Md. Wasiqur Rahman vs The State Of Bihar
2023 Latest Caselaw 4011 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.8445 of 2021
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Md. Wasiqur Rahman S/o- Late Md. Samidur Rahman R/o- At and P.O.- Gaiyari, Ward No- 12, P.S. and District- Araria.

... ... Petitioner/s Versus

1. The State of Bihar through the Principal Secretary, Education Department, Government of Bihar, Patna.

2. The Director, Primary Education, Govt. of Bihar, Patna.

3. The District Education Officer, Araria.

4. The District Programme Officer (Estt.), District, Araria.

5. The Treasury Officer, Araria.

6. The Headmaster-cum- Drawing and Disbursing Officer, Thana Middle School, Farbesganj, District- Araria.

7. The Headmaster, Primary School, Osri, Farbeshganj, District- Araria.

8. The Accountant General, Bihar.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Rajeev Kumar Singh, Advocate Mr. Pranab Jha, Advocate Mr. Santosh Singh, Advocate Mr. Prabhaojot Singh, Advocate Mr. Gyanendra Kumar Diwakar, Advocate For the Respondent/s : Mr. Madhukar Mishra, AC to SC-16 ====================================================== CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH ORAL JUDGMENT Date : 24-08-2023 Heard Mr. Rajeev Kumar Singh, learned

counsel appearing on behalf of the petitioner and Mr.

Madhukar Mishra, learned AC to SC-16 appearing on

behalf of the State.

2. Learned counsel appearing on behalf of the

petitioner submits that the petitioner is aggrieved for non-

fixation of his pension and payment of gratuity due to Patna High Court CWJC No.8445 of 2021 dt.24-08-2023

inaction of the District Programme Officer (Establishment),

Araria, who has not even delved into to comply with the

order passed by the Division Bench of this Court in Letter

Patent Appeal No. 77 of 2008 arising out of CWJW No.

13836 of 2001. He has drawn attention to Paragraphs No.

15 to 21 of the order passed by the Division Bench. He

further submits that petitioner preferred Special Leave

Petition (C) No. 1380 of 2012, which was dismissed vide

order dated 21.08.2012. Learned counsel on these

backgrounds submitted that the District Programme Officer

(Establishment), Araria, in spite of the specific direction of

this Court in above LPA, which has not been interfered by

the Apex Court in any manner has sat tight over the

grievance of the petitioner by not taking slips in compliance

of the observation and direction of the Division Bench of

this Court vide order dated 24.11.2011.

3. Learned counsel appearing on behalf of the

State submits that the District Programme Officer

(Establishment), Araria, being the sanctioning authority has

to comply with the Division Bench direction by making

enquiry into the matter and sanction the due amount of Patna High Court CWJC No.8445 of 2021 dt.24-08-2023

pension payable to the petitioner. He further submits that it

is admitted that the petitioner was appointed in the year

1988 and, thereafter, for the period 1990 till 1997, he

remained absent, however, he has further admitted that the

petitioner was allowed to continue in service and he had

retired in November, 2011.

4. Learned counsel for the State in these

background submits that the District Programme Officer

(Establishment), Araria, by not adhering to comply with the

order of Division Bench has in fact shown disregard to the

order of this Court. He further submits that today in

compliance of the oral direction of this Court, he had made

a telephonic communication with the District Programme

Officer (Establishment) in presence of the learned counsel

appearing on behalf of the petitioner, but in spite of having

been clarified about the order passed by the Division Bench

of this Court, he is reluctant to take any action with respect

to sanctioning of pension payable to the petitioner and

gratuity in accordance with law nor he is ready to pass any

order.

5. Having considered the rival submission made Patna High Court CWJC No.8445 of 2021 dt.24-08-2023

by the parties, this Court can only observe that the District

Programme Officer (Establishment), Araria, has not only

disobeyed the order of this Court, this Court finds him

incompetent officer, who has not understood the Division

Bench direction/order which was/is required to be complied

with soon after the Apex Court had not interfered with the

order of the Division Bench in rejecting the appeal filed by

the petitioner in the year 2012.

                         6.     The     malafide      action   of   the   District

         Programme            Officer    (Establishment),      Araria,    in   not

following the reasons assigned by the Division Bench and

overwhelmed with his private opinion that the Special

Leave Petition (C) No. 1380 of 2012 has been dismissed by

the Apex Court he has formed a private opinion which is

much of a humor and fanciful which an honest man

competent to discharge of his office cannot be expected of.

The Hon'ble Apex Court in case of Union of India v.

Kuldeep Singh reported in 2004 (2) SCC 590 has held that

the discretion is to know through law what is just to quote:

"Discretion is to know through law what is just. Where a judge has and exercises a judicial discretion his order is unappealable unless he did so under a mistake of law or fact or in disregard of Patna High Court CWJC No.8445 of 2021 dt.24-08-2023

principle, or after taking into account irrelevant matters. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did......"

Their Lordships of Hon'ble Supreme Court further proceeded to hold as under:-

"20. When anything is left to any person, judge or Magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore, whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary)

21. Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colourable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office out to confine himself (per Lord Halsbury, L.C., in Sharp v. Wakefield). (Also see S.G.

Jaisinghani v. Union of India)

22. The word "discretion' standing single and unsupported by circumstances signifies Patna High Court CWJC No.8445 of 2021 dt.24-08-2023

exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently therefore a discretion cannot be arbitrary but must be a result of judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion it also imposes a heavy responsibility. "The discretion of a judge is the law of tyrants; it is always unknown. It is different in different men. It is casual, and depends upon constitution, temper and passion. In the best it is often times caprice; in the worst it is every vice, folly, and passion to which human nature is liable." Said Lord Camden, L.C.J., in Hindson and Kersey".

28. In view of above in case the statutory discretion vests in an authority then such discretion should be exercised not in arbitrary, whimsical and fanciful manner. It must be reflected from the outcome of event that the authority concerned has exercised discretion within the sound principle of law, skill and wisdom with vigilant circumspection and care. The discretionary power imposes a heavy responsibility on a person or authority. The latitude or liberty accorded by statute, Circular or Order to the higher authority does not permit to exercise such power in unjust and unfair manner. In the case of Kuldeep Singh (supra), their Lordships of Apex Court further held as under:- "If a certain latitude or liberty is accorded by a statute or rules to a judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him, it is judicial discretion. It limits and regulates the exercise of discretion, and prevents it from being wholly absolute, capricious, or exempt from review."

7. The Constitution Bench of Hon'ble Supreme

Court in a case reported in AIR 1991 SC 101; Delhi Transport

Corporation v. D.T.C. Mazdoor Congress and others had

repelled the presumption that person holding high office does

not commit wrong. Discretion enjoyed by the persons holding

high offices should not be left to the good sense of individuals. Patna High Court CWJC No.8445 of 2021 dt.24-08-2023

Relevant portion from the judgment of Delhi Transport

Corporation (supra) is reproduced as under:-

"There is need to minimize the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of the individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty and property to the vagaries of the individual whims and fancies. It is trite to say that individuals are not and do not become wise because they occupy high seats of power, and good sense, circumspection and fairness does not go with the posts, however high they may be. There is only a complaisant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society pledged to uphold the rule of law, it would be both unwise and impolitic to leave any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law."

8. The Hon'ble Supreme Court in the case of State

of NCT of Delhi and another v. Sanjeev alias Bittoo reported in

2005 (5) SCC 181 held that if the administrative or judicial

power has been exercised on non-consideration or non-

application of mind to relevant factors, such exercise shall stand

vitiated.

9. The action of the District Programme Officer

(Establishment), Araria shows that he has not only

committed jurisdictional error, but the available records

reflect that, without regard to the facts and laws, by Patna High Court CWJC No.8445 of 2021 dt.24-08-2023

exercising his pure will and whims, has exercised

arbitrarily, capriciously and perversely, being adamant in

restraining himself by not complying with the orders of this

Court.

10. Considering the deliberate inaction on the

part of the District Programme Officer (Establishemnt),

Araria, the Additional Chief Secretary, Education

Department, Government of Bihar, is directed to take

appropriate action in the matter relating to the payment of

pension and gratuity to the petitioner by calling service

records relating to the petitioner, thereafter, he is directed to

comply with the direction passed in LPA No. 77 of 2008

considering the admitted fact that the petitioner had retired

in the year 2011 and the total period of pensionable service

is required to be taken from the date of appointment of the

petitioner in the year 1988 in accordance with the provision

of Bihar Pension Rules, 1950, and if it is found that the

pension and gratuity as claimed by the petitioner is

admissible, appropriate steps be taken to direct the

concerned authority to sanction the pension and gratuity of

the petitioner by forwarding the letter to the Accountant Patna High Court CWJC No.8445 of 2021 dt.24-08-2023

General, Bihar.

11. The above exercise is directed to be

completed within a period of six weeks from the date of

communication of this order.

12. With above observation and direction, the

present writ petition is disposed of.

(Purnendu Singh, J)

Niraj/-

Nilmani/-

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          24.08.2023
Transmission Date       N/A