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2003 DIGILAW 494 (PAT)

State Of Bihar v. Dinesh Chandra Sinha

2003-04-28

R.N.PRASAD, RAVI S.DHAVAN

body2003
Judgment 1. The delay in filing the appeal is condoned. 2. This letters patent appeal has been filed by the State of Bihar challenging the order of 17.2.2003 passed on CWJC No. 13383 of 2002 : Dinesh Chandra Sinha V/s. The State of Bihar & Ors. Regard being had to the circumstances, as such instances are coming to light before the High Court more often, it would be best to reproduce the order of the learned Judge. It runs thus : "In this writ petition, petitioner who retired on 31.3.2000 while working as Correspondence Clerk in the office of District Statistical Officer, Siwan, is aggrieved by the order contained in Annexure-5, whereby the Director, Statistical and Evaluation, Planning and Development Department, Government of Bihar, Patna (Respondent no. 2), has reviewed his earlier order contained in Directorates order no. 139 (memo no. 229) dated 15.1.1989, by which leave for the period mentioned therein were sanctioned. According to the Director, the sanction of the said leave was not in accordance with the Rules and, as such, he has passed the impugned order after about 13 years of sanction of the leave and consequently has pleaded break in service for the period 1.1.1972 to 8.10.1972 and 1.5.1975 to 4.2.1981, which obviously resulted in reduction of pension. According to the learned counsel for the State leave sanctioned to the petitioner earlier were contrary to the Rules and, as such, the present Director has corrected the mistake which is purely administrative decision, and as such, there is no infirmity in the impugned order. I am unable to accept the said submission of the learned counsel for the State. It is not disputed that the leave for the said period was sanctioned to the petitioner as extraordinary leave with half pay for the period 1.1.1972 to 8.10.1972 on account of illness and leave without pay for the same reason for the period 1.5.1975 to 4.2.1981. As such, it is not a case of correction in the calculation made on administrative side. In fact, it is a case where the successor Director in office has reviewed the earlier decision regarding grant of leave and has treated the said period as break in service, which in view of the law settled in the case of Patel Narshi Thakershi V/s. Pradyamunsinghji Arjunsinghji, reported in A.I.R. 1970 Supreme Court 1273 is not permissible. In the result, writ application is allowed. In the result, writ application is allowed. The impugned order, contained in Annexure-5 is quashed. The Respondents are directed to issue fresh sanction order with respect to pension and gratuity accordingly within one week of the receipt/production of a copy of this order. It is needless to say that the Accountant General, Bihar, Patna shall issue necessary authority within one week of the receipt of the sanction order." 3. The contention on the writ petition on behalf of the State is that the leave which had been sanctioned, that is say, the period between 1.1.1972 to 8.10.1972 and 1.5.1975 to 4.2.1981, could not have been sanctioned. The learned judge was of the opinion that this matter could not be reopened after 13 years. The order which was challenged in the writ petition has not been referred to in the impugned order. Learned counsel for the State Mr. P.K. Dutta, S.C. 4, pointed this out as the order dated 28 September, 2002, appended as Annexure 5 to the writ petition. 4. The order of the learned judge is on a very broad aspect that if any administrative direction may affect the service of a person or for that matter a pensioner to affect his pension adversely, the grant of leave should have been the subject matter of consideration in the normal course during the service of the incumbent. Now that the petitioner has retired on 31 March, 2000, to open up any record after 13 years for reducing the pensionary benefits and recording a note, to the effect, that a certain period of leaves beginning from 1 June, 1970 to 18 December, 1995 (56 items mentioned in Annexure-5) should not be reconsidered behind the back of the petitioner. 5. This court is making no comment whether some official of the Directorate, Statistical and Evaluation, Planning and Development Department, Government of Bihar, had irregularly granted leave and also sanctioned these periods of leave illegally when he had no power to do so. 6. But what the court noticed as a strange phenomenon is that today the State of Bihar has come up in a letters patent appeal to virtually seek a certificate from the High Court that the officers of the State have committed an irregularity. The State of Bihar is running away from its responsibility to check wrongs done within its governance. But what the court noticed as a strange phenomenon is that today the State of Bihar has come up in a letters patent appeal to virtually seek a certificate from the High Court that the officers of the State have committed an irregularity. The State of Bihar is running away from its responsibility to check wrongs done within its governance. This shows that the State is shirking its obligation and has lost the will to correct errors within the administration, and would like to share the running of the administration with the courts. Thus, when it suits the State administration it conveniently ignores if not perpetuate irregularities. And yet when there are internal squabbles and vested interests, one hand commits an illegality and the other hand of the State says challenge this illegality in Court. But who committed the illegality? The officials of the State in the administration of the State. 7. The State as a body politic rests on a theory that the king shall do no wrong. But, the courts have explained this principle on the attribute of sovereign functions that the sovereign does not permit any wrong to be done to his subjects and if a wrong be occasioned it is by the servants of the sovereign Tobin V/s. R (1861-73) ALL E.R. Rep 1485, Johnstone V/s. Pedlar 1921 (2) AC 262, Vicount Cantebury V/s. Attorney General, 1904 (4) 41 ER 648. 8. If a table chart has been drawn up to reveal that the petitioner was on leave for 3240 days then the question arises which Officer or Director, who was incharge of this particular incumbent suffered the situation conveniently to encourage circumstances to permit the person to get away with the situation. If the wrong has to be checked by reducing the pension then attention may also be diverted against all those officers, who encouraged and permitted this irregularity. So between hands which gave and now would like to take away, let all those be answerable. Such is the phenomenon in public administration in Bihar today. Catching a flunkey inside the administration is only a camouflage to permit the ring leaders to get away. Let all those who arrange unjust enrichment be enquired. 9. Dismissed.