IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.5026 of 2009 Mushtaque Hussain Versus The State Of Bihar & Ors ---------------------------------- For the Petitioner : Mr. Basant Kumar Singh, Advocate For the State : Mr. Sanjay Kumar No. 1 SC 12 For the A.G.Bihar: Mr. Viveka Nand Kumar, Advocate ------- 3. 04.08.2011 Heard learned Counsel for the petitioner, the State and the Accountant General. The petitioner was promoted as Assistant Engineer by an order dated 10.5.1996 with effect from 1.4.1992. He was required to pass the departmental examination within three years from the date of promotion to enable him to avail the monetary benefits of the promotion. Learned Counsel for the petitioner submits that the Rules permitted exemption for a person who had crossed the age of 50 years from sitting at the examination. The petitioner on 12.6.2002, before his superannuation on 31.7.2003, made an application for exemption. It never came to be decided but remained pending consideration and the petitioner superannuated being deprived of the monetary benefits of the promotion. Reliance is placed on a Bench decision of this Court reported in 2007 (Supplement) PLJR 260 (Bindeshwari Prasad Sharma Vs The State of Bihar & ors.). Counsel for the State submits that the grant of exemption was not a matter of right but the discretion of the respondents. By a considered order after exercise of discretion the exemption has been denied on 10.8.2009 duly communicated to him. The petitioner has not challenged the order. 2 If a discretionary power is vested in the authorities, the power is theirs and to be exercised by them. If there is delay in exercise of the discretion, a mandamus shall issue to exercise the discretion in accordance with law. But mere delay in exercise of discretion shall not justify the Court in usurping that power of the authority under Article 226 of the Constitution of India. Judicial Review shall not sanctify the same. Once the discretion has been exercised, judicial review shall arise thereafter. When an order is passed by an authority in whom the discretion has been vested, the Court should not lightly interfere with it. If the discretion has been exercised arbitrarily, illogically or with perversity, the Court in exercise of powers of judicial review may interfere with it. But if the order passed in exercise of discretion does not fall within any of the aforesaid categories, merely because this Court may have powers of judicial review over it and a different view may be possible also, perhaps favorable to the petitioner, shall not justify the Court setting aside the order only because it could do so. The impugned order dated 10.8.2009 states that after his promotion the petitioner had sufficient opportunity till the due date of three years i.e. 9.5.1999 to appear at the successive examinations that were held. He did not make any endeavour to appear and neither did he apply for exemption within three years. The Court is satisfied that the reasons are germane and not irrelevant to the controversy. They cannot be held to be arbitrary and fanciful. In the case of Bindeshwari Prasad Sharma (Supra) the ratio is that the benefit of exemption shall be available to one who has continuously tried to pass the examination but failed or if no 3 examination was held. Both the conditions do not apply to the facts of the present case. The writ application is dismissed. Snkumar/- (Navin Sinha,J.)