# Arvind Kumar, Lekhpal, Tehsil- Bahedi, Distt: Bareilly v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 318
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-12
- **Case number:** Writ-A No. 6376 of 2023
- **Bench:** Saurabh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-lekhpal-tehsil-bahedi-distt-bareilly-v-state-of-u-p-ors-50429
- **Pages:** 4

## Headnote

A. Service Law - Suspension - Disciplinary
Proceedings - Uttar Pradesh Government
Servant (Discipline and Appeal) Rules,
1999 - Rule 7 - The suspension order can
be passed only on consideration of the
charges as levelled against the petitioner.
The suspension order cannot be passed
merely on assumption. Moreover, at the
time of passing the suspension order, the
Disciplinary Authority has to exercise his
discretion
by
way
of
applying
his
independent and free mind by way of
quantifying that whether the suspension
passed against the delinquent or not for
substantiating his arguments. (Para 4, 5)

In the present case, the order of suspension has
been passed by the Disciplinary Authority only
on the recommendation of the Tehsildar who
has been nominated as an Inquiry Officer vide
order dated 27.02.2023 for conduction of fair
inquiry, wherein it has been presumed by the
Inquiry Officer that if the petitioner will remain
at the services of posting where he is presently
posted, he may tamper evidences which may
not culminate into fair inquiry. (Para 10)

Since the recommendations for suspension have
been made by the Inquiry Officer under the
disciplinary proceedings initiated against the
petitioner and not by any other authority, who is
not related to disciplinary proceedings, there is
hardly any scope for interference in the order
impugned. (Para 11, 12)
7 All. Arvind Kumar, Lekhpal, Tehsil-Bahedi, Dist: Bareilly Vs. State of U.P. & Ors.
319
Writ petition dismissed. (E-4)

Precedent distinguished:

V.N. Daipuria Vs St. of U.P. ors., Writ-A No.
58619 of 2015, decided on 27.10.2015 (Para 7,
9, 10)

Present petition assails suspension order
dated
21.03.2023,
passed
by
Sub
Divisional Magistrate- Bahedi, Bareilly.
And, prays for direction to respondents
not to disturb peaceful continuance of
petitioner
as
Lekhpal-Tehsil-Bahedi,
District-Bareilly and also to pay him full
salary.

## Text

318 INDIAN LAW REPORTS ALLAHABAD SERIES
unreserved category shall exceed the
maximum capping of 50% of reservation in
favour of the unreserved category and the
same is contrary to the guiding principles
laid down in the case of Indra Sawhney
Vs. Union of India.

19. Answering the abovementioned
framed questions, it is crystal clear that the
reservation applicable for reserved category
especially for the Scheduled Caste which is
21% which comes down in fraction to 1.68
and as such, one post out of 8 has to be
kept
reserved
for
reserved
category
candidate belongs to the Scheduled Caste
and as per the factual narration made by
learned Standing Counsel, one Sri Suresh
Chandra is already rendering his services as
Principal, Government Ayurvedic Medical
College and as such, there is a strict
compliance of the reservation mandated
under 21%.

20. Sofar as the application of roster is
concerned, the same is also applied by way
of de-categorization of the posts in reserved
category, unreserved category and other
backward classes. It is the admitted fact
which has been narrated in the petition as
well as apprised through the instructions by
learned Standing Counsel that one post has
been already occupied by reserved category
under Scheduled Caste and two posts under
the Other Backward Classes are also
occupied and as such, the notification
issued for the four posts for unreserved
category, cannot be termed as illegal.

21. In view of the aforementioned
observations, the writ petition stands
dismissed.
----------
(2023) 7 ILRA 318
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2023
BEFORE

THE HON'BLE SAURABH SRIVASTAVA, J.

Writ-A No. 6376 of 2023

Arvind Kumar, Lekhpal, Tehsil- Bahedi,
Distt: Bareilly ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Adarsh Shukla, Sri Prabhakar Awasthi

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - Disciplinary
Proceedings - Uttar Pradesh Government
Servant (Discipline and Appeal) Rules,
1999 - Rule 7 - The suspension order can
be passed only on consideration of the
charges as levelled against the petitioner.
The suspension order cannot be passed
merely on assumption. Moreover, at the
time of passing the suspension order, the
Disciplinary Authority has to exercise his
discretion
by
way
of
applying
his
independent and free mind by way of
quantifying that whether the suspension
passed against the delinquent or not for
substantiating his arguments. (Para 4, 5)

In the present case, the order of suspension has
been passed by the Disciplinary Authority only
on the recommendation of the Tehsildar who
has been nominated as an Inquiry Officer vide
order dated 27.02.2023 for conduction of fair
inquiry, wherein it has been presumed by the
Inquiry Officer that if the petitioner will remain
at the services of posting where he is presently
posted, he may tamper evidences which may
not culminate into fair inquiry. (Para 10)

Since the recommendations for suspension have
been made by the Inquiry Officer under the
disciplinary proceedings initiated against the
petitioner and not by any other authority, who is
not related to disciplinary proceedings, there is
hardly any scope for interference in the order
impugned. (Para 11, 12)
7 All. Arvind Kumar, Lekhpal, Tehsil-Bahedi, Dist: Bareilly Vs. State of U.P. & Ors.
319
Writ petition dismissed. (E-4)

Precedent distinguished:

V.N. Daipuria Vs St. of U.P. ors., Writ-A No.
58619 of 2015, decided on 27.10.2015 (Para 7,
9, 10)

Present petition assails suspension order
dated
21.03.2023,
passed
by
Sub
Divisional Magistrate- Bahedi, Bareilly.
And, prays for direction to respondents
not to disturb peaceful continuance of
petitioner
as
Lekhpal-Tehsil-Bahedi,
District-Bareilly and also to pay him full
salary.

(Delivered by Hon'ble Saurabh Srivastava, J.)

1. Heard Shri Prabhakar Awasthi,
learned counsel for the petitioner and Shri
Anurag Pandey, learned Standing Counsel
for the State respondents.

2. Present petition has been filed
seeking the following reliefs:-

"i. Issue a writ, order or direction
in the nature of Certiorari calling for the
records of the case and to quash the
impugned
suspension
order
dated
21.03.2023 passed by the Sub Divisional
Magistrate-Bahedi, Bareilly (Annexure No.
12 to the writ petition).

ii. Issue a writ, order or direction
in the nature of Mandamus commanding
the respondents not to disturb the peaceful
continuance of petitioner as LekhpalTehsil-Bahedi, District-Bareilly and also to
pay him full salary month by month as and
when same falls due."

3. It is the case of the petitioner that
under some charges levelled against him on
the basis of the report submitted by the
Naib Tehsildar approved by the Tehsildar
culminated into initiation of disciplinary
proceedings under Rule 7 of the U.P.
Government Servant (Discipline & Appeal)
Rule 1999 in which the chargesheet has
been served upon the petitioner and the
same has been replied. Thereafter, inquiry
has been initiated by the Tehsildar who has
been designated and appointed as an
Inquiry Officer vide order dated 27.02.2023
at the time of framing charges against the
petitioner.

4. On 21.03.2023, it has been reported
by the Tehsildar/Inquiry Officer that there
are ample chances of tampering of
evidences by the petitioner and as such, he
may
be
put
under
suspension
for
conduction of fair inquiry.

5. On receipt of the report as
submitted by the Inquiry Officer, being the
Disciplinary Authority, the respondent no.
2 passed the order dated 21.03.2023,
through which the services of the petitioner
has been suspended and the same has been
put under challenge in the present petition,
precisely on the ground that the suspension
order can be passed only on consideration
of the charges as levelled against the
petitioner. The suspension order cannot be
passed merely on assumption.

6. Moreover, at the time of passing
the suspension order, the Disciplinary
Authority has to exercise his discretion by
way of applying his independent and free
mind by way of quantifying that whether
the
suspension
passed
against
the
delinquent
is
necessary
or
not
for
substantiating his arguments as raised by
the learned counsel for the petitioner.

7. The learned counsel for the
petitioner has relied upon the judgment
passed by the Division Bench of this Court
in Writ A No. 58619 of 2015 (V.N.
320 INDIAN LAW REPORTS ALLAHABAD SERIES
Daipuria versus State of U.P. & 3 Others)
decided on 27.10.2015. The operative and
decisive portion of the judgment is quoted
herein-below:-

"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. "

8. Per contra, learned Standing Counsel
vehemently opposed the prayer as made in
the petition and supported the order dated
21.03.2023 passed by the respondent no. 2.

9. By bare perusal of the judgment
passed by the Division Bench of this Court
in V.N. Daipuria (Supra), it is crystal clear
that the order of suspension has been held
as illegal on the recommendation of the
State Government and the same has been
passed without invoking the discretion of
the Disciplinary Authority and recording
the reasons for suspension, the directions
and the recommendations as made by the
State Government only.

10. The judgment rendered by the
Hon'ble Division Bench of this Court is not
applicable in the present case, as the case in
hand is slightly different. In the instant
7 All. O.P. Trivedi Vs. Chairman, Bhagirath Garamin Bank & Ors.
321
matter the order of suspension has been
passed by the Disciplinary Authority only
on the recommendation of the Tehsildar
who has been nominated as an Inquiry
Officer vide order dated 27.02.2023 for
conduction of fair inquiry, wherein it has
been presumed by the Inquiry Officer that
if the petitioner will remain at the services
of posting where he is presently posted, he
may tamper evidences which may not
culminate into fair inquiry.

11. The recommendation made by the
Inquiry Officer is different as made in the
case relied upon by the learned counsel for
the petitioner and as such, the case of V.N.
Daipuria is not applicable in the instant
matter, since the recommendations for
suspension has been made by the Inquiry
Officer under the disciplinary proceedings
initiated against the petitioner not by any
other authority who is not related to
disciplinary proceedings as in the case
mentioned by learned counsel for the
petitioner.

12. In view of the aforesaid facts and
circumstances, there is hardly any scope for
interference in the order dated 21.03.2023
which impugned the present petition and as
such, the writ petition is liable to be and is
accordingly, dismissed.

13. However, it is made clear that the
respondent no. 2 may take every steps for
finalizing the disciplinary proceedings as
initiated
against
the
petitioner,
as
expeditiously
as
possible,
preferably,
within a period of four months from the
date of production of certified copy of this
order.

14. It is however made clear that the
petitioner will extend all possible support
in favour of the respondent no. 2 for
arriving over the directions as passed
above.
----------
(2023) 7 ILRA 321
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 8256 of 1992

O.P. Trivedi ...Petitioner
Versus
Chairman, Bhagirath Gramin Bank & Ors.
 ...Respondents

Counsel for the Petitioner:
M.K. Shukla, Ashish Mishra, Deo Raj Singh,
K.C. Jauhari, Ramesh Kumar Srivastava,
V.P. Misra, Vijai Kumar

Counsel for the Respondents:
C.S.C., A.K. Chaturvedi

A. Service Law - Dismissal - Service
benefits - Bhagirath Gramin Bank Staff
Service Regulation, 1980 - Disciplinary
proceeding breaks into two stages. The
first stage ends, when the disciplinary
authority arrives at its conclusion on the
basis of evidence, Inquiry Officers report
and the delinquent employees reply to it.
The
second
stage
begins
when
the
disciplinary authority decide to impose
penalty on the basis of its conclusion. If
the disciplinary authority decides to drop
the disciplinary proceeding, the second
stage is not even reached. (Para 23)

While the right to represent against the finding
in the report is part of reasonable opportunity
during the first stage of the inquiry before the
disciplinary authority takes into consideration
the finding in the report. The first right is the
right to prove innocence. What is dispensed
with is the opportunity of making representation
on the penalty proposed and not of opportunity
of making representation on the report of the