# Union of India & Anr v. Manoj Pal & Anr

- **Citation:** (2023) 7 ILRA 301
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-24
- **Case number:** Writ-A No. 4654 of 2023
- **Bench:** Suneet Kumar, Rajendra Kumar - Iv
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/union-of-india-anr-v-manoj-pal-anr-50423
- **Pages:** 6

## Headnote

Law
-
Suspension
-
Interpretation of statute - Central
Civil Services (Classification, Control
and Appeal) Rules, 1965 - Rule 10(6);
Industrial
Disputes
Act,
1947
-
Section 17 -Companies Act, 1956 -
Section 108 - The tests for finding out
a provision is mandatory or directory.
The principles for which the provision
has
been
made,
its
nature,
the
intention of the legislature in making
the provision and the language of the
provision are to be considered. While
interpreting the word 'shall' or 'may', is
whether mandatory or directory, court
would have to ascertain the real intention
of the legislature by carefully attending to
the whole scope of the statute. (Para 16,
18)

The question that arises for consideration is, as
to whether, the word 'shall' in Sub-rule (6)
is mandatory or directory, read with Subrule (7) of Rule 10. (Para 15)
302 INDIAN LAW REPORTS ALLAHABAD SERIES
Prohibition and negative words can rarely
be directory. It has been aptly stated that
there is one way to obey the command
and that is completely to refrain from
doing
the
forbidden
act.
Therefore,
negative prohibitory and exclusive words
are indicative of the legislative intent
when the statute is mandatory. (Para 19,
20)

From the mandate of Sub-rule (7) of Rule 10 of
Rules 1965, employs negative and prohibitive
words making the provision mandatory. After
expiry of ninety days, the order of suspension
shall not be valid in the eye of the Rule. In other
words, the suspension order by operation of the
Rule renders the suspension invalid for want of
order of the competent authority on the
recommendation of the Review Committee.
(Para 21)

In the present case, the competent authority
has
merely
communicated
the
recommendations of the Review Committee
acting like a post office without either
accepting
or
revoking
the
order
of
suspension. There is no application of mind
as to whether the recommendation of the
Review Committee is to be accepted or not.
The competent authority has to pass an
order either extending or revoking the
suspension, though the order need not be a
speaking and reasoned order. (Para 22)

Writ petition dismissed. (E-4)

Precedent followed:

## Text

7 All. Union of India & Anr. Vs. Manoj Pal & Anr.
301
made to the Government servant on the
date he retires or on the following day and
pension at the expiry of the following
month. The necessity for prompt payment of
the retirement dues to a Government
servant immediately after his retirement
cannot be over-emphasised and it would
not be unreasonable to direct that the
liability to pay penal interest on these dues
at
the
current
market
rate
should
commence at the expiry of two months from
the date of retirement.

12. In the circumstances, this writ
petition succeeds and stands allowed. A
mandamus is issued to the Managing
Director, Uttar Pradesh Rajkiya Nirman
Nigam Limited, ordering him to pay
interest on the total sum of money
detailed in paragraph 14, with simple
interest at the rate of 10% per annum with
effect from the date that each item of
unpaid emoluments mentioned in the
table in paragraph 14 fell due, worked out
until time when the relative payment was
actually made.

13. Since working out the interest
on 25 different items of payments that
have been delayed over varying periods
of time is involved, let this matter be
placed before the Registrar General of
this Court, before whom both parties
shall appear and workout the accounts.
The Registrar General, in accordance
with the orders of this Court, shall certify
the total amount payable, and the said
amount, subject to any objection which
parties may wish to make before the
Court, shall be the final amount payable
by the Corporation to the petitioners
within a period of two months.

14. Let a copy of this order be
communicated to the Managing Director,
Uttar Pradesh Rajkiya Nirman Nigam
Limited and the Registrar General for strict
compliance.
----------
(2023) 7 ILRA 301
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.04.2023 &
25.05.2023

BEFORE

THE HON'BLE SUNEET KUMAR, J.
THE HON'BLE RAJENDRA KUMAR - IV, J.

Writ-A No. 4654 of 2023

Union of India & Anr. ...Petitioners
Versus
Manoj Pal & Anr. ...Respondents

Counsel for the Petitioners:
Sri Anupam Kumar

Counsel for the Respondents:
Sri Pawnesh Tiwari, Dr. D.K. Tiwari

A.
Service
Law
-
Suspension
-
Interpretation of statute - Central
Civil Services (Classification, Control
and Appeal) Rules, 1965 - Rule 10(6);
Industrial
Disputes
Act,
1947
-
Section 17 -Companies Act, 1956 -
Section 108 - The tests for finding out
a provision is mandatory or directory.
The principles for which the provision
has
been
made,
its
nature,
the
intention of the legislature in making
the provision and the language of the
provision are to be considered. While
interpreting the word 'shall' or 'may', is
whether mandatory or directory, court
would have to ascertain the real intention
of the legislature by carefully attending to
the whole scope of the statute. (Para 16,
18)

The question that arises for consideration is, as
to whether, the word 'shall' in Sub-rule (6)
is mandatory or directory, read with Subrule (7) of Rule 10. (Para 15)
302 INDIAN LAW REPORTS ALLAHABAD SERIES
Prohibition and negative words can rarely
be directory. It has been aptly stated that
there is one way to obey the command
and that is completely to refrain from
doing
the
forbidden
act.
Therefore,
negative prohibitory and exclusive words
are indicative of the legislative intent
when the statute is mandatory. (Para 19,
20)

From the mandate of Sub-rule (7) of Rule 10 of
Rules 1965, employs negative and prohibitive
words making the provision mandatory. After
expiry of ninety days, the order of suspension
shall not be valid in the eye of the Rule. In other
words, the suspension order by operation of the
Rule renders the suspension invalid for want of
order of the competent authority on the
recommendation of the Review Committee.
(Para 21)

In the present case, the competent authority
has
merely
communicated
the
recommendations of the Review Committee
acting like a post office without either
accepting
or
revoking
the
order
of
suspension. There is no application of mind
as to whether the recommendation of the
Review Committee is to be accepted or not.
The competent authority has to pass an
order either extending or revoking the
suspension, though the order need not be a
speaking and reasoned order. (Para 22)

Writ petition dismissed. (E-4)

Precedent followed:

1. C. Bright Vs District Collector & ors., 2021 (2)
SCC 392 (Para 16)

2. Remington Rand of India Limited Vs
Workmen, AIR 1968 SC 224 (Para 17)

3. Mannalal Khetan Vs Kedar Nath Khetan,
(1860) 30 LJ Ch 379 (Para 19)

4. Raza Buland Sugar Co. Ltd. Vs Municipal
Board, Rampur, AIR 1965 SC 895 (Para 19)

5. Bhikraj Jaipuria Vs U.O.I., AIR 1962 SC 113
(Para 19)

6. U.O.I. & ors. Vs A.K. Pandey, (2009) 10 SCC
552 (Para 20)

Present petition challenges order dated
10.11.2023,
passed
by
Central
Administrative Tribunal, Allahabad.

(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard learned counsel for the
petitioner and Shri V.K. Tiwari, learned
counsel for the original applicant.

2.

Petitioner-Union
of
India/Department of Post Office, by the
instant writ petition, is challenging the
order dated 10 November 2023, passed by
the
Central
Administrative
Tribunal,
Allahabad1,
whereby,
the
impugned
suspension order before the Tribunal
suspending the first respondent came to be
set aside for the reason that Sub-rule (6) of
Rule
10
of
Central
Civil
Services
(Classification, Control and Appeal) Rules
19652, was not complied. The operative
portion of the order reads thus:

"24. Since the suspension order
passed on 25.11.2019 was not extended
within the expiry of 90 days by way of a
formal order thus clearly contradicting the
laid down procedures under Rule 6 and 7
of the CCS (CCA) Rules 1965, subsequent
extension of the suspension order after
expiry of the 90 days will not validate it as
mere issuing of minutes of the review
meeting cannot be treated as a formal
order of the extension of suspension order
passed at initial state. For this simple
reason and considering the law laid down
by the Hon'ble Apex Court and Hon'ble
High
Court
as
have
been
quoted
hereinabove and comparing the same with
the facts and circumstances of the present
matter, I am of the view that plea taken by
the applicant is liable to be allowed.
7 All. Union of India & Anr. Vs. Manoj Pal & Anr.
303

25.
Accordingly,
the
instant
original application is allowed and the
impugned order dated 25.11.2019 is set
aside. Respondents are further directed to
reinstate the applicant to his original duties
as he was discharging prior to the
suspension order dated 25.11.2019 issued
against him along with all consequential
benefits as per the established rules and
procedures."

3. The respondent employee/original
applicant
was
working
as
a
Postal
Assistant, he came to be suspended vide
order dated 25 November 2009, passed by
the
Superintendent
of
Post
Offices,
Varanasi. Rule 10 of Rules 1965, provides
for suspension by the appointing authority
or any authority to which it is subordinate
or the disciplinary authority or any
authority empowered in that behalf by
general or special order.

4. Sub-rule (6), incorporated on 3
January
2004,
provides
that
the
suspension made or deemed to have been
made under this Rule shall be reviewed
by the authority which is competent to
modify or revoke the suspension before
expiry of ninety days from the date of
order
of
suspension
on
the
recommendation
of
the
Review
Committee.

5. The competent authority is required
to pass an order on the recommendation of
the Review Committee either extending or
revoking the suspension. The Rule further
provides extension of suspension, however,
suspension shall not be for a period
exceeding 180 days at a time. Sub-rule (7)
further provides that suspension made
under the Rule shall not be valid after
period of ninety days, unless it is extended
after review.

6. Sub-rule (6) and (7) of Rule 10 is
extracted:

"6. An order of suspension made
or deemed to have been made under this
rule shall be reviewed by the authority
which is competent to modify or revoke the
suspension before expiry of ninety days
from the date of order of suspension on the
recommendation of the Review Committee
constituted for the purpose and pass orders
either
extending
or
revoking
the
suspension. Subsequent reviews shall be
made before expiry of the extended period
of suspension. Extension of suspension
shall not be for a period of exceeding one
hundred and eighty days at a time.

7.
Notwithstanding
anything
contained in Sub-rule (5)(a), an order of
suspension made or deemed to have been
made under Sub-Rule (1) or (2) of this rule
shall not be valid after a period of ninety
days unless it is extended after review, for a
further period before the expiry of ninety
days."

7. The learned Tribunal after perusal
of the record was of the opinion that the
mandate of Sub-rule (6) of Rule 10 was not
complied as the order of suspension on the
recommendation of the Review Committee,
the competent authority had not passed any
order thereon, either extending or revoking
the suspension.

8. The minutes of Suspension Cases
Reviewing
Committee3
held
on
20
February 2020, Varanasi West Division,
has been placed on record.

9. The Review Committee of three
members, considered the case of the
respondent/original
applicant
and
the
committee having regard to the gravity of
the case recommended continuance of
304 INDIAN LAW REPORTS ALLAHABAD SERIES
suspension of the official for next 180 days
w.e.f. 23 February 2020, i.e., after expiry of
ninety days from the date of suspension
order (25 November, 2019).

10. On the very same minutes of the
Review
Committee,
the
competent
authority, i.e., Superintend Post Office,
Varanasi, made an endorsement marking
the copy of the recommendation of the
Review
Committee
to
the
respondent/original applicant and other
officials. In other words, the competent
authority did not pass any order either
extending or revoking the suspension on
the recommendations of the Reviewing
Committee in terms of Sub-rule (6) of Rule
10 of Rules 1965.

11. Learned counsel appearing for the
petitioner submits that by making an
endorsement forwarding the copy of the
Review Committee, would tantamount to
deemed acceptance of the recommendation
of the Reviewing Committee.

12. Submission of the learned counsel
for the petitioner is devoid of merit and on
misreading of Sub-rule (6) and (7) of Rule
10 of Rules 1965. Mere forwarding the
recommendation to the employee by the
competent authority does not tantamount to
either accepting or revoking the suspension
by the competent authority.

13. The Sub-rule (6) mandates that an
order
has
to
be
passed
on
the
recommendation of the Review Committee
either to accept or revoke the suspension.
Sub-rule (6) and (7) of Rule 10 is couched
in such a manner making the Rule
mandatory. In the event the suspension
order is not extended or revoked within
ninety days, negative consequences follow
automatically, i.e., suspension made shall
not
be
valid
after
ninety
days,
notwithstanding any thing contained in
Sub-rule 5(a) of Rules 1965.

14. Sub-section (6) employs the
expression
that
suspension
'shall
be
reviewed' by the authority. The review is
mandatorily required to be made in view of
the consequences that follow in the event of
failure to review the suspension within the
stipulated time.

15. The question that arises for
consideration is, as to whether, the word
'shall' in Sub-rule (6) is mandatory or
directory, read with Sub-rule (7) of Rule
10.

16. In C. Bright vs. District
Collector and others, Supreme Court was
of the opinion that while interpreting the
word
'shall'
or
'may',
is
whether
mandatory or directory, court would have
to ascertain the real intention of the
legislature by carefully attending to the
whole scope of the statute. Para-8 reads
thus:

"A
well
settled
rule
of
interpretation of the statutes is that the use
of the word "shall" in a statute, does not
necessarily mean that in every case it is
mandatory that unless the words of the
statute
are
literally
followed,
the
proceeding
or
the
outcome
of
the
proceeding, would be invalid. It is not
always correct to say that if the word
"may" has been used, the statute is only
permissive or directory in the sense that
non-compliance with those provisions will
not render the proceeding invalid and that
when a statute uses the word "shall",
prima facie, it is mandatory, but the Court
may ascertain the real intention of the
legislature by carefully attending to the
7 All. Union of India & Anr. Vs. Manoj Pal & Anr.
305
whole scope of the statute. The principle of
literal construction of the statute alone in
all circumstances without examining the
context and scheme of the statute may not
serve the purpose of the statute."

17. In Remington Rand of India
Limited vs. Workmen, the Supreme Court
held that Section 17 of the Industrial
Disputes Act, 1947 prescribing time limit
of thirty days for publication of award by
labour court is directory, inter alia, for the
reason that the non-publication of the
award within the period of thirty days does
not entail any penalty.

18. The tests for finding out a
provision is mandatory or directory. The
principles for which the provision has been
made, its nature, the intention of the
legislature in making the provision and the
language of the provision are to be
considered.

19. In Mannalal Khetan vs. Kedar
Nath Khetan, while dealing with Section
108 of the Companies Act, 1956, a three
Judge Bench of Supreme Court referring to
Raza Buland Sugar Co. Limited vs.
Municipal Board, Rampur, held that
prohibition and negative words can rarely
be directory. It has been aptly stated that
there is one way to obey the command and
that is completely to refrain from doing the
forbidden
act.
Therefore,
negative
prohibitory
and
exclusive
words
are
indicative of the legislative intent when the
statute is mandatory. (Refer : Bhikraj
Jaipuria vs. Union of India8)

20. The aforenoted authority was
referred in Union of India and others vs.
A.K. Pandey. In other words word 'shall'
followed by negative or prohibitive
words
are
ordinarily
indicative
of
mandatory intent of the provision.

21. Accordingly, from the mandate
of Sub-rule (7) of Rule 10 of Rules 1965,
employs negative and prohibitive words
making the provision mandatory. After
expiry of ninety days, the order of
suspension shall not be valid in the eye of
the Rule. In other words, the suspension
order by operation of the Rule renders the
suspension invalid for want of order of
the
competent
authority
on
the
recommendation
of
the
Review
Committee.

22. In the given facts of the present
case, the competent authority has merely
communicated the recommendations of the
Review Committee acting like a post office
without either accepting or revoking the
order of suspension. There is no application
of mind as to whether the recommendation
of the Review Committee is to be accepted
or not. The competent authority has to pass
an order either extending or revoking the
suspension, though the order need not be a
speaking and reasoned order.

23. We do not find merit in the
submission of the learned counsel for the
petitioner.

24. The writ petition being devoid
of merit is, accordingly, dismissed.

25. No cost.

1. Heard learned counsel for the
petitioners.

2. Correction application is allowed.

3. In the first line of first paragraph
"Dr. D. K. Tiwari" be read in place of
306 INDIAN LAW REPORTS ALLAHABAD SERIES
"Shri V.K. Tiwari", in the second line of
second paragraph "2022" be read in place
of "2023" and in the third line of third
paragraph "2019" be read in place of
"2009". All the corrections have been made
in the order dated 24.04.2023.
----------
(2023) 7 ILRA 306
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 5435 of 2010

Shivendra Vashishtha ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
Vishal Verma

Counsel for the Respondent:
C.S.C., Mahendra Pratap, Sanjay Bhasin

A.
Service
Law
-
Appointment
-
Discrimination in allowing to join the post
cannot be permitted in similarly situated
selected candidates. It is evident that an
advertisement was published and on the basis
of appointment letter issued to the petitioner
along with six other persons, four persons
namely, Neeraj Kumar Gupta, Santosh Kumar
Upadhyaya, Sanjeev Singh and Seema Verma,
were
given
joining
in
Medical
College,
Azamgarh. Later on, their appointment has been
cancelled
vide
order
dated
22.05.2009.
Subsequently, as a result of order of this Court
in several writ petitions, the order dated
22.05.2009 was recalled by the respondents and
the
aforementioned
four
persons
were
permitted to re-join their respective post.
However, the petitioner, whose name finds
place at serial No. 4 in the aforesaid list, has not
been permitted to join on the ground of
technicalities. This fact itself has been admitted
in the counter affidavit that four persons were
initially permitted to join on the instructions of
higher authorities. Therefore, such kind of
discrimination cannot be permitted to go on.
(Para 13)

If the aforementioned four persons were
the part of same selection under same
advertisement and were permitted to join
the post under same appointment letter,
there is no occasion to not permit the
petitioner to join his respective post. (Para
14)

Writ petition allowed. (E-4)

Present petition prays for issuance of a
writ, order or direction in the nature of
mandamus commanding the respondents
to allow the petitioner to work on the post
of
Pharmacist
in
pursuance
of
appointment order dated 24.02.2009 and
in the light of judgments and orders dated
16.07.2010, 22.02.2010 & 23.03.2010,
with a direction to the respondents to
issue joining letter to the petitioner and to
consider and decide the representation
dated 15.07.2010.

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Vishal Verma, learned
counsel for the petitioner and learned
Additional C.S.C. for the respondent -
State.

2. By means of present writ petition,
the petitioner has prayed for issuance of a
writ, order or direction in the nature of
mandamus commanding the respondents to
allow the petitioner to work on the post of
Pharmacist in pursuance of appointment
order dated 24.02.2009 with a direction to
the respondents to issue joining letter to the
petitioner with a further prayer to issue a
writ, order or direction in the nature of
mandamus commanding the respondents to
consider and decide the representation
dated
15.07.2010
and
to
allow
the
petitioner to work on the post in the light of