SANDEEP SHARMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of instant writ petition, petitioner has invoked jurisdiction of the High Court under Article 226 of the Constitution of India seeking to quash and set aside his suspension order dtd. 30/11/2022 with all consequential benefits including to give posting, seniority, full salary and allowances etc.

(2.) On issuance of notices, respondents have filed reply to the writ petition and has raised a preliminary objection that the order of suspension, being not a punishment order, is appealable before the Rajasthan Civil Service Appellate Tribunal, Jaipur (hereinafter "Tribunal") within the scope of Sec. 2(f) (v) of the Rajasthan Civil Services (Service Matters Appellate Tribunal) Act, 1976 (hereinafter "the Act of 1976") and therefore, when petitioner have an alternative remedy of appeal against his suspension order, but has not availed the alternative remedy, the writ petition is not liable to be entertained and as such on this ground alone, the writ petition be dismissed. Reliance has been placed on the judgment passed by the Division Bench in case of Jahangir Ali Khan Vs. State of Rajasthan: DB Special Appeal (Writ) No.662/2022 decided on 25/5/2022. Apart from raising the preliminary objection, reply has also been submitted on merits as well.

(3.) On the issue of preliminary objection, learned counsel for petitioner urged that having an alternative remedy to petitioner, does not deprive the petitioner to invoke the extra ordinary writ jurisdiction of the High Court as it is well settled legal position that availability of alternative remedy is not an absolute bar to exercise the powers of judicial review by the High Court under Article 226 of the Constitution, more particularly, in facts and circumstances like the present case where the impugned order of suspension has been passed arbitrarily and in excess of jurisdiction by the authority as much as without adhering to the principle of natural justice. The suspension of petitioner placing reliance on a factual report is ex facie illegal, being against Clause 45 of the Public Works Financial & Accounts Rules (hereinafter "PWF&A Rules). There is no such order issued by the Finance Department or Administrative Department or no such guidelines issued in rem, which expressly excludes the mention of price variation from the bids of Jal Jeevan Mission. However, petitioner has been placed under suspension, only on account of inclusion of price variation in NIB No.03/2022-23, that too in contemplation of the departmental enquiry in this respect. It has been pointed out that from the date of issuance of order of suspension dtd. 30/11/2022, a period of more than three months has expired but no charge-sheet to initiate departmental enquiry against the petitioner has been served so far and it is not a case where petitioner is having any criminal charges or charges of corruption, therefore, as on date, the continuation of order of suspension is unwarranted and against the law laid down by the Apex Court in case of Ajay Kumar Choudhary Vs. Union of India [(2015) 7 SCC 291]. Counsel for petitioner has also urged that the suspension order has been passed by the Deputy Secretary to Government and later on same has been approved by the Department of Personnel vide order dtd. 13/12/2022, as contended by respondents. According to respondents, departmental appeal under Rule 22 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter "the CCA Rules, 1958") is not permissible against the impugned suspension order. Counsel for petitioner has drawn attention of this Court that in case of Jahangir Ali Khan (supra), the Division Bench has observed that the suspension order should not be extended beyond three months, if within this period the memorandum of charges/charge-sheet is not served on the delinquent employee and has held that law to this effect declared by the Supreme Court in case of Ajay Kumar Choudhary (supra) is winding force on all Courts and the Tribunals, by virtue of Article 141 of the Constitution of India. Therefore, in such peculiar facts and circumstance, this Court may exercise its powers of judicial review and may entertain the instant writ petition against the order of suspension.