IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3806 of 2011 OM PRAKASH . Versus THE STATE OF BIHAR & ORS . ----------- 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 2 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 3 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 4 exercise 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.)