# Jitendra Kumar Singh v. State of U.P. & Ors. 134 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2020) 2 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-10
- **Case number:** Service Single No. 2713 of 2020
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jitendra-kumar-singh-v-state-of-u-p-ors-134-indian-law-reports-allahabad-series-45663
- **Pages:** 5

## Headnote

C.S.C.

A. Service - Suspension - U.P. Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991:
Rules 14(2), 17 - An authority vested
with the power to act under the statute
alone
should
exercise
its
discretion
following
the
procedure
prescribed
therein and interference on the part of
any authority upon whom the statute
does not confer any jurisdiction, is wholly
unwarranted in law. It violates the
constitutional scheme. (Para 9)

The
impugned
suspension
orders
were
quashed, as were passed by Superintendent of
Police, Barabanki, in pursuance to the direction
issued by Joint Secretary of the Department of
Home.

Writ petition allowed. (E-4)

Precedent followed:

## Text

2 All. Jitendra Kumar Singh Vs. State of U.P. & Ors.
133
Court in the matter of Tileshwar Nath Vs.
State of U.P. & another (Writ-A No. 8224
of 2012) decided on 11.04.2018, and the
Court has held as follows:-

.........................

"There is another issue before the
Court whether the matter should be remanded
back to the Tribunal or not to consider and
decide again in light of observation made
herein above. Court is of the view that when
charge sheet itself does not establish any
charge and matter is pending since long, no
fruitful purpose shall be served to remand the
matter back to the Tribunal to decide again,
when the petitioner has already retired from
service on 31.01.2006."

...........

42. In the present case too,
grounds taken in order dated 03.01.2015
is absolutely baseless and petitioner has
also attained the age of superannuation on
30.06.2011,
therefore,
instead
of
remanding back the matter to Regional
Committee, respondents are directed to
pay pension to the petitioner forthwith on
month to month basis and also pay arrears
of pension along with 6% interest from the
date of his retirement i.e. 01.07.2011
within three months from the date of
production of certified copy of this order."

8. By means of aforesaid judgment this
Court has referred the settled proposition of law
in question by citing the judgments of Division
Bench of this Court as well as the judgment of
Hon'ble Apex Court and has arrived at
conclusion that for the purpose of making
payment of retiral dues the entire services be it
temporary or permanent shall be considered.

9. Considering the rival contentions
of the learned counsel for the parties and
the settled position of law, as above, the
petitioner is liable to get pension and all
retirement benefits counting his entire
service till his date of retirement. In the
present case since the issue of the
regularisation remained pending till the
retirement of the petitioner as no decision
had been taken, therefore, at this stage I do
not feel it appropriate to remand the matter
before the competent authority for taking
the decision thereon when the law is
settled on the point that for the purpose of
retiral dues the entire services of the
employee shall be considered.

10. Accordingly, the writ petition is
allowed.

11. A writ in the nature of mandamus is
issued to pay the pension as well as gratuity
payable to petitioner with effect from the date
of his retirement, that is 30.06.2012 till date as
well as the petitioner shall be paid his
continuous pension.

12. The compliance of the aforesaid
order shall be made within three months from
the date of production of certified copy of the
order of this Court failing which the petitioner
shall be liable for the interest @ 6% on the
entire arrears of dues.
----------
(2020)02ILR A133

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 10.02.2020

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No. 2713 of 2020
And
Service Single No. 2748 of 2020

Jitendra Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Mohd. Ateeq Khan, Poonam Singh

Counsel for the Respondents:
C.S.C.

A. Service - Suspension - U.P. Police
Officers
of
the
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991:
Rules 14(2), 17 - An authority vested
with the power to act under the statute
alone
should
exercise
its
discretion
following
the
procedure
prescribed
therein and interference on the part of
any authority upon whom the statute
does not confer any jurisdiction, is wholly
unwarranted in law. It violates the
constitutional scheme. (Para 9)

The
impugned
suspension
orders
were
quashed, as were passed by Superintendent of
Police, Barabanki, in pursuance to the direction
issued by Joint Secretary of the Department of
Home.

Writ petition allowed. (E-4)

Precedent followed:

1. Joint Action Committee of Air Line Pilots'
Association of India (ALPAI) & others Vs.
Director General of Civil Aviation & others,
(2011) 5 SCC 435 (Para 8, 9, 10)

Petition against orders of suspension
dated
30.12.2019,
passed
by
Superintendent of Police, Barabanki.

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

1. Heard Mohd. Ateeq Khan, learned
counsel for the petitioner and Sri Vishal
Verma, learned Addl. C.S.C. for the Staterespondents.

2. Since in both the aforesaid writ
petitions,
the
impugned
orders
of
suspension is same i.e. 30.12.2019 issued
by the Superintendent of Police, Barabanki
and facts and circumstances of the case are
also same inasmuch as in case of SubInspector, Surendra Pratap Singh, the
show cause notice under Rule 14(2) has
been issued but at the dictate of State
Government, the said show cause notice
was cancelled and the Sub-Inspector
Surendra Pratap Singh has been placed
under suspension. In the same manner, the
Sub-Inspector Jitendra Kumar Singh has
been placed under suspension. The State
Counsel has received common instructions
in both the cases vide letter dated
08.02.2020 and same stand has been taken
by the Authority in both the cases,
therefore with the consent of the learned
counsel for the parties, both the matters are
decided by the common order.

3. This Court has passed the order
dated 31.01.2020 as under:

"Heard Mohd. Ateeq Khan,
learned counsel for the petitioner and Sri
Ran Vijay Singh, learned Additional Chief
Standing
Counsel
for
the
Staterespondents.

By means of this writ petition,
the petitioner has assailed the impugned
suspension
order
dated
30.12.2019,
passed by the Superintendent of Police,
District-Barabanki.

The case set-forth by learned
counsel for the petitioner is that for the
allegation in question the departmental
inquiry against the petitioner was initiated
by the Competent Authority under Rule 14
(2) of U.P. Police Officers of the
Subordinate
Ranks
(Punishment
and
Appeal)
Rules,
1991
(here-in-after
referred to as the "Rules, 1991").If any
inquiry is initiated under the aforesaid
rules, the incumbent can be provided
minor punishment only if the charges are
proved.
2 All. Jitendra Kumar Singh Vs. State of U.P. & Ors.
135

Learned counsel for the petitioner
has demonstrated that a show cause notice
dated 25.07.2019 was to the petitioner to
that effect, which has been annexed as
Annexure No.5 to the writ petition. He has
further submitted that despite the aforesaid
show cause notice being issued to the
petitioner under Rule 14 (2) of the Rules,
1991, the Joint Secretary of the Department
of Home has directed the Superintendent of
Police,
Barabanki
vide
order
dated
18.12.2019 (Annexure No.8 to the writ
petition) to set aside the show cause notice
being issued against the petitioner under
Rule 14 (2) of the Rules, 1991 and place the
petitioner under suspension. Therefore,
pursuant to the direction being issued by the
Joint Secretary of the Department of Home
the petitioner has been placed under
suspension by means of an order dated
30.12.2019.

Therefore, learned counsel for
the petitioner has contended that the law is
settled on the point that an employee can
only be placed under suspension if the
allegations are so serious entailing the
major punishment if the charges and
allegations are proved and in the present
case even the show cause notice was
issued to the petitioner under Rule 14 (2)
of the Rules, 1991. He has further
submitted that the law is also settled on the
point that the order of suspension can be
passed
only
by
the
Appointing/
Disciplinary / Punishing Authority. As the
impugned order has been passed on the
dictate of the authority who is not a
Competent Authority, therefore, in view of
the aforesaid reasons the impugned
suspension order dated 30.12.2019 is
liable to be set aside.

The
matter
requires
consideration.

List this petition on 10.02.2020
as fresh to enable the learned Additional
Chief Standing Counsel to seek complete
instructions in the matter, failing which,
the interim relief application of the
petitioner may be considered on the next
date."

4. In compliance of the aforesaid
order, learned Addl. C.S.C. has produced
the
instructions
vide
letter
dated
08.02.2020
preferred
by
the
Superintendent
of
Police,
Barabanki
addressing to the Addl. C.S.C. of this
Court
enclosing
their
letters
dated
18.12.2019 and 04.07.2019, the same is
taken on record.

5. As per the aforesaid instructions,
the Superintendent of Police, Barabanki
has admitted that in compliance of the
letter dated 18.12.2019 preferred by the
Joint Secretary of the Department, the
petitioner
has
been
placed
under
suspension.

6. Section 17 of U.P Police Officers
of Subordinate Rank (Punishment and
Appeal) Rules, 1991 provides that a police
officer against whose conduct an enquiry
is contemplated, or is proceeding, may be
placed under suspension pending the
conclusion of enquiry in the discretion of
Appointing Authority or by any other
Authority
not
below
the
rank
of
Superintendent of Police authorized by
him in this behalf. It clearly means that to
place any employee under suspension is
the sole discretion of the Appointing
Authority. He may place any employee
under suspension applying his independent
mind and independent satisfaction to that
effect.

7.

In
the
present
case,
the
Superintendent of Police has followed the
direction of Special Secretary of the Home
136 INDIAN LAW REPORTS ALLAHABAD SERIES
Department who has suggested that the
petitioner
should
be
placed
under
suspension and his show cause notice
issued under Rule 14(2) be set aside. The
Superintendent of Police, Barabanki has
followed the aforesaid direction and not
only
placed
the
petitioner
under
suspension, but also the above notice
issued against the petitioner under Rule
14(2)
has
been
cancelled
by
the
Superintendent of Police, Barabanki as
shown in the instructions letter dated
08.02.2020.

8. The Hon'ble Apex Court In Re:
Joint Action Committee of Air Line
Pilots' Association of India (ALPAI) &
Ors. vs. Director General of Civil
Aviation & Ors. reported in (2011) 5 SCC
435 vide para 26 and 27 has considered the
identical
controversy
relating
to
competence of passing any order and held
that only the Competent Authority can
pass such orders.

9. The paras 26 and 27 are
reproduced herein under:

"26. The contention was raised
before the High Court that the Circular
dated 29.5.2008 has been issued by the
authority having no competence, thus
cannot be enforced. It is a settled legal
proposition that the authority which has
been conferred with the competence under
the statute alone can pass the order. No
other person, even a superior authority,
can interfere with the functioning of the
Statutory Authority. In a democratic set up
like ours, persons occupying key positions
are not supposed to mortgage their
discretion, volition and decision making
authority and be prepared to give way to
carry out commands having no sanctity in
law. Thus, if any decision is taken by a
statutory authority at the behest or on
suggestion of a person who has no
statutory role to play, the same would be
patently illegal. (Vide: The Purtabpur Co.,
Ltd. v. Cane Commissioner of Bihar,
Chandrika
Jha
v.
State
of
Bihar,
Tarlochan Dev Sharma v. State of Punjab
and Manohar Lal v. Ugrasen).

27.
Similar
view
has
been
reiterated by this Court in Commissioner of
Police, Bombay v. Gordhandas Bhanji,
Bahadursinh Lakhubhai Gohil v. Jagdishbhai
M. Kamalia and Pancham Chand & Ors. v.
State of Himachal Pradesh observing that an
authority vested with the power to act under
the statute alone should exercise its discretion
following the procedure prescribed therein
and interference on the part of any authority
upon whom the statute does not confer any
jurisdiction, is wholly unwarranted in law. It
violates the constitutional scheme." (emphasis
supplied)

10.

Considering
the
rival
submissions of the learned counsel for the
parties and perusal of the relevant material
available on record as well as the dictum
of the Hon'ble Apex Court in the case of
Joint Action Committee of Air Line
Pilots' Association of India (supra), I
hereby quash the suspension orders dated
30.12.2019 passed by the Superintendent
of Police, Barabanki which is appended to
the writ petitions.

11. The opposite party is directed to
reinstate the petitioners and post at an
appropriate place where the Disciplinary
Authority deems fit and proper in the
circumstances of the decision.

12. Consequences to follow.

13. It is needless to say that the
Disciplinary Authority may pass any
2 All. Ram Adhar Singh Yadav Vs. State of U.P. & Ors.
137
appropriate orders but following due
procedure of law.

14. In view of the aforesaid terms,
both the writ petitions bearing Nos.
2713(S/S) of 2020 and 2748 (S/S) of 2020
are allowed.

15. No order as to costs.
----------
(2020)02ILR A137

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.02.2020

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Service Single No. 2941 of 2020

Ram Adhar Singh Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rakesh Kumar Singh

Counsel for the Respondents:
C.S.C., Shishir Jain

A. Service Law- Repatriation - Uttar Pradesh
Absorption of Government Servants in Public
Undertakings Rules, 1984 - Petitioner claims that he
cannot be repatriated on the basis of allegations
made against him. The Court held that, it is settled
principle that deputationist can always and any time
be repatriated to his parent department to serve on
his substantive post, at the instance of either of the
departments and there is no vested right in such
person to continue for long on deputation. (Para 22)

Writ petition dismissed. (E-4)

Precedent followed:

1. Kunal Nanda Vs. Union of India and another,
(2000) 5 SCC 362 (Para 8, 9)

2. Ravindra Singh Vs. State of U.P., [2015 (33)
LCD 1915] (Para 9)

3. Ratilal B. Soni and others Vs. State of Gujrat
and others, 1990 (Supp) SCC 243 (Para 10)

4. Prasar Bharti and others Vs. Amarjeet Singh
and others, (2007) 2 SCALE 486 (Para 11)

5. State of U.P. Vs. Ashok Kumar Saxena, AIR
1998 SC 925 (Para 11)

6. Mohd. Masood Ahmad Vs. State of U.P. and
others, JT 2007 (12) SC 467 (Para 11)

7. U.P. Gram Panchayat Adhikari Sangh &
others Vs. Daya Ram Saroj and others, (2007)
2 SCC 138 (Para 12)

8. Gauri Shanker Vs. State of U.P. and others,
2005 (1) AWL 426 (Para 13)

9. Dr. Seema Kundra Vs. State of U.P., 2003
(1) AWL 520 (Para 14)

10. Devi Kumar Vs. Rajya Krishi Utpadan Mandi
Parishad, 2004 (3) UPLBEC 2318 (Para 15)

11. Ashok Kumar Pandey Vs. State of U.P. and
others, Writ Petition No. 52527 of 2005,
decided on 03.08.2005 (Para 16)

Present petition challenges order of
repatriation dated 04.12.2019.

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

1. Heard Sri Rakesh Kumar Singh,
learned counsel for the petitioner, Sri Alok
Sharma, learned Addl. Chief Standing
Counsel for the respondent No. 1 and Sri
Shishir Jain, learned counsel for the
respondent Nos. 2 to 6.

2. By means of the present writ
petition, a challenge has been made to the
order dated 04.12.2019, whereby the
petitioner has been repatriated to his parent