# Ram Kumar Verma v. State of U.P. and others

- **Citation:** (2001) 2 ILRA 284
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2001-02-24
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kumar-verma-v-state-of-u-p-and-others-39455
- **Pages:** 5

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2001
284
rendered in Dr. M.A. Haque Vs Union of
India, 1993 (2) S.C.C. 213 (219) as
follows.

"....We cannot lose sight of the fact
that the recruitment rules made under
Article 309 of the Constitution have to be
followed strictly and not in breach. If a
disregard of the rules and the by passing
of the Public Service Commission are
permitted, it will open a back- door for
illegal recruitment without limit. In fact
this Court has of late, been witnessing a
constant violation of the recruitment rules
and a scant respect for the constitutional
provisions requiring recruitment to the
services through the Public Service
Commission. It appears that since this
Court has in some cases permitted
regularisation of the irregularly recruited
employee,
some
Governments
and
authorities
have
been
increasingly
resorting to irregular recruitment. The
result has been that the recruitment rules
and the Public Service Commissions have
been kept in cold storage and candidate
dictated by various considerations are
being recruited as a matter of course."

15. A person who is appointed on
daily wages cannot claim a better position
from those persons who were appointed
on ad-hoc or on temporary basis. If a
person appointed on temporary basis
cannot be regularized in service under the
regularisation rules, a person working on
daily wages can also not be regularized
unless there is any rule for regularisation
of his services.

16. It is, however, made clear that if
the Government frames any scheme for
regularisation
in
respect
of
Junior
Engineers, the petitioners other than
petitioner nos. 4, 5 and 9 may be
considered for regularisation under the
said scheme.

17. The petitioners have challenged
the selection process undertaken by the
U.P.
Public
Service
Commission,
Allahabad for the post of Junior Engineers
in
pursuance
of
the
Advertisement
No.3/98-99 on the ground that unless they
are regularized, no further appointments
be made. The selection has already taken
place and the appointments have also
been made. It is made clear that if
petitioner nos. 4, 5, and 9 are regularized
in service they shall be absorbed on the
substantive posts, which were notified by
advertisement no. 3/98-99.

The writ petition is disposed of with
the above observations.

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2All] Ram Kumar Verma V. State of U.P. and others
285
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By the Court

1. Impugned herein is the order
dated 24.2.2001 whereby the petitioner
has been placed under suspension in
contemplation of disciplinary enquiry
against
him
on
charge
of
having
committed
grave
irregularities
and
connived with the millers/intermediaries
in paddy procurement. Identically worded
orders of even date are sought to be
quashed on common grounds and hence it
would be convenient to dispose of these
three writ petitions by a common order.

2. It has been submitted by Sri U.N.
Sharma, learned counsel appearing for the
petitioner that the order placing petitioner
under suspension has been passed without
any
rhyme
or
reason
and without
application of mind to materials and
reports available with the Regional Food
Controller who passed the impugned
order of suspension. It has also been
submitted by Sri Sharma that Regional
Food Controller is not the appointing
authority and the power of suspension has
not been delegated to the Regional Food
Controller by the appointing authority
namely the Commissioner Food and Civil
Supplies
in
accordance
with
the
provisions
of
the
U.P.
Government
Servant (Discipline and Appeal) Rules,
1999 in short the Rules. Learned Standing
Counsel on the other hand submitted that
there was enough material before the
Regional Food Controller to make out a
prima
facie case of suspension in
contemplation of disciplinary enquiry
against the petitioner. Learned Standing
Counsel submitted that the charge as
mentioned in the impugned order of
suspension was grave enough to warrant
recourse to suspension. The first proviso
to Rule 4(1) of the U.P. Government
Servants (Discipline and Appeal) Rules,
1999 which provides that recourse to
suspension should not be taken unless if
the charge is grave enough to warrant
imposition of major penalty in the event
of the same being established at the
enquiry, has not been violated. As regards
the power of suspension learned Standing
Counsel has submitted that the power of
suspension had been delegated to the
Regional
Food
Controllers
vide
notification dated July 10, 1997. The
delegation is referable for its source to the
provisions
of
the
Civil
Services
(Classification,
Control
and
Appeal)
Rules, 1930 and Punishment and Appeal
Rules for Subordinate Services, Uttar
Pradesh, 1932. Such delegation, -proceeds
the submission, will remain valid unless
cancelled or rescinded as visualized by
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
286
Rule 17 (2) (a) of the U.P. Government
Servants (Discipline and Appeal) Rules,
1999.

3. Having heard the counsel I veer
around the view that if it is found that
Regional
Food
Controller
is
not
competent
to
suspend
a
Marketing
Inspector it will not be necessary to go
into other questions raised by Sri Sharma.
Therefore, the first question which needs
to be determined is whether the Regional
Food
Controller
was
competent
to
suspend the petitioner. Rule 4 (1) of the
Rules reads as under:-

"4. Suspension (1) A Government
Servant against whose conduct an enquiry
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 Government by an order in this behalf
may place a Government Servant or class
of Government Servants belongings 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
Servants
belonging
to
Group-C and D posts, the Appointing
Authority may delegate power under this
rule to the next lower authority.

4. The power to suspend a
Government Servant under the Rules is
vested in the Appointing Authority. The
word Appointing Authority means the
authority
empowered
to
make
appointments to the posts under the
relevant service rules. The third proviso to
Rule 4(1) of the Rules, however, provides
that the appointing authority, in the case
of any Government Servant or class of
Government Servants belonging to Group
C and D posts, may 'delegate its power
under this rule to the next lower
authority'.
'Appointing
Authority'
in
relation the posts of Marketing Inspector
is the Commissioner, Food and Civil
Supplies, Government of U.P., Lucknow.
The said authority has not delegated its
power under the Rules to the next lower
authority. The notification dated July 10,
1997 reliance on which has been placed
by the learned Standing Counsel, was
issued by the State Government. The
delegation is traceable for its source of
power to the provisions of rule (1-A) of
the Punishment and Appeal Rules for
subordinate
Services,
Uttar
Pradesh,
1932. The sub-rule (1) of rule 1-A is
quoted below:

"1-A (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 in the case of any
Government
servant,
or
class
of
Government servants, not belonging to a
State service, the appointing authority
may delegate its power under this sub-rule
to the next lower authority.

Provided further that any other
authority empowered by the Government
by general or special order in this behalf,
2All] Ram Kumar Verma V. State of U.P. and others
287
may place a Government servant under
suspension under this sub-rule.'

5. The 2nd proviso to sub-rule (1) of
rule
1-A
extracted
above
permitted
suspension of a Government servant by
any
authority
empowered
by
the
Government in this behalf by general or
special order. The said Rules have been
rescinded vide Rule 17 (1) of the U.P.
Government
Servants
(discipline
and
Appeal) rules, 1999. Sub rule (2) of Rule
17 which saves delegation of power of
suspension etc. under the rescinded Rules,
in so far as it is relevant, is quoted below:

"17 Rescission and Savings-
(1)
xx
 xx
 xx
(2) Notwithstanding such rescission-

(a) Delegation of power mentioned
in punishment and Appeal Rules for
Subordinate Services U.P., 1932 and any
order issued under the Civil Service
(Classification,
Control
and
Appeal)
Rules, 1930 or Punishment and Appeal
Rules for Subordinate Services Uttar
Pradesh 1932 delegating the power of
imposition of any of the penalties
mentioned in Rule 3 or power of
suspension to any authority, shall be
deemed to have been issued under these
rules and shall remain valid unless
cancelled or rescinded.'

6. Under the provisions of the Civil
Services
(Classification,
Control
and
Appeal) rules, 1930 and Punishment and
Appeal Rules for subordinate Services,
Uttar Pradesh, 1932 the State Government
had the power to delegate the power of
suspension vested in the 'appointing
authority' to 'any authority' and the
notification relied on by the learned
Standing Counsel must be deemed to have
been issued by the State Government in
exercise of such power. Question is
whether the notification is saved by clause
(a) of sub Rule (2) of Rule 17 of the U.P.
Government Servants (Discipline and
Appeal) Rules, 1999? As noticed herein
above the third proviso to sub Rule (1) of
Rule
4
empowers
the
'Appointing
Authority' to delegate its power of
suspension under the Rules to the next
lower
authority
whereas
under
the
rescinded Rules, the State Government
had the power to delegate the power of
suspension vested in the appointing
authority to any authority. It has been
contended, and in my opinion rightly, by
Sri U.N. Sharma that the notification
under
the
rescinded
Rules
being
inconsistent with the third proviso to Rule
4(1) cannot survive notwithstanding the
saving clause (a) of sub Rule (2) of Rule
17.

7. There is no manner of doubt that
as a consequence of Rule 17 (1) of the
Rules,
Civil
Services
(Classification,
Control and Appeal) Rules, 1930 and
Punishment
and
Appeal
Rules
for
Subordinate Services, Uttar Pradesh 1932
are completely effaced as if these rules
had never been promulgated. Clause (a)
of sub Rule (2) of Rule 17, however,
saves the delegation of power made under
the rescinded Rules. The argument is that
delegation of power under the U.P.
Government Servants (Discipline and
Appeal) Rules, 1999 is permissible only
by
the
'Appointing
Authority',
and,
therefore, continuance of the delegation
made earlier by the State Government
would be 'inconsistent' with the third
proviso to Rule 4 (1) of the Rules. The
argument in my opinion is not without
substance. Section 24 of the U.P. General
Clauses Act, 1904 deals with situations in
INDIAN LAW REPORTS ALLAHABAD SERIES [2001
288
which notifications etc. issued under an
enactment which is repealed and reenacted. If the principle laid down therein
is extended to rescission and re-enactment
of statutory rules, it cannot be gainsaid
that continuance of the delegation of
power of suspension made under the
rescinded Rules would be subject to; the
qualification that it is not inconsistent
with the provisions of the re-enacted
Rules. Section 24 of the U.P. General
Clauses Act, 1904 clearly provides that
where any enactment is repealed and reenacted by any Uttar Pradesh Act with or
without modification, then, unless it is
otherwise
expressly
provided,
any
appointment, notification, order, scheme
rule, form or bye-law, made or issued
under the repealed shall, 'so far as it is not
inconsistent
with
the
provisions
reenacted' continue in force, and be deemed
to have been made or issued under the
provisions so re-enacted, unless and until
it is superseded by any notification, issued
under the provisions so re-enacted. The
principle laid down in Section 24 of the
U.P. General Clauses Act, 1904 will
equally apply to a case rescission and reenactment of statutory rules. In my
opinion, therefore, the notification relied
on by the learned Standing Counsel
cannot save the impugned order of
suspension which has not been passed by
the 'Appointing Authority' or its delegate.
The view I am taking finds support from
the decision dated 3.12.1999 rendered in
Civil Misc. Writ Petition No. 5915 of
1999 (S/S) (Giri Raj Singh Vs. State of
U.P. and others) by the Lucknow Bench
of this Court.

8. Since the impugned order is liable
to be quashed on the ground that it has
been passed by an authority lacking in
jurisdiction, it is not necessary to go into
the other questions raised by Sri U.N.
Sharma.

In the result, therefore, the petitions
succeed and are allowed. The impugned
order is quashed without prejudice to the
right of the disciplinary authority to pass
such order as it may deem fit and proper
under the provisions of Rule 4 of the U.P.
Government Servants (Discipline and
Appeal) Rules, 1999.

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