JAGJEET SINGH Vs. STATE OF U P

JUDGEMENT

(1.) M. Katju, J. This writ petition has been filed for a mandamns directing the respondents to let the petitioner resume his duty and pay to him salary regularly. On 25-11-1994 I granted the learned standing counsel two weeks to file counter affidavit, but since then three weeks have expired and yet no counter affidavit, has been filed. In the circumstances I am presuming the allegations in the petition to be correct and I am disposing of the petition finally.

(2.) THE petitioner was appointed as Class IV daily wages employee in October, 1983 in the Department of Education by the Secretary of Madhyamik Shiksha Parishad, U. P. Allahabad, He claimed regularisation and filed a petition before the U. P. Public Services Tribunal which was decided in his favour. However, despite the order of the Public Services Tribunal he was not treated as a regular employee. Aggrieved he filed a writ petition in this court which is referred to in Paragraph 3 of this petition. In this petition an interim order was passed on 11-1-1991 by this Court that as long as the petitioner is retained in service he shall be paid the same salary which is payable to the regular employees and he shall also be paid his arrears within two months. On the basis of the order dated 11-1-1991 the petitioner was paid full salary as regular employee and he was also paid the back wages till 5-9-1994. On 6-9-1994 the petitioner was implicated in case crime No. 516 of 1994 under Section 419, 420, 467, 468, 470 and 471, I. P. C. and taken into custody on 6-9-1994 as per the first information report which is Annexure 1 to the petition. THE petitioner was released on bail on 12-9-94. He received a letter dated 12-9-1994 vide Annexure 3 to the petition from the respondents stating that he was absent without leave from 6-9-1994 and he should give the reasons for his absence. In reply the petitioner wrote a letter dated 13-9-1994 stating that he had been arrested on false allegations and he has been released on 12-9-1994. He stated that there was none else in his house and he requested that he be allowed to resume his duty. However, although the petitioner continuously approached the respondents to allow him to join duty but they did not permit him nor did they pay him salary for September, 1994. A true copy of his representation in this connection is Annexure-4 to the petition. It appears that respondents are treating the petitioner as deemed to be under suspension under Rule 49-A (2) (a ). By an amendment application the petitioner has challenged the validity of Rule 49-A (2) (a) of the Civil Services (Classification Control and Appeal) Rules. Rule 49-A (2) (a) states 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 appointing authority (a) with effect from the date of his detention, if he is detained in custody, whether the detention is on criminal charge or otherwise for a period exceeding forty-eight hours". In my opinion, this rule is wholly arbitrary. A Government servant may not have been able to obtain bail within 48 hours of his arrest and this may be due to no fault of his. Hence, to treat a Government servant as put under suspension automatically because he was in custody for 48 hours is in my opinion wholly arbitrary. No doubt it is open to the authority concerned to pass a positive order of suspension but such a deeming provision is wholly arbitrary and unjustified. THE scopes of Articles 14 and 21 of the Constitution of India have been greatly expanded by the Supreme Court in recent time and now the reasonability test pervades the entire Constitution as held in the case of Maneka Gandhi v. Union of India, AIR 1978 SC 597. In my opinion it is wholly unreasonable to treat a Government servant as automatically under suspension just because he is in custody for 48 hours after his arrest.