Allahabad High Court
Vijay Kumar vs State Of Up And 3 Others on 1 March, 2024
Author: Prakash Padia
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:37287
Court No. - 35
Case :- WRIT - A No. - 3209 of 2024
Petitioner :- Vijay Kumar
Respondent :- State Of Up And 3 Others
Counsel for Petitioner :- Grijesh Tiwari
Counsel for Respondent :- C.S.C.,Pranjal Mehrotra
Hon'ble Prakash Padia,J.
1. Heard Shri Grijesh Tiwari, learned counsel for the petitioner.
2. The petitioner has preferred the present writ petition inter-alia with the prayer to quash the order dated 16.01.2024 passed by the respondent no.2 namely Director Panchayati Raj, U.P. at Lucknow, copy of which is appended as Annexure-5 to the writ petition.
3. It is argued that earlier the letter was written by the State-Government to the Director Panchayati Raj on 03.01.2024 to suspend the persons including the present petitioner and informed the Government in this regard. Subsequent to the same, the respondent no.3 namely Mission Director, Swachh Bharat Mission (Rural), U.P. at Lucknow, wrote a letter to the Additional Director, Administration, Panchayatiraj, Directrate on 05.01.2024.
4. In compliance of the aforesaid letters, order of suspension dated 16.01.2024 was passed by the respondent no.2 namely Director Panchayati Raj, U.P. at Lucknow copy of which is appended as Annexure no.5 to the writ petition. In the order of suspension, it is stated that same has been passed pursuant to the letter written by the State-Government.
5. Learned counsel for the petitioner placed reliance upon the following paragraph of the Division Bench judgment of this Court passed in Writ A No. 58619 of 2015 (V.N. Daipuria vs. State of U.P. & 3 others) decided on 27.10.2015, which reads as follows:-
"On the parameters of the provisions as quoted as above, the order of suspension in question indicates that in the present case that State Government had been apprised of the factual situation and State Government on being apprised with the report against the petitioner, the State Government in its turn proceeded to pass an order mentioning therein that the petitioner should be placed under suspension with immediate effect and disciplinary action be initiated under Rule 7 of U.P. Government Servant (Discipline & Appeal) Rules 1999. After receipt of the said letter in question, the Additional Director of Eduction (Basic), U.P., Allahabad, the Appointing Authority has proceeded to pass the order of suspension and by means of order of suspension the Appointing Authority has proceeded to categorically mention this fact that the said authority of suspension is being exercised by him pursuant to the decision taken by the State Government on 30.09.2015. Once such is the factual situation in the present case that discretion has been taken away by the State Government from the Appointing Authority by giving mandatory directive for placing petitioner under suspension whereas 'discretion' as per Blacks Law Dictionary means, "individual judgement: the power of free decision making". The Appointing Authority has not proceeded to exercise his independent mind and has exercised authority of suspension on the directives of State Government. Division Bench of this Court in the case of Dr. Arvind Kumar Rana Vs. State of U.P., 2007 (4) AWC, in reference of same set of Rules has taken the view that authority of suspension cannot be exercised on mere recommendation, the Appointing Authority is obligated to apply his own independent mind, the first proviso to Rule 4 (1) is mandatory and obligates Appointing Authority to prima facie record satisfaction about the seriousness of the allegations levelled and as to whether ultimately it may entail into awarding major penalty. Accordingly in the facts of the case passing of such suspension order has to be accepted being in breach of Rule 4 (1) of U.P. Government Servant (Discipline & Appeal) Rules 1999 as on its face value the discretion has not been independently exercised by the Appointing Authority in question. In view of this the order of suspension, based on this short ground is quashed but we leave it open to the Appointing Authority to apply his independent mind and if facts and circumstances do warrant to pass fresh order of suspension.
Writ petition is allowed, accordingly."
6. It is further argued that taken into consideration the aforesaid judgment, another order was passed by the Coordinate Bench of this Court dated 30.11.2018 in Writ A No. 25269 of 2018 (Sita Ram Singh Yadav vs. State of U.P. And 3 Others). Order reads as follows:-
"Learned Standing Counsel appearing for the respondents may file a counter affidavit within a period of six weeks. The petitioner shall have two weeks thereafter to file a rejoinder affidavit.
List thereafter.
Prima facie and from a consideration of the order impugned, the Court notes that the same has come to be passed apparently on the dictates of the State Government. Additionally learned counsel places reliance upon a decision of the Division Bench in V.N. Daipuria Vs. State of U.P. and 3 Others Writ-A No. 58619 of 2015 where dealing with an identical controversy the Division Bench has proceeded to note that the order of suspension would not sustain.
Matter requires consideration.
Till the next date of listing, there shall be stay of the order dated 12 October 2018.
This order, however, shall not preclude the respondents from continuing with the disciplinary proceedings which are contemplated."
7. Matter requires consideration.
8. Learned Standing Counsel accepted notice on behalf of respondent nos. 1, 2 & 4 and though the notice on behalf of respondent no.3 was received by Shri Pranjal Mehrotra, learned counsel, today when the matter is taken up, it is informed by him that the notice was wrongly received by him and learned Standing Counsel represented all the respondents.
9. As prayed by the learned Standing Counsel, appearing on behalf of all the respondents, four weeks' time is granted to file counter affidavit. Petitioner will have two weeks thereafter to file rejoinder affidavit.
10. List after the exchange of affidavits.
11. Till the next date of listing the order of suspension dated 16.01.2024 passed by the respondent no. 2 namely Director Panchayati Raj, U.P. at Lucknow, shall remain stayed.
12. This order, however, shall not preclude the respondents from continuing with the disciplinary proceedings which are contemplated.
Order Date :- 1.3.2024
Swati
