easily made than proved. The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decision maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity. 27. There is yet another aspect which cannot be ignored. As and when allegations of mala fides are made, the persons against whom the same are levelled need to be impleaded as parties to the proceedings to enable them to answer the charge. In the absence of the person concerned as a party in his/her individual capacity it will neither be fair nor proper to record a finding that malice in fact had vitiated the action taken by the authority concerned. It is important to remember that a judicial pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. It is important to remember that a judicial pronouncement declaring an action to be mala fide is a serious indictment of the person concerned that can lead to adverse civil consequences against him. Courts have, therefore, to be slow in drawing conclusions when it comes to holding allegations of mala fides to be proved and only in cases where based on the material placed before the Court or facts that are admitted leading to inevitable inferences supporting the charge of mala fides that the Court should record a finding in the process ensuring that while it does so, it also hears the person who was likely to be affected by such a finding. 30. Coming then to the question whether the action taken by the appellant-RGPPL was vitiated by malice in law, we need hardly mention that in cases involving malice in law the administrative action is unsupportable on the touchstone of an acknowledged or acceptable principle and can be avoided even when the decision maker may have had no real or actual malice at work in his mind. The conceptual difference between the two has been succinctly stated in the following paragraph by Lord Haldane in Shearer v. Shields (1914) A.C. 808 quoted with approval by this Court Additional District Magistrate, Jabalpur v. Shivkant Shukla (SCC p.641, para 317) : "317.Between 'malice in fact' and 'malice in law' there is a broad distinction which is not peculiar to any system of jurisprudence. The person who inflicts a wrong or an injury upon any person in contravention of the law is not allowed to say that he did so with an innocent mind. He is taken to know the flaw and can only act within the law. He may, therefore, be guilty of 'malice in law', although., so far as the state of ins mind was concerned he acted ignorantly, and in that sense innocently. 'Malice in fact' is a different thing. It means an actual malicious intention on the part of the person who has done the wrongful act." 38. We need hardly point out that in cases where the decision making process is multi-layered, officers associated with the process are free and indeed expected to take views on various issues according to their individual perceptions. It means an actual malicious intention on the part of the person who has done the wrongful act." 38. We need hardly point out that in cases where the decision making process is multi-layered, officers associated with the process are free and indeed expected to take views on various issues according to their individual perceptions. They may in doing so at time strike discordant notes, but that is but natural and indeed welcome for it is only by independent deliberation, that all possible facets of an issue are unfolded and addressed and a decision that is most appropriate under the circumstances shaped. If every step in the decision making process is viewed with suspicion the integrity of the entire process shall be jeopardized. Officers taking views in the decision making process will feel handicapped in expressing their opinions freely and frankly for fear of being seen to be doing so for mala fides reasons which would in turn affect public interest. Nothing in the instant case was done without a reasonable or probable cause which is the very essence of the doctrine of malice in law vitiating administrative actions. We have, therefore, no hesitation in holding that the findings recorded by the High Court to the effect that the process of annulment of the tender process or the rejection of the tender submitted by RDS was vitiated by mala fides is unsustainable and is hereby set aside. Question no. 2 is accordingly answered in the negative." 19. The plea of lowering the age was given up by Mr. Subhash Sharma during the course of arguments. 20. Accordingly, in view of the observations and discussions made herein above, there is no merit in the writ petition and the same is dismissed. Pending application(s), if any, also stands disposed of. No costs.