Himachal Pradesh Ex-Servicemen Corporation v. District Magistrate, Solan
2015-12-15
TARLOK SINGH CHAUHAN
body2015
DigiLaw.ai
JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. This writ petition has been filed claiming therein the following substantive reliefs:- (i) By issuing writ in the nature of mandamus or any other writ, order or direction, quashing the impugned order dated 4.2.2015 (Annexure P-5) 2. The brief facts of the case are that respondent No. 2, i.e. Zila Solan Bhootpurav Sainik Parivahan Co-operative Society Limited, Darlaghat had earlier filed CWP No. 4040 of 2013 on the ground that it was not getting its due share of transportation work from the petitioner. Respondent No. 2 also demanded a separate quota on the analogy of Rishi Markanday Ex-serviceman Transport and Kalyan Samiti, Jukhala, District Bilaspur. Lastly, it had sought quashing of the order passed by the petitioner herein dated 21st April, 2010, whereby quota of only 30 trucks for the ex-servicemen of Shimla, Solan and Kullu had been fixed. 3. This Court vide its order dated 12th November, 2013 in CWP No. 4040 of 2013 passed the following order:- “The grievance of the petitioner in this petition is essentially that the communication issued by respondent No. 4, Annexure P-9, is in the teeth of the direction issued by the District Magistrate vide order dated 26th March, 2010. In that case, it is open to the petitioner to approach the District Magistrate, Solan, District Solan for ensuring proper enforcement of the order dated 26th March, 2010. If such application is filed, the same be decided expeditiously, after giving notice to all concerned. 2. It will be open to the petitioner to also apply to the District Magistrate to issue appropriate direction for allotting work to the petitioner, in accordance with law. We are not expressing any opinion about the said claim of the petitioner. It will have to be decided by the competent Authority on its own merits. 3. The writ petition is disposed of, so also the pending applications, if any.” 4. In compliance to the aforesaid order, respondent No. 1 passed an order reducing the allotment and transportation work of the petitioner in so far as it only relates to the work of lifting of cement from Rauri Unit of respondent No. 3, i.e. Ambuja Cement from existing 10% to 7½% and the 2½% quota so reduced was ordered to be allotted to respondent No. 2.
It is this order which has been assailed by the petitioner on the ground that the impugned decision of respondent No. 1 is arbitrary and discriminatory, because it is the petitioner Corporation, which has been constituted under the statute for the benefit of the ex-service men in the entire State. Whereas, respondent No. 2 is simply a Co-operative Society and could not have been allotted the 2½% by reducing the same from the petitioner's share. 5. Respondent No. 1 has filed its reply and has supported its decision. Whereas, respondent No. 2, who is the main contesting party in its reply has raised various preliminary objections including the objection that the members of petitioner Corporation were earlier having six tyres truck and now without there being any order from the competent authority have purchased multi-excel vehicles and lifting more load than the normal truck, thereby depriving the members of respondent No. 2 from allotment of any work. It is also averred that the trucks, which are affiliated with the petitioner are mostly belonging to the people who are not ex-service men, but are running the trucks under the name of ex-service men. Whereas, on the other hand, the members of the respondent are was widows and soldiers injured during the war. 6. Respondent No. 3 in its separate reply has raised preliminary objections regarding maintainability. On merits, it is stated that in so far as the distribution of work is concerned, the same initially was governed by the order dated 26th March, 2010, in which the petitioner was allotted 10% of the transportation work of cement and clinker. Now by way of order dated 4th February, 2015, respondent No. 1 has modified its earlier order and out of 10% quota of work allotted in favour of the petitioner, 2½%, share of the petitioner pertaining only to the allocation of transportation work of Rauri Unit has been reduced and allotted in favour of respondent No. 2. It was further clarified that in Rauri Unit only clinker is produced, whereas cement is not produced, therefore, the position which exist after passing of the impugned order is that distribution of work in favour of the petitioner, as far as Suli Unit is concerned, the same remained undisturbed and this Unit produces both clinker and cement.
It was further clarified that in Rauri Unit only clinker is produced, whereas cement is not produced, therefore, the position which exist after passing of the impugned order is that distribution of work in favour of the petitioner, as far as Suli Unit is concerned, the same remained undisturbed and this Unit produces both clinker and cement. It is further averred that though the impugned order was passed without associating the respondent but it was bound to abide by the orders passed by respondent No. 1, pursuant to the directions issued by this Court. I have heard the learned counsel for the parties and have also gone through the records of the case. 7. It is trite law that the power of judicial review under Article 226 of the Constitution of India is not directed against the decision but is confined to the decision making process. The judicial review is not an appeal from a decision, but a review of the manner in which the decision is made and the Court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision itself. 8. It is only on account of members of respondent No. 2, who admittedly are ex-service men or their dependents, failing to get sufficient work to make both ends meet through the petitioner Corporation, that they formed respondent No. 2 Society. Even during the course of hearing of this petition, a proposal was mooted to the petitioner to enroll the members of respondent No. 2 in the petitioner society and allot them work at par with the other ex-service men of the petitioner Corporation, but the said proposal was turned down by the petitioner on the ground that 227 trucks which have been initially attached with the petitioner are firstly to be provided work and it is only thereafter that the other ex-service men even though enrolled with the petitioner can claim a share in the allocation and distribution of work. The petitioner claims that out of 227 trucks engaged by it with respondent No. 3, only 30 trucks involved are of ex-service men of Solan District.
The petitioner claims that out of 227 trucks engaged by it with respondent No. 3, only 30 trucks involved are of ex-service men of Solan District. Thus what the petitioner in fact is claiming is nothing, but a monopoly in the distribution and allocation of work, that too only in favour of those 227 trucks, which were initially engaged by the petitioner with respondent No. 3, without really caring for the remaining ex-service men. 9. Indisputably, the petitioner is a statutory body incorporated and constituted under the Ex-Servicemen Corporation Act, 1979 for the welfare and economic upliftment of the ex-servicemen, which means the entire body of ex-servicemen and not selected few. Once the Corporation is a statutory body and a State within the meaning of Article, then its actions have to be inconformity with the Constitution, more particularly Article 14 thereof. The petitioner cannot be permitted to act arbitrarily or in a discriminatory manner, thereby discriminating between one ex-service man and the other, particular when the ex-service men in themselves constitute a homogeneous class. The petitioner being a State within the meaning of Article 12 of the Constitution of India has to act within the four corners of law. 10. Now adverting to the decision impugned herein, it would be noticed that what primarily weighed with respondent No. 1 was the fact that the ex-servicemen of District Solan had not been given the due share in the transportation work despite the fact that the plant of respondent No. 3 was itself situate in district Solan. Since the major impact of the plant was in District Solan, therefore, the residents of this district must be given priority in the allocation and distribution of work. Respondent No. 1 also took into consideration the order passed by this Court on 13.12.2012 in CWP Nos. 5985 and 5736 of 2012, wherein a separate quota had been allocated to the Rishi Markanday Ex-servicemen Transport and Kalyan Samity, Jukhala. Lastly, respondent No. 1 also took into consideration the fact that the ex-servicemen of the district Kangra, Hamirpur, Bilaspur, Una and Solan were mainly dependent for their livelihood on the transportation work, therefore, in case the ex-service men of Solan district are given exclusive quota from the State ex-service men quota, then it would not adversely effect the residents of other districts. 11.
11. In this background, it would be seen that it is not even the case of the petitioner that it was not associated or given an opportunity to put forth its case before passing of the impugned order. The only grievance made out is that respondent No. 1 failed to take into consideration the fact that out of 227 trucks engaged by the petitioner with respondent No. 3, as many as, 30 trucks involved were those of ex-servicemen of Solan district. 12. At this stage, it may be observed that the petitioner has not chosen to file rejoinder to the reply of respondent No. 2 and therefore, its allegations that many trucks of ex-service men are being operated by non-ex-servicemen and some of the ex-servicemen have been reemployed in the Government service but their trucks are still attached and being plied by the non-ex-servicemen, remains uncontroverted. Even the further averments of respondent No. 2 that its members mainly comprises of war widows, injured soldiers who are medically boarded out from the service and unemployed ex-servicemen, will have also to be taken correct. 13. That apart, even if the merits of the decision rendered by respondent No 1 are required to be gone into, it would be seen that respondent No. 2 has 145 members, whereas the petitioner has 227 trucks, therefore, in such circumstances, even if the quota of the petitioner is reduced from 10% to 7½% and granted in favour of respondent No. 2, I do not see any illegality in such decision, particularly, when the petitioner does not deny that the members of respondent No. 2 themselves are ex-servicemen or their dependents. After all, the petitioner cannot claim any monopoly. Having said so, I find no merit in this petition and the same is dismissed, leaving the parties to bear their costs.