# Radhey Shyam Srivastava v. State of U.P. and others

- **Citation:** (2008) 1 ILRA 77
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-04
- **Case number:** Civil Misc. Writ Petition No. 59703 of 2007
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/radhey-shyam-srivastava-v-state-of-u-p-and-others-40993
- **Pages:** 5

## Headnote

Sri M.C. Tripathi
S.C.

U.P.
Govt.
Servant
(Discipline
and
Appeal) Rules 1999-Rule-4-applicability
of CCA Rule upon employees of Nagar
Palika-of centerlised services-suspension
order
without
contemplation
of
disciplinary
proceeding
or
pendingnothing whisper in impugned order of
suspension-contention
of
standing
counsel the regarding preparation of
charge
sheet
worthless-held-once
validity of an order under challenge only
the contention are material it can not be
supplemented
by
subsequent
explanation-order can not sustainedwith liberty to pass fresh order if
required.

Held: Para 7, 11 & 17

The order of suspension impugned in this
writ petition also suffers from the same
illegality and, therefore, in our view it
cannot be sustained in view of the law
laid down in the case of Meera Tiwari
(Supra).

Thus, the law is well settled that an
order has to be tested on its own without
taking the aid of any affidavit or other
material as if it is supplementing the
reasons for validating the executive
order.

In the result, the writ petition succeeds
and is hereby allowed. The order dated
12th of September 2007 impugned in
this petition is quashed. However, it is
made clear that the respondents shall be
at liberty to pass a fresh order, if they so
decide in respect to suspension of
petitioner, in accordance with law. No
order as to costs.
Case law discussed:
2001 (3) UPLBEC-2057, AIR 1952 SC-16, AIR
1978 SC-851, 2005 (7) SCAVE-386, 2005 J.T.
(6) SC-60, 2007 (2) SCC-640, 1965 AIR SC304, AIR 2007 SC-1168, Spl. Appeal No. 180
of 2007 decided on 27.2.2007, W.P. 58427 of
2007 decided on 3.12.2007

## Text

1 All] Radhey Shyam Srivastava V. State of U.P. and others
77
is accordingly dismissed. However, in the
facts and circumstances of the case, there
will be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 59703 of 2007

Radhey Shyam Srivastava
...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri C.L. Pandey
Sri Manoj Kumar

Counsel for the Respondents:
Sri M.C. Tripathi
S.C.

U.P.
Govt.
Servant
(Discipline
and
Appeal) Rules 1999-Rule-4-applicability
of CCA Rule upon employees of Nagar
Palika-of centerlised services-suspension
order
without
contemplation
of
disciplinary
proceeding
or
pendingnothing whisper in impugned order of
suspension-contention
of
standing
counsel the regarding preparation of
charge
sheet
worthless-held-once
validity of an order under challenge only
the contention are material it can not be
supplemented
by
subsequent
explanation-order can not sustainedwith liberty to pass fresh order if
required.

Held: Para 7, 11 & 17

The order of suspension impugned in this
writ petition also suffers from the same
illegality and, therefore, in our view it
cannot be sustained in view of the law
laid down in the case of Meera Tiwari
(Supra).

Thus, the law is well settled that an
order has to be tested on its own without
taking the aid of any affidavit or other
material as if it is supplementing the
reasons for validating the executive
order.

In the result, the writ petition succeeds
and is hereby allowed. The order dated
12th of September 2007 impugned in
this petition is quashed. However, it is
made clear that the respondents shall be
at liberty to pass a fresh order, if they so
decide in respect to suspension of
petitioner, in accordance with law. No
order as to costs.
Case law discussed:
2001 (3) UPLBEC-2057, AIR 1952 SC-16, AIR
1978 SC-851, 2005 (7) SCAVE-386, 2005 J.T.
(6) SC-60, 2007 (2) SCC-640, 1965 AIR SC304, AIR 2007 SC-1168, Spl. Appeal No. 180
of 2007 decided on 27.2.2007, W.P. 58427 of
2007 decided on 3.12.2007

(Delivered by Hon'ble S. Rafat. Alam, J.)

1. Heard learned counsel for the
parties. The learned counsel for the
parties agree that considering the legal
issues raised in this writ petition it may be
heard and decided finally at this stage.
The learned counsel for respondents also
states that he does not propose to file
counter affidavit, though opposed the writ
petition by making oral submission, and,
therefore, the writ petition has been heard
and is being disposed of finally at this
stage under the Rules of the Court.

2. The petitioner being aggrieved by
the order dated 12.09.2007 passed by the
Vice-Chairman,
Kanpur
Development
Authority placing him under suspension,
has come to this Court under Article 226
of the Constitution of India, seeking a writ
78 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
of certiorari for quashing the aforesaid
order of suspension.

3. Sri C.L. Pandey, learned Senior
Advocate assisted by Sri Manoj Kumar
appearing for the petitioner has contended
that under Rule 4 of the U.P. Government
Servant (Discipline and Appeal) Rules,
1999 (hereinafter referred to as the "1999
Rules"), which is also applicable to the
petitioner who is a member of a
centralised service, an employee can be
placed under suspension if a disciplinary
inquiry is in contemplation or is pending
or in respect to a criminal charge an
inquiry, investigation or trial is pending.
He submits that from the impugned order
it is evident that none of the aforesaid
conditions are existing, and on the
contrary the order shows that on certain
allegations
the
petitioner
has
been
suspended, meaning thereby that it is by
way of punishment. He further submits
that the impugned order of suspension
nowhere shows that it has been passed
either in contemplation of disciplinary
proceedings
or
pendency
of
such
proceedings and, therefore, the impugned
order is illegal having not been passed on
any of the grounds on which it could have
been passed.

4. On the contrary, Sri M.C.
Tripathi, learned counsel appearing for
respondents no. 2 to 4 submits that as per
instructions
received
by
him,
the
chargesheet is under preparation and the
impugned order of suspension has been
passed in contemplation of disciplinary
proceedings, though it is not mentioned in
the impugned order of suspension. He
further submits that the instructions
received by him be taken so as to validate
the impugned order of suspension and it
should be deemed that the same has been
passed in contemplation of disciplinary
proceedings.

5. Learned counsel for the parties
have not disputed that a member of
centralised
service
of
Development
Authority can be placed under suspension
under Rule 4 (1) of 1999 Rules which
reads as under:-

"4. Suspension.-(1) A Government
Servant against whose conduct an inquiry
is contemplated, or is proceeding may be
placed under suspension pending the
conclusion of the inquiry in the discretion
of the Appointing Authority:

Provided that suspension should not be
resorted to unless the allegations against
the Government Servant are so serious
that in the event of their being established
may ordinarily warrant major penalty :

Provided further that concerned Head of
the
Department
empowered
by
the
Governor by an order in this behalf may
place a Government Servant or class of
Government Servants belonging to Group
''A' and ''B' posts under suspension under
this rule :

Provided also that in the case of any
Government
Servant
or
class
of
Government Servant belonging to Group
''C' and ''D' posts, the Appointing
Authority may delegate its power under
this rule to the next lower authority."

6. A perusal of Rule 4 (1) shows that
a government servant can be placed under
suspension against whose conduct an
inquiry is contemplated or is proceeding.
A perusal of the entire order of
suspension impugned in this writ petition
nowhere shows that an inquiry was in
1 All] Radhey Shyam Srivastava V. State of U.P. and others
79
contemplation or pending warranting
suspension of the petitioner in the present
case. Suspension order has been passed
without mentioning as to whether the
incumbent
is
being
placed
under
suspension
in
contemplation
of
disciplinary proceedings or pendency
thereof. The question whether such an
order of suspension would be valid, came
up for consideration before a Division
Bench of this Court in Meera Tiwari
(Smt.) v. The Chief Medical Officer and
others, (2001) 3 UPLBEC 2057, in
which one of us (Hon'ble S.R. Alam, J.)
was a member, and it was held as under :

"3. From the said rule it appears that
a Government Servant against whose
conduct an inquiry is contemplated, or is
proceeding
may
be
placed
under
suspension pending the conclusion of the
inquiry.
The
impugned
order
of
suspension
does
not
refer
to
any
contemplated inquiry or the fact that any
inquiry is pending."

"4. In that view of the matter, we are
of the view that the order of suspension is
against the provisions of Rule 4 of the
U.P. Government Servant (Discipline &
Appeal Rules, 1999 and the same cannot
be sustained.........."

7.

The
order
of
suspension
impugned in this writ petition also suffers
from the same illegality and, therefore, in
our view it cannot be sustained in view of
the law laid down in the case of Meera
Tiwari (Supra).

8. So far as the contention of learned
counsel for the respondents that as per
instructions
charge
sheet
is
under
preparation and, therefore, it should be
deemed that the impugned order of
suspension was in contemplation of
disciplinary proceedings, is concerned,
suffice it to mention that the validity of an
order has to be judged for the reasons, if
any, contained in the order itself and not
for any material which may be supplied
by way of an affidavit or after receiving
instructions etc. The order otherwise
invalid cannot be validated by furnishing
reasons in the shape of affidavit or
otherwise. In Commissioner of Police,
Bombay Vs. Govardhan Das Bhanji,
AIR 1952 SC 16, the Apex Court held as
under:

"...........We are clear that public
orders, publicly made, in exercise of a
statutory authority cannot be construed in
the light of explanations subsequently
given by the officer making the order of
what he meant, or of what was in his
mind, or what he intended to do. Public
orders made by public authorities are
meant to have public effect and are
intended to affect the acting and conduct
of those to whom they are addressed and
must be construed objectively with
reference to the language used in the
order itself."

9. The Apex Court in the case of
Mohinder Singh Gill v. Chief Election
Commissioner, AIR 1978 SC 851(para
8) has laid down that the reasons cannot
be supplemented and held as under:

"When a statutory functionary makes
an order based on certain grounds, its
validity must be judged by the reasons so
mentioned and cannot be supplemented
by fresh reasons in the shape of affidavit
or otherwise. Otherwise, an order bad in
the beginning may, by the time it comes
to the court on account of a challenge, get
80 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
validated by additional ground later
brought out."

10. The dictum laid down in
Govardhan Das Bhanji (supra) has been
followed in a catena of cases recently in
Hindustan Petroleum Corporation Ltd.
versus Darius Shapur Chenai and
others, (2005) 7 SCALE 386; Bangalore
Development authority and others
Versus R. Hanumaih and others, (2005)
8
SCALE
80;
Bahadur
Singh
Lakhubhai Gohil Versus Jagdish Bhai
Kumalia and others JT (2005) 6 SC 60;
K.K. Bhalla Versus State of M.P. And
others (2006) 3 SCC 581; R.S. Garg
Versus State of U.P. and others (2006) 6
SCC 430 and Ashoka Smokeless Coal
India Pvt. Ltd. and others Versus
Union of India and others (2007) 2 SCC
640 .

11. Thus, the law is well settled that
an order has to be tested on its own
without taking the aid of any affidavit or
other material as if it is supplementing the
reasons for validating the executive order.

12. There is another legal principle
which is applicable in such case. When a
power is required to be exercised in a
particular manner, the same has to be
exercised in that manner only or not at
all. In Kothamasu Kanakarathamma
and others Vs. State of A.P. and others,
AIR 1965 SC 304 the Apex Court held
that "wherever jurisdiction is given by a
statute and such jurisdiction is only given
upon certain specified terms contained
therein it is a universal principle that
those terms should be complied with, in
order to create and raise the jurisdiction,
and if they are not complied with the
jurisdiction does not arise..."

13. The aforesaid law has been
followed
recently
in
Hotel
and
Restaurant Association and others
Versus Star India Pvt. Ltd. and others
AIR 2007 SC 1168 (para 49).

14. A similar dispute came up for
consideration before this Court by another
Division Bench in Special Appeal No.
180 of 2007, Hari Shankar Misra Vs.
State of U.P. and others, decided on
27.2.2007 wherein one of us (Hon'ble S.
Rafat Alam, J.) was a member and
following the law laid down in Meera
Tiwari (supra) and Mohinder Singh
Gill (supra), the order of suspension was
set aside therein, since it was nowhere
mentioned in that case also that the order
of suspension was passed either in
contemplation of disciplinary proceedings
or pendency thereof.

15. This Bench has also taken a
similar view following Meera Tiwari
(supra) in Dr. Pradeep Pandey Vs.
State of U.P. and others (writ petition
no. 58427 of 2007) decided on 3.12.2007.

16. In view of the aforesaid
discussion,
the
impugned
order
of
suspension dated 12th of September 2007
cannot sustain.

17. In the result, the writ petition
succeeds and is hereby allowed. The order
dated 12th of September 2007 impugned
in this petition is quashed. However, it is
made clear that the respondents shall be at
liberty to pass a fresh order, if they so
decide in respect to suspension of
petitioner, in accordance with law. No
order as to costs.
---------
1 All] Dhara Singh Girls High School V. State of U.P. and others
81
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2008

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No.4747 of 2008

Dhara
Singh
Girls
High
School,
Ghaziabad

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri. Satyam Singh
Sri. Shiv Nath Singh

Counsel for the Respondents:
Sri. S.K. Tyagi
S.C.

Right to Information Act 2005-Section
2(h)-Private
School-run
through
management duly recognized, within the
purview of grant in aid-discharging
public
duty-bound
to
give
required
information-necessary direction issued.

Held: Para14 & 19

Though the institution may be a private
institution but if it is substantially
financed directly or indirectly by the
State Government such as by grant-inaid for payment of salary of the teachers
,and staff under the control of the 'public
authority' as to monitor the expenses
provided by the State Government in this
regard as given in the objects and
reasons of the Act, it will fall under the
purview of the Right to Information Act.

It is directed that the institution will
provide information to respondent no.5
through the DIOS, Ghaziabad within a
period of 15 days as already much time
has been consumed by the institution for
not supplying the required information
within the time prescribed under the Act

(Delivered by Hon'ble Rakesh Tiwari J.)

1. Heard learned counsel for the
petitioner,
learned
counsel
for
the
respondents, learned Standing counsel for
the State and perused the record.

2. This writ petition has been filed
for issuance of a writ, order or direction in
the nature of mandamus commanding the
respondents not to compel the petitioner's
institution to give information as sought
by respondent no.5.

3. Further a writ of mandamus is
also sought for restraining the respondents
from taking any action against the
petitioner's institution for not giving
information to respondent no.5 as directed
by the District Inspector of Schools,
Ghaziabad.

4. The ground on the basis of which
the relief sought is that the petitioner is a
private
institution
which
has
been
recognized by the Madhyamik Shiksha
Parishad receiving grant-in-aid by the
State Government does not fall within the
ambit of Section 2(g) of the Right to
Information
Act,
2005,
hereinafter
referred to as the Act, hence the
institution cannot be compelled to give
information which has been sought by
respondent no.5 by moving an application
to the DIOS and no action can be taken
against the petitioner under the aforesaid
Act. Reliance has been placed by the
learned counsel for the petitioner upon an
interim order dated 12.9.2007 passed by
this Court in Writ Petition No. 41818 of
2007 which is as under:

"Connect with Writ Petition No.
13211 of 2007.