ADITYA NARAYAN Vs. STATE OF BIHAR

JUDGEMENT

(1.) ACCORDING to the Rules of the High Court of Judicature at Patna the roster for the hearing of cases relating to service matter is assigned to the Single Bench. Consequently this petition was listed before Hon 'ble Mr. Justice B.N. Agrawal. The petitioner, who is Marketing Officer -cum -Block Supply Officer posted at Mahua in the district of Vaishali, while challenging the order of his suspension dated 20.11.97 contained in Annexure -1 to the writ application under Article 226 of the Constitution of India, submitted that the suspension order has been passed in contravention of the provisions of Rule 49 -A of the Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter to be referred to as the Rules) inasumuch as neither Respondent no. 2, who has passed the order of suspension nor the respondent no. 3, who has communicated the order is the appointing authority of the petitioner and, therefore, the order of suspension is non -est. It is also submitted that there is conflict of opinion in two Division Bench decisions. One Division Bench in Kamta Prasad Singh vs. State of Bihar and others : 1987 PLJR, 1042 held that it is the appointing authority who can pass the order of suspension and not the authority subordinate to it. Even the immediate superior authority of the incum - bent officer also can not pass the order of suspension. However, recently in the case of Satyendra Kumar Singh vs. State of Bihar : 1998 (1) All P.L.R., 707 a Division Bench of this Court held that the immediate superior authority can pass the suspension order. Therefore, this petiton is required to be placed before the Division Bench or before a Full Bench. The learned Single Judge by order dated 17 -4 -98 directed its placing before the Division Bench and that is how this petition is placed before us for hearing.

(2.) DR . S. N. Jha, learned senior counsel appearing for the petitioner submitted that the petitioner 's appointing authority, who can pass the order of suspension is the Minister Incharge of the Department, who has admittedly not issued the order of suspension. It is also submitted that in the absence of any specific rule framed under Article 309 of the Constitution, if any Circular is issued empowering the subordinate authority to the appointing authority or to the immediate superior authority of the incumbent officer, the same can not prevail over the statutory rule, inasmuch as the executive instructions may supplement but not supplant the rule. Hence by virtue of any circular if the impugned order as contained in Annexure -1 is passed, the said circular is ultra vires to the rule 49A of the Rules and, therefore, it is submitted that since a conflict of opinion between two Division Bench decision has occurred, as referred to above, therefore this matter requires its placing before a Full Bench.

(3.) THUS the controversy which centres round is that whether the immediate superior authority of the incumbent can pass the suspension order or only the appointing authority can pass the order of suspension.