IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.2982 of 2010 1. DILEEP KUMAR SINHA S/O LATE JAGADISH PRASAD SINHA R/O MOH MANANPUR GAYA,P.S.CIVIL LINES GAYA,DISTT-GAYA Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY,REVENUE AND LAND REFORMS DEPTT. GOVT.OF BIHAR,PATNA 2. THE MEMBER ,BOARD OF REVENUE BIHAR,PATNA 3. THE DISTRICT MAGISTRATE GAYA 4. THE SUB -DIVISIONAL OFFICER CUM-CONDUCTING OFFICER TEKARI,P.S.TEKARI,DISTT-GAYA 5. THE CIRCLE OFFICER CUM -PRESENTING OFFICER BODH GAYA,P.S.BODH GAYA,DISTT-GAYA For the Petitioner: Sri Rajendra Prasad Singh, Sr. Adv. For the State : S.C. 7 ----------- 3/ 07/10/2010 Heard learned counsel for the petitioner and learned counsel for the State. Two copies of the writ petition were served in the office of the Advocate General on 25.1.2010. On 30.8.2010 the matter was adjourned to file a counter affidavit, framing the question if in view of the impugned orders any action had been taken against the Circle Inspector and the Circle Officer when the reported recommendation by the petitioner was buttressed by the Circle Inspector and mutation ordered by the Anchal Adhikari. Learned counsel for the State submits that he has still received no instructions and seeks further time. The Court is not inclined to adjourn the matter further in view of the nature of order to be passed. The position of the State is different from that of an ordinary litigant. When two private persons litigate - 2 - they are adversarial parties. But, when the actions of the State are questioned, the State is not an adversarial litigant vis-à-vis the citizens. The primary duty of the State is to protect the interest of the citizens and the society. That shall not vest a right in the citizens to demand a situation of his desire. The State has the right to oppose the claims of a citizen, but not as an adversarial litigant. The duty of the State is to place proper facts before the Court, to assist the Court in dispensation of justice, to enable the Court to arrive at a conclusion in accordance with law. The State functions through its officials. The State is not a human being. The officials of the State constitute human beings. When those who are supposed to protect the interest of the State fail in their duties, there is little that the Courts can do about it except to decide matters on records as they stand applying the principles of non traverse. Today the concern of one and all is the pendency of cases in Courts. The State has been held to be a primary litigant contributing to at least 70% of cases in the Court. The Union of India has made a serious effort to frame a National Litigation Policy. Despite of all this, it is unfortunate that no counter affidavit has still been filed. Perhaps, the Chief Secretary of the State would like to look into the matter and ensure that the counter affidavits - 3 - are filed in time. The petitioner is stated to be a Revenue Karmachari. He was placed under suspension by order dated 7.12.2007 and charges framed. An enquiry report of exoneration came to be submitted followed by an order on 29.3.2008 for a de novo enquiry. In the fresh enquiry he was found guilty. He filed his reply to the second show cause when on 27.5.2008 punishment has followed dismissing him from service. He preferred an appeal before the Commissioner, Magadh Division at Gaya which was allowed by order dated 7.5.2009. The State preferred an appeal before the Board of Revenue. The Board of Revenue upset the order of the appellate authority leading to the institution of the present writ application. In view of the nature of the order to be passed, this Court considers it proper to take note of the facts of the case only to the extent necessary. The appellate court holds that the recommendation for mutation made by the petitioner was in pursuance of the orders of the competent civil court in favour of the claimants. The appellate authority then opines that more than the petitioner as a Revenue Karmachari the Anchal Adhikari appeared guilty and therefore it was not proper to hold the petitioner guilty alone. - 4 - The Board of Revenue as the appellate authority at paragraph-21 of its order affirmed the opinion of the appellate authority that the Anchal Adhikari was the real culprit, but declined to go into that question on the precocious plea that his guilt could not be fixed as he was not a party in the present proceeding. This Court in the order dated 30.8.2010 has already noticed the stand of the petitioner that he, as the Karmachari, only submitted a report/recommendation for mutation. This was affirmed by the Circle Officer whereafter after the Anchal Adhikari ordered mutation. The petitioner has filed a supplementary affidavit copy whereof was served on the State on 30.9.2010 stating that no action whatsoever has been taken against the Circle Inspector and Circle Officer and on the contrary they have been promoted as Circle Officer and Senior Deputy Collector respectively. In a departmental proceeding, those who are guilty of any dereliction of duty have to be treated even handedly and meted out similar treatment. The State cannot act on basis of a pick and choose to proceed against some of them and to shield the others. In fact, unless there be any difference in the allegations against them, their respective roles, there can be no difference in the punishment also. If the Circle Inspector and the Circle - 5 - Officer have not been even proceeded against notwithstanding the findings of the appellate authority and the Board of Revenue there shall be no justification for singling out the petitioner alone who is at the bottom most rung of the official hierarchy. In fact, it may give the impression that he was an easy and soft target for fixation of responsibilities alone. Even in case of punishment for administrative responsibilities, there can be no arbitrariness or discrimination as process of Article-14 shall normally apply in such a situation also as held in Man Singh vs. State of Haryana reported in (2008) 12 SCC 331 page 336 as follows: “20. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equals have to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of “fair play” and reasonableness.” Learned counsel for the petitioner next submits that no subsistence allowance has also been paid during - 6 - the period of suspension. Learned counsel for the State submits that it is a matter to be considered in accordance with the Rules. Perhaps, if the State had filed a counter affidavit that issue could also have been decided simultaneously. The matter is remanded to the Secretary, Revenue and Land Reforms Department. He is required to grant a personal hearing to the petitioner and then pass a reasoned and speaking order in light of the findings of the appellate authority and the Board of Revenue that the Circle Inspector and the Circle Officer were clearly responsible to conclude whether they had been proceeded against or not. If they have not been proceeded against what is the justification in law to punish the petitioner alone in light of the aforesaid discussion and as to why he should not be treated similarly by exoneration and payment of full salary. Let the Principal Secretary, Revenue and Land Reforms in this manner pass a reasoned and speaking order within a maximum period of five weeks from the date of receipt/presentation of a copy of this order. The writ application stands disposed. KC ( Navin Sinha, J.)