JUDGMENT 1. - In this writ petition, the petitioner has challenged the order dated 24.4.19 passed by the State Government, whereby, the petitioner has been placed and suspension under Rule 13 of the Rajasthan Civil Services (Classification, Continue and Appeal) Rules, 1958 on account of disciplinary proceedings. He has also may a prayer that the State Government may be directed to give Super-time scale in the Rajasthan Administrative Service with consequential benefits and for that purpose, the State Government may be directed to open the sealed cover, which contains the recommendations of the D.P.C. qua the petitioner. He has made a further prayer for striking down the Circular dated 4.1.1977 and also for quashing of the charge sheet issued to him vide memorandum dated 29.12.1989. 2. Petitioner is a member of the Rajasthan Administrative Service and is holding a post in the selection scale of that service. His case is that he is eligible to be considered for promotion to the Supper Time scale of Rajasthan Administrative Service. His case was considered by the D.P.C. for promotion to the Super-time scale of R.A.S. against the vacancies of the year 1988-89. On these recommendations, the State Government passed an order on 23.2.1989. Since the petitioner has been denied promotion to Super Time scale and his juniors have been promoted, he has filed an appeal before the Rajasthan Civil Services Appellate Tribunal, Jaipur and that appeal is pending.The D.P.C. again met for making .commendations for promotion against the vacancies of 1989-90. On the recommendations of the D.P.C., the Government had passed an order on 16th October, 989. In that order, it has been recorded that the recommendations qua the petitioner have been kept in sealed cover. According to the petitioner, in reply to he appeal filed by him before the Tribunal, the State Government has taken the and that the petitioner was not found meritorious. However the fact that the recommendation qua him has been placed in a sealed cover against the vacancies f the next year goes to show that the petitioner has been found suitable for promotion, but on account of contemplated departmental enquiry his promotion as been withheld. 3. A memorandum dated 29.12.1989 for holding an enquiry under Rule 16 of 1958 Rules has been served upon the petitioner. 3. A memorandum dated 29.12.1989 for holding an enquiry under Rule 16 of 1958 Rules has been served upon the petitioner. This memorandum was accompanied by a charge sheet and statement of allegations on the basis of which he charges have been framed. The petitioner made a prayer for supply of copies f the documents. He was allowed inspection of some of the documents. There-after, he filed a detailed reply on 21.4.1990 to the charges levelled against him. according to the petitioner, although a period of one year and almost 6 months as passed since the submission of reply by him, no further step has been taken and the Government is deliberately delaying the enquiry on the one hand and as withheld the promotion of the petitioner on the other hand. The Government ]so got a news item published in the daily News-paper dated 25.4.1990 stigmatising the petitioner. This has been done in order to malign the petitioner without any justification and to give a false impression to the public that the Government is out to eradicate corruption and corrupt officers. While challenging session, the petitioner has stated that the power vested in the Government under Rule 13 of 1958 Rules has been misused in his case. He has stated that at e time when the charge sheet was served upon him, this question was excited and it was concluded that since the petitioner is not posted as U.I.T. secretary, no purpose will be served by suspending him and, therefore, no order r his suspension was passed at the time of serving the charge sheet. Even there wise, the allegations pertain to his tenure as Secretary, Urban Improvement rust, Ajmer during 1980, 1983 and 1984 and at the time of suspension he was )]ding the post of Additional Commissioner (Administration) Colonization,) caner. His continuance in the office as Additional Commissioner could hardly affect the enquiry proceedings. 4. Petitioner has further stated that the action of the Government in with- holding his promotion amounts to punishment under Rule 14 of 1958 Rules. His further case is that the Government cannot take resort to the Circular dated 4.1.1977 for the purpose of denial of promotion to the petitioner. 4. Petitioner has further stated that the action of the Government in with- holding his promotion amounts to punishment under Rule 14 of 1958 Rules. His further case is that the Government cannot take resort to the Circular dated 4.1.1977 for the purpose of denial of promotion to the petitioner. A part of this Circular is beyond the scope of the Rule under which power has been conferred on the Government to issue instructions to deal with the cases of the Government servents who are under suspension and against whom disciplinary proceedings are in progress. 5. In its reply, the respondents, in the first instance, raised an objection about misjoinder of cause of action. It has further been stated by the respondents that on receipt of a complaint by the Lokayukt, notices were issued to the concerned persons and after giving opportunity to various concerned persons, the Lokayukt recommended the matter to the Government for taking appropriate action. On receipt of the recommendations of the Lokayukt, the Government scrutinised the matter and decided to initiate enquiry against 4 persons, including the petitioner. The petitioner and Sarvashri Y.C. Bhatnagar and Arun Joshi have submitted their replies to the charge sheet issued to them for joint enquiry, wheras Shri D.P. Sharma has not submitted his reply and the matter is under process with the Government. Having regard to the gravity of the charges,the petitioner was placed under suspension vide order dated 24.4.1990. The respondents' case is that there is no justification for the prayer of the petitioner to quash the charge sheet. The petitioner will be entitled to submit his defence at the time of regular inquiry, which may be further held by the Government after examining the replies filed by the delinquents. Regarding promotion, it has been stated that the case of the petitioner was considered for promotion against the vacancies of 1988-89, but he was not found meritorious and his Appeal No. 136/89 is still pending before the Tribunal. His case was again considered by the D.P.C. in its meeting held on 23.8.90 for promotion against the vacancies of 1989- 90. The report of the Lokayukt reached the Enquiry Section and therefore, it was intimated to the Department of Personnel(Gr.IV). His case was again considered by the D.P.C. in its meeting held on 23.8.90 for promotion against the vacancies of 1989- 90. The report of the Lokayukt reached the Enquiry Section and therefore, it was intimated to the Department of Personnel(Gr.IV). That Section of the Department of Personnel deals with the D.P.C. matters and, therefore, as per the Government Circular dated 17.7.89 the recommendation qua the petitioner has been kept in sealed cover. The respondent was perfectly justified in placing the recommendation of the petitioner in sealed cover. Since the enquiry was in contemplation the D.P.C. was fully justified in not recommending the petitioner for promotion. The respondents have stated that the court will not go into the matter at this stage so far as the merits of the charges is concerned, and this should be left to be deter- mined by the Government. 6. In response to a querry made by this court, an additional affidavit of Shri S.C. Jain, Assistant Sacretary, D.O.P.(A-IV) has been filed. Along with the additional affidavit, a letter dated 27th May, 1991 of the Government has been filed. In this letter it has been stated that although the petitioner had submitted his reply on 24.1.1990 and the same was received by the Department on 24.1.1990 action could not be taken on the reply because the co-delinquents have not submitted their replies. It has been stated that Shri Y.C. Bhatnagar and Shri Arun Joshi have submitted their replies, but Shri D.P. Joshi (sic D.P. Sharma) has yet to submit his reply. So far as additional documents are concerned, it has been stated that the Department is making efforts to collect the record and as soon as the record becomes available, it will be possible to show it to the petitioner. Regarding charges, it has been stated that inquiry has been initiated on the findings recorded by the Hon'ble Lokayukt who had come to the conclusion that all these Officers are responsible for causing pecuniary loss to the Government and, therefore, proceedings should be taken against them and recovery should also be made from them. Therefore, it is primafacie found that the delinquents have caused pecuniary loss to the Government. On the question that the Government has cancelled the Resolution of the U.I.T. of 1983, it has been stated that this will be decided only after decision of the case. Therefore, it is primafacie found that the delinquents have caused pecuniary loss to the Government. On the question that the Government has cancelled the Resolution of the U.I.T. of 1983, it has been stated that this will be decided only after decision of the case. On the query of the Court as to why other trustees and Shri Shambhu Singh have not been proceeded against, it has been stated that no finding has been recorded against them by the Lokayukt and, therefore, no enquiry is proposed against them. They also do not come within the definition of public servant. 7. The first contention advanced by Shri Singhvi, learned counsel for the petitioner is that the suspension order passed against the petitioner is absolutely arbitrary, unreasonable and unjustified. Shri Singhvi further argued that the incident with reference to which the enquiry has been initiated against the petitioner pertains to his working as Secretary, U.I.T., Ajmer during 1983-84. He stated that the very fact that the Government has decided to initiate enquiry after a period of almost 7 years of the working of the petitioner as Secretary, U.I.T., Ajmer negates the assertion of the respondents that suspension of the petitioner is justified on account of serious nature of allegations levelled against the petitioner. Shri Singhvi argued that the Government vide letter dated 11.10.1990. has taken a final decision to rescind the resolution passed by the U.I.T. and, therefore, by no stretch of imagination it can be held that the Government has suffered pecuniary loss on account of the resolution dated 12.5.1983, passed by the U.I.T., Ajmer, Moreover, the petitioner was only Chief Executive Officer and in that capacity he had participated in the meeting of the Trust.He had, on his own, not made any recommendation for de-acquisition of the land. Even if the allegations levelled against the petitioner are taken as correct, it is clear that the petitioner had merely made recommendation. The decision had in fact been taken by the U.I.T. The meeting of the Trust was attended by 3 members apart from 5 non-official members including the Chairman. The Official members included Shri Sampat Mal Mathur Superintending Engineer, P.W.D., Shri Narendra Singh Shekhawat, Executive Engineer, P.H.E.D., Ajmer and Shri Shambhu Singh, Administrator, Municipal Council, Ajmer. The petitioner had merely forwarded the resolution of the Trust for consideration of the Government. The Official members included Shri Sampat Mal Mathur Superintending Engineer, P.W.D., Shri Narendra Singh Shekhawat, Executive Engineer, P.H.E.D., Ajmer and Shri Shambhu Singh, Administrator, Municipal Council, Ajmer. The petitioner had merely forwarded the resolution of the Trust for consideration of the Government. Now when the Government has itself decided against de-acquisition, how could it be said that loss has been caused to the Government on account of the recommendation. Shri Singhvi urged that the power of suspension has been exercised by the Government for achieving some oblique motive and the petitioner has been made a scape-goat. 8. Learned Deputy Government Advocate, on the other hand, submitted that the power of suspension has been exercised after due application of mind and this court should not interfere with such exercise of power by the Government. Rule 13(1) of 1958 Rules empowers the appointing authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf to place a Government servant under suspension where disciplinary proceeding against him is contemplated or is pending or where a case against him in respect of any criminal offence is under investigation or trial. The Government has, from time to time issued administrative instructions to provide guidelines in the matters of suspension and departmental enquiries because suspension and delay in departmental enquiries cause harassment to the employees and also at times result in unnecessary expenditure of public funds. These instructions have been issued in the form of circulars dated 25.5.58, 17.3.1960, 27.4.70 and 22.5.70.The sum and substance of these circulars is that suspension should be resorted to with caution and the power of suspension should be exercised only when one of the major penalties prescribed in 1958 Rules is ultimately likely to be imposed on the delinquent. It has further been made obligatory for the competent authorities to initiate departmental enquiries, if any, and conclude the same within the specified time frame. 9. In Dr. It has further been made obligatory for the competent authorities to initiate departmental enquiries, if any, and conclude the same within the specified time frame. 9. In Dr. B.M. Bohra v. State of Rajasthan, S.B. Civil Writ Petition No. 6558/90 , decided on February 18, 1991 at Jaipur Bench reported in 1991(1)RLR 383, 1 had an occasion to deal with the law regarding suspension at length and after making a reference to the Circulars issued by the Government in Department of Personnel and also after making reference to the decisions in Kali Prasonna Rai v. State of West Bengal, ( AIR 1952 Cal. 769 ) , R.P.Kapoor v. Union of India, ( AIR 1964 SC 787 ) , B.R. Patel v. State of Maharashtra, AIR 1968 SC 800 , B.K. Sharma v. State of Rajasthan, 1979(5) S.L.R. 547= 1987(2) RLR 63 ) , Ashok Gaur v. State of Rajasthan, 1987(5) S.L.R. 547 = 1987(2) RLR 63 ) Nandlal Verma v. State of Rajasthan, 1989(1) R.L.R. 601 , and Delhi Electric Supply Undertaking v. G.P. Satsangi, (1984 L.I.C. 54) , (all cases on the question of nature and justification of passing of order of suspension) and also to Ramanna Dayaram Shatty v. National Airport Authority of India and others, 1979(3) SCC 489 , B.S. Minhas v. Indian Statistical Institute, 1983(3) SCC 581 and A.P. Royappa v. State of Tamil Nadu, 1975(4) SCC(3) , (on the question whether the ad- minstrative circulars are binding on the Government or the authority which is- sues the same), I had observed: "The principles of law enunciated hereinabove show that the every Governmental action including purely administrative acts have to be free from arbitrariness. Wherever, the order is made by a public authority affecting a member of public (he may be a Government employee, it must be made bona fide, in good faith and in public interest. Fairness in State action is part and parcel of the rule of law, on the edifice of which our Constitution rests. It is no doubt true that the public employer including the Government has a right to suspend its employee at any time in contemplation or during pendency of inquiry or during investigation or trial of criminal case, in which an employee is involved. But such power of suspension has to be exercised sparingly and after due care. It is no doubt true that the public employer including the Government has a right to suspend its employee at any time in contemplation or during pendency of inquiry or during investigation or trial of criminal case, in which an employee is involved. But such power of suspension has to be exercised sparingly and after due care. It is necessary that the competitive authority must objectively apply its mind to the nature of the allegation made against the employee, its gravity and seriousness, the record of the Government servant and the likely impact on service or the public interest of the alleged act of delinquency of the employee. The power of suspension cannot be exercised as a matter of course. No unfettered discretion is vested with the competent authority to pass order of suspension of an employee according to its sweet will, whim and fancy. The suspension of an employee results in serious adverse consequences to him because his image is shattered in the eyes of public and the society in which he moves. Not only he but his whole family has to bear the burn and the entire family is looked with contempt by the fellow employees and the members of the society. It is, therefore, necessary that this power of suspension must be exercised after thorough consideration of the matter from different angles. The guidelines contained in the various circulars of the Department of Personnel of the Government of Rajasthan no doubt do not have the force of law and it also cannot be said that they must be followed in strict sense, but nonetheless these guidelines cannot be ignored in totality. The guidelines have to be kept in mind and the spirit with which these guidelines have been issued must form part of the consideration, which every competent authority is required to make before passing the order of suspension. As and when the order of suspension is challenged before a court of law and the Government is called upon to justify the order of suspension, it must show from the material on record that there has been application of mind by the competent authority to the relevant factors referred to in the guidelines of the Government. These guidelines cannot be disregarded arbitrarily. They cannot be ignored in totality. These guidelines cannot be disregarded arbitrarily. They cannot be ignored in totality. The Government, which has issued these guidelines must feel normally bound by the guidelines and if the Court finds that there has been a wholesale breach of these guidelines that will be a strong circumstances to invalidate the order of suspension, because these guidelines clearly provide for consideration of the factors like involvement of Government servant in the allegation of moral turpitude or the allegation levelled against him involve grave misconduct or failure to carry out the orders of superior authority or where there is a likelihood of major penalty of dismissal or removal being imposed on him. It is also necessary that except in exceptional circumstances, a preliminary inquiry is made before the order of suspension is made against a Government servant.The Government servant should ordinarily be given an opportunity to explain his conduct before a decision is taken to suspend him. Of-course, this may not be necessary in cases requiring urgent action for preventing injury to the public interest." 10. In B.K. Sharma's case (supra), G.M. Lodha, J. (as he then was) discussed the concept of its implication at length.Although that was a case of prolonged suspension, but the observations made by the court are very important in the context of the facts of the present case and are, therefore, quoted below : "It should not be forgotten that suspension have got adverse implication as it has serious demoralising effect on a civil servant, as he is looked with contempt amongst his brother employees and also in the society. It is expected of the State functionaries that they should resort to it only when the case and the subject matter of charge sheet which is being enquired into, is extremely of serious type where by permitting a civil servant to work during that period would result in serious impediment in the inquiry itself or any other adverse effect in the department. In other words, there must be compelling reason for the disciplinary authority, which of course, cannot be tested on the test of objectivity by the courts, but it should be of such serious magnitude that the disciplinary authority should feel compelled to take extreme step of suspension. Suspension should not be made a rule and should be used sparingly, cautiously and with great restraint." 11. Suspension should not be made a rule and should be used sparingly, cautiously and with great restraint." 11. In Ashok Gaur's case (supra), a Division -Bench of this court also made certain observations regarding nature and extent of the power of suspension and observed as under: "From the above discussions, it is apparent that an order of suspension should not be passed by invoking power under Rule 13 simply because a disciplinary proceeding is contemplated or criminal case is under investigation or trial against Government servant.The Appointing Authority has to exercise his discretion in this regard.A Government servant may be put under suspension in the contingencies referred to above. If there are reasons to believe, on the basis of the material available at the time of initiation of proceeding, that he may be guilty of gross misconduct or corruption which, if approved,will lead to dismissal or removal, he may be suspended even if the suspension is likely to continue for a longer period, or where there are reasons to believe that the Government servant if allowed to continue in active service, might tamper with the evidence he may be suspended or, in case a Government servant is facing trial in criminal court he should be suspended, if he has been refused bail and committed to prison." It was then observed : "This rule cannot be taken to confer arbitrary power upon the appointing authority to place a Government servant under suspension simply be- cause a petty case of no importance is pending investigation or trial against a Government servant. While exercising power under Rule 13, in our opinion, the appointing authority must apply its mind and see whether it would be in the interest of the Government or in the interest of public at large to place the Government servant under suspension.ln every case, there should be proper application of mind before an action is taken against the Government servant for placing him under suspension." In Nand Lal Verma's case(supra), a Division Bench of this court made the following observations: "It is true that the Government has a right to suspend its employees in contemplation of departmental proceedings or pending investigation. After the service of the charge sheet if the charges are of a serious nature a Government employee may be suspended pending enquiry. After the service of the charge sheet if the charges are of a serious nature a Government employee may be suspended pending enquiry. It is now well settled principle that suspension can notes temporary cessation of right to work or temporary deprivation of the office, position or privilege. The real effect of the order of suspension is that though an employee continues to be in service he is not permitted to work and during the period of his suspension he is paid only some allowance which is generally called subsistence allowance. Thus, suspension does not dissolve Ivinoulam juris" of the employment relationship. Government has right to suspend an employee pending departmental enquiry or pending criminal investigation. But it is also equally true that such power of suspension cannot be exercised arbitrarily and without any reasonable ground. The power of suspension is to be sparingly exercised and should not be exercised in vindictive manner and it is expected of an authority passing the order to take into account all the relevant materials, nature of the charge, the attendant circumstances and the necessity or desirability of placing the public servant under suspension. The Government is also conscious of the fact that the power of suspension should not be exercised in an arbitrary manner and without any reasonable grounds. Therefore,guidelines have been laid down by the Government." 12. In the light of these principles of law if the facts of the present case are examined, it is clearly borne out that the allegations against the petitioner pertains to his working as Secretary, U..T., Ajmer during the year 1983-84. It is a fact that the charges against the petitioner relate to making of alleged recommendations for de-acquisition of land pertaining to Sanyogite Marketing Yojana and for giving undue benefit to Bagru Grah Nirman Sahkari Samiti. It is also a fact that resolution was ultimately passed by the U.I.T. in its meeting held on 12.5.83 which was presided over by its Chairman Shri Manak Chand Sogani and was attended by 7 other persons including 3 official members. The Government did not approve the resolution passed by the U.I.T. and as per the petitioner's contention it had rescinded the resolution of the Trust. It is extremely doubtful whether in these circumstances it can at all be said that the Government had suffered any pecuniary loss. The Government did not approve the resolution passed by the U.I.T. and as per the petitioner's contention it had rescinded the resolution of the Trust. It is extremely doubtful whether in these circumstances it can at all be said that the Government had suffered any pecuniary loss. But leaving that apart, the question is as to whether in the face of these facts it was justified for the Government to have exercised the power for suspending the petitioner. It is not the case of the respondents that after 1983-84 there is any allegation of delinquency against the petitioner. It is also not the case of the Government that the petitioner while holding the post of Additional Com- missioner (Administration) Colonisaton, Bikaner could have interfered with the enquiy proceedings or could have tampered with the record. Thus there was no justification for the Government to have invoked its power under Rule 13(1) for placing the petitioner under suspension merely on account of pendency of inquiry. The petitioner's continuance in service cannot be said to be injurious to public interest or service. Moreover, the fact that suspension order was not passed at the time of issuing the charge sheet to the petitioner goes to show that the Government did not consider the matter to be of such a great urgency even at the time of serving of charge sheet, which warranted placement of the petitioner under suspension. The cavalier fashion in which the Government has dealt with the suspension of the petitioner shows total non-application of mind and there- fore, it must be held that the order of suspension suffers from arbitrariness and unreasonableness. The power of suspension has not been exercised by the respondents in a bona fide manner. It has rather been exercised capriciously and casually. The order of suspension of the petitioner is therefore, liable to be declared as illegal. 13. The second contention of the learned counsel for the petitioner is that the respondents have acted illegally in placing the petitioners recommendation in sealed cover in so far as promotion to Super-time Scale of R.A.S. against the quota of 1989-90 is concerned. The argument of the learned counsel for the petitioner is that inquiry was initiated against the petitioner only by memorandum dated 29.12:1989. The argument of the learned counsel for the petitioner is that inquiry was initiated against the petitioner only by memorandum dated 29.12:1989. Thus no inquiry was pending against the petitioner on the date of meeting of the D.P.C. The consideration for promotion to Super-time Scale of R.A.S. against the vacancies of 1989-90 should have been made as on 1.4.1989. As on that day, no inquiry had even been initiated against the petitioner and, there- fore, there could be no justification for resorting to the scaled cover procedure in the case of the petitioner. Shri Singhvi further argued that mere contemplation of inquiry cannot constitute a ground for withholding of promotion by placing the recommendation qua the petitioner in sealed cover. The argument of the learned counsel for the petitioner is that the Circular dated 4.1.1977 is clearly ultravires to the power vested in the Government for issuing instructions to deal with the cases of Government servants who are either under suspension or against whom departmental enquiries are in progress. A departmental proceeding can be said to be in progress only when it has been initiated.A contemplated enquiry cannot be placed at the pedestal of pending enquiry and, therefore, the Government has exceeded its authority/jurisdiction by issuing a circular permitting placement of recommendation of an employee in a scaled cover merely because departmental enquiry is contemplated. 14. Learned Deputy Government Advocate countered this submission by arguing that the circular dated 4.1.1977 has been superseded by the subsequent circular dated 17.7.1989 and, therefore, the provisions of the circular dated 17.7.1989 would be applicable and as per that circular, the Departmental Promotion Committee was bound to place the recommendation qua the petitioner in a scaled cover. 15. In order to appreciate the rival submissions it will be useful to quote Rule 28-B(15) of 1958 Rules: Rule 28-B(15)- The Government may issue instructions for provisionally dealing with provisions dealing with promotions, appointments or other ancillary matters in an equitable and fair manner of persons who may be under suspension, or against whom departmental proceeding is under progress, at the time promotions are considered to a post which they are eligible or would have been eligible but for such suspension or pendency of such enquiry or proceedings." 16. A perusal of this rule shows that the Rule Making Authority has em- powered the Government to issue instructions for provisionally dealing with the promotions, appointments etc. A perusal of this rule shows that the Rule Making Authority has em- powered the Government to issue instructions for provisionally dealing with the promotions, appointments etc. of persons who may be under suspension or against whom departmental proceeding is under progress at the time of considering the case for promotion. The Rule clearly empowers the Government to issue instructions to deal with the cases of two types of persons. The first category is of the persons who may be under suspension and the second category is of the persons against whom departmental proceeding is pending. Rule 28-B(11A) which was operative upto 6.3.1978 also contained an exactly identical provision. In the purported exercise of its powers under such rule which almost exist in all Service Rules enacted under proviso to Article 309 of the Constitution of India, the Government has issued circulars containing instructions to provisionally deal with the cases-for promotions etc. The circular dated 4.1.1977 to which reference has been made by the petitioner was applicable till 16.7.1989 and, therefore, that circular was operative at the time when the Departmental Promotion Committee was considering the cases for the year 1989-90. Vacancies of the year 1989-90 must be deemed to have been determined as on 1.4.1989 by virtue of rule 9 of the Rajasthan Administrative Service Rules,1954 as it stands after amendment vide notification dated 21.12.1981 (effective- 1.4.1981). That rule clearly envisages year- wise determination of vacancies and the word 'year' has been defined as the financial year. The vacancies are required to be determined on 1st April every year. Rule 9 read with Rule 28-B(11-A) unmistakably show that consideration for promotion against the vacancies of 1989-90 was to be made as on 1.4.1989. The eligibility of the persons coming within zone of consideration had to be deter- mined as on 1st April of 1989 and their record could also be looked into only as on 1.4.1989. In this view of the matter the circular dated 17.7.1989 cannot be said to be available for consideration as on 1.4.1989, if the Government has acted upon the circular dated 17.7.1989, it has clearly committed a serious error of law. It is now settled principle of law that an amendment made under the Rules cannot be applied to the vacancies which became available prior to the amendment. It is now settled principle of law that an amendment made under the Rules cannot be applied to the vacancies which became available prior to the amendment. For this purpose it will be proper to refer to a decision of the Supreme Court in Y.V. Rangaiah v.J. Sreenivasa Rao and others, 1983(3) SCC 284 , wherein their Lordships of the Supreme Court affirmed the order passed by Andhra Pradesh Administrative Tribunal, which had taken the view that amendment made in the Rules cannot be applied to the vacancies of earlier period. While affirming the order of the Tribunal the Supreme Court observed: Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Registrar Grade-II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than respondents 3 to 15 would not have been deprived of their right of being considered for promo- tion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. "But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules, would be governed by the old rules and not by the new rules." 17. This view has consistently been followed in all subsequent decisions. If that be the position of law in respect of statutory rules there can be no manner of doubt that the circular issued in exercise of the power of delegated legislation, cannot be treated as having retrospective effect. In fact Rule 2813(15) does not empower the Government to issue circular having retrospective effect. 18. The next question which requires examination is as to whether the circular dated 4.1.1977 could be invoked by the Government for placing the recommendations qua the petitioner in a sealed cover on the ground that enquiry was initiated against the petitioner vide memorandum dated 29.12.1989. Paras 1 and 2 of circular dated 4.1.1977 read as under: "PROMOTION OF GOVERNMENT SERVANTS UNDER SUSPENSION OR AGAINST WHOM DISCIPLINARY PROCEEDINGS OR ARE TO BE INITIATED 1. Paras 1 and 2 of circular dated 4.1.1977 read as under: "PROMOTION OF GOVERNMENT SERVANTS UNDER SUSPENSION OR AGAINST WHOM DISCIPLINARY PROCEEDINGS OR ARE TO BE INITIATED 1. The Government have already amended the various Service Rules, vide this Department Notification No. F. 10(1) Karmik /ka -11/75-I dated the 5th March, 1976 provided that "Government may issue instructions for provisionally dealing with promotions, appointments or other ancillary (12) 1983(3)SCC 284 matter in an equitable and fair manner of persons who may be under suspension, or against whom departmental proceedings are under progress at the time promotions are considered to a post to which they are eligible or would have been eligible but for such suspension or pendency of such enquiry or proceedings. " The whole matter has been reconsidered by the Government and in supersession of all previous orders noted in the margin, the following revised instructions to be adopted in such cases are laid down. SCOPE OF THE INSTRUCTIONS: 2. These instructions shall apply to a Government serant (i) who is under suspension (ii) against whom disciplinary proceedings either under rule 16 or 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, have been initiated i.e., where a charge sheet and statement of allegation have been issued under rule 16 and the disciplinary proceedings are pending at any stage or where a statement of allegations under rule 17, has been issued and the proceedings are pending and (iii) against whom disciplinary proceedings are proposed to be initiated i.e., on the basis of a preliminary enquiry or otherwise a decision has been taken by the competent authority to initiate disciplinary proceedings against him but where a charge sheet and statement of allegations under rule 16 or a statement of allegations under rule 17 has not been issued." 19. A perusal of para 2 of this circular shows that the instructions contained in that circular are applicable not only in the case of a Government servant who is under suspension or against whom disciplinary proceedings either under rule 16 or 17 of the 1958 Rules have been initiated but also against whom disciplinary proceedings are proposed to be initiated. A perusal of para 2 of this circular shows that the instructions contained in that circular are applicable not only in the case of a Government servant who is under suspension or against whom disciplinary proceedings either under rule 16 or 17 of the 1958 Rules have been initiated but also against whom disciplinary proceedings are proposed to be initiated. A reading of Rule 286(15) together with the circular dated 4.1.1977 unmistakably show that while the Rule Making Authority has empowered the Government to issue instructions only for dealing with the cases of persons who may be under suspension or against departmental proceedings may be pending, the circular seeks to cover the cases of those per- sons against whom disciplinary proceedings may not be pending but are proposed to be initiated. A disciplinary proceeding can be said to have been initiated against an employee only when a charge-sheet is issued to him and not before that. Initiation of enquiry cannot take place till the issue of charge sheet. It cannot be equated with contemplated enquiry or when a case where enquiry is about to be initiated or proposed to be initiated. The phrase 'about to be initiated' or 'proposed to be initiated' both relate to the stage prior to actual initiation of the enquiry. When the Rule Making Authority has not empowered the Government to issue instructions for dealing with cases of persons against whom departmental proceedings are about to be initiated but only in respect of person against whom departmental proceeding is in progress or is pending, the Government has, in my opinion, clearly acted beyond its authority in making a provision to deal with the cases of persons against whom proceedings are not pending but are about to be initiated. To that extent the circular dated 4.1.1977 is clearly ultra vires to the power of the Government under the aforesaid rule. 20. In the present case, the candidature of the petitioner was considered by the Departmental Promotion Committee and its recommendations have been kept in sealed cover only because of the fact that Government had taken the view that proceedings were likely to be initiated against the petitioner under Rule 16 of the 1958 Rules. Admittedly, the charge-sheet was issued on 29.12.1989 and, there fore, no enquiry can be said to have been pending and no departmental proceedings can be said to be in progress on 1.4.1989. Admittedly, the charge-sheet was issued on 29.12.1989 and, there fore, no enquiry can be said to have been pending and no departmental proceedings can be said to be in progress on 1.4.1989. Merely because at the time of actual meeting of the Departmental Promotion Committee the record may have undergone a change, it was not open to the Departmental Promotion Committee to have placed recommendations of the petitioner's promotion in sealed cover. 21. A last submission of Shri Singhvi is that the departmental enquiry initiated against the petitioner vide memorandum dated 29.12.1989 is wholly groundless, and no charge could possibly be framed against the petitioner for his work as Chief Executive Officer, Urban Improvement Trust, Ajmer. The decision regarding de-acquisition of the land had been taken only by the Urban Improvement Trust. That decision was not approved by the Government finally. There- fore the Government cannot be said to have suffered any pecuniary loss. There can hardly be any justification for proceeding against the petitioner under 1958 Rules, argued Shri Singhvi. He further submitted that the proceedings have been delayed unnecessarily merely because other co-delinquents have not filed their reply. Shri Ojha, on the other hand, submitted that any order by this Court at this stage of the proceedings will unnecessarily prejudice the enquiry proceedings. The Government has a right to consider the reply submitted by the petitioner and then to take a decision as to whether further proceedings should be taken or not. 22. It is true that in an appropriate case the Court can quash even the charge sheet if it finds that the charges are wholly baseless or that the proceedings have been initiated on account of malice. A Division Bench of this Court did interfere with the proceedings of the enquiry and quash the charge sheet in S.R. Bajwa v. Rajasthan High Court 1988(1)RLR 613 : After having given my anxious consideration to the submissions of the learned counsel for the petitioner and having carefully perused the case, I am of the opinion that it is not a fit case in which this Court should interfere with the proceedings at this stage. I am not inclined to interfere with the proceedings at this stage because of the fact that the petitioner has already submitted his reply and his reply is under consideration with the Department of Personnel. I am not inclined to interfere with the proceedings at this stage because of the fact that the petitioner has already submitted his reply and his reply is under consideration with the Department of Personnel. There can be little doubt that the Department of Personnel is under an obligation to objectively examine the reply submitted by the petitioner and then take an objective decision as to whether it is at all necessary to proceed with the enquiry or not. The Government is bound to consider the plea of the petitioner in relation to his duties as Chief Executive Officer of Urban Improvement Trust, Ajmer and the fact that decision for de-acquisition of the land was taken in a meeting of the Urban Improvement Trust. The Government is also bound to take into consideration the plea that the Government did not finally approve the resolution passed by the Urban Improvement Trust and, therefore, in fact it has not suffered any pecuniary loss. The Government also will have to examine the plea of the petitioner that the members of the Trust have not proceeded against for allegation of any delinquency. If the Government does not decide the matter in the context of Rule 16(4) or arbitrarily decides to proceed with the inquiry, in that event the petitioner will certainly be entitled to approach the Court. 23. In view of the above observations the writ petition is allowed in part. (13) 1988(1)RLR613 Order of suspension dated 24.4.1990 is declared illegal and is hereby quashed. It is declared that the petitioner's case will be governed by the circular dated 4.1.1977 and not by circular dated 17.7.1989 and this circular is ultra vires to the powers conferred on the Government under Rule 28 B(15) of the Rajasthan Administrative Service Rules, 1954 in so far as it permits placement of recommendation in scaled cover in respect of an employee against whom departmental proceeding is contemplated. The action of the respondent Government in placing the petitioner's name in sealed cover is declared illegal and the respondent Government is directed to open the scaled cover. If the petitioner has been found suitable, he should be given promotion to Super-time Scale of Rajasthan Administrative Service w.e.f. 16.10.1989 against the vacancies of 1989-90. 24. Petitioner's prayer for quashing of charge-sheet is rejected at this stage. If the petitioner has been found suitable, he should be given promotion to Super-time Scale of Rajasthan Administrative Service w.e.f. 16.10.1989 against the vacancies of 1989-90. 24. Petitioner's prayer for quashing of charge-sheet is rejected at this stage. Respondent Government is however directed to consider the reply of the petitioner within two months of the presentation of copy of this order and pass appropriate order. While doing so, the Government shall keep in mind the plea of the petitioner that in fact no pecuniary loss had been caused to the Government because the resolution passed by the Urban Improvement Trust has not been approved. If the Government decides to hold further inquiry, the petitioner will be free to approach the Court by challenging the inquiry proceedings including charge-sheet. Petitioner shall be entitled to consequential benefits on account of quashing of the order dated 24.4.1990 and also in case he is found suitable for promotion to Super-time Scale of Rajasthan Administrative Service. Parties are left to bear their own costs.Petition Partly allowed. *******