Madhya Pradesh High Court
Lalaram Dohare vs The State Of Madhya Pradesh on 20 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 20th OF FEBRUARY, 2025
WRIT PETITION No. 6073 of 2025
LALARAM DOHARE
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Vinod Kumar Dhakad - Advocate for petitioner.
Shri Shailendra Singh Kushwaha - Government Advocate for the
State.
ORDER
This petition under Article 226 of the Constitution of India has been
filed seeking following relief (s) :-
"A. That, order Annexure P/1 dated 10.12.2024 and Annexure P/2
dated 09.02.2024 respectively passed by respondents no.2 and 3
may please to set aside.
B. That, any other order of direction which this Hon'ble Court deem
fit and proper in the facts and circumstances of the case including the
cost of litigation, may also be issued in favour of the petitioner."
2. Cousnel for petitioner has confined his argument to the observation
made by Collector-cum-District Magistrate, Gwalior in his order dated
09.02.2024, by which, suspension period has been treated as "No work No
pay".
3. It is submitted by cousnel for petitioner that in view of Circular
No.C-6/01/2005/one/3 dated 13-1-2005, it is clear that whenever a minor
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penalty is imposed, entire salary of suspension period has to be restored.
Thus, it is submitted that Collector-cum-District Magistrate, Gwalior has
comitted material illegality by treaing the suspension period as "No work No
pay". However, it was once again clarified that petitioner has not challenged
the finding with regard to his misconduct and the minor punishment of
censure.
4. Per contra, it is submitted by counsel for State that an executive
instruction cannot override the rules. F.R.54-B does not provide that in case
if any minor penalty is imposed, then full salary for suspension period has to
be paid.
5. Heard learned counsel for petitioner.
6. Clause 6 of Circular dated 13.01.2005 reads as under:-
" 6 . मु य शा त हे तु सं थत वभागीय जांच म य द कसी
िनलं बत शासक य सेवक पर जांच उपरांत लघु शा त ह अिधरो पत
क जाती है तो उसका िनलंबन औिच यपूण नह ं माना जा सकता।
अत: रा य शासन ने िनणय िलया है क ऐसे मामल म संबंिधत
शासक य सेवक क िनल बन अविध को मूलभूत िनयम 54-बी के
प र े य म कत य अविध मा य कर िनल बन अविध के स पूण
वेतन भ (शासक य सेवक को िनल बन अविध म भुग ु तान कए
गए "जीवन िनवाह भ े" क रािश का समायोजन कर) दए जाएं।
यह िनणय इस ापन के सा रत होने क ितिथ से लागू होगा तथा
जन करण म िनणय िलया जा चुका है , वे पुन: नह ं खोल
जाएंगे।"
7. F.R. 54-B (3) reads as under:-
"(3) Where the authority competent to order reinstatement is of the
opinion that the suspension was wholly unjustified, the Government
servant shall, subject to the provisions of sub-rule (8), be paid the
full pay and allowances to which he would have been entitled, had
he not been suspended:
Provided that where such authority is of the opinion that the
termination of the proceedings instituted against the Government
servant had been delayed due to reasons directly attributable to the
Government servant, it may, after giving him an opportunity to
make his representation within sixty days from the date on which the
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communication in this regard is served on him and after considering
the representation, if any, submitted by him direct, for reasons to be
recorded in writing, that the Government servant shall be paid for
the period of such delay only such amount (not being the whole) of
such pay and allowances as it may determine."
8 . Therefore, according to F.R. 54-B (3), full salary can be paid for
suspension period only if the authority competent to order re-instatement is
of the view that suspension was wholly unjustified. Now by issuing the
Circular dated 13.01.2005 State Government has in fact amended the
provisions of F.R.54-B (3). It is well established principle of law that an
executive instruction can not override the rules.
9. The Supreme Court in the case of Union of India and Another Vs.
Ashok Kumar Aggarwal, reported (2013) 16 SCC 147 has held as under :-
"58. A Constitution Bench of this Court while dealing with a similar
issue in respect of executive instructions in Sant Ram Sharma v.
State of Rajasthan & Ors. AIR 1967 SC 1910, held:
"7. ... It is true that the Government cannot amend or
supersede statutory rules by administrative instructions, but if
the rules are silent on any particular point, the Government can
fill up the gaps and supplement the rules and issue instructions
not inconsistent with the rules already framed."
60. Similarly, a Constitution Bench of this Court, in Naga People's
Movement of Human Rights v. Union of India., AIR 1998 SC 431 ,
held that the executive instructions have binding force provided the
same have been issued to fill up the gap between the statutory
provisions and are not inconsistent with the said provisions."
10. The Supreme Court in the case of Accountant General, State of
Madhya Pradesh Vs. S.K.Dubey and Another , reported in (2012) 4 SCC 578
has held as under:-
"31. Subject to the provisions of the Constitution, the executive
power of a State extends to the matters with respect to which the
legislature of the State has power to make laws. This is what is
provided in Article 162 of the Constitution. In other words, the
executive power of the State executive is coextensive with that of
thet State Legislature.
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33. The Constitution Bench of this Court in Lalit Mohan Deb said:
(SCC p.867, para 9) "9. It is true that there are no statutory rules
regulating the selection of assistants to the selection grade. But the
absence of such rules is no bar to the adminstration giving
instructions regarding promotion to the higher grade as long as such
instructions are not inconsistent with any rule on the subject."
39. I am of the considered view that there is no difference in the
legal position in a case where power conferred on the State
Government for framing rules has been exercised but such rules
remain silent on certain aspects although it had power to make rules
with regard to those aspects and in the situtation where no rules have
been framed in exercise of the power conferred on it, insofar as
executive power of the State is concerned. The power that vests in
the State Government under Section 30 (2) to carry out the
provisions contained in Section 16 (2) does not take away its
executive power to make provision for the subjects covered in
Section 16 (2) for which no rules have been framed by it. The
exercise of such power by the State Government, obviously, must
not be inconsistent with the constitutional provisions or statutory
provision in Section 16 (2) or the State Rules framed by it. In the
present case, the exercise of power by the State Government by
issuance of the Order dated 5-4-2002 does not suffer from any such
vice."
11. The Supreme Court in the case of Joint Action Committee of Air
Line Pilots' Association of India (ALPAI) and Others Vs. Director General
of Civil Aviation and Others , reported (2011) 5 SCC 435 has held as under
:-
"17. CAR 2007 is neither a statute nor a subordinate legislation. The
provisions contained in Sections 4-A, 5 and 5-A of the Act 1934 and
Rules 42-A & 133-A of the Rules 1937 make it evident that the same
are merely executive instructions which can be termed as "special
directions". The executive instruction can supplement a statute or
cover areas to which the statute does not extend, but it cannot run
contrary to the statutory provisions or whittle down their effect.
(Vide State of M.P. & Anr. v. M/s. G.S. Dall & Flour Mills (1992)
Supp. (1) SCC 150).
20. Thus, an executive order is to be issued keeping in view the rules
and executive business, though the executive order may not have the
force of law but it is issued to provide guidelines to all concerned,
who are bound by it.
21. In Union of India & Anr. v. Amrik Singh & Ors., AIR 1994 SC
2316, this Court examined the scope of executive instructions issued
by the Comptroller and Auditor General for making the
appointments under the provisions of Indian Audit and Accounts
Department (Administrative Officers, Accounts Officers and Audit
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Officers) Recruitment Rules, 1964, and came to the conclusion that
the Comptroller and Auditor General of India had necessary
competence to issue departmental instructions on matters of
conditions of service of persons serving in Department, being the
Head of the Department, in spite of the statutory rules existing in this
regard. The Court came to the conclusion that an enabling provision
is there and in view thereof, the Comptroller and Auditor General
had exercised his powers and issued the instructions which are not
inconsistent with the statutory rules, the same are binding for the
reason that the provision in executive instructions has been made
with the required competence by the Comptroller and Auditor
General.
22. Thus, it is evident from the above that executive instructions
which are issued for guidance and to implement the scheme of the
Act and do not have the force of law, can be issued by the competent
authority and altered, replaced and substituted at any time. The law
merely prohibits the issuance of a direction, which is not in
consonance with the Act or the statutory rules applicable thereunder.
23. This Court in State of U.P. & Ors. v. Hirendra Pal Singh etc., JT
(2010) 13 SC 610, considered a large number of judgments
particularly in Firm A.T.B. Mehtab Majid & Co. v. State of Madras
& Anr., AIR 1963 SC 928 ; B.N. Tewari v. Union of India & Ors.,
AIR 1965 SC 1430; Indian Express Newspapers (Bombay) (P) Ltd.
& Ors. v. Union of India & Ors., AIR 1986 SC 515 ; West U.P.
Sugar Mills Association & Ors. v. State of U.P. & Ors., AIR 2002
SC 948 ; Zile Singh v. State of Haryana & Ors., (2004) 8 SCC 1; and
State of Kerala & Anr. v. Peoples Union for Civil Liberties; (2009) 8
SCC 46, and came to the conclusion that once the old rule has been
substituted by the new rule, it stands obliterated, thus ceases to exist
and under no circumstance, can it be revived in case the new rule is
held to be invalid and struck down by the Court, though the position
would be different in case a statutory amendment by the legislature,
is held to be bad for want of legislative competence. In that situation,
the repealed statutory provisions would revive automatically."
12. Thus, as per F.R.54-B (3), when the competent authority comes to
a conclusion that suspension was wholly unjustified, only then the employee
would be entitled for full pay and allowances to which he would have been
entitled, had he not been suspended.
13. If the misconduct of an employee was proved then merely because
a minor penalty was imposed the State Govt. cannot take away the discretion
of disciplinary authority to adjudicate as to whether suspension was wholly
unjustified or not.
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14. In the present case, petitioner has not challenged the finding of his
guilt and has also not challenged the minor penalty of suspension. Once
misconduct of petitioner has been proved, then by no such of imagination it
can be said that suspension of petitioner was wholly unjustified.
15. Under these circumstances, this Court is of considered opinion that
since Circular dated 13.01.2005 cannot override the provision of F.R.54-B
(3) and since suspension of petitioner cannot be kept in category of "wholly
unjustified", no case is made out warranting interference.
16. This petition fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AK/-
