# Raj Veer Singh v. State of U.P

- **Citation:** (2008) 1 ILRA 121
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-05
- **Case number:** Civil Misc. Writ Petition No. 57960 of 2007
- **Bench:** Dr. B.S. Chauhan, Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-veer-singh-v-state-of-u-p-41243
- **Pages:** 8

## Headnote

Rules-1939-Rule
49-A
Suspension-contemplation of preliminary
enquiry by vigilance-keeping in view of
contrary views of full bench decision Jai
Singh Dixit-and Shahroj Anwar Khan -
matter referred to larger bench.

Held: Para 19

For the reasons recorded above, we have
doubt about the correctness of the law laid
down by the Full Bench judgment of this
Court in the case of Shahroj Anwar Khan
(supra) and therefore direct that the papers
of the present writ petition be placed before
the
Hon'ble
the
Chief
Justice
for
constituting
a
Larger
Bench
for
consideration of the following questions of
law.
Case law discussed:
1975 ALR K- 64, 2007(2) UPLBEC 1582, AIR
1984 PAN 113

## Text

1 All] Raj Veer Singh V. State of U.P.
121
7. The substantive vacancy occurred
on 30.6.1998 on the retirement of Ramesh
Chandra Gupta and no fresh vacancy
occurred upon the retirement of Girish
Chandra Jain on 30.6.1997. It was the
same
vacancy
which
continued.
Consequently,
the
vacancy
which
occurred on 30.6.1998 continued and
continued to exist till 30.6.2007. The
same post continued to remain vacant and
no substantive appointment on the said
vacancy was made. The mere fact that an
adhoc arrangement of officiating Principal
was made earlier on the said post which
came to an end would not mean that a
fresh substantive vacancy had again been
created.
The
substantive
vacancy
remained the same and only an officiating
arrangement had come to an end. This
view was also held in the aforesaid
Division Bench judgment of Sundershan
Kumar
(supra),
which
is
squarely
applicable to the present facts and the
circumstances of the case. The judgment
cited by the learned counsel for the
petitioner stands impliedly overruled in
view of the decision of the Division
Bench.

8. Since the petitioner had declined
to officiate as the Principal on the said
vacancy, he could not be permitted at this
stage to claim appointment on the post of
officiating Principal. The petitioner is
estopped under law from claiming an
officiating appointment on the same
substantive vacancy. In view of the
aforesaid, this Court does not find any
merit in the writ petition and is dismissed
summarily.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.12.2007

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 57960 of 2007

Raj Veer Singh

...Petitioners
Versus
State of U.P.

...Respondent

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Rahul Agarwal
Sri Udayan Nandan

Counsel for the Respondent:
S.C.

U.P. Civil Services ( Classification control
and
Appeal)
Rules-1939-Rule
49-A
Suspension-contemplation of preliminary
enquiry by vigilance-keeping in view of
contrary views of full bench decision Jai
Singh Dixit-and Shahroj Anwar Khan -
matter referred to larger bench.

Held: Para 19

For the reasons recorded above, we have
doubt about the correctness of the law laid
down by the Full Bench judgment of this
Court in the case of Shahroj Anwar Khan
(supra) and therefore direct that the papers
of the present writ petition be placed before
the
Hon'ble
the
Chief
Justice
for
constituting
a
Larger
Bench
for
consideration of the following questions of
law.
Case law discussed:
1975 ALR K- 64, 2007(2) UPLBEC 1582, AIR
1984 PAN 113

(Delivered by Hon'ble Dr. B.S. Chauhan, J.)

1. This matter has been placed
before us by way of an order of the
122 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
Hon'ble Chief Justice nominating the
Bench.

2. Petitioner is employed as
Assistant Director (Toxicology) Forensic
Science Laboratory, Agra. In a 'telecast by
television news channel 'Star News' under
the caption 'Kanoon Ke Killer' the
petitioner was shown as stating that he
can temper the forensic report on payment
of illegal gratification. The petitioner was
initially restrained from discharging his
duties vide order dated 18.08.2007 passed
by the Joint Director, Vidhi Vigyan
Prayogshala Uttar Pradesh, Agra. Feeling
aggrieved by the order so passed, the
petitioner filed Writ Petition No. 40102 of
2007. This Court required the Standing
Counsel to file a counter affidavit.

3. While the first petition was still
pending before this Court, the State
Government has passed the impugned
order dated 18.09.2002 placing the
petitioner under suspension. The order
records that from the preliminary report of
the Director, Vidhi Vigyan Prayogshala
dated 20.08.2007 prima facie petitioner is
found to be involved in corruption and
therefore it is in the public interest that
work may not be taken from such an
officer
and,
for
taking
appropriate
proceedings against the petitioner, an
inquiry through vigilance department is
contemplated. Accordingly, the petitioner
is being placed under suspension.

4.

This
order
of
the
State
Government is being questioned by
means of the present writ petition on the
plea that from order impugned it is
apparently clear that an inquiry from the
vigilance department is contemplated for
taking appropriate action against the
petitioner. Counsel for the petitioner
submits that such vigilance inquiry, as
recorded in the impugned order, is not
provided for under Rule 49-A of the U.P.
Civil Services (Classification, Control and
Appeal) Rules (hereinafter referred to as
"C.C.A. Rules). Therefore, the suspension
of the petitioner is contrary to the
aforesaid statutory provision and illegal.
Reference
has
been
made
to
the
Constitution
Bench
(Five
Judges)
judgment of this Court in the case of State
of U.P. v. Jai Singh Dixit; 1975 A.L.R.
Page 64.

5. Counsel for the petitioner clarifies
that the inquiry referred to in Rule 49-A
of the C.C.A. Rules is a formal
departmental inquiry and not a fact
finding inquiry which usually proceeds
the formal inquiry. An inquiry by the
vigilance department can be material for
the purposes of taking criminal action
against the petitioner but the same is
totally
foreign
to
the
concept
of
departmental inquiry as contemplated by
Rule 49-A of the C.C.A. Rules and,
therefore, in contemplation of an inquiry
by
vigilance
department,
the
State
Government is not justified in exercising
the power under Section 49A of the
C.C.A. Rules to suspend the petitioner.

6. Standing Counsel on behalf of the
State respondent, with reference to the
Full Bench (Three Judges) judgment of
this Court in the case of Shahroj Anwar
Khan v. State of U.P. and Anr.; (2007) 2
UPLBEC
1582,
contends
that
the
authorities have the power to direct a fact
finding inquiry/preliminary inquiry and
may resort to suspension while initiating
such
a
fact
finding/preliminary
investigation. It is, therefore, submitted
that the contemplation of a vigilance
inquiry against the petitioner, as recorded
1 All] Raj Veer Singh V. State of U.P.
123
in the impugned order, would not in any
way restrict the competence of the State
Government to keep the officer under
suspension. It is further submitted that the
rule
does
not
prohibit
passing
of
suspension order during the pendency of
the fact finding/preliminary inquiry. The
inquiry contemplated to be conducted by
the vigilance department in the facts of
the case stands at par with the preliminary
inquiry/fact finding inquiry.

7. In rejoinder Sri Shashi Nandan
Senior Advocate, assisted by Sri Udayan
Nandan Advocate, raised following issues
of law with regards to the Full Bench
judgment of this Court in the case of
Shahroj Anwar Khan (supra):

(a) that the Division Bench, which had
made the reference in the case of Shahroj
Anwar Khan and which has resulted in
the judgment of the Full Bench of this
Court reported in (2007) 2 UPLBEC
1582,
had
not
even
noticed
the
Constitution
Bench(Five
Judges)
judgment of this Court in the case of State
of U.P. v. Jai Singh Dixit. There being a
Constitution Bench judgment of this
Court on the subject squarely applicable,
not noticed in the referring order, the Full
Bench should have returned the reference
unanswered after recording that the
Division Bench was not justified in
making the reference in ignorance of the
Constitution Bench judgment of this
Court.
(b) The Full Bench of this Court could
not have diluted the law laid down by the
Constitution Bench in the case of State of
U.P. v. Jai Singh Dixit while answering
the reference as made in the case of
Shahroj Anwar Khan.
(c) In view of the Constitution Bench
judgment of this Court in the case of State
of U.P. v. Jai Singh Dixit, the question
referred and as answered was specifically
recorded in the operative portion of the
order of the Constitution Bench. No Court
has expressed any doubt in respect of the
law so laid down, therefore, the reference
giving rise to the Full Bench judgment
itself was incompetent.
(d) The answer given by the Full Bench
to the question referred in the case of
Shahroj Anwar Khan (supra) is virtually
in conflict with the opinion of the
Constitution Bench in the case of State of
U.P. v. Jai Singh Dixit.

8. It is, therefore, submitted that the
Full Bench judgment of this Court in the
case of Shahroj Anwar Khan does not lay
down good law and is based on nonconsideration of the exact answer given
by the Constitution Bench of this Court
with regards to meaning to be attached
word 'inquiry' as contained in Rule 49-A
of the C.C.A. Rules.

9. We have heard counsel for the
parties and have gone through the records
of the writ petition.

10. Before adverting to the legal
issue raised on behalf of the present
petitioner, it would be worthwhile to
reproduce the following paragraphs of the
judgment of the Constitution Bench in the
case of State of U.P. v. Jai Singh Dixit:

"The question for consideration now
in what is meant by the Words 'inquiry'
and 'contemplated' used in Rule 49-A and
Rule l-A?

The word 'inquiry' has also been
used in Rules 55 and 55-A of the C. C.A.
Rules. Rules 55 and 55-A relate to formal
departmental
inquiry
where
major
124 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
punishment of dismissal removal or
reduction can be imposed. Such an
inquiry is invariably preceded by framing
of charges. It is of significance that in the
other rules governing cases in which
major punishment can be awarded the
word 'inquiry' has been omitted and the
rules merely provide for the award of
punishment. It is true that most of the
minor punishment shall be awarded after
some inquiry, but when the rule-making
authority intentionally avoided making a
reference to this term in the other rules
and used the word 'inquiry' in Rule 49-A
and also Rules 55 and 55-A the
underlying intention was that the inquiry
contemplated by Rule 49-A is the one held
under Rules 55 and 55-A. It must,
therefore, be held that the power under
Rule 49-A can be exercised only in those
cases where one of the major punishment
dismissal, removal or reduction shall
ordinarily be imposed.
The inquiry contemplated by Rule
49-A cannot have reference to an
informal preliminary inquiry or a fact
finding inquiry preceding the actual
disciplinary proceeding, otherwise it shall
be permissible to suspend a Government
servant pending such informal inquiry,
but not after charges have been framed
and regular departmental proceeding is
pending. This shall lead to an anomalous
situation. We are, therefore, of opinion
that the 'inquiry' contemplated by Rule
49-A and Rule 1A has reference to the
formal departmental inquiry and not to
any informal preliminary or fat finding
inquiry preceding the initiation of the
formal disciplinary proceeding.
To put it in brief a departmental
inquiry is contemplated when on objective
consideration
of
the
material,
the
appointing authority considered the case
as
one
which
would
lead
to
a
departmental inquiry, irrespective of
whether
any
preliminary
inquiry,
summary or detailed has or has not been
made or if made is not complete. There
can therefore be suspension pending
inquiry even before a final decision is
taken
to
initiate
the
disciplinary
proceeding, i.e. even before the framing
the charge and the communication thereof
to the Government servant.
 .................
Naturally, it shall depend upon the
fact and circumstances of each case
whether, prior to the framing of the
charge and communication thereof to the
Government servant it can be said that a
departmental inquiry is expected.
 .................
In case the matter is considered in
the manner already suggested by us
above, there shall always be objective
satisfaction of the appointing authority
before the Government servant can be
suspended pending inquiry. To suspend a
Government
servant
on
receipt
of
complaints
containing
allegation
of
dishonesty or of misconduct, without the
appointing, authority being satisfied that
the allegation made has any substance
which
would
latter
justify
taking
disciplinary proceeding shall be one
subjective consideration and has to be
disapproved by the courts of law. But
where there exist circumstances to satisfy
the
appointing
authority
that
the
allegations
made
have
substance
suspension pending inquiry shall be on
objective
consideration
and
not
subjective. It is a different thing that the
appointing authority may like to have the
matter investigated or further investigated
so that the total material may come on the
record and a proper departmental inquiry
can be held.
.................
1 All] Raj Veer Singh V. State of U.P.
125
After the repeal of the Note the
position is that Rule 49-A as well as Rule
I-A conferred discretionary power to
place an officer under suspension when
an
inquiry
is
contemplated
or
is
proceeding. The power has not been
confined on the appointing authority to
his
subjective
satisfaction.
It
is
exercisable only if on an objective
consideration the appointing authority
takes the view that an Inquiry is
contemplated or is proceeding. This
position being based on an objective
consideration is open to judicial review.
...............
We all agree that the inquiry that is
meant in this rule a formal departmental
inquiry and not a fact finding preliminary
inquiry which usually proceeds the formal
inquiry."

11. Lastly this Court may also
reproduce the answer given to the
question of law, which was referred to
the Constitution Bench, which is being
quoted below:

"D.S. Mathur, C.J. - In view of the
majority opinions, the answer to the
question of law involved is as below:
Suspension pending inquiry under
Rule 49-A of the U.P. Civil Service
(Classification Control and Appeal) Rules
or Rule I-A of the U.P. Punishment and
Appeal Rules can be ordered to any stage
prior to or after the framing of charges.
When on objective consideration the
authority concerned is of the view that a
formal departmental inquiry under Rule
55 and 55-A of the CC.A. Rules or Rules
5 and 6-A of the U.P. Punishment and
Appeal Rules is expected or-such an
inquiry is proceeding. At what stage the
power under the above rules can be
exercised shall always depend on the facts
and circumstances of each case."

12. In view of the aforesaid
conclusion arrived at by the Constitution
Bench, two aspects of the matter are
apparently clear. The word 'inquiry', as
used in Rule 49-A, means a formal
departmental inquiry under Rule 55 and
55-A of the C.C.A. Rules or Rules 5 and
6-A of the U.P. Punishment and Appeal
Rules.
Therefore,
suspension
in
contemplation of inquiry in terms of Rule
49-A
of
the
C.C.A.
Rules
would
necessarily mean that (a) material on
record would lead to formal departmental
inquiry under Rules 55 and 55-A of the
C.C.A. Rules or Rules 5 or 6-A of the
U.P. Punishment and Appeal Rules and
(b) At what stage the power under above
Rule 49-A of the C.C.A. Rules is to be
exercised shall always to be dependent on
the facts and circumstances of each case.

13. The Full Bench in the case of
Shahroj
Anwar
Khan
(supra)
has,
however, in paragraph 21 of the said
judgment, held as follows:

"21. In view of what is stated above,
it is clear that the phrase 'when an inquiry
is contemplated' will have to be read as
meaning that an inquiry is under
consideration or is thought of or is
proposed. It cannot mean that a decision
to hold an inquiry is arrived at. After that
decision is arrived at, undoubtedly, a fullfledged departmental inquiry follows.
Therefore, the phrase 'an inquiry is
contemplated' will cover an earlier stage.
It will certainly cover a stage when even a
preliminary
inquiry
is
under
consideration. A preliminary inquiry
cannot be excluded from the term 'inquiry'
as covered under this clause. That would
126 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
place a fetter on the powers of the
administration. As noted earlier, the
authorities may be confronted with
various situations and they ought to have
the freedom to deal with those situations.
It will be for them to decide what steps
they ought to take. The authorities may,
undoubtedly,
initiate
a
preliminary
inquiry, or may even be required to resort
to
suspension
while
initiating
a
preliminary investigation. It cannot be
said that the authorities will hold the
preliminary investigation or inquiry for
quite
sometime,
allow
the
officer
concerned, about whom there are serious
grievances, to function in the meanwhile
and thereafter will decide to suspend.
Such restriction is not contemplated
under the Rules."
And, therefore, proceeded to answer
the question referred in paragraph 22,
which reads as follows:

"22. In the circumstances, we answer
the two questions, referred to for our
determination as follows:
(1) Rule 17(1)(a) of the U.P. Police
Officer of Subordinate Ranks (Punishment
and Appeal) Rules, 1991, does not
prohibit passing of a suspension order
during the pendency of a preliminary
inquiry.
(2) The
Division
Bench
judgment
rendered in Kripa Shanker Prasad
(supra), does not lay down the correct
law."

14. In our opinion the conclusion
arrived at by the Full Bench, to the effect
that
preliminary
inquiry
cannot
be
excluded from the term inquiry as covered
under Rule 17(1)(a) of the U.P. Police
Officer
of
Subordinate
Ranks
(Punishment and Appeal) Rules, 1991, is
not in accordance with the Constitution
Bench judgment of this Court wherein it
has been specifically held that the word
'inquiry' referred to in Rule 49-A of the
C.C.A.
Rules
means
a
formal
departmental inquiry contemplated by
Rules 55 and 55-A of the C.C.A. Rules. It
may also be recorded that the Full Bench
of this court has specifically held that at
what stage the power of suspension can
be exercised shall always depend on the
facts and circumstances of each case.

15. The said conclusion of the
Constitution Bench of this Court stands
practically nullified in view of the answer
given by the Full Bench in the case of
Shahroj Anwar Khan (supra), wherein it
has been held that suspension can be
directed during the pendency of a
preliminary inquiry without recording
further that such suspension has to be
based on objective consideration of the
material on record by the appointing
authority for arriving at a satisfaction that
the same would lead to a formal
departmental inquiry.

16. We are conscious of the
limitations prescribed for referring a
matter to a larger Bench and as such it
would be appropriate to refer to the law
on this issue. The procedure provided for
making a reference is contained in Rule 6
of Chapter V of the Allahabad High Court
Rules and the Hon'ble Chief Justice on
such a reference in exercise of the powers
vested in him under the second proviso to
Rule 2 of the same chapter may constitute
an appropriate Bench as may be required
for answering the reference. This Court in
a Full Bench decision in the case of Rana
Pratap Singh v. State of U.P. and Ors.
following a Full Bench decision of the
Punjab and Haryana High Court, reported
in AIR 1984 P & H 113 held as follows:
1 All] Raj Veer Singh V. State of U.P.
127
"It would follow as a settled
principle that the law specifically laid
down by the Full Bench is binding upon
the High Court within which it is
rendered and any and every veiled doubt
with regard thereto does not justify the
reconsideration thereof by a larger Bench
and thus put the law in a ferment afresh.
The ratios of the Full Benches are and
should be rested on surer foundations and
are not to be blown away by every side
wind. It is only within the narrowest field
that a judgment of a larger Bench can be
questioned for reconsideration. One of the
obvious
reasons
is,
where
it
is
unequivocally manifest that its ratio has
been impliedly overruled or whittled
down by a subsequent judgment of the
superior Court or a larger Bench of the
same Court. Secondly, where it can be
held with certainly that a co-equal Bench
has laid down the law directly contrary to
the same, and, thirdly, where it can be
conclusively said that the judgment of the
larger Bench was rendered per incuriam
by altogether failing to take notice of a
clear-cut statutory provision or an earlier
binding precedent. It is normally within
these constricted parameters that a
similar
Bench
may
suggest
a
reconsideration of the earlier view and
not otherwise. However, it is best in these
matters to be neither dogmatic nor
exhaustive yet the aforesaid categories
are admittedly the well accepted ones in
which an otherwise binding precedent
may be suggested for reconsideration."

17. The Full Bench further held as
follows in para 18 of the judgment:

"18. Implicit, thus, in the disregard
by a single Judge or a Division Bench of
a binding judicial precedent of a larger
Bench or seeking to doubt its correctness
for reasons and in circumstances other
than those spelt out in Pritam Kaur's case
(supra) is what cannot but be treated as
going counter to the discipline of law so
essential to abide by, for any efficient
system of law to function, if not it virtually
smacking of judicial impropriety. In other
words, it is only within the narrow
compass of the rule as stated by the Full
Bench in Pritam Kaur's case that
reconsideration of a judgment of a larger
Bench can be sought and as has been so
expressively put there, such judgments are
not "to be blown away by every side
wind."

18. In the instant case, as pointed out
herein above that the Full Bench decision
in Shahroj Anwar Khan's case, the ratio of
the earlier 5- Judges Bench appears to
have been set at naught and hence
keeping in view the norms of judicial
discipline we find it necessary to refer this
issue for an authoritative pronouncement.

19. For the reasons recorded above,
we have doubt about the correctness of
the law laid down by the Full Bench
judgment of this Court in the case of
Shahroj
Anwar
Khan
(supra)
and
therefore direct that the papers of the
present writ petition be placed before the
Hon'ble the Chief Justice for constituting
a Larger Bench for consideration of the
following questions of law:

(a) Whether a reference made by a
Division Bench, which has not noticed a
Constitution Bench judgment of this
Court comprising of larger number of
Judges,
squarely
applicable
on
the
subject, was liable to be returned
unanswered by the Full Bench only on the
ground that Constitution Bench judgment
128 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
has not been considered by the Division
Bench while making the reference.
(b) Whether the Full Bench in the case
of Shahroj Answar Khan (supra) is correct
in recording in paragraph 21 that the word
'inquiry' as contemplated under Rule
17(1)(a) (para materia to Rule 49-A of
the
C.C.A.
Rules)
will
include
a
preliminary inquiry to be precise whether
the word 'inquiry' in the said Rules
includes within its ambit preliminary
inquiry inasmuch as the Constitution
Bench of this Court in the case of State of
U.P. v. Jai Singh Dixit (supra) has
specifically held that the word 'inquiry',
under Rule 49-A of the C.C.A. Rules,
necessarily refer to formal departmental
inquiry referable to Rule 55 and 56-A of
the C.C.A. Rules or Rules 6 and 7 of the
U.P. Police Officer of Subordinate Ranks
(Punishment and Appeal) Rules, 1991.
(c) Whether, while directing preliminary
inquiry, the power to suspend has to be
exercised on objective consideration of
material on record of each case and
therefore it is for the State Government on
a challenge being made to an order of
suspension in contemplation of an inquiry
to justify by such material on record that
irrespective of preliminary inquiry the
authority was satisfied that suspension
was warranted in the facts of the case.
(d) Whether an order of suspension, in
contemplation of a vigilance inquiry,
would be within four corners of Rule 49A.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2007

BEFORE
THE HON'BLE PANKAJ MITHAL, J.

First Appeal No. 242 of 2007

Manaj Kumar ...Respondent-Appellant
Versus
Mohd. Saud and others

...Petitioner-Respondents

Counsel for the Appellant:
Sri Ravi Kant
Sri Ram Raj
Sri Gajendra Pratap Singh

Counsel for the Respondents:
Sri U.N. Sharma
Sri Ravi Shankar Prasad
Sri Chandan Sharma

U.P. Kshetriya Punchayat (Election of
Pramukh and U.P. State and Settlement
of Election Disputes) Rules, 1994-Rule29-Declaration of result-out of 79 three
voter
found
invalid-both
candidate
secured 38 votes-on tie-the A.R.O. on
basis of lottery declared Mr. D. elected
form VIII issued-R.O. in recounting
found 2 votes invalid in favour of Mr. Ahence
declared
Mr.
B.
as
electedwhether the A.R.O. competent to declare
winner in absence of delegation of power
by
RO/D.M.?-held-'No'-even
without
complaint-the R.O. suo moto order for
recounting-No order in writing for its
satisfaction recorded-held-not fetal-'B'
rightly declared elected-view taken by
election Tribunal illegal-set aside.

Held: Para 26

In short, the conclusion derived from the
above
authority
is
that
where
the
election
result
is
declared
unauthorisedly, the same is liable to be
treated as null and void. In the instance
case as the RO/DM has not delegated his