JUDGMENT
Navaniti Pd. Singh, J.
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1. Heard the parties.
2. As directed by this Court the State has filed a supplementary counter affidavit with regard to the status of the departmental enquiry as against the erring officers.
3. With the consent of the parties, this writ application is being disposed of at the admission stage itself.
4. The petitioner entered into an agreement with the State for executing certain works under different agreements. Having executed the work he made representation for payment of his bills, which was not done for paucity of fund. This forced the petitioner to come to this Court. By filing this writ application in September, 2004 the petitioner prayed for direction to the State to allot funds for payment of his bills pursuant to work done by him . It appears from Annexure 1 that the claim of the petitioner for the work done was accepted by the Executive Engineer who forwarded the same to the Superintending Engineer and the Chief Engineer for necessary action. Nothing came out of that and the Writ application had to be filed.
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5. In the first counter affidavit it was disclosed that after the writ application was filed, the matter was referred to the Liability Committee of the Road Construction Department constituted by the government to consider the pending matters. It appears that the Liability Committee examined the matter and rejected the total claim of the petitioner. Pursuant thereto by Office order dated 11.11.2005, the Joint Secretary in the department of Road Construction Department. held that the claim was not entertainable. There were three grounds to reject the petitioner’s claim firstly that the publicity for notice inviting tender was inadequate and did not increase the competitive bidding, which was inviolation of circular of the government, secondly that the measurement procedure for the work done was not fully complied with by the Assistant .Engineer and the Executive Engineer in accordance with the government circular and lastly that the work order ought not to have been issued before receipt of funds. what is of significance i ; that there is absolutely no denial that pursuant to agreement the petitioner had done the work. What is further of importance is that the petitioner is not involved as he had no control with regard to any of the aforesaid three reasons given. Jo my mind what is being said is that because government officials failed to discharge their duties in the manner in which they are required to do by government circular the petitioner who done the work for the government under a duly executed agreement is not liable to get any payment for the work done. In other words, the respondent-State wants to benefit and take advantage of default committed by its officers to the detriment of the citizen like the petitioner. To my mind this cannot be continued in a civilized society, muchless, under constitutional set up. I may only remind of what was said by Chief Justice Chagla in the case of All India Groundnut Syndicate Ltd. v. Commissioner of Income Tax, Bombay City, since ):
But the most surprising contention is put forward by the Department that because their own officer failed to discharge his statutory duty, the assessee is deprived of his right which the law has given to him under Sub-section (2) of Section 24. In other words, the Department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person- we take it that the Income tax Department is included in that definition can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because ” I have committed a default and the right is lost because of that default.
6. I may also refer to the judgment of the Apex Court in the case of Hindustan Sugar Mills v. State of Rajasthan and Ors. 1981 B.C. 1681 wherein the Apex Court has clearly held that, even in matters arising out of contractual relationship the claim of a citizen cannot be arbitrarily dealt with by the State. State must do what is just and fair and not drive the litigant to civil court. I may also note a recent Supreme Court judgment in the case of ABL International Ltd. and Anr. v. Export Credit Guarantee Corporation of India and Ors. since wherein the Apex Court has held that even in contractual matter relating to money claim State cannot act arbitrarily and the actions are amenable to the Writ jurisdiction. I must note in fairness respondents have relied on a Full Bench judgment of this Court in the case of Rita Mishra and Ors. v. Director, Primary Education, Bihar, Patna, since reported in 1987 PLJR 1090.
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7. To my mind this judgment has no application to the facts of the present case. The said case dealt with illegal appointments where, the. authority to make appointment itself was not founded legal and illegality created no right. There is no such fact in the present case.
8. In matter of contact it is a settled principle of law that no service is gratuitous. Admittedly the petitioner had done the work for public i.e. State. State having taken the work cannot take the plea of depriving the petitioner of the payment for the works done, moreso, merely because of some fault committed by their officials. All the three grounds given for denying the payment do not relate to any action of which the petitioner should be said to be responsible. Petitioner is thus liable to be compensated and the stand taken by the State to deny the payment is clearly unsustainable and arbitrary and thus violative of Article 14 of the Constitution. The reasons given are mere pretence of excuse to deny legitimate payment. Initially, I hold that the petitioner is entitled to the payment as recommended by the Executive Engineer to the Superintending Engineer (Annexure 1) and also as noticed by the Liability Committee and the Office Order, as referred to above. The same shall be paid to the petitioner within a period of one month from the date of. receipt/production of a copy of this order before the Chief Engineer, Road Construct on Department.
9. I may here also observe that by order dated 15.9.2006. this Court had observed that if the department had found fault and serious fault against the State officers who have been used for denying payment to the petitioner, it is in fitness of things that the State should proceed with disciplinary proceedings against the State Officers.
10. A supplementary counter affidavit has been filed showing initiation of proceedings against the officers in this regard but cautiously though serious allegation of financial irregularity is being made ( issuing work order without receiving the fund and allegedly without proper publicity) yet the department took a curious stand that it was not the case for suspending the officials and permitted them to continue to deal such financial matters.
11. This to my mind itself shows wrongful attitude of the department. On one hand they are ready to deny payment and penalise the citizen who is not at fault. They Jo not even intend to suspend or withdraw financial power who have committed gross irregularity All these are only a pretence of excuse to deny the legitimate payment. This Court cannot be a silent spectator to such an arbitrary action.
12. This writ application is accordingly allowed with the aforesaid observation.
13. Let a copy of this order be given to learned Counsel for the State for communication to the Secretary of the department in question.