# Deeparam v. State of U.P. And others

- **Citation:** (2013) 2 ILRA 1050
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-23
- **Case number:** Civil Misc. Writ Petition No.12720 of 2010
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/deeparam-v-state-of-u-p-and-others-42543
- **Pages:** 4

## Headnote

Constitution of India, Art. 226- Prolong
suspension-continued for considerable
period of 18 years-held-arbitrary-heavy
burden upon public exchequer-quashed
with cost of Rs. 25000/-.

Held: Para-6
The above dictum is applicable in the
case in hand in entirety. Besides, in the
present case, keeping the petitioner
under suspension for more than two
decade is not only arbitrary and wholly
illegal exercise of power, but it shows an
criminal
intent
on
the
part
of
respondents in wasting public exchequer
by keeping a person under suspension
for two decades and more and pay him
subsistence allowance and not to take
any work for such a long time on the
pretext of pendency of an enquiry which
has not seen the light of the day for the
last more than two decades. Such a
prolonged
suspension,
in
my
view,
speaks volume and it appears that
respondents after suspending petitioner
forgot it and a Class IV employee in the
result has suffered for this entire period.
It
is
in
these
peculiar
facts
and
circumstances, in my view, not only the
order of suspension is unsustainable and
petitioner is entitled to relief, but this
writ petition deserves to be allowed with
exemplary cost against the respondents.

Case Law discussed:
2009(1) AWC 691

## Text

1050 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

Government Servant who retires or is
required or allowed to retire under this
Rule. Since the aforesaid amendment
Rule 56 was made by an Act of
Legislature, the provisions contained
otherwise
under
Civil
Service
Regulations, which are pre-constitutional,
would have to give way to the provisions
of Fundamental Rule 56. In other words,
the provisions of Fundamental Rule 56
shall prevail over the Civil Service
Regulations, if they are inconsistent.
Condition -B (supra) of Article 361 of
Civil Service Regulations are clearly
inconsistent with Fundamental Rule 56
and thus is in operative."

29. Sri A.K.Yadav, learned Standing
Counsel has relied on the judgment of
Deeparam v. State of U.P. And others
2012 (2) ALJ 132. In the said case the
petitioner was working as Seasonal Peon
since the year 1981. His services were
regularised on 29.11.1996 and he retired
on attaining the age of superannuation on
31.12.2007.
The
petitioner
therein
claimed that services rendered by him as
Seasonal
Collection
Peon
since
20.11.1981 should be treated as a
qualifying service for the purpose of
pension and other retiral benefits. The
Court
refused
to
accept
the
said
submission on the ground that the services
rendered as Seasonal Collection Peon
does not qualify for pension as the service
is intermittent and cannot be equated with
a temporary employee. Thus the said case
has a distinguishing features.

30. The principle which can be
discerned from the above mentioned
judgment
is
that
if
adhoc/stopgap/temporary
employee
having essential qualification and is
appointed in terms of the statutory Rules
and he continues for a long time and
fulfills the qualifying service is entitled
for pension and other retiral benefits.

31. Having regard to the facts and
circumstances of the case I am of the view
that petitioner is entitled for the post
retiral benefits as his appointment was
made in terms of the statutory Rules viz.
Removal of Difficulties Order, 1981,
against a short term vacancy with the
approval
of
the
appropriate
authority/District Inspector of Schools
and he worked uninterruptedly for 17 long
years.

32. For the aforesaid reasons the
impugned order dated 3.11.2012 passed
by the Joint Director needs to be set aside.
Accordingly, it is set aside.

33. A direction is issued upon the
concerned respondents to pay the post
retiral benefits to the petitioner in
accordance with law as expeditiously as
possible preferably within three months
from the date of communciation of this
order. It is made clear that if the payment
is not made to the petitioner within the
said period the petitioner shall be entitled
for interest at the rate of 9% per annum on
the delayed payment.

34. The writ petition is allowed with
cost which is quantified Rs.2,000/-.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: ALLAHABAD 23.07.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No.12720 of 2010

Vijay Prakash Tiwari

 ...Petitioner
2 All] Vijay Prakash Tiwari Vs. State of U.P. and Ors.

1051
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Upadhyaya, Sri O.P. Tiwari

Counsel for the Respondents:
C.S.C.

Constitution of India, Art. 226- Prolong
suspension-continued for considerable
period of 18 years-held-arbitrary-heavy
burden upon public exchequer-quashed
with cost of Rs. 25000/-.

Held: Para-6
The above dictum is applicable in the
case in hand in entirety. Besides, in the
present case, keeping the petitioner
under suspension for more than two
decade is not only arbitrary and wholly
illegal exercise of power, but it shows an
criminal
intent
on
the
part
of
respondents in wasting public exchequer
by keeping a person under suspension
for two decades and more and pay him
subsistence allowance and not to take
any work for such a long time on the
pretext of pendency of an enquiry which
has not seen the light of the day for the
last more than two decades. Such a
prolonged
suspension,
in
my
view,
speaks volume and it appears that
respondents after suspending petitioner
forgot it and a Class IV employee in the
result has suffered for this entire period.
It
is
in
these
peculiar
facts
and
circumstances, in my view, not only the
order of suspension is unsustainable and
petitioner is entitled to relief, but this
writ petition deserves to be allowed with
exemplary cost against the respondents.

Case Law discussed:
2009(1) AWC 691

(Delivered by Hon'ble Sudhir Agarwal. J)

1. Heard Sri O.P. Tiwari, Advocate,
holding brief of Sri Ramesh Upadhyaya,
learned counsel for petitioner, learned
Standing Counsel for respondents and
perused the record.

2.

This
writ
petition
shows
extraordinary state of affairs on the part of
respondents inasmuch a Class IV employee
was suspended on 8.5.1992 and this writ
petition was filed in 2010 complaining that
no enquiry has been completed at all and for
the last 18 years petitioner has been kept
illegally
and
unauthorizedly
under
suspension. This Court on 15.3.2010
granted two weeks' time to learned Standing
Counsel to seek instructions in the matter
and to find out whether suspension is still
continuing or not.

3. Learned Standing Counsel stated
that as per the instructions received by
him on 27.5.2010, the suspension order is
still continuing and enquiry has not been
concluded. This is totally arbitrary and
illegal exercise of power on the part of
respondents.

4. The order of suspension in a
pending or contemplated inquiry by itself
is not a punishment but in case it is
prolonged
without
initiation
or
completion of inquiry, it may become
punitive with the passage of time.
Whether such a prolonged suspension can
be held valid and justified and whether
the respondents can be allowed to keep an
employee
under
suspension
for
an
indefinite period is the moot question
need to be answered in this case. The
answer is an emphatic no.

5. This question has already been
answered by this Court in Smt. Anshu
Bharti Vs. State of U.P. and others,
2009(1) AWC 691 and in paras 9, 10, 11,
12 and 13 this Court has observed as
under:
1052 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

"9. . . . . . The prolonged suspension
of the petitioner is clearly unjust and
unwarranted. The question deals with the
prolonged agony and mental torture of a
suspended employee where inquiry either
has not commenced or proceed with snail
pace.
Though
suspension
in
a
contemplated or pending inquiry is not a
punishment but this is a different angle of
the matter, which is equally important and
needs careful consideration. A suspension
during contemplation of departmental
inquiry or pendency thereof by itself is
not a punishment if resorted to by the
competent authority to enquire into the
allegations levelled against the employee
giving him an opportunity of participation
to find out whether the allegations are
correct or not with due diligence and
within a reasonable time. In case,
allegations are not found correct, the
employee is reinstated without any loss
towards salary, etc., and in case the
charges are proved, the disciplinary
authority passes such order as provided
under
law.
However,
keeping
an
employee
under
suspension,
either
without holding any enquiry, or in a
prolonged enquiry is unreasonable. It is
neither just nor in larger public interest. A
prolonged suspension by itself is penal.
Similarly an order of suspension at the
initial stage may be valid fulfilling all the
requirements of law but may become
penal or unlawful with the passage of
time, if the disciplinary inquiry is
unreasonably prolonged or no inquiry is
initiated at all without there being any
fault or obstruction on the part of the
delinquent employee. No person can be
kept under suspension for indefinite
period since during the period of
suspension he is not paid full salary. He is
also denied the enjoyment of status and
therefore admittedly it has some adverse
effect in respect of his status, life style
and reputation in society. A person under
suspension is looked with suspicion in the
society by the persons with whom he
meets in his normal discharge of function.

10. A Division Bench of this Court
in Gajendra Singh Vs. High Court of
Judicature
at
Allahabad
2004
(3)
UPLBEC 2934 observed as under :

"We need not forget that when a
Government officer is placed under
suspension, he is looked with suspicious
eyes not only by his collogues and friends
but by public at large too."

11. Disapproving unreasonable
prolonged suspension, the Apex Court in
Public Service Tribunal Bar Association
Vs. State of U.P. & others 2003 (1)
UPLBEC 780 (SC) observed as under :

"If a suspension continues for
indefinite
period
or
the
order
of
suspension passed is malafide, then it
would be open to the employee to
challenge the same by approaching the
High Court under Article 226 of the
Constitution........................(Para 26)

12. The statutory power conferred
upon the disciplinary authority to keep an
employee
under
suspension
during
contemplated or pending disciplinary
enquiry cannot thus be interpreted in a
manner so as to confer an arbitrary,
unguided an absolute power to keep an
employee
under
suspension
without
enquiry for unlimited period or by
prolonging
enquiry
unreasonably,
particularly
when
the
delinquent
employee is not responsible for such
delay. Therefore, I am clearly of the
opinion that a suspension, if prolonged
2 All] Shakeel Ahmad and Ors. Vs. State of U.P. and Ors.

1053
unreasonably without holding any enquiry
or by prolonging the enquiry itself, is
penal in nature and cannot be sustained.

13. The view I have taken is
supported from another Judgment of this
Court in Ayodhya Rai & others Vs. State
of U.P. & others 2006 (3) ESC 1755."

6. The above dictum is applicable in
the case in hand in entirety. Besides, in the
present case, keeping the petitioner under
suspension for more than two decade is not
only arbitrary and wholly illegal exercise of
power, but it shows an criminal intent on
the part of respondents in wasting public
exchequer by keeping a person under
suspension for two decades and more and
pay him subsistence allowance and not to
take any work for such a long time on the
pretext of pendency of an enquiry which has
not seen the light of the day for the last
more than two decades. Such a prolonged
suspension, in my view, speaks volume and
it appears that respondents after suspending
petitioner forgot it and a Class IV employee
in the result has suffered for this entire
period. It is in these peculiar facts and
circumstances, in my view, not only the
order of suspension is unsustainable and
petitioner is entitled to relief, but this writ
petition deserves to be allowed with
exemplary cost against the respondents.

7. In view of above, impugned
suspension order cannot sustain.

8.

Writ
petition
is
allowed.
Impugned order of suspension dated
8.5.1992 (Annexure 1 to writ petition) is
hereby quashed.

9. Petitioner shall be entitled to all
consequential benefits with cost of Rs.
25,000/- against respondents 2 and 3.

10. At the first instance, the cost
shall be paid by respondent no. 1, but it
shall be at liberty to recover the same
from the concerned officer(s) who is/are
found responsible for such extraordinary
delay in the enquiry and keeping the
petitioner continued under suspension for
the last almost two decades.
---------
ORITGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.07.2013

BEFORE
THE HON'BLE MOHD. TAHIR, J.

Criminal Misc. Writ Petition No.17236 of
2010

Shakeel Ahmad and Ors. ...Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Mohd. Naushad Siddiqui, Sri Amar
Nath Tewari
Sri R Nath Tewari

Counsel for the Respondents:
A.G.A., Sri Vinod Kumar

Cr.P.C. Section-133- Petitioner doing
business of restoring bones and leather
of dead animals-polluting atmosphere of
locality-inspite
of
conditional
order
passed by Magistrate neither complied
direction nor shown cause-even the
license not renewed-paying business
taxes-with other local taxes-immaterialMagistrate rightly passed final orderrequired no interference.

Held: Para-11
 According to the the conjoint reading of
Sections 135 and 136 Cr.P.C., it is clear
that
if
the
person
to
whom
the
conditional order is addressed, does not
perform the acts within the time as
directed by the conditional order or fails
to appear and to show cause, the