IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.2578 of 2009 ==================================================== YOGENDRA JHA - Petitioner/s(s) . Versus THE STATE OF BIHAR & ORS- Respondent/s(s) . ==================================================== Appearance : For the Petitioner/s: Mr. AMIR ALAM Mr. MUKESH KUMAR Mr. PAWAN KUMAR I For the Respondent/s: Mr. (SC16) ==================================================== CORAM: HONOURABLE MR. JUSTICE NAVIN SINHA DATE: 12-07-2011 ORAL ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) 3/ 12/07/2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner is aggrieved by the order dated 3.11.2008 passed by the Secretary, Department of Science and Technology rejecting the claim of the petitioner to be considered for absorption as an employee of the erstwhile Dr. Jagannath Mishra Institute of Technology, Darbhanga (hereinafter referred to as J.M.I.T., Darbhanga) pursuant to the take over of the Institution by the State Government in 1986, on the ground that his service stood terminated by the erstwhile institution prior to the take over. The petitioner claims to have been appointed in 1981 as an Assistant-cum-Storekeeper in the erstwhile J.M.I.T. affiliated to Lalit Narayan Mithila 2 University, Darbhanga. He was recommended for confirmation on 16.4.1983. While his confirmation was pending consideration, on 3.11.1983 the Director of the J.M.I.T., Darbhanga ordered for termination of his services. It is the specific case of the petitioner that the Managing Committee, which alone was competent to order termination did not approve of the same. The petitioner continued to discharge duties. The order of termination was then withdrawn on 10.12.1983 and his services were confirmed on 10.7.1984. Prima facie, exercising powers of judicial review, the Court is satisfied of a very serious error in the decision making process by the respondents failing to consider relevant materials vitiating the impugned order. By notification No.37/86 dated 9.12.1986 an ordinance was promulgated taking over the private engineering colleges/institutions, later converted into Act-7 of 1987. It included the J.M.I.T., Darbhanga. Section-5(3) ordered that the staff of the erstwhile private colleges shall continue on ad hoc basis till such time that the State Government takes a decision about the staffing pattern for absorption. The controversy commences from here. The Court culls out from the records of the proceedings that 3 3 lists were prepared. The first list consisted of persons whose names were recommended for absorption. The second, those who were not recommended and the third list consisted of those persons whose appointments were found forged. In the third list there was one Yogendra Jha described as a Lab Assistant. It has to be kept in mind that the petitioner claimed that he was working as an Assistant. When his name did not figure in any of the three lists, he approached this Court in C.W.J.C. No.12944/2000. The Court noticed that he had filed representations before the District Magistrate and the Director, Department of Science and Technology, but no action was taken. Directions were given to the District Magistrate and the Director to examine his representations. It appears that earlier on 26.10.1990 the Deputy Development Commissioner on behalf of the District Magistrate had written to the Director, Science and Technology enclosing the petitioner‟s application for absorption supported by a letter issued by the Mithila Vikas Sansthan managing the J.M.I.T., confirming that the petitioner was an appointee and whose services had been confirmed on 10.7.1984. The direction of this Court led to a fresh order on 17.5.2001 by the Secretary, Department of Science and Technology 4 rejecting the claim of the petitioner holding that he had not been able to substantiate his claims. He approached this Court again in C.W.J.C. No.9191/01. The Court noticed that the Collector, who was a member of the screening committee, after examination, was satisfied of the discrepancy in not recommending the name of the petitioner. This obviously had reference to the letter dated 26.10.1990 referred to above. The Court noticed that the primary grievance of the petitioner was that he was unnecessarily being dragged into a non-existent dispute vis-à-vis one Shri Yogendra Jha when the petitioner had nothing to do with that person or the post of Lab Assistant. The petitioner made a grievance that the list of employees of Class-3 was not being properly examined including communications in respect thereof. The Court then observed that the District Magistrate should examine the records and send a report to the Director. The District Magistrate ledmade fresh enquiry and submitted a report on 11.3.2008. The Court finds that even that report takes notice of the fact that the petitioner had asserted that vide letter No.265(g) dated 10.7.1984 his services had been confirmed. The In- Charge Principal of the J.M.I.T. talked of the 5 termination dated 3.11.2003 and the issuance of a formal order in pursuance thereof by the taken over Managing Committee on 26.9.1987. The clear defence of the petitioner hat he had never been terminated finds no consideration in the order. The District Magistrate then concludes that the In-Charge Clerk of the records had died because of which the previous records could not be examined. In pursuance of that recommendation, the Secretary, Department of Science and Technology, has passed the impugned order. The impugned order again refers to his termination dated 3.11.1983 emphasizing that the take over was subsequent on 9.12.1986. It concludes that if his services were terminated prior to the take over on 3.11.1983, the question of forwarding his name in any list including that of Class-4 simply does not arise. Shri Yogendra Jha, whose name finds place in the list of Class-4, joined on 5.11.1985. His date of birth was 14.5.1959 while that of the petitioner was 30.6.1954. The former was a resident of Madhubani while the petitioner claims to be a resident of Darbhanga. He then concludes that since the two were different persons, the claim of the petitioner that he was wrongly included in Class-4 was devoid of substance. It further goes on to discuss that the father‟s 6 name of Shri Yogendra Jha shown as Lab Assistant was Sheo Narayan Jha while that of the petitioner was Bechan Jha. It was therefore apparent that the two were entirely different persons. In conclusion, the Secretary holds that the entire edifice of the claim of the petitioner that his name was wrongly included in class- 4 collapses and that the petitioner had failed to prove that his name was ever included in any list of the screening committee. The impugned order proceeds on the assumption that the petitioner stood terminated on 3.11.1983. It thus arrived at the conclusion that his claims for omission of his claims were all fictitious and bogus as a person with a similar name was to be found in another list with a different address, parentage, date of birth etc. The petitioner in his list of documents submitted in support of his claims at item Nos.4, 7 to 10 had specifically submitted documents with regard to his appointment, the recommendation for confirmation of his appointment on 16.4.1983, the alleged termination dated 3.11.1983, the refusal of the management on 10.12.1983 to confirm the termination and the subsequent confirmation of his services on 10.7.1984. All these factors do not find any consideration in the impugned order. The Court 7 therefore in exercise of powers of judicial review holds that the administrative order which refuses to take into consideration relevant materials, especially when it is placed before the authority and his attention was drawn to the same, suffers from gross arbitrariness and perversity. The impugned order dated 3.11.2008 is accordingly set aside. Learned counsel for the State has very fairly acknowledged that the petitioner along with his representation had annexed a list of documents which is reflected at Annexure-51 to the writ application. He submits that it was considered by the Secretary before the impugned order has been passed. But, he has been unable to demonstrate the application of mind by the Secretary to the documents discussed hereinabove in addition to the list submitted by J.M.I.T. enclosed at Item No.13 to the list of documents. The limits for judicial review of an administrative decision has been considered in (2005) 5 SCC 181 (State of NCT of Delhi v. Sanjeev) at paragraph 19 observing :- “19. Before summarising the substance of the principles laid down therein we shall refer to the passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn.9 (KB at p. 229 : All ER pp. 682 H-683 A). It reads as follows: “… It is true that discretion must be exercised reasonably. Now what does that mean? 8 Lawyers familiar with the phraseology used in relation to exercise of statutory discretions often use the word „unreasonable‟ in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said, to be acting „unreasonably‟. Similarly, there may be something so absurd that no sensible person could even dream that it lay within the powers of the authority. … In another, it is taking into consideration extraneous matters. It is unreasonable that it might almost be described as being done in bad faith; and in fact, all these things run into one another.” Lord Greene also observed (KB p. 230 : All ER p. 683 F-G) “… it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body can come to. It is not what the court considers unreasonable. … The effect of the legislation is not to set up the court as an arbiter of the correctness of one view over another.” (emphasis supplied) Therefore, to arrive at a decision on “reasonableness” the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could 9 have reasonably arrived at, having regard to the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the court to substitute its view. The Court now directs the Secretary to pass a reasoned and speaking order discussing the nature of the contents of the aforesaid documents and then arrive at the finding disclosing full application of mind by him to the contents, the thought process of his mind duly reflected in the order to facilitate judicial review if the need arises. The Secretary shall bear in mind that this was the third round of litigation pursued by the petitioner before this Court. Let the same be done by the Secretary within a maximum period of six weeks from the date of receipt/production of a copy of this order. The impugned order orders dated 11.3.2008 and 3.11.2008 are set aside. The writ application is allowed. KC ( Navin Sinha, J.)