# Jai Prakash Tiwari v. State of U.P. & Ors

- **Citation:** (2019) 3 ILRA 215
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-02-27
- **Case number:** Service Single No. 31764 of 2019
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jai-prakash-tiwari-v-state-of-u-p-ors-44822
- **Pages:** 4

## Headnote

A. Service Law- Suspension - Disciplinary
inquiry against a public servant can be
initiated even by an authority higher to
the appointing authority but so far as
the order of suspension is concerned,
that will have to be passed by the
appointing authority or by the authority
lower in rank that has been delegated
with such power but not by any other
authority. (Para 13)

In the present case, the suspension order has
not been passed by the Appointing Authority
but the Superior Authority to the Appointing
Authority, therefore, the suspension order
vitiates. (Para 14)

Petition allowed (E-4)

Precedent followed:-

## Text

3 All. Jai Prakash Tiwari Vs. State of U.P. & Ors.
215
not served prior to noon on 28.2.2019,
therefore, the impugned action lacks
authority of law and could not be legally
continued under Regulation 351-A of
Civil
Service
Regulations
read
in
conjunction with Discipline and Appeal
Rules, 1999. The ground for interference
is made out. In these circumstances,
prolonging this case any further for no
useful purpose would be unjust. However,
liberty is open to the opposite party to
proceed
against
the
petitioner
in
accordance with law.

23. The writ petition is accordingly
allowed. The impugned charges-sheet
dated
27.2.2019
along
with
the
consequential proceedings are hereby set
aside. Consequences to follow. There
shall be no order as to cost.
----------
(2019)11ILR A215

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 22.11.2019

BEFORE
THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 31764 of 2019

Jai Prakash Tiwari ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ajay Pratap Singh

Counsel for the Respondents:
C.S.C., Sri J.B.S. Rathour

A. Service Law- Suspension - Disciplinary
inquiry against a public servant can be
initiated even by an authority higher to
the appointing authority but so far as
the order of suspension is concerned,
that will have to be passed by the
appointing authority or by the authority
lower in rank that has been delegated
with such power but not by any other
authority. (Para 13)

In the present case, the suspension order has
not been passed by the Appointing Authority
but the Superior Authority to the Appointing
Authority, therefore, the suspension order
vitiates. (Para 14)

Petition allowed (E-4)

Precedent followed:-

1. Ashok Kumar Singh Vs St. of U.P. & ors.
[(2006) 3 UPLBEC 2247] (Para 13, 14, 15, 16)
Present petition challenges suspension
order
dated
14.08.2019,
passed
by
Additional Director of Education (Basic),
U.P., Prayagraj.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Manish Kumar, learned
Senior Advocate assisted by Sri Ajay Pratap
Singh, Advocate for the petitioner, Dr. Uday
Veer Singh, learned Additional Chief
Standing Counsel for the State-respondents
and Sri J.B.S. Rathour, learned counsel for
the opposite party No.4.

2. Learned counsel for the petitioner
has filed the supplementary affidavit, today
in the Court, the same is taken on record.

3. In compliance of order dated
19.11.2019, Sri J.B.S. Rathour has
produced the copy of letter dated
21.11.2019 preferred by the District Basic
Education Officer, Sultanpur addressing
to his counsel wherein the authority has
indicated that at the time of suspension of
the petitioner he was serving on the post
of Personal Assistant Grade-II. The letter
dated 21.11.2019 is taken on record.
216 INDIAN LAW REPORTS ALLAHABAD SERIES

4. By means of this writ petition, the
petitioner has assailed the impugned
suspension order dated 14.08.2019 passed
by the Additional Director of Education
(Basic), U.P., Prayagraj.

5. The main ground to assail the
suspension order is that the impugned
suspension order has not been passed by
the Competent Authority inasmuch as as
per the learned counsel for the petitioner
the petitioner was serving on the post of
Steno-cum-Clerk when the suspension
order was passed and placing any Clerk
under suspension is an authority vested
with the Joint Director of Education
(Basic).

7. Sri Manish Kumar, learned Senior
Advocate for the petitioner has strongly
objected the contents of the instructions
letter dated 21.11.2019 produced by Sri
Rathour wherein it has been indicated that
the petitioner was serving on the post of
Personal Assistant Grade-II at the time of
suspension
by
submitting
that
the
petitioner was promoted on the post of
Personal Assistant Grade-II vide order
dated 16.10.2017 (Annexure No.8 to the
writ petition), whereby as many as 103
Stenos have been promoted on the post of
Personal Assistant.

8. Learned counsel for the petitioner
has drawn attention of this Court towards
Annexure No.9 of the writ petition,
whereby the petitioner has preferred a
representation to the District Basic
Education Officer, Sultanpur forgoing his
promotion order so made on 16.10.2017.

9. Learned counsel for the petitioner
has further drawn attention of this Court
towards Annexure No.10 of the writ
petition, which are salary certificates of
the petitioner issued on 02.01.2019,
which indicate that the petitioner is
serving on the post of Steno and has been
getting salary as admissible for the post of
Steno.

10. Further, Sri Manish Kumar,
learned
Senior
Advocate
has
demonstrated the letter dated 25.06.2019
(Annexure No.2 to the writ petition)
preferred
by
the
Joint
Secretary,
Government of U.P., to the Director of
Education
(Basic),
U.P.,
Lucknow
apprising about the suspension of the
petitioner wherein the designation of the
petitioner has been indicated as Clerk.
Not only the above, Annexure No.6 which
is a preliminary inquiry report relating to
one Sri Kaustubh Kumar Singh, the then
District
Basic
Education
Officer,
Sultanpur the designation of the petitioner
in the finding has been indicated as Clerk,
therefore, Sri Kumar has submitted that
the aforesaid letter of the department and
the government order clearly indicate that
the petitioner was serving on the post of
Clerk.

11. Sri Manish Kumar has further
drawn attention of this Court towards
Annexure No.SA-1 of the supplementary
affidavit, which is Uttar Pradesh Shiksha
Lipik Varga Sewa Niymawali, 1985 and
Appendix-Ka thereof clearly indicates
that the Appointing Authority for the post
of Steno is Regional Joint Director of
Education. By means
of Annexure
No.SA-2 of the supplementary affidavit,
the Government Order dated 12.12.1995
has been enclosed whereby the division of
works amongst the Superior Authorities
of the Education Department has been
indicated. The appendix of the aforesaid
Government Order clearly provides that
the Joint Director of Education shall have
3 All. Jai Prakash Tiwari Vs. State of U.P. & Ors.
217
various powers and Item No.5 of the
aforesaid Appendix clearly reveals that
for making appointment, promotion and
imposing
any
sort
punishment
the
authority competent would be the Joint
Director of Education.

12. Therefore, in view of the above,
it is clear that the petitioner was serving
on the post of Clerk when the suspension
order has been issued by the Additional
Director of Education (Basic), who is not
the Competent Authority to pass such
order being a Superior Authority to the
Competent Authority.

13. Sri Manish Kumar, learned
Senior Advocate has also drawn attention
of this Court towards the Division Bench
judgment of this Court in re: Ashok
Kumar Singh vs. State of U.P. & others
reported in [(2006) 3 UPLBEC 2247]
referring paras-13 and 14 thereof whereby
the Division Bench of this Court has
categorically held that the order of
suspension can be passed only by the
Disciplinary Authority. However, the
order
to
initiate
the
disciplinary
proceedings may be passed by the
Superior Authority. The relevant paras-13
and 14 of the judgment are being quoted
below:-

"13. In the case of Ram Narain
Tiwari (supra) this Court held that an
authority higher in rank than the
appointing authority cannot pass the
order of suspension and if such order of
suspension is passed, the same would be
incompetent and void. In the case of
Bharat Lal (supra) another Division
Bench of this Court held that it is only the
appointing authority which can pass an
order of suspension. So far as the law laid
down in the case of Director General ESI
v. T. Abdul Razak (supra) is concerned,
the Hon'ble Apex Court held that "the
legal position is well settled that it is not
necessary that the authority competent to
impose the penalty must initiate the
disciplinary proceedings and that the
proceedings can be initiated by any
superior authority who can be held to be
the controlling authority who may be an
officer subordinate to the appointing
authority. (See State of M.P. v. Shardul
Singh (1993) 1 SCC 419, P.V. Srinivasa
Sastry v. Comptroller (1993) 1 SCC 419
and Auditor General and Inspector
General of Police v. Thavasiappan)
((1996) 2 SCC 145:"

14. The initiation of disciplinary
inquiry and passing of an order of
suspension are two things. Disciplinary
inquiry against a public servant can be
initiated even by an authority higher to
the appointing authority but so far as the
order of suspension is concerned, that
will have to be passed by the appointing
authority or by the authority lower in
rank which has been delegated with such
power but not by any other authority."

14. In the judgment of Division Bench
of this Court in re: Ashok Kumar Singh
(supra), the reference of some judgments of
Hon'ble Supreme Court has been given and
therefore, there may not be any dispute to
the effect that the suspension order can only
be passed by the Appointing Authority. In
the present case, the suspension order has
not been passed by the Appointing
Authority but the Superior Authority to the
Appointing
Authority,
therefore,
the
suspension order vitiates.

15. On the other hand, Dr. Uday
Veer Singh, learned Additional Chief
Standing Counsel has tried to defend the
suspension order dated 14.08.2019 but in
218 INDIAN LAW REPORTS ALLAHABAD SERIES
view of the material available on record
and also in the light of the decision of
Division Bench of this Court in re: Ashok
Kumar Singh (supra), he could not
defend the said order.

16. Considering the rival submissions
of learned counsel for the parties and
perusing the material available on records
as well as the judgment of Division Bench
of this Court in re: Ashok Kumar Singh
(supra), I am of the considered opinion that
since the suspension order dated 14.08.2019
has not been passed by the Competent
Authority, therefore, it is liable to be
quashed and accordingly the impugned
suspension order dated 14.08.2019, which
is contained as Annexure No.1 to the writ
petition, is hereby quashed.

17. However, the liberty is given to the
Competent Authority to pass appropriate
orders, if it is so warranted, considering
the seriousness of the allegations but that
order should be passed strictly in
accordance with law.

18. The writ in the nature of
mandamus is issued commanding the
opposite parties reinstate the petitioner
and post him at any place where the
Competent Authority deems fit and
proper but such order shall be passed with
expedition preferably within a period of
two weeks from the date of production of
a certified copy of this order and the
petitioner shall be entitled for all
consequential
benefits
ignoring
the
suspension order dated 14.08.2019.

19. The writ petition is allowed.

20. No order as to cost.
----------
(2019)11ILR A218
ORIGINAL JURISDICTION
 CIVIL SIDE
DATED: LUCKNOW 17.10.2019

BEFORE
THE HON'BLE ABDUL MOIN , J.

Service Single No.34236 of 2018

Sharwan Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Kumar Srivastava, Sri Divyanshu
Sahay.

Counsel for the Respondents:
C.S.C.,Sri Sudeep Seth.

A. Service Law - Payment of Salary -
Constitution of India - Article 226 r/w
Civil Procedure Code, 1908 - Order II Rule
2 - Maintainability of present/second
petition - Held - Relief now claimed was
barred on principle of res-judicata or
constructive res-judicata as that relief was
not sought in earlier petition filed by the
petitioner.
Consequently,
the
present
petition would not be maintainable. (Para
22, 23)

The relief prayed by the petitioner pertain to
fixation of salary in terms of 5th and 6th Pay
Revision along with consequential benefits of
dearness allowance, salary, gratuity, leave
encashment, annual increments etc. The
petitioner had approached this Court by filing
two petitions, namely, WP (S/S) No. 2766 of
2011 and WP (S/S) No. 217 of 2015 praying
for being given the benefit of 5th and 6th Pay
Revision and in Writ Petition (S/S) No. 217 of
2015. It was categorically held that the said
relief was barred on account of principle of
res-judicata
or
constructive
res-judicata,
consequently the present petition would not
be maintainable praying for the said relief.
(Para 22, 23)

B. Administrative Law - It is settled
preposition of law that whatever is