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2002 DIGILAW 410 (JK)

Kulbhushan Koul v. State

2002-12-28

R.C.GANDHI

body2002
1. Petitioner by means of this petition seeks to quash Order No. E 3/14693-96 dated 25-10-2002 passed by the rspondent No.2, Chief Education Officer, Udhampur where by petitioner, junior Assistant, has been transferred to Government Higher Secondary School, Ramnagar vice Shri Sushma Bhardwaj. 2. Impugned order has been challenged by the petitioner on the ground that respondent--2 was a suspendee and could not discharge the official duty, therefore, the impugned order passed by him is illegal. 3. Respondents have filed objections stating therein that the suspension order of respondent-2 has been stayed by the court, therefore, the petitioner was competent to pass the impugned order. 4. Heard the learned counsel for the parties and perused the record. It is not in dispute that respondent No.2, Chief Education Officer, was placed under suspension vide Govt. Order No. I 104 (EDU)of 2002 dated 1.8.2002 and also sanctioned his prosecution vide Govt. Order No.22-GAD/Vigilance of 2002 dated 26.3.2002. Respondent-2 challenged these orders by means of SWP No.2113/02. On consideration of said petition, the court passed interim order "status-quo with regard to service tenure of the petitioner would be maintained." 5. The Respondents in their objections have annexed copy of order dated 26.09.2002 and stated that the court has stayed the suspension order. Perusal of order dated 26.09.2002 indicates that Secretary to Government, Education Department, has conveyed to the District Development Commissioner Udhampur that the Minister for Education has desired that Shri Abrol (Respondent No.2) should continue to discharge duty of CEO Udhampur till further orders. This communication is being interpreted that the court has stayed the order.. In this communication neither the court order has been interpreted nor reliance is placed on the court order. Plea of the learned counsel for the respondents that respondent-2 is continuing as Chief Education Officer though suspendee because of court direction is misplaced. Perusal of the pleadings of this petition and also SWP No.2113 /02 reveals that court has not passed any order staying the suspension order. He is being continued despite having been placed under suspension as per the desire of the Minister for Education which has been conveyed to District Development Commissioner, Udhampur vide order dated 26.9.2002. 6. Perusal of the pleadings of this petition and also SWP No.2113 /02 reveals that court has not passed any order staying the suspension order. He is being continued despite having been placed under suspension as per the desire of the Minister for Education which has been conveyed to District Development Commissioner, Udhampur vide order dated 26.9.2002. 6. What is required to be determined is the issue raised by the learned counsel for the petitioner that respondent-2 being placed under suspension consequent to the sanction for his prosecution, he is not competent to discharge active duty of the post of Chief Education Officer and pass the impugned order. Learned counsel for the petitioner in support of his plea has relied upon Government Instructions No.1 appended to Regulation 108-A of Civil Services Regulations which reads as. "Government Instructions No. 1 Doubts have been expressed whether a Government servant placed under Suspension should be required to attend office for discharge of his normal duties during the period of suspension, It is hereby clarified, that a Government servant who is placed under suspension shall cease to discharge his official duties and functions or avail any privilege which may be enjoyed by him in his official capacity, during the period of suspension and shall for that period remain attached to the place of his earlier posting or some other place as may be directed by the competent authority.� 7. It is evident from this provision of law that a public servant who has been placed under suspension cease to discharge his official duty. Admittedly the Chief Education Officer, Udhampur, respondent No. 2 has issued impunged order while he was under suspension. In terms of Government Instructions No. 1 referred to above, he was not to dicharge the duties of the office and if he has discharged it, and in the discharge of duty passed any order, it is on the face of it unauthorized. The petitioner thus has made out that the impunged order passed by the Respondent No. 2 is without jurisdiction and issued by assuming the duty illegally and unauthorizedly. For the aforesaid reasons, the writ petition is allowed and the order impunged is set aside. However, the respondent, competent officer is at liberty to pass order if the exigency of service requires so.