Arun Kumar vs State Of U.P. And 13 Ors
2014 Latest Caselaw 9476 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR
 
Court No. - 26
 

 
Case :- WRIT - A No. - 54604 of 2014
 
Petitioner :- Arun Kumar
 
Respondent :- State Of U.P. And 13 Ors
 
Counsel for Petitioner :- Swarn Kumar Srivastava,Anil Kumar Srivastava
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble B. Amit Sthalekar,J.

Heard Sri T.P.Singh, learned Senior Counsel assisted by Sri Anil Kumar Srivastava for the petitioner and Sri Mata Prasad, learned Additional Chief Standing Counsel for the respondents.  

The petitioner is seeking quashing of the order dated 16.9.2014 (Annexure-1 to the writ petition)  by which he has been placed under suspension. The principal ground for challenging the suspension order is that the same has been passed by the Director (Panchayati Raj) U.P., Lucknow, who is not  the competent authority.

The petitioner is working on the post of Assistant Accountant in the office of District Panchayat Raj Officer, Moradabad. On the charge of making fraudulent signatures of the District Magistrate, Moradabad he has been placed under suspension on  account of a criminal case no.637 of 2014 being initiated against him under Sections 420,467,468,469 and 471 I.P.C.. Without going into the question about the  validity of those proceedings and the evidence against the petitioner, which is beyond the jurisdiction of this Court, what is required  to be examined as of now is as to whether the order of suspension has been passed by the authority  who is competent to pass the same or not.     

Sri T.P. Singh has relied upon a Government Notification dated 10.10.2011 (annexure-19 to the writ petition)  wherein it has been provided that for the post of Assistant Accountant, Accountant and Assistant Accounts Officer selection/appointment and transfer shall be made by  the Internal  Audit Directorate. Thereafter another G.O. was issued on 19.6.2012 (Annexure-20 to the writ petition) which again provides that selection/appointment and transfer of the posts of Assistant Accountant, Accountant and Assistant Accounts Officer in the Audit Cadre shall be made by the Internal Audit  Directorate and the posting of selected candidates to the concerned department shall be made by the Central Directorate. In this view of the matter, the submission of the learned Senior Counsel is that the Appointing Authority after coming into force  of the two G.Os. is the Internal Audit  Directorate  and not the Director Panchayati Raj.

Sri Mata Prasad on the other hand submitted that these two G.Os. do not take finality and they are  subject to approval by the Government and the Rules are to be framed for that purpose. In this regard he has referred to para-2 of the Notification dated 19.6.2012 (Annexure-20 to the writ petition) which mentions that  in future the Directorate Internal Audit  shall be known as Internal Audit and Accounts Examiner Directorate and therefore, he has tried to submit that this shows that  the Notification was itself not final and something more was required to  happen in future.

A counter affidavit has been filed on behalf of the respondents.  Along with the counter affidavit new Rules relating to the Establishment of the New Department  Subordinate Accounts Cadre (non-gazetted) Service  Rules, 2014 has been notified, copy of which has been filed as Annexure-4 to the counter affidavit and he further submits that since the Rules have now been notified on 7.11.2014, therefore, the order of suspension of the petitioner passed on 16.9.2014 by the Director, Panchayati Raj  would be held to be valid as at that time new Rules had not been notified.

An affidavit of compliance has already been filed by the respondent no.3, Director, Panchyati Raj, U.P. Lucknow bringing on record the same Notifications 19.6.2012 as well as 13.2.2013 as Annexure-2 and 3 to the affidavit.  Along with the compliance affidavit he has also brought on record the Notification dated 1.8.2006 (Annexure-1 to the  affidavit) and has therefore sought to submit that  in terms of para-7 of the G.O. dated 1.8.2006 Director, Panchayati Raj  was nominated as the Appointing Authority of the Assistant Accountant in the Audit Cadre in the Panchayati Raj Office.

Heard the submission of learned counsel for the parties and perused the documents on record. The Notification dated 1.8.2006 has been issued   nominating the Director Panchyati Raj as the competent authority in the matter of appointment of  Accountant and Assistant Accountant  in the office of Panchayati Raj but thereafter the Notifications dated  10.10.2011, 19.6.2012 and 13.2.2013  have been issued providing that selection, appointment and  transfers shall hereinafter be looked after by the Internal Audit Directorate and even though the Rules have subsequently  been notified  to the same effect dated 7.11.2014, the Notification dated 13.2.2013 has already received the assent of the Governor  after the G.O. dated 10.10.2011 and therefore, the  Notification  dated 1.8.2006 must be deemed  to be  superseded by the  subsequent Notification as the  two Notifications cannot stand  in conflict  with one another on the same issue. Even in the subsequent Notification dated 19.6.2012 it was  mentioned that in future the name of the department would be Internal Audit and Accounts Examiner Directorate but that  itself does not indicate that the Notification was to take effect from any future date. The Notification  had come into existence on 19.6.2012 and mentioned that the name  of Directorate  would be determined on a future date and nothing more. Therefore it must be  assumed  that on the date  when the petitioner was placed under suspension  i.e. on 16.9.2014, the Notifications dated  10.10.2011, 19.6.2012  as well as 13.2.2013  were already in existence. It is also relevant  to note  that the  Notification dated 10.10.2011 had received  the assent  of  the Governor as would be clear from the Notification dated 13.2.2013 and this  Notification was subsequently  metamorphozed into the Rules, 2014 notified on  7.11.2014. 

In a  quite similar matter in the case of  High Court of Gujrat and Another vs. Gujrat Kishan Mazdoor Panchayat and others reported in  (2003) 4 SCC 712, when action was taken by the High Court in the matter of appointment of the President of Industrial Board relying upon the draft Rules framed by the High Court  and the same was subsequently incorporated in the Draft  Recruitment Rules, the action taken by the High Court on the basis of Draft Rule was approved by the Governor.

The Supreme Court  has  held in para 18 of the said judgment  as under:-

"This Court, in the case of State of Maharashtra vs. Labour Law Practitioners' Association & Ors., held that the Labour Court Judges and the Judges of the Industrial Court belong to Judicial service and recruitment is to be made in accordance with Article 234 of the Constitution of India. The existing Recruitment Rules did not comply with the provision of Article 234 of the Constitution of India. The State Government, therefore, referred to the High Court for consultation and approval of the Rules. The administrative side of the High Court framed the Draft Rules and the appointment offered to Shri N.A. Acharya was in accordance with the Draft Rules. This apart, the eligibility criteria for appointment on the post of the President of the Industrial Court has been determined by the High court and the same has been incorporated in the Draft Recruitment Rules at the request of the Government."

In view of the Notifications dated 10.10.2011,19.6.2012 and 13.2.2013 and particularly  after coming into force of the Notifications dated 10.10.2011 which has received the assent of the Governor, the earlier Notification dated 1.8.2006  automatically stood superseded and after coming into force the Notification dated 13.2.2013, it would be the Internal  Audit Directorate, respondent no4, which would be the Appointing Authority of the petitioner.

In this view of the matter, since the order of suspension was passed by the Directorate, Panchayati Raj, the same must be held  to be passed by an authority  not  competent under the Rules and therefore, the same is not sustainable in law and is accordingly quashed.

The writ petition stands allowed.

Order Date :- 3.12.2014

Asha