# Salil Kumar Samaiya v. State of U.P. & Anr

- **Citation:** (2019) 2 ILRA 1632
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-09
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/salil-kumar-samaiya-v-state-of-u-p-anr-44617
- **Pages:** 6

## Headnote

A. Service Law - Suspension - of U.P.
Government
Servant
(Discipline
&
Appeal)
Rules,
1999;
Rule
4(1)
-
petitioner who is a Junior Engineer was
suspended pursuant to the directions
issued by the State Government, who
was not the appointing authority

It is a trite law that suspension order can be
passed only by the appointing authority on his
own accord and not on the behest of some
higher authority (Para 11)

Writ Petition allowed (E-10)
Cases Referred:-

## Text

1632 INDIAN LAW REPORTS ALLAHABAD SERIES
DIOS in compliance of his order dated
9.9.2015 and has sought the election officer
and observer. The respondent no.3 has
passed
and
order
dated
14.9.2015
appointing the Principal, Audhauli Inter
College, Audhali as Observer and Principal
of Audhauli Inter College as the Election
Officer to conduct the election. The
impugned election has been conducted and
the election took place according to the
schedule declared and the signature of the
manager are attested on 30.9.2015 and the
proceedings are concluded on 1.10.2015 in
which the signature of respondent no.4
Zumman Ali are attested and the same has
been approved.

10. From the perusal of the above
details mentioned it is crystal clear that
there is a factual disputes about the
number of members of committee of
management.
The
petitioner
claims
certain number of members to be genuine
and on the other hand the respondent no.4
claims the different number of members.
For holding the election, within a period
of two years 5/6 writ petitions are filed by
either of the parties in which certain
directions are issued, whereas from the
pleadings of the present writ petition as
well as connected writ petition being Writ
Petition Nos. 60856 of 2015 and 10636 of
2015, it is crystal clear that the dispute
involved in all the writ petitions are about
the number of members of the committee
of management. This Court has no reason
to keep the matter pending and to decide
the correctness of the claim of either of
the parties particularly, with respect of
membership
of
the
committee
of
management. This kind of dispute is
purely factual disputes, which cannot at
all be considered or decided by a writ
Court
under
Article
226
of
the
Constitution of India.

11. In view of the aforesaid, the writ
petition is dismissed. The connected writ
petition are also dismissed.
----------

(2019)10ILR A 1632

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 09.09.2019

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Service Single No.-23276 of 2019

Salil Kumar Samaiya ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Pradeep Kumar Srivastava, Renu
Misra.

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - of U.P.
Government
Servant
(Discipline
&
Appeal)
Rules,
1999;
Rule
4(1)
-
petitioner who is a Junior Engineer was
suspended pursuant to the directions
issued by the State Government, who
was not the appointing authority

It is a trite law that suspension order can be
passed only by the appointing authority on his
own accord and not on the behest of some
higher authority (Para 11)

Writ Petition allowed (E-10)
Cases Referred:-

1. The Purtabpore Co. Ltd. Vs Cane Commissioner
of Bihar & 7 ors (1969) (1) SCC 308

2. Anirudhsinhji Karansinji Jadeja & anr Vs St
of
Guj
AIR
(1995)
SC
2390
2 All. Salil Kumar Samaiya Vs State of U.P. & Anr.
1633
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard learned counsel for the
parties.

2. By means of this writ petition, the
petitioner has impeached the validity of
the
order
of
suspension
dated
30/31.07.2019 issued by the Directorcum-Chief Engineer, Rural Engineering
Department, U.P., Lucknow on the
ground that the said order has not been
passed strictly in terms of Rule 4 of U.P.
Government
Servant
(Discipline
&
Appeal) Rules, 1999 and the sole charge
which has been levelled against the
petitioner is misconceived.

3. This Court has passed the order
dated 30.08.2019 as under:-

"Heard Sri P.K. Srivastava,
learned counsel for the petitioner and
notices for the opposite parties have been
received by the office of learned CSC.

The case set forth by the learned
counsel for the petitioner is that the
petitioner, who is serving on the post of
Junior Engineer, has been placed under
suspension vide order dated 30.7.2019
passed
by
the Director-cum-
Chief
Engineer, Rural Engineering Department,
U.P. Lucknow. The aforesaid suspension
order has been passed pursuant to the
direction being issued by the State
Government and the order to that effect
has been enclosed as Annexure No.1 to
the writ petition, which has been issued
on 12.7.2019 by the Special Secretary,
Department
of
Rural
Engineering
Anubhag-2, Lucknow addressing to the
appointing/ disciplinary authority i.e.
Director-cum-Chief
Engineer,
Rural
Engineering Department, U.P. Lucknow.

Learned
counsel
for
the
petitioner has assailed the suspension
order on couple of grounds; firstly, the
suspension order has been issued at the
behest of the authority of the State
Government, which is not disciplinary/
appointing authority of the petitioner
inasmuch as the disciplinary/ appointing
authority of the petitioner is Directorcum- Chief Engineer, who has passed the
suspension order. Learned counsel for the
petitioner has referred Rule 4 (1) of the
U.P. Government Servant (Discipline &
Appeal) Rules, 1999 (for short "Rules,
1999"), which categorically provides that
a Government servant 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. Therefore, in the present case,
it appears that the suspension order has
been issued at the behest of the authority,
who is not the appointing authority of the
petitioner, therefore, the suspension order
is in violation of Rule 4 of the Rules,
1999. Learned counsel for the petitioner
has drawn attention of this Court towards
the dictum of the Hon'ble Apex Court in
re; Anirudhsinhji Karansinhji Jadeja
and another v. State of Gujarat, AIR
1995 SC 2390, wherein the Hon'ble Apex
Court, vide para-11 of the order, has
categorically observed that if a statutory
authority
has
been
vested
with
jurisdiction, he
has
to
exercise
it
according to its own discretion. If the
discretion is exercised under the direction
or in compliance with some higher
authority's instruction, then it will be a
case of failure to exercise discretion
altogether.

Secondly, the allegation so
levelled in the suspension order is
relating to one Sri Devesh Singh, who is
1634 INDIAN LAW REPORTS ALLAHABAD SERIES
said to have alleged against the petitioner
that the petitioner has usurped a sum of
Rs.1,20,000/- in the name of providing
him any suitable appointment under the
State Government. Learned counsel for
the petitioner has submitted that the
petitioner has already filed a suit/
criminal case against Sri Devesh Singh
and his family for the fact that Sri Devesh
Singh and his family has cheated the
petitioner in the name of Insurance Policy
and the said suit/ criminal case is still
pending. As per learned counsel for the
petitioner, having malafide intention and
ulterior motive, Sri Devesh Singh has
moved
false
complaint
against
the
petitioner and the State Government has
directed the appointing authority to place
the petitioner under suspension for the
said allegation without conducting any
fact finding enquiry to that effect. Not
only the above, even the disciplinary
authority has not only followed the
direction
of
the
State
Government
regarding allegation but also has not
conducted any fact finding enquiry so as
to ascertain as to how this cheating was
committed by the petitioner. It appears
that the suspension order has been passed
only on the dictate of the authority of the
State Government.

Learned
counsel
for
the
petitioner
has
also
assailed
the
suspension order on the ground that the
petitioner is presently serving at Jhansi,
his enquiry officer is Superintending
Engineer, Rural Engineering Department
at Kanpur and he has been attached at
Balia, therefore, the suspension order is
not a simple suspension order but by
means of suspension order, the petitioner
has been harassed for no cogent reasons.

On
being
confronted
from
learned Addl. Chief Standing Counsel as
to why this suspension order has been
passed in violation of Rule 4 of the Rules,
1999
and
what
are
the
material/
subjective satisfaction of the disciplinary
authority placing the petitioner under
suspension and why the petitioner has
been attached at Balia, learned Addl.
Chief Standing Counsel has prayed that
he may be granted one week's time to seek
complete instructions in the matter.

Time prayed for is granted.

List
this
petition
on
9th
September, 2019 as fresh.

In the meantime, attachment
order of the petitioner at Balia is stayed.

On the next date, learned Addl.
Chief Standing Counsel shall produce the
relevant record."

4. In compliance of the aforesaid
order, the learned Additional Chief
Standing Counsel has produced the entire
records before the Court to show the
material pursuant to which the petitioner
was placed under suspension.

5. I have perused the original record
as well as the material available on
record.

6. Since the criminal case being filed
by the petitioner against Sri Devesh Singh
which is pending before the learned
criminal court, therefore, if any finding is
given by this Court, it would affect the
criminal proceeding being pending. I have
noted that the criminal court has issued
non-bailable warrant against Sri Devesh
Singh and as per learned counsel for the
petitioner Sri Devesh Singh has yet not
appeared before the Court. Further, it is a
case where the civil suit is also pending
between the parties i.e. the present
petitioner and Sri Devesh Singh and
others, therefore, any finding of this Court
would
definitely
affect
the
civil
2 All. Salil Kumar Samaiya Vs State of U.P. & Anr.
1635
proceeding also. However perusal of the
preliminary inquiry report, prima-facie
does not reveal that the petitioner has
usurped a sum of Rs.1,20,000/- from Sri
Devesh Singh in the name of providing
him any suitable appointment under the
State Government.

7. To the contrary, it appears that
some amount has been paid by the
petitioner to the family members of Sri
Devesh Singh but since this is a subject
matter of criminal and civil proceedings,
therefore, I refrain myself to give any
finding thereon. The factum of cheating
etc.
cannot
be
established
during
departmental proceedings and it is domain
of competent criminal court to establish
the factum of cheating if any against
erring person.

8. So far as the arguments of learned
counsel for the petitioner that suspension
order has not been passed by the
Appointing Authority but the same has
been passed at the behest of the State
Government, no satisfactory reply could
be given by the State-respondents as to
how any suspension order could have
been passed by the authority who is not
the appointing authority. This is trite law
that the suspension order can be passed
only by the Appointing Authority and it is
statutory prescription under Rule 4 (1) of
U.P. Government Servant (Discipline &
Appeal)
Rules,
1999
(here-in-after
referred to as the "Rules, 1999"),
therefore, in both counts the suspension
order which has been passed at the behest
of the State Government appears to be
unwarranted.

9. The Hon'ble Supreme Court in re:
The Purtabpore Co., Ltd. vs. Cane
Commissioner of Bihar and others
reported in 1969 (1) SCC 308 has held
that the power can be exercised by the
authority with whom the power is vested
not by any other authority whether
superior or inferior. Relevant paras-12
and 13 of the aforesaid judgment are
being reproduced here-in-below:-

"12.
The
executive
officers
entrusted with statutory discretions may
in some cases be obliged to take into
account considerations of public policy
and in some context the policy of a
Minister or the Government as a whole
when it is a relevant factor in weighing
the policy but this will not absolve them
from their duty to exercise their personal
judgment in individual cases unless
explicit statutory provision has been made
for them to be given binding instructions
by a superior.
13. In Commissioner of Police, Bombay v.
Gordhandas Bhanji, this Court struck
down the order purported to have been
passed by the Commissioner of Police in
the exercise of his powers under the
Bombay Police Act and the rules made
thereunder as the order in question was in
fact that of the Government. The rule laid
down in that decision governs the
question under consideration. This Court
reiterated that rule in State of Punjab v.
Hari Kishan Sharma. There this Court
held that the State Government was not
justified in assuming jurisdiction which
had been conferred on the licensing
authority by Section 5 (1) and (2) of the
Punjab Cinemas (Regulation) Act. For the
reasons mentioned above we hold that the
impugned orders are liable to be struck
down as they were not made by the
prescribed authority."

10. The Hon'ble Supreme Court in
re: Anirudhsinhji Karansinjji Jadeja and
1636 INDIAN LAW REPORTS ALLAHABAD SERIES
another vs. State of Gujarat reported in
AIR 1995 SC 2390 has held the same and
followed the settled principles of law and
vide para-11, the following has been
observed:-

"11.The
case
against
the
appellants originally was registered on
19th March, 1995 under the Arms Act.
The DSP did not give any prior approval
on his own to record any information
about the commission of an offence under
TADA. On the contrary, he made a report
to the Additional Chief Secretary and
asked for permission to proceed under
TADA. Why? Was it because he was
reluctant to exercise jurisdiction vested in
him by the provision of Section 20A (1)?
This is a case of power conferred upon
one authority being really exercised by
another. If a statutory authority has been
vested with jurisdiction, he has to exercise
it according to its own discretion. If the
discretion is exercised under the direction
or in compliance with some higher
authority's instruction, then it will be a
case of failure to exercise discretion
altogether. In other words, the discretion
vested in the DSP in this case by Section
20A (1) was not exercised by the DSP at
all."

11.

Considering
the
rival
submissions of learned counsel for the
parties and perusing the relevant material
available on record as well as the original
records, I am of the considered view that
the suspension order dated 30.07.2019 has
been passed by the Director / Chief
Engineer, Rural Engineering Department,
Government of U.P., Lucknow but the
said suspension order has been passed
pursuant to the direction being issued by
the State Government inasmuch as vide
order
dated
12.07.2019,
which
is
contained as Annexure No.1 to the writ
petition,
the
Special
Secretary,
Department
of
Rural
Engineering,
Government of U.P., Lucknow has
directed the Director & Chief Engineer
i.e. the Appointing Authority to suspend
the petitioner and initiate the departmental
proceedings against him under Rule 7 of
the
Rules,
1999.
Prima-facie,
the
Appointing Authority has not invoked its
discretion rather followed the direction of
the
State
Government
placing
the
petitioner under suspension. So far as the
sole charge levelled against the petitioner
regarding usurping a sum of Rs.1,20,000/-
from Sri Devesh Singh in the name of
providing the government employment is
concerned, it may be the subject matter
before the competent criminal/ civil court
and the factum of cheating may not be
established through the departmental
proceedings.

12. It is needless to say that if the
factum of cheating is established against
the petitioner by the competent criminal/
civil courts, the Disciplinary Authority
may pass any appropriate order strictly in
accordance with law but at this stage it
appears that the suspension order is
unwarranted.

13. Accordingly, the suspension
order dated 30.07.2019/31.07.2019 issued
by the Director & Chief Engineer, Rural
Engineering Department, Government of
U.P., Lucknow, is hereby quashed.

14. It is needless to say that
appropriate order may be passed by the
department at appropriate stage but
strictly in accordance with law.

15. The writ petition is, therefore,
allowed.
2 All.Shailendra Kumar Awasthi Vs Addl. Commissioner Lucknow Mandal Lucknow & Ors. 1637

16. No order as to costs.
----------

(2019)10ILR A 1637

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.10.2019

BEFORE

THE HON'BLE RAJAN ROY, J.

Misc. Single No. 27414 of 2019

Shailendra Kumar Awasthi ...Petitioner
Versus
Addl. Commissioner Lucknow Mandal
Lucknow & Ors. ...Respondents

Counsel for the Petitioner:
Sri Girish Datt Pandey.

Counsel for the Respondents:
C.S.C., Sri Rajesh Kumar Singh.

U.P. Land Revenue Code, 2006- Sections
35(2)- U.P. Land Revenue Act, 1901Section 210- Against the order passed in the
mutation proceedings u/s. 35(1)-Petitioner
filed revision u/s. 210 of the Code of 2006Dismissed on the ground of availability of
alternative
remedy-appeal
u/s.
35(2)-the
appellate order-subject matter of revision.
On the other hand, if the original order of
mutation u/s. 34 of the U.P. Land Revenue Act
1901-appeal to be filed u/s. 210 of the said
Act of 1901-thereafter revision u/s. 219.

Held :- the Court finds that the original order
was passed under section 34 of the Act of
1901, to facilitate the ends of justice the
appeal filed under section 35(2) of the Code,
2006 in this case would be treated as having
been
preferred
under
section
210
and
consequent to this judgment, as this Court is
inclined to quash the impugned order dated
16.07.2019 the revision filed with reference to
section 210 of the Code be treated as revision
under section219 of the Act of 1901 shall now
be considered and decided accordingly.
Writ Petition Disposed of (E-8)

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard.

2. The short point involved herein is
as to whether a revision would lie under
section 210 of the U.P. Land Revenue
Code 2006 (hereinafter referred as 'Code
2006') against an appellate order passed
under section 35(2) arising out of
mutation proceedings or not.

3. The Additional Commissioner has
dismissed the revision of the petitioner
filed under section 210 of the Code 2006
on the ground that against the original
order passed in the mutation proceedings
an appeal lies under section 35(2) of the
Code 2006, therefore, revision under
section 210 of the Code 2006 would not
be maintainable in view of the wording of
the said provision.

4. The contention of the learned
counsel for the petitioner is that the
revisional
court
has
misread
and
misunderstood the provision contained in
section 210. Words used therein "in which
no appeal lies" would have to be applied
in the context of the appellate order and
not the original order and as no appeal lies
against the order under section 35(2),
therefore, the remedy lies only by way of
a revision under section 210. He says that
if the interpretation given to the provision
contained in section 210 by the Revisional
Court is accepted, the revisional provision
under section 210 would be rendered
otiose.

5. Learned counsel for the opposite
party no.4 Sri Rajesh Kumar Singh on
being confronted addressed the Court on