SHATRUGHAN SINGH Vs. COMMISSIONER FOOD AND CIVIL SUPPLIES

JUDGEMENT

(1.) Heard Sri Ramendra Asthana, learned counsel appearing on behalf of the petitioner and learned standing counsel representing the respondents. Since pure question of law is to be adjudicated, it is not necessary to call for counter-affidavit in the present petition for adjudication.

(2.) Learned counsel for the petitioner contended that the order impugned, which is an order of suspension, has been passed by the Assistant Commissioner (Food and Civil Supplies), Gorakhpur Division, Gorakhpur, who is not the appointing authority of the petitioner, as contemplated under Rule 10A of the Punishment and Appeal Rules for Subordinate Services, U. P., 1932 (in short 'Rules 1932'). The order impugned in this petition dated 23rd October, 2002, is attached as Annexure-12 to the writ petition. Sri Asthana further contended that Rule 3 (iv) of the aforesaid Rules defines "appointing authority" means, the "Commissioner' (Food and Civil Supplies) U. P., Lucknow. Learned counsel for the petitioner argued that the appointing authority of the petitioner is the Commissioner (Food and Civil Supplies) U. P., Lucknow and under the U. P. Government Servants (Discipline and Appeal) Rules, 1999, particularly 3rd proviso to Rule 4 (1), the order of suspension pending enquiry can be passed only by the appointing authority, or the authority next below, if there is delegation in his favour, the Assistant Commissioner, who has placed the petitioner under suspension is not the authority next below to the appointing authority, therefore, the impugned order is wholly illegal and without Jurisdiction. Annexure-1 of this writ petition, which has been referred to in the impugned order, has been issued under 1999 Rules. It is submitted by Sri Asthana that this notification was issued in the month of January, 1999, wherein the Discipline and Appeal Rules came into force in June, 1999. In this view of the matter, unless there is a fresh delegation as contemplated under the Discipline and Appeal Rules, 1999, according to the learned counsel for the petitioner, it will be presumed under law that there is no delegation.

(3.) Learned standing counsel has submitted that in view of the provision of Rule 17, the old delegation in 1932 Rules will survive and there is no requirement of fresh delegation. Learned counsel for the petitioner has relied upon a decision in Ram Kumar Verma v. State of U. P. and Ors., 2001 (2) AWC 1309 : (2001) 2 UPLBEC 1130, wherein the learned single Judge of this Court has dealt with the same arguments and has held that the marketing inspector can be suspended by the appointing authority, i,e., the Commissioner (Food and Civil Supplies) Government of U. P. and not by the Assistant Commissioner as he is not next below authority. It has been further held that the Notification issued by the Government has no relevance, therefore, the order of suspension is wholly illegal and without jurisdiction and quashed the suspension order. The aforesaid learned single Judge decision has been followed by another learned Judge of this Court in Writ Petition No. 33917 of 2002, decided on 15.11.2002.