IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4804 of 2010 1. YUGAL KISHORE SINGH S/O LATE RAM SAJJAN SINGH R/O VILLAGE - TARIANI , P.S - JALLA , DISTRICT - DARBHANGA. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY, WATER RESOURCES DEPARTMENT , GOVT. OF BIHAR, NEW SECRETARIAT, PATNA 2. CHIEF ENGINEER, WATER RESOURCES DEPARTMENT , GOVT. OF BIHAR, DARBHANGA 3. SUPERINTENDING ENGINEER, WESTERN CANAL CIRCLE NO. I , DARBHANGA 4. EXECUTIVE ENGINEER WEST KOSI CANAL DIVISION NO. I , SAKRI , DARBHANGA 5. SUB DIVISIONAL OFFICER, WESTERN KOSI CANAL SUB DIVISION NO. I , SAKRI HQRS. , DARBHANGA ----------- 2. 4.11.2010 Heard learned counsel for the petitioner and the State. The petitioner is stated to be an office Superintendent in the office of the Executive Engineer, Kosi Canal Division, Sakri. He is aggrieved by the order dated 31.12.2009 passed by the Executive Engineer, Western Kosi Canal Division, Darbhanga, holding that the imposition of penal rent on the petitioner by order dated 21.5.2008 for having wrongly obtained allotment of quarter No. E-30 in Sakri and so occupied by him required no interference. The petitioner came for the same relief earlier in C.W.J.C. No. 13700 of 2009 disposed on 4.11.2009. This Court noticed Rule 13 of the 2 Government House Allotment (Patna Circle Pool) Rules which provided that an employee who did not have a house within 8 K.M radius from his place of posting was entitled to official accommodation. It was the case of the petitioner that he fulfilled the requirement after which he was allotted the aforesaid quarter. After show cause notice to him penal rent was imposed for having obtained wrong allotment of a Government quarter. The impugned order referred to above was followed by confirmations dated 16.6.2009/19.8.2009. Whether the petitioner had private accommodation within a 8 K.M. radius or not was essentially a question of fact. In view of the reports of the Superintending Engineer dated 28.6.2008 and the Executive Engineer dated 3.7.2008 in favour of the petitioner, and which did not find consideration in the impugned orders, this Court considered it prudent to set aside the order imposing penal rent and remitted the matter back to the Executive Engineer for a fresh appropriate decision in accordance with law by a reasoned and speaking order with a further direction that in such fresh order the recommendations dated 28.6.2008 and 3.7.2008 in favour of the petitioner must find consideration. The fresh impugned order dated 3 30.12.2009 has been issued thereafter. Counsel for the petitioner raises a very short submission that the impugned order does not at all deal with and discuss the aforesaid two letters and is in teeth of the orders of this Court declining to discuss the aforesaid two orders. He further submits that the order is bad as it refuses to take into consideration relevant materials. It is next submitted that even the counter affidavit in support of the impugned order refuses to deal with the aforesaid two recommendations in favour of the petitioner. Counsel for the State sought to persuade the Court that whether the petitioner held a private accommodation within 8 K.M. radius or not was a question of fact. The order dated 30.12.2009 is reasoned to the satisfaction of the authority on facts and therefore the Court may not interfere. This Court in C.W.J.C. No. 13700 of 2009 had already indicated that the reasoned and speaking order to be passed afresh by the Executive Engineer should be of a manner amenable to judicial review after specifically directing consideration of the recommendation dated 28.6.2008 and 3.7.2008, also on facts, in favour of the petitioner. 4 This Court in exercise of powers under Article 226 of the Constitution of India is not concerned with the final decision unless the decision may be completely arbitrary or perverse. It is more concerned with the decision making process. The duty of the authority becomes more onerous when the process has been delineated in a judicial order. If the authority refuses to take into consideration relevant materials, the order is rendered bad as being arbitrary. This becomes more important when the relevant materials have been directed and explained in a judicial order. The Supreme Court explaining the principles of judicial review in ,(2006) 8 SCC 200Jayrajbhai Jayantibhai Patel v. Anilbhai Nathubhai Patel, at paragraph 12 and 18 has stated as follows : “12. Article 226 of the Constitution is designed to ensure that each and every authority in the State, including the State, acts bona fide and within the limits of its power. However, the scope of judicial review in administrative matters has always been a subject-matter of debate despite a plethora of case-law on the issue. Time and again attempts have been made by the courts to devise or craft some norms, which may be employed to assess whether an administrative action is justiciable or not. But no uniform rule has been or can be evolved to test the validity of an administrative action or decision because the extent and scope of judicial scrutiny depends upon a host of factors, like the nature of the subject- matter, the nature of the right affected, 5 the character of the legal and constitutional provisions applicable, etc. While appreciating the inherent limitations in exercise of the power of judicial review, the judicial quest has been to find and maintain a right and delicate balance between the administrative discretion and the need to remedy alleged unfairness in the exercise of such discretion. 18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision.” On a bare reading of the order dated 30.12.2009, this Court is satisfied that it suffers from the vice of arbitrariness in as much as it not only refuses to take into consideration and deal with relevant materials, the two recommendations in favour of the petitioner on a question of fact, but the order is in teeth of the directions of the Court. In ,(2002) 7 SCC 46, Prakash Narain Sharma v. Burmah Shell Coop. Housing Society Ltd. 6 at paragraph 7 dealing with the effect of an administrative order in teeth of an order of the Court it was held :- “7. It will be a dangerous proposition to be laid down as one of law that any individual or authority can ignore the order of the civil court by assuming authority upon itself to decide that the order of the civil court is one by coram non judice. The appropriate course in such case is for the person aggrieved first to approach the civil court inviting its attention to the relevant provisions of law and call upon it to adjudicate upon the question of its own jurisdiction and to vacate or recall its order if it be one which it did not have jurisdiction in law to make. So long as this is not done, the order of the competent court must be obeyed and respected by all concerned. A judicial order, not invalid on its face, must be given effect to entailing all consequences, till it is declared void in a duly constituted judicial proceedings.” The order could not have been explained in the counter affidavit. Even if the Court were to permit so, the counter affidavit is also silent on the aforesaid two factual recommendations in favour of the petitioner. On the contrary, the deponent who is stated to an Executive Engineer seeks to question the order of his superior, the Superintending Engineer in having made the recommendation dated 28.6.2008. In AIR 1988 SUPREME COURT 1247 "Assistant Commissioner of Commercial Taxes (Asst.), Dharwar v. Dharmendra Trading Co." it has 7 been held that the Government cannot challenge the correctness of its own order in paragraph 5 as follows:- “5. The next submission of learned counsel for the appellants was that the concessions granted by the said order dated 30th June, 1969 were of no legal effect as there is no statutory provision under which such concessions could be granted and the order of 30th June, 1969 was ultra vires and bad in law. We totally fail to see how an Assistant Commissioner or Deputy Commissioner of Sales Tax who are functionaries of a State can say that a concession granted by the State itself was beyond the powers of the State or how the State can say so either. Moreover, if the said argument of learned counsel is correct, the result would be that even the second order of 12th January, 1977 would be equally invalid as it also grants concessions by way of refunds, although in a more limited manner and that is not even the case of the appellants.” Viewed from any aspect of the matter, the impugned dated 30.12.2009 is clearly not sustainable. It is accordingly set aside. If any recovery has been made from the petitioner, it is directed to be returned forthwith. The writ application stands allowed. P. Kumar ( Navin Sinha, J.)