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2008 DIGILAW 2481 (RAJ)

Dr. Arjun Ram Kala v. State of Rajasthan

2008-11-11

H.R.PANWAR

body2008
JUDGMENT 1. - No one appears for the respondents though served. 2. By order Annex.4 dated 31.01.2005, the District Election Officer (Collector), Nagaur placed the petitioner under suspension in exercise of powers under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short 'the Rules of 1958' hereinafter). Aggrieved by the order Annex.4 placing him under suspension, the petitioner has filed the instant writ petition under Article 226 of the Constitution of India and seeks quashing of the order Anex.4 dated 31.1.2005 on the ground that the order Annex.4 impugned has been passed by an2 authority who is not competent and have no jurisdiction to pass such suspension order. 3. I have heard learned counsel for the petitioner. Carefully gone through the record including the reply filed by the respondents to the writ petition. 4. Briefly stated the facts of the case which are relevant and necessary for the decision of the present writ petition are that the petitioner was appointed on 18.08.1982 on the post of Assistant Surgeon by the Secretary, Medical and Health Department, Rajasthan Jaipur vide order Annex.1 and at the relevant time, he was working as Senior Medical Officer in T.B. Eradication Centre, Nagaur. During the Panchayat Election 2005 held in the State, the District Election Officer (Collector) Nagaur issued an order Annex.2 appointing the Zonal Magistrates at various zones of the district Nagaur. The petitioner's name finds mention at serial No.68 and was allotted the Hirani and Deeppura Zones. He was relieved by the District T.B. Officer, Nagaur for performing the election duty as Zonal Magistrate on 24.01.2005 vide Annex.3. According to the petitioner, he discharged the duties as Zonal Magistrate sincerely, religiously and faithfully. However, abruptly, by order impugned Annex.4 dated 31.1.2005 the petitioner came to be placed under suspension by the order of3 District Election Officer cum District Collector, Nagaur. Hence this writ petition. 5. It is contended by learned counsel for the petitioner that the District Election Officer Cum District Collector, Nagaur is neither the appointing authority nor the authority subordinate to the appointing authority or the authority empowered by the Government to place a Government servant under suspension. Hence this writ petition. 5. It is contended by learned counsel for the petitioner that the District Election Officer Cum District Collector, Nagaur is neither the appointing authority nor the authority subordinate to the appointing authority or the authority empowered by the Government to place a Government servant under suspension. The order impugned Annex.4 came to be passed by the District Election Officer in exercise of the powers under Rule 13 of the CCA Rules which reads as under:- "Rule 13 Suspension (1) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the Government in that behalf may place a Government servant under suspension. (a) Where the disciplinary proceeding against him is contemplated or is pending, or (b) where a case against him in respect of any criminal offence is under investigation or trial: Provided that where the order of suspension is made by an authority lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made" 6. In the reply to the writ petition, the respondents relying on Section 119-B of the Rajasthan Panchayati Raj Act, 1994 (for short 'the Act of 1994 hereinafter) came with a case that the officers or staff employed in connection with the preparation,4 revision and correction of the electoral rolls for, and the conduct of, all elections under this Act shall be deemed to be on deputation to the State Election Commission for the period during which they are so employed and such officers and staff shall, during that period be, subject to the control and superintendence of the State Election Commission. Since the petitioner at the time of election was working under the control of the State Election Commission, he has been rightly placed under suspension by the District Election Officer cum District Collector, Nagaur.Section 119-B of the Act of 1994 reads as under:- "119-B. Officers and Staff deemed to be on deputation to State Election Commission.- The officers or staff employed in connection with the preparation, revision and correction of the electoral rolls for, and the conduct of, all elections under this Act shall be deemed to be on deputation to the State Election Commission for the period during which they are so employed and such officers and staff shall, during that period be, subject to the control and superintendence of the State Election Commission." 7. According to the learned counsel for the petitioner, the District Election Officer cum District Collector, Nagaur cannot be said to be the State Election Commission and therefore, if at all during such election, the petitioner was deemed to be on deputation to State Election Commission, the competency to place the petitioner under suspension is with the State Election Commission and not the District Election Officer cum Collector,5 Nagaur. Learned counsel for the petitioner further submits that the delegation of functions of Election Commission has been provided under Section 120 of the Act of 1994 which reads as under:- "120. Delegation of Functions of Election Commission.- The functions of the State Election Commission under this Act or the rules or orders issued thereunder, subject to such general or special directions, if any, as may be given by the State Election Commission in this behalf, be performed also by a Deputy Election Commissioner, if any, or by the Secretary to the State Election Commission." 8. In the instant case, there being no such delegation of powers to the District Election Officer cum District Collector, Nagaur and therefore, the order impugned is without jurisdiction and has been passed by the authority having no competency. Learned counsel for the petitioner has also placed on record the order Annex.6 dated 07.02.1995 issued by the respondent State whereby the State Govt. Learned counsel for the petitioner has also placed on record the order Annex.6 dated 07.02.1995 issued by the respondent State whereby the State Govt. issued directions in respect of the Collectors placing the medical officers under suspension under the Caption District Collector is not authorised to place medical officer under suspension, wherein it has been categorically mentioned that for passing a suspension order in respect of Gazetted Officer, the District Collector is not authorised authority and at the level of District Collector passing of such order is not proper. Therefore, all the District Collectors were directed that in future they would not place any Gazetted Officer/ Medical Officer under suspension without prior approval of the State Government. These directions were further reiterated by Circular Annex.7 dated 16.10.2004 whereby again the State Govt. made it clear that the Gazetted Officers shall not be placed under suspension by the orders of the District Collectors. 9. From the provisions referred herein above, it is clear that though the petitioner at the relevant time was deemed to be on deputation to the State Election Commission, but at any rate the District Election Officer cum Collector, Nagaur is not the authority competent to place the petitioner under suspension. Even if at all there is any delinquency on the part of the petitioner during election for the year 2005, it was the State Election Commission competent to pass such order. More particularly the respondent State by various directions and Circulars as noticed above Annex.6 and 7 have cautioned all the District Collectors not to place Gazetted Officer or Medical Officers under suspension without prior approval of the State Govt. In the instant case, in the reply filed by the respondents it has neither been averred that any prior approval was taken from the State Election Commission nor any document has been placed to that effect. Even otherwise, Rule 13 of the Rules of 1958 do not empower the District Collector to exercise such powers in placing the petitioner under suspension who being a Medical Officer, and the District Election Officer cum District Collector is neither appointing authority nor the authority subordinate to it or State Election Commission. In this view of the matter, the order impugned cannot sustain and is liable to be set aside. 10. Consequently, the writ petition is allowed. In this view of the matter, the order impugned cannot sustain and is liable to be set aside. 10. Consequently, the writ petition is allowed. The order impugned placing the petitioner under suspension Annex.4 dated 31.1.2005 is quashed and set aside. There shall be no order as to costs. Since the writ petition itself has been allowed, the stay petition also stands disposed of.Writ Petition Allowed *******