IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.3806 of 2011
OM PRAKASH .
Versus
THE STATE OF BIHAR & ORS .
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02. 07.03.2011 Heard learned counsel for the petitioner and
learned counsel for the State.
The petitioner is an elected Mukhiya of
Gram Panchayat- Bhalua, Block-Belaganj, District-
Gaya, aggrieved by the order dated 11.2.2011 passed
under Section 18 (5) of the Panchayat Raj Act
(hereinafter referred to as the Act) by the Principal
Secretary, unseating him from that post.
Learned counsel submits that the petitioner
is alleged to have installed a Handpump himself
without appointing a contractor. He was elected on
30.6.2006. Considering the hot season, on a public
request he installed the Handpump on 18.6.2006. The
allegations are only of procedural irregularity.
Learned counsel for the State points out that
the act of the Mukhiya was procedurally improper. He
should not have become the contractor himself. There
were procedures for installing a Handpump.
There may have been procedures, from
which the Mukhiya deviated. Every deviation may not
constitute illegality. In his over enthusiasm, as a newly
elected people representative he may have gone a little
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overboard. His defence of the prevailing hot season
cannot be ignored. His enthusiasm to work for his
electorate cannot be ignored. There is no finding that
the Handpump was never installed, that it was
installed at a wrong place or at excessive cost. There is
no finding of any financial embezzlement or
misappropriation.
This Court has come across more than one
order where Benches of this Court have invited the
attention of the Principal Secretary, Panchayati Raj to
the nature of his power under Section 18 (5) of the Act
in dealing with elected persons. These orders
adequately discuss and refer to the judgments of the
Supreme Court in A.I.R. (2001) SC 2524 (Tarlochan
Dev Sharma Versus State of Punjab) and A.I.R. (2010)
2 SCC 319 (Sharda kailash Mittal versus State of M.P.)
requiring him to exercise his statutory powers in
accordance with the directions and observations made
by the Supreme Court. Notwithstanding the same, it is
unfortunate that without considering and discussing
the law as laid down by the Supreme Court, the
Principal Secretary continues to pass mechanical
orders, suffering from the same infirmities repeatedly
being pointed out by this Court in his orders under 18
(5) of the Act, acting in absolute discretion beyond the
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limits of the statutory power so confirmed. The
conduct of the Principal Secretary in passing orders of
the present nature is apposite to the observations of
the Supreme Court in the case of Tarlochan Dev
Sharma (supra) at paragraph-15 as follows:-
“15. In the system of Indian
Democratic Governance as contemplated
by the Constitution senior officers
occupying key positions such as
Secretaries are not supposed to
mortgage there own discretion, volition
and decision making authority and be
prepared to give way or being pushed
back or pressed ahead at the behest of
politicians for carrying out commands
having no sanctity in law. The Conduct
Rules of Central Government Services
command the civil servants to maintain
at all times absolute integrity and
devotion to duty and do nothing which
is unbecoming of a Government servant.
No Government servant shall in the
performance of his official duties, or in
the exercise of power conferred on him,
act otherwise than in his best judgment
except when he is acting under the
direction of his official superior. In
Anirudhsinhji Jadeja (1995) 5 SCC 302 :
(1995 AIR SCW 3543 : AIR 1995 SC
2390), this Court has held that a
statutory authority vested with
Jurisdiction must exercise it according
to its own discretion; discretion
exercised under the direction or
instruction of some higher authority is
failure to exercise discretion altogether.
Observations of this Court in the
Purtabpur Company Ltd., AIR 1970 SC
1896, are instructive and apposite.
Executive officers may in exercise of
their statutory discretions take into
account considerations of public policy
and in some context policy of Minister or
the Government as a whole when it is a
relevant factor in weighing the policy but
they are not absolved from their duty to
4exercise their personal Judgment in
individual cases unless explicit statutory
provision has been made for
instructions by a superior to bind them.
As already stated we are not recording,
for want of adequate material, any
positive finding that the impugned order
was passed at the behest of or dictated
by someone else than its author. Yet we
have no hesitation in holding that the
impugned order betrays utter non-
application of mind to the facts of the
case and the relevant law. The manner
in which the power under S. 22 has
been exercised by the competent
authority is suggestive of betrayal of the
confidence which the State Government
reposed in the Principal Secretary in
conferring upon him the exercise of
drastic power like removal of President
of a Municipality under S. 22 of the Act.
To say the least what has been done is
not what is expected to be done by a
senior official like the Principal
Secretary of a wing of the State
Government. We leave at that and say
no more on this issue.”
The Court trusts, hopes and expects that the
Principal Secretary shall proceed to acquaint himself
with the law laid down by the Supreme Court before
passing orders of the present nature.
The order dated 11.2.2011 is accordingly set
aside.
The application stands allowed.
P.K. ( Navin Sinha, J.)