# Shabir Ali v. State of U.P. & Anr

- **Citation:** (2023) 4 ILRA 1012
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-20
- **Case number:** Writ A No. 371 of 2012
- **Bench:** Karunesh Singh Pawar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shabir-ali-v-state-of-u-p-anr-49903
- **Pages:** 5

## Headnote

A. Service Law - Suspension - Salary -
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 - Rule 4(3)(ka) - The
deemed suspension of the petitioner can
be continued, even after his release, by
the appointing authority by passing an
express order. It may or may not be
revoked by the competent authority. In
this case, a decision has been taken by the
appointing
authority
vide
order
dated
05.01.2012. (Para 6)

Rule 4(4) of the Rules of 1999 provides that
a government servant shall be deemed to have
been placed or, as the case may be continued
4 All. Shabir Ali Vs. State of U.P. & Anr.
1013
to be placed under suspension by an order of the
authority competent to suspend under these rules,
w.e.f. the date of his conviction if in the event of a
conviction for an offence he is sentenced to a term
of imprisonment exceeding 48 hours and is not
forthwith dismissed, removed consequent to such
conviction. (Para 7)

Since the criminal trial is pending, the impugned
order of suspension and the impugned order
dated 05.01.2012 whereby his representation
has been rejected cannot be faulted and the
deemed suspension under legal fiction may be
continued even after release of the petitioner.
Final decision relating to suspension of the
petitioner can only be taken after conclusion of
trial as provided u/Rule 4(2) of Rules of 1999
and not prior to that. (Para 8)

By virtue of the interim order dated 23.01.2012,
operation of impugned orders was stayed.
Therefore, the petition is disposed of with a
direction to the respondents to allow the
petitioner to work and he shall be paid basic
salary with other allowances as is being paid to
him, at present. However, it shall be subject to
final outcome of trial. (Para 9)

Writ petition disposed of. (E-4)

Precedent followed:

Chandra
Shekhar
Saxena
Vs
Director
of
Education (Basic), U.P. Lucknow, 1997 (15) LCD
323 (Para 5)

Present petition challenges order dated
05.01.2012 and order dated 10.03.2010
passed by Vishesh Sachiv Rajya Sampatti
Adhikari,
Rajya
Samatti
Anubhag-1,
Lucknow.

## Text

1012 INDIAN LAW REPORTS ALLAHABAD SERIES
that is not sufficient to nullify the ultimate
decision to cancel an examination where
the nature of the wrongdoing cuts through
the entire process so as to seriously
impinge upon the legitimacy of the
examinations which have been held for
recruitment. Both the High Court and the
Tribunal have, in our view, erred in laying
exclusive focus on the report of the second
Committee which was confined to the issue
of impersonation. The report of the second
Committee is only one facet of the matter.
The Deputy Chief Minister was justified in
going
beyond
it
and
ultimately
recommending that the entire process
should be cancelled on the basis of the
findings which were arrived at in the report
of the first Committee. Those findings do
not stand obliterated nor has the Tribunal
found any fault with those findings. In this
view of the matter, both the judgments of
the Tribunal and the High Court are
unsustainable."

27. In view thereof, to maintain the
public confidence in the recruitment
process in the Legislative Assembly and
Legislative Council in respect of Class-III
posts, the recruitment should be in the
hands
of
the
specialized
statutory
recruitment body, and not in the hands of a
selection committee or a private agency.
Therefore, it is directed that in future all
Class-III posts in Assembly and Council
are to be filled up by the selection made by
the Uttar Pradesh Subordinate Services
Selection Commission. In this respect,
necessary amendment in the recruitment
rules are to be carried out within a period of
three months from today.

28. The petitioners, who have been
given appointment on contractual basis,
should be allowed to work on contractual
basis and paid remuneration accordingly,
subject to their performing duties of the
posts, if the posts are vacant on which they
have been working, till regularly selected
candidates come from Uttar Pradesh
Subordinate
Services
Selection
Commission and join the posts.

29.

With
the
aforesaid
observations/directions, this petition stands
dismissed, so far as the prayer made for
quashing of the selection pursuant to the
impugned advertisement is concerned.
----------
(2023) 4 ILRA 1012
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.04.2023

BEFORE

THE HON'BLE KARUNESH SINGH PAWAR, J.

Writ A No. 371 of 2012

Shabir Ali ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Nripendra Mishra

Counsel for the Respondents:
C.S.C.

A. Service Law - Suspension - Salary -
U.P. Government Servant (Discipline and
Appeal) Rules, 1999 - Rule 4(3)(ka) - The
deemed suspension of the petitioner can
be continued, even after his release, by
the appointing authority by passing an
express order. It may or may not be
revoked by the competent authority. In
this case, a decision has been taken by the
appointing
authority
vide
order
dated
05.01.2012. (Para 6)

Rule 4(4) of the Rules of 1999 provides that
a government servant shall be deemed to have
been placed or, as the case may be continued
4 All. Shabir Ali Vs. State of U.P. & Anr.
1013
to be placed under suspension by an order of the
authority competent to suspend under these rules,
w.e.f. the date of his conviction if in the event of a
conviction for an offence he is sentenced to a term
of imprisonment exceeding 48 hours and is not
forthwith dismissed, removed consequent to such
conviction. (Para 7)

Since the criminal trial is pending, the impugned
order of suspension and the impugned order
dated 05.01.2012 whereby his representation
has been rejected cannot be faulted and the
deemed suspension under legal fiction may be
continued even after release of the petitioner.
Final decision relating to suspension of the
petitioner can only be taken after conclusion of
trial as provided u/Rule 4(2) of Rules of 1999
and not prior to that. (Para 8)

By virtue of the interim order dated 23.01.2012,
operation of impugned orders was stayed.
Therefore, the petition is disposed of with a
direction to the respondents to allow the
petitioner to work and he shall be paid basic
salary with other allowances as is being paid to
him, at present. However, it shall be subject to
final outcome of trial. (Para 9)

Writ petition disposed of. (E-4)

Precedent followed:

Chandra
Shekhar
Saxena
Vs
Director
of
Education (Basic), U.P. Lucknow, 1997 (15) LCD
323 (Para 5)

Present petition challenges order dated
05.01.2012 and order dated 10.03.2010
passed by Vishesh Sachiv Rajya Sampatti
Adhikari,
Rajya
Samatti
Anubhag-1,
Lucknow.

(Delivered by Hon'ble Karunesh Singh
Pawar, J.)

1. Heard learned counsel for the
petitioner and learned Additional Chief
Standing Counsel for the State.

2. By means of this writ petition,
the petitioner has prayed for a writ of
certiorari quashing the order dated 5.1.2012
and order dated 10.3.2010 passed by
Vishesh Sachiv Rajya Sampatti Adhikari,
Rajya Samatti Anubhag-1, Lucknow.

A
further
writ
of
mandamus
directing respondents to revoke suspension
of the petitioner and pay him full salary as
applicable every month, including arrears,
if any has also been prayed.

3. Vide annexure-4, the petitioner
was placed under suspension under Rule
4(3)(ka) of U.P. Government Servant
(Discipline and Appeal) Rules, 1999 (for
short, Rules of 1999) vide order dated
10.3.2010 passed by respondent No.2 on
the ground that the petitioner was taken
into custody from 18.2.2010. The petitioner
filed a writ petition No.4869 (S/S) of 2011
Shabir Ali versus State of U.P. and others
which was disposed of with a direction to
the opposite parties to consider the
petitioner's case and take a decision on his
representation within a stipulated time. In
compliance of the said order, vide order
dated 5.1.2012, representation given by the
petitioner has been rejected.೦

4. The petitioner's counsel submits
that after his release from custody, he has
joined the duties on 18.5.2011, however,
the order of suspension has not been
revoked although he has moved several
representations. He further submits that the
petitioner
remained
suspended
from
18.2.2010 to 18.5.2011. He has not been
paid arrears of salary during this period and
other consequential benefits. Although the
petitioner has been enlarged on bail, the
respondents
have
not
revoked
the
suspension order.

5. Learned Standing Counsel
submits that the competent authority has
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
not found it appropriate to reinstate the
petitioner from the date of suspension since
his case is pending disposal before the
Chief
Judicial
Magistrate,
Lucknow.
However, the petitioner is being paid the
basic salary of Rs.31,500/- and admissible
dearness allowance of Rs.11,970/-.

A first information report was
registered against the petitioner as case
crime No.660 of 2009 under sections 420,
467, 468, 471, 120-B, 34 I.P.C. A charge
sheet has been filed on 9.4.2010. The trial
is going on. It is submitted that any
decision for revoking suspension order can
only be taken after conclusion of trial. Law
in this regard has been settled by the Full
Bench judgment of this Court in [1997(15)
LCD-323 Chandra Shekhar Saxena versus
Director
of
Education
(Basic),
U.P.
Lucknow and another. Relevant paragraphs
22 and 27 of the Full Bench judgment are
extracted below :

 "22. The provisions contained in
Sub-rule (2) have also been assailed as
unconstitutional on his ground that the
same suffer from vide of arbitrariness. In
our opinion, this criticism has also no
substance. The deemed suspension of a
Government servant by a legal fiction is a
necessity as discussed above but it is not
correct to say that the Government servant
has been left remediless once a deemed
suspension has come into existence. Subrule (6) (2)of Rule 49-A clearly provides
that any suspension ordered or deemed to
have been ordered or to have continued in
force under this Rule shall continue to
remain in force until it is modified or
revoked by the authority specified in Subrule (1). Thus Government servant who has
been deemed to be under suspension by an
order of the appointing authority for the
period he was under detention in custody,
can approach the appointing authority and
convince him for modifying or revoking the
order and on such approach being made,
the appointing authority may take into
account all the facts and circumstances
which led to his detention in custody and
gave rise to the deemed suspension and
then the appointing authority may pass
appropriate order modifying or revoking
the
order
of
suspension.
Thus,
the
Government servant is not remediless. On
the basis of the language used in Sub-rule
(5) (a), it has been argued that a deemed
suspension once comes into existence, shall
continue to remain in-force until it is
modified or revoked by the appointing
authority and the Government servant shall
continue under suspension even after his
release from the custody. In our opinion,
under Sub-rule (5)(a) suspension deemed to
have been ordered shall continue to remain
in force does not mean that the actual
suspension shall also continue after release
from
custody.
However,
the
deemed
suspension shall remain in force for other
purposes which may include all the
consequences which flow from on order of
suspension of a Government servant. From
the combined reading of Sub-rule (2) and
Clauses (a) and (b) and sub-rule (6)(a) of
Rule 40-A, the passible and reasonable
conclusion is that deemed suspension shall
be operative only for the period of custody
and not beyond that. However, it shall
remain in force for other purposes which
flow from the order of suspention. In our
opinion, such a harmonious interpretation
can be safely given to the provisions
contained in Sub-rule (5)(a) without doing
any violence to the purpose and object and
the legislative intent behind the aforesaid
provisions.

 27. We have considered all the
cases cited by the learned counsel for
4 All. Shabir Ali Vs. State of U.P. & Anr.
1015
parties. However, we do not find anything
on which basis the view we have expressed
above may be doubted or shaken. Our
conclusions and answer to the questions
referred to us are as under:-

 (A) Sub-Clause (a) of Sub-rule
(2) of Rule 49-A of the Civil Services
(Classification, Control and Appeal) Rules,
1930, as applicable in Uttar Pradesh, is not
violative of Articles 14 and 21 of the
Constitution of India as held in case of
Jagjit Singh v. State of U.P., reported in
(1996) 1 UPLBEC 405 and the judgment is
here by over-ruled.

 (B) The legal fiction envisaged
under Sub-rule (2) (a) and (b) of Rule 49-A
shall come into play and a deemed
suspension by an order of the appointing
authority shall came into existence if the
Government servant is detained in custody
for more than forty-eight hours even in
absence of any order in writing passed by
the appointing authority.

 (C)
The
deemed
suspension
provided under Sub-rule (2) of Rule 49-A
shall be confined to the period of detention
in custody and not beyond that.

 (D) The deemed suspension by an
order of the appointing authority under the
legal fiction provided in Sub-rule (2) may
be
continued
after
release
by
the
appointing authority by passing an express
order taking into account the guidelines
provided in other sub-rule of Rule 49-A
according to the facts and circumstances of
the case.

 (E)
The
deemed
suspension
under Sub-rule (2) of Rule 49-A may be
modified or revoked by the appointing
authority on a representation made by the
Government
servant
which
shall
be
considered
and
decided
taking
into
consideration the guidelines provided in
Sub-rules (1) and (1-A) of Rule 49-A."

6. In view of the judgment of Full
Bench, it is clear that the deemed
suspension of the petitioner can be
continued, even after his release, by the
appointing authority by passing an express
order. It may or may not be revoked by the
competent authority. In this case, a decision
has been taken by the appointing authority
vide order dated 5.1.2012.೦

7. Rule 4(4) of the Rules of 1999
provides that a government servant shall be
deemed to have been placed or, as the case
may be continued to be placed under
suspension by an order of the authority
competent to suspend under these rules,
with effect from the date of his conviction
if in the event of a conviction for an
offence he is sentenced to a term of
imprisonment exceeding 48 hours and is
not
forthwith
dismissed,
removed
consequent to such conviction.೦

9. As per admitted case of the
authorities, since the criminal trial relating
to the aforesaid first information report
No.660
of
2009(supra)
is
pending,
therefore,
the
impugned
order
of
suspension and the impugned order dated
5.1.2012 whereby his representation has
been rejected cannot be faulted. Since the
criminal trial is pending, the deemed
suspension under legal fiction may be
continued even after release of the
petitioner.
Final
decision
relating
to
suspension of the petitioner can only be
taken after conclusion of trial as provided
under sub rule (2) of rule 4 of Rules of
1999 and not prior to that. There is no
illegality in the order impugned.
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
10. The court has noted that by
virtue of the interim order dated 23.1.2012,
operation of impugned orders contained in
Annexures 1 and 4 was stayed. Therefore,
the petition is disposed of with a direction
to the respondents to allow the petitioner to
work and he shall be paid basic salary with
other allowances as is being paid to him, at
present. However, it shall be subject to
final outcome of trial.
----------
(2023) 4 ILRA 1016
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 26.04.2023

BEFORE

THE HON'BLE DINESH KUMAR SINGH, J.

Writ A No. 3197 of 2022

Dr. Arti Sanghi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Prafulla Tiwari, Lalta Prasad Misra

Counsel for the Respondents:
C.S.C.,
Raj
Kumar
Upadhyaya
(R.K.
Upadhyaya), Ravi Shanker Tewari

Service Law- Constitution of India, 1950 -
Article 226 -The Uttar Pradesh Medical
Teachers'
Service
Rules,
1990-Rule
4,5,6,20-Writ
petition
challenging
the
Advertisement
issued
by
U.P.P.S.C
Prayagraj, for filling up 130 posts of
Lecturer in nine Government Homeopathic
Medical
Colleges
in
twelve
different
subjects/disciplines
alleging
it
to
be
against the policy of reservation- It is for
the employer to define the cadre taking
into consideration the nature of serviceUnder the Statutory Rules, 1990 all the
posts of Lecturers in all nine Government
Homeopathic Medical Colleges constitute
one cadre- The reservation has been
provided in the requisition on vacancies
subject wise/discipline wise- Definition of
cadre in the Rules, 1990 does not violate
any constitutional mandate, when all the
colleges are under the unified supervision
and control of the St. Government and the
posts are transferable from one college to
another. (Para 2, 3, 15, 22)

Petition dismissed. (E-15)

List of Cases cited:

1. Vivekanand Tiwari Vs U.O.I. 2017 SCC Online
All 2729

2. U.O.I. Vs Pushpa Rani & ors. (2008) 9 SCC
242

3. Vijay Prakash Bharti Vs U.O.I. & ors. (2019)
12 SCC 410

(Delivered by Hon'ble Dinesh Kumar
Singh, J.)

1. Heard Shri Lalta Prasad Mishra,
Advocate assisted by Shri Praful Tiwari,
learned Counsel for the petitioner, Shri
Sandeep Sharma, learned Standing Counsel
for the State-respondents and Shri Ravi
Shanker Tiwari, learned Counsel for Uttar
Pradesh Public Service Commission.

2. The present petition under 226
of the Constitution of India has been filed,
whereby the Advertisement No.02/2020-21
dated 24.09.2020 issued by Uttar Pradesh
Public Service Commission (hereinafter
referred to as "U.P.P.S.C.") Prayagraj, for
filling up 130 posts of Lecturer in nine
Government
Homeopathic
Medical
Colleges
in
twelve
different
subjects/disciplines has been sought to be
quashed.

3 . The controversy involved in this
petition pertains to narrow compass i.e.
whether the reservation is to be applied