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2018 DIGILAW 1433 (ALL)

Pawan Kumar v. State of U. P.

2018-06-19

DEVENDRA KUMAR ARORA, VIRENDRA KUMAR II

body2018
JUDGMENT : Devendra Kumar Arora, J. Heard Mr. Jaideep Narain Mathur, Senior Advocate, assisted by Mr. Ashish Verma, learned Counsel for the petitioner and Mr. Manjive Shukla, learned Additional Chief Standing Counsel for the State. 2. Petitioner-Pawan Kumar has approached this Court under Article 226 of the Constitution of India with the following relief’s :- "(a) Issue a writ, order or direction in the nature of Certiorari quashing the impugned suspension order dated 25.04.2018 passed by the respondent No.1 (Annexure No.22 to the writ petition). (b) Issue a writ, order or direction in the nature of Mandamus commanding/directing the respondents not to interfere in the peaceful functioning of the petitioner as District Basic Education Officer, District Kanpur Dehat and to pay his salary month to month and as and when it falls due. (c) Issue any suitable writ, order or direction which this Hon'ble Court may deem fit and proper in the fact and circumstances of the instant case. (d) Award cost of the writ petition in favour of the petitioner." 3. Shorn off unnecessary details, facts of the case are as under : On the recommendation of the Public Service Commission, Allahabad, the petitioner was appointed as Senior Lecturer (DIET) on 31.12.2016. Thereafter, on 8.7.2017, the petitioner was transferred from Senior Lecturer, DIET, Kanpur Nagar to District Basic Education Officer, Kanpur Dehat. On the same day i.e. 8.7.2017, the petitioner assumed his duties as District Basic Education Officer, Kanpur Dehat on 8.7.2017. 4. It has been averred in the writ petition that earlier a ban was imposed by the State Government for selection and appointment of teaching and non-teaching staff in Junior High Schools, which was lifted by the State Government vide Government Order dated 15.9.2014 and 4.11.2015 and a direction was issued to fill up the vacant posts of Headmasters, Assistant Teachers and Clerks in Junior High Schools. Pursuant to the aforesaid Government Orders, in District Kanpur Dehat, the selection process of the Headmasters was also initiated by the then Basic Education Officer. 5. Pursuant to the aforesaid Government Orders, in District Kanpur Dehat, the selection process of the Headmasters was also initiated by the then Basic Education Officer. 5. The Manager being the appointing authority of Institutions, namely, Subhash Junior High School, Vivekanand Junior High School, Ashok Vidya Mandir Junior High School, Rashtriya Vidya Mandir, Purv Madhyamik Vidyalay and Jawahar Lal Nehru Madhyamik Vidyalaya had sought prior permission as required under Uttar Pradesh Recognised Basic Schools (Junior High Schools)(Recruitment and Conditions of Service of Teachers) Rules, 1978 (hereinafter referred to as "Rules 1978") from the then Basic Education Officer, claiming their institutions to be Junior High Schools for filling up the vacant posts of Headmasters/ Headmistress in their institutions. 6. It is said that on receipt of the aforesaid applications, the then Basic Education Officer vide its letters dated 08.05.2015 sought clarification from the District Inspector of Schools, Kanpur Dehat to the effect that whether the institutions, referred above, are the upgraded institutions as High School/Intermediate or not. In response thereof, the District Inspector of Schools, vide its letter dated 04.06.2015, 05.06.2015, 09.06.2015 and 15.06.2015 informed that the institutions referred to above are not the upgraded institutions by specifically mentioning that "institutions are not under the category of upgraded High School institutions." 7. On receipt of the aforesaid clarification/information from the District Inspector of Schools, the then Basic Education Officer vide its different orders dated 07.06.2015, 10.06.2015, 17.062015, 06.06.2015 and 06.06.2015, granted permission to the Managers of the aforesaid institutions to fill up the vacant posts of Headmasters/Headmistress in their Institutions. 8. It has been pointed out by the learned Counsel for the petitioner that the above mentioned permission specifically mentions in Clause-V that in case any fact is found to have been concealed in obtaining the permission, the total responsibility would be of the Management of the Institution and same shall be automatically cancelled, which clearly depicts that while granting the permission, the then Basic Education Officer has taken into consideration about all the relevant Government Orders and the judgments . 9. Clarifying the position, it has been stated that after grant of permission, the Manager of the aforesaid institutions requested the then Basic Education Officer to appoint the Observer and in response thereof the then Basic Education Officer vide its different order of 24 June, 2015 appointed the Observer for participating in the selection process. 9. Clarifying the position, it has been stated that after grant of permission, the Manager of the aforesaid institutions requested the then Basic Education Officer to appoint the Observer and in response thereof the then Basic Education Officer vide its different order of 24 June, 2015 appointed the Observer for participating in the selection process. Thereafter, the Selection Committee was constituted for making the selection on the post of Headmaster/Headmistress in the aforesaid institutions, in which, the Manager of the concerned Institution, the Headmaster of the concerned Institution and the Observer appointed by the then Basic Education Officer, had participated as members of the Selection Committee. 10. It has been averred in the writ petition that after completing the selection process, papers pertaining to the selection were sent by the Manager of the Institutions, referred to hereinabove, to the then Basic Education Officer, who vide its different orders of June 2015, had granted approval to the selection of the Headmaster/Headmistress. Thereafter, the selected Headmasters have started to perform their duties in their respective institutions and started to receive their salaries from State Exchequer. Thereafter, the petitioner has joined as District Basic Education Officer, Kanpur Dehat on 8.7.2017. 11. The present controversy arose when a complaint was made by one Sri Sanjay Kumar Dixit, claiming himself to be the Journalist of a Newspaper to the Director of Education (Basic) alleging therein that the five institutions, referred to above, in which selection and appointment of Headmasters were made, are the upgraded institutions and as such, appointment could not have been made by applying 1978 Rules and requested for an inquiry into the matter. 12. On receipt of the aforesaid complaint, the Director of Education (Basic), vide letter dated 29.8.2017, sought the clarification from the Additional Secretary, Board of Intermediate Examination, Regional Office, Allahabad with regard to the status of the five institutions. In response to the same, the Additional Secretary, vide letter dated 27.9.2017, informed that all the five institutions are the upgraded institutions and the recognitions have been granted under Section 7-AA to the two institutions, namely, Subhash Junior High School, Girdharpur and Jawahar Lal Nehru Madhyamik Vidyalaya, Sahajahanpur and under Section 9 (4) to three institutions, namely, Ashok Vidya Mandir Junior High School, Rastpur, Rastriya Vidya Mandir, Purv Madhyamik Vidyalaya, Khawajaphool and Vivekanand Junior High School, Kasolar. 13. 13. On receipt of the aforesaid letter dated 27.9.2017, the Director of Education (Basic), vide letter dated 25.10.2017, informed the petitioner about the complaint and the report submitted by the Additional Secretary and a direction was issued to do the needful in the matter. After receiving the aforesaid letter dated 25.10.2017, the petitioner immediately on the very next day i.e. 26.10.2017 has sent a report to the Director of Education (Basic) mentioning all the factual and legal positions and stated that all these institutions are the upgraded institutions and guideline was sought to do the needful in the matter. The petitioner has also directed the Finance and Accounts Officer, Basic Education to stop the salary as well as all the dues payable to the selected Headmasters in these institutions with immediate effect. In pursuance to the aforesaid direction, the Finance and Accounts Officer, Basic Education, vide letter dated 7/13.11.2017, stopped the salary of the selected Headmasters until further orders. 14. Feeling aggrieved by the aforesaid order passed by the Finance and Accounts Officer, all the five selected Headmasters have filed writ petitions, bearing writ petition Nos. 53941 of 2017, 55377 of 2017, 55365 of 2017, 55366 of 2017 and 55367 of 2017. This Court, as an interim measure, vide orders dated 22.11.2017 and 15.11.2017, stayed the operation of the order stopping the salary and directed for payment of salary to the petitioners. 15. According to the petitioner, in pursuance to the ad interim order dated 22.11.2017, all the five selected Headmasters are receiving their salaries from the State Exchequer till date and the aforesaid writ petitions are still pending. It has been stated that the petitioner has also issued a show cause notice dated 26.10.2017 to the Managers of the five institutions. In reply, the Managers of the five institutions have submitted their response, stating therein that their institutions are not under the category of upgraded institutions and they are obtaining the new recognition under Section 7-AA from the Board and in support of their claim, they have annexed a copy of the judgment and order dated 11.5.2012 passed in writ petition No. 16799 of 2012 : Sweta Tripathi Vs. State of U.P. and others, wherein a direction was issued to the Director to clarify the position with regard to up gradation of the institution under Section 7-AA and also annexed the copy of the order dated 13.8.2012 passed by the Director, Secondary Education, Lucknow. 16. It has been averred in the writ petition that the petitioner had sought clarification about the status of the five institutions again from the District Inspector of Schools vide letter dated 22.11.2017. In response thereof, the District Inspector of Schools has sent a letter dated 30.11.2017, mentioning therein that in the recognition letter, there is no mention about the up-gradation of the institutions in the question inasmuch the institutions were granted the new recognition under Section 7-AA which are not under the category of upgraded institutions. Thereafter, the petitioner has sought further clarification with regard to the status of the aforesaid institutions from the Board. In response thereof, the Board has sent letter dated 28.12.2017, stating therein that the institutions have been granted the new recognition under Section 7-AA. On receipt of the aforesaid letter/report, the petitioner has sought guidelines from the Director of Education (Basic) but no response/ guideline was received from the Director of Education (Basic) and all of a sudden to the utter shock, the petitioner has been placed under suspension vide order dated 25.4.2018. 17. Hence the present writ petition. 18. Submission of the learned Counsel for the petitioner is that the sole ground taken in the impugned order of suspension is that in view of the order dated 21.5.2009 passed in writ petition No. 40581 of 2018 and in view of the Government Order dated 15.10.2009, in upgraded Junior Schools, the post of Principal became nonfunctional and same could not be filled in by applying 1978 Rules and in violation of the order of this Court dated 21.5.2009 and the Government Order dated 15.10.2009, the post of Headmasters have been filled up in five upgraded institutions by making the selection and appointment and also by ensuring salary and, as such, the petitioner was held responsible for making the irregular and illegal appointments. His submission is that the ground taken for suspension of the petitioner is totally misconceived and incorrect inasmuch as the petitioner is neither involved in any manner with the alleged selection and appointment of the Headmasters in the alleged five institutions as the petitioner has joined as Basic Education Officer, Kanpur Dehat only on 8.7.2017 i.e. much prior to selections and appointments of Headmasters in the alleged institutions have been completed. 19. Elaborating his submission, learned Counsel for the petitioner has submitted that the order for prior permission was granted by the then Basic Education Officer, namely, Ram Sagar Tripathi vide its different orders in the month of June, 2015 and after the selection process was completed, the approval was granted to all the five selected Headmasters by the then Basic Education Officer (Ram Sagar Tripathi) and Sachidanand Yadav. Therefore, neither the petitioner had granted permission to fill up the posts nor approval was granted by him and, as such, the petitioner is not at all involved in any manner in the selection and appointment of the alleged Headmasters. Surprisingly, but without ascertaining and verifying the facts with regard to selection and appointment Headmasters, the petitioner has been placed under suspension. Thus, the impugned order of suspension is per se nonest and unjustified. (20) Learned Counsel for the petitioner has submitted that a bare perusal of the impugned suspension order reveals that it has been passed on the basis of the report of the Assistant Director of Education (Basic) dated 26.12.2017 and the Director of Education (Basic) dated 26.2.2018. In these two letters, there is no allegation or charge of corruption, malpractice and financial embezzlement against the petitioner and also there is no mention about any involvement of the petitioner in the alleged selection and appointments. The only allegation levelled against the petitioner in the aforesaid letters is that the petitioner has not responded to the letters which is incorrect as the petitioner had replied vide letter dated 28.9.2017 and 5.10.2017 upon which specific endorsement was made that no further reply is required from the petitioner. Thus, on this count also, the impugned suspension order is per se illegal and bad. 21. Learned Counsel for the petitioner has submitted that the procedure for disciplinary proceeding are provided under U.P Government Servant (Discipline and Appeal) Rules, 1999 (in short ''Rule, 1999'). Rule-4 prescribes for suspension. Thus, on this count also, the impugned suspension order is per se illegal and bad. 21. Learned Counsel for the petitioner has submitted that the procedure for disciplinary proceeding are provided under U.P Government Servant (Discipline and Appeal) Rules, 1999 (in short ''Rule, 1999'). Rule-4 prescribes for suspension. Sub-Rule 4 (1) provides that a Government servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending conclusion of the inquiry in the discretion of the appointing authority. His submission is that from the order impugned, it cannot be culled out that the suspension is in contemplation of inquiry . 22. Learned Counsel for the petitioner submits that Rule 5 of the 1999 Rules require that an officer could be placed under suspension only when there is possibility to impose major penalty but in the present case, charges levelled against the petitioner are not so serious in nature which would result in imposition of major penalty as the simple charge against the petitioner is that he has not responded promptly to the information sought for from him. 23. It has been pointed out by the learned Counsel for the petitioner that the impugned suspension order dated 25.4.2018 refers to the report of Director of Education (Basic), U.P., Lucknow, which is the foundation and basis for placing the petitioner under suspension and in the said report dated 26.2.2018, even the name of the petitioner does not find place and he has been completely exonerated. 24. Per contra, learned Additional Chief Standing Counsel has submitted that in the district Kanpur Rural illegal appointments were made in the upgraded Institutions in respect whereof a complaint was made on which inquiry was conducted by the Assistant Director, Education (Basic) Kanpur Region, Kanpur and prima facie the petitioner has been found guilty. On the basis of preliminary inquiry report, State Government has passed the impugned order dated 25th April, 2018 whereby petitioner has been placed under suspension. Thereafter, charge sheet has been prepared and approved by the State Government vide order dated 14th May, 2018. On the basis of preliminary inquiry report, State Government has passed the impugned order dated 25th April, 2018 whereby petitioner has been placed under suspension. Thereafter, charge sheet has been prepared and approved by the State Government vide order dated 14th May, 2018. A perusal of charges mentioned in the charge sheet would reveal that a definite charge has been framed against the petitioner that when complaint in respect of the aforesaid illegal appointments was received and Assistant Director, Education (Basic), Kanpur Region, Kanpur was conducting preliminary inquiry, and the petitioner was asked to make available the files of the appointments, then, the petitioner did not extend his cooperation in the preliminary inquiry and did not furnish the documents so required and somehow tried to extend undue favour to his predecessors. In these circumstances, on the one hand he has disobeyed the directions issued by the higher officers and on the other hand he has also been instrumental in facilitating payment of salary to illegal appointees from the State exchequer. Charge No.2 in the aforementioned charge-sheet has been levelled against the petitioner that when Assistant Director, Education (Basic), Kanpur Region, Kanpur vide his letter dated 25.10.2017 directed the petitioner to act in accordance with law in respect of the illegal appointments, petitioner did not follow the procedure prescribed under law for cancellation of such appointments and straightaway stopped payment of salary to the illegal appointees. Since the procedure prescribed under law was not followed, therefore, in the writ petition filed by the aforesaid appointees, this Court granted interim order in their favour and thereby the petitioner has been instrumental in the payment of salary to the aforesaid illegal appointees from the State exchequer. 25. It has also been submitted that the charges mentioned in the charge sheet are very serious in nature and in the event of the said charges being proved in the disciplinary inquiry, there is every possibility that a major penalty would be imposed against the petitioner and therefore, the order of suspension is fully justified in the given circumstances. 26. We have examined the submissions of the learned Counsel for the parties and gone through the record. 27. 26. We have examined the submissions of the learned Counsel for the parties and gone through the record. 27. Before proceeding on the merit of the case, it would be apt to mention that in exercise of powers under Article 309 of the Constitution and in super session of the Civil Service (Classification, Control and Appeal) Rules, 1930, the Governor has framed the Uttar Pradesh Government Servant (Discipline and Appeal) Rules, 1999. Rule 4 provides for suspension of a Government servant. The relevant part of the rule is extracted below: 4. Suspension.--(1) A Government Servant against whose conduct an inquiry is contemplated, or is proceeding may be placed under suspension pending the conclusion of the inquiry in the discretion of the Appointing Authority: Provided that suspension should not be resorted to unless the allegations against the Government Servant are so serious that in the event of their being established may ordinarily warrant major penalty...." 28. The question is whether the suspension of the petitioner was in accordance with Rule 4 of the Rule, 1999. Before considering the scope of the rule and whether the appointing authority had exercised its discretion in accordance with it, we may point out that the power to suspend a government servant pending inquiry has been subject of decisions by two Full Benches of this court. Rule 49-A of the Civil Service (Classification, Control and Appeal) Rules, 1930 empowers the appointing authority to suspend an employee pending inquiry in its discretion. To this rule there was a Note which in effect was similar as the first proviso to Rule 4(1) of the Rules, 1999. 29. In State of U.P. Vs. Jawahar Lal Bhargava and another : 1974 AU 282, the Note was held to be mandatory. The Full Bench decision was rendered on 25th February 1974. The Note was deleted retrospectively on 23rd March 1974. The matter came up for consideration before a Five Judges Full Bench in State of U.P. Vs. Jai Singh Dixit : 1975 (2) SLR 754 : 1975 ALR 64. The Full Bench upheld the retrospective deletion. But to obviate any ambiguity in future it examine the scope of the Rule, the Full Bench held that the Note appended to the Rule 49-A was directory because the Note could not restrict the power under the rule, but the power to suspend could be exercised objectively. The Full Bench upheld the retrospective deletion. But to obviate any ambiguity in future it examine the scope of the Rule, the Full Bench held that the Note appended to the Rule 49-A was directory because the Note could not restrict the power under the rule, but the power to suspend could be exercised objectively. The two restrictions on the exercise of powers by the appointing authority, namely, that the allegations must be so serious and the appointing authority must be satisfied that if the allegations are proved, it would result in major penalty pre-supposes that the power must be exercised objectively. The Full Bench observed in paragraph 48 as under: "...To suspend a Government servant on receipt of complaints containing allegations of dishonesty or of misconduct, without the appointing authority being satisfied that the allegations made have substance, which would later justify taking disciplinary proceeding, shall be on subjective consideration and has to be disapproved by the Courts of law...." 30. What was provided by the Note and was deleted in 1974 has now been made part of Rule 4 of the Rules, 1999, by enacting a proviso to Rule 4(1). The effect of incorporating the restrictions contained earlier in the Note to Rule 49-A, as first proviso to Rule 4(1) of the 1999 rules, in our opinion, is that it is mandatory in character and any exercise of power by the appointing authority without adverting to it would be invalid and contrary to law. Further the Full Bench in Jai Singh Dixit (supra) should be taken to have settled the law that power to suspend must be exercised objectively. 31. From perusal of Rule 4 of Rules, 1999, it is clear that a Government servant can be suspended by the appointing authority against whose conduct an inquiry is contemplated or pending. The first proviso to the rule makes it obligatory for the appointing authority not to suspend an employee unless the allegation are so serious that in the event they are established then it would warrant the imposition of major penalty. The first proviso to the rule makes it obligatory for the appointing authority not to suspend an employee unless the allegation are so serious that in the event they are established then it would warrant the imposition of major penalty. The rule inherently lays down that suspension should not be resorted to by the appointing authority as a matter of routine but only after the appointing authority is satisfied that the allegations are so grave and serious against the government servant that if they are established, it would result in removing or dismissing etc., the employee from service. In other words, every omission or error in discharge of duty by the Government servant may not be sufficient to place him under suspension. No hard and fast rule can be laid down as to what allegation would be serious, which may warrant major penalty. But the appointing authority under the first proviso to the Rule 4 is required to apply its own independent mind to the allegations against the employee and then arrive, on the material on record, to a prima facie conclusion that the allegations against the employee were such that it warranted suspension. Material on record, has been explained in Jai Singh Dixit (supra), means not only the complaint or allegations etc. but the circumstances justifying the opinion that on inquiry the employee may ordinarily be liable for major penalty. 32. The Apex Court in State of Orissa Vs. Bimal Kumar Mohanty : AIR 1994 SC 2296 has held in paragraph 12 as below: "12. It is thus settled law that normally when an appointed authority or the disciplinary authority seeks to suspend an employee, pending inquiry or contemplated inquiry or pending investigation into grave charges of misconduct or defalcation of funds or serious acts of omission and commission, the order of suspension would be passed after taking into consideration the gravity of the misconduct sought to be inquired into or investigated and the nature of the evidence placed before the appointing authority and on application of the mind by disciplinary authority. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. Appointing authority or disciplinary authority should consider the above aspects and decide whether it is expedient to keep an employee under suspension pending aforesaid action. It would not be as an administrative routine or an automatic order to suspend an employee. It should be on consideration of the gravity of the alleged misconduct or the nature of the allegations imputed to the delinquent employee." 33. The order of suspension is nothing but a temporary cessation of master and servant relationship. Therefore, it should not be resorted to as an administrative or routine order. An employee can be suspended pending an inquiry for his misconduct. But the first proviso to Rule 4 carves out an exception by making it obligatory on the appointing authority to exercise the discretion of suspending an employee only if the conditions mentioned in the proviso were satisfied. Sub-rule (1) of Rule 4 cannot be read in isolation. The proviso is mandatory in character and the power under Sub-Rule (1) cannot be exercised except as provided by the proviso. 34. The first proviso to Rule 4(1) of Rules, 1999, provides that an employee can be suspended, only, if the allegations against him are serious and the appointing authority is satisfied that if it is proved then a major penalty is liable to be imposed on the employee. Rule 4 (1) and the first proviso, in our opinion, should be read strictly and the appointing authority should exercise its discretion, after calling for the record and after applying its mind. Otherwise the exercise of discretion would lead to arbitrariness and would result in injustice and unfairness to the government servant. The intention of the rule being that suspension should be an exception, it must be followed strictly. The first proviso being a restriction on exercise of power of the appointing authority, it requires the subordinate authority to make recommendation on a fair and just consideration of material on record. Even if the subordinate authority fails to discharge its duty, it does not absolve the appointing authority from discharging its obligation by calling for the records and consider objectively if the allegations were so serious that it would result in imposition of major penalty, unless allegations were such that there could be no doubt about the applicability of the proviso. Even if the subordinate authority fails to discharge its duty, it does not absolve the appointing authority from discharging its obligation by calling for the records and consider objectively if the allegations were so serious that it would result in imposition of major penalty, unless allegations were such that there could be no doubt about the applicability of the proviso. Even in such cases, the rule of fair play must be read as requiring the appointing authority to record his own reasons. Otherwise it would be surrendering his discretion to the recommendation of the subordinate authority. Such action would be arbitrary and contrary to the letter and spirit of the rule. 35. We may now examine whether the exercise of discretion to suspend the petitioner was on objective consideration or not. When a rule or law requires an order to be passed on objective consideration, it necessarily requires to examine the material on record. The material on record does not mean the complaint or allegations only as observed by the Full Bench in Jai Singh Dixit's case or recommendation of the subordinate authority. The appointing authority must be satisfied from the material on record or on further investigation, that the allegations are so serious that it would result in major punishment. The reason, so arrived at, must be on record to satisfy the test of being on objective consideration. 36. Before proceeding further, it would be apt to mention that during the course of argument, Counsel for the petitioner has stated that he has not challenged the charge-sheet and has confined his arguments with regard to illegality in passing the order of suspension. According to the petitioner, the charge on which the petitioner has been placed under suspension does not find place in the charge-sheet dated 14.5.2018. We find force in the argument advanced by the learned Counsel for the petitioner as in the order of suspension, the charge against the petitioner is that he made illegal appointments on the post of Headmaster in five upgraded institutions; made payment of salary; and thus committed serious irregularities, whereas in the charge-sheet dated 14.5.2018, the first charge against the petitioner is of not making available the relevant record despite reminders and as such, disobeyed the order of the higher authorities. The second charge against the petitioner is that he failed to act promptly in cancelling the approval made with regard to appointment of the Head Masters. Thus, it can easily be inferred that there is non application of mind while passing the order of suspension and a cyclostyle order has been issued as the charges levelled against the petitioner are entirely different than the charge on which petitioner has been placed under suspension. 37. In paragraph 4 of the counter affidavit filed by the Assistant Director of Education (Basic), Kanpur Region, Kanpur, it has been stated that the charges against the petitioner is that when complaint in respect of the illegal appointments was received, Assistant Director, Education (Basic), Kanpur Region, Kanpur who was conducting preliminary inquiry directed the petitioner to make available certain files relating to appointments, but the petitioner did not extend his co-operation in the preliminary inquiry and failed to make available the documents and somehow tried to extend undue favour to his predecessors and thereby on one hand, he has disobeyed the orders of the superior officers and on the other hand he was instrumental in facilitating the payment of salary to illegal appointees from the State Exchequer. The other charge against the petitioner is that when Assistant Director, Education (Basic), Kanpur Region, Kanpur, vide his letter dated 25.10.2017, directed the petitioner to act in accordance with law in respect of the illegal appointments, the petitioner did not follow the procedure prescribed under law for cancellation of such appointments and straightaway stopped payment of salary to the illegal appointees, therefore, in the writ petitions filed by the aforesaid appointees, this Court granted interim order in their favour and thereby the petitioner has been instrumental in the payment of salary to the aforesaid illegal appointees from the State Exchequer. In these backgrounds, stand of the opposite parties is that since the charges mentioned in the charge-sheet are very serious in nature and in the event the said charges being proved in the disciplinary inquiry, there is every possibility that a major penalty will be imposed against the petitioner, hence, the action of the State Government in passing the impugned order of suspension is fully justified and the writ petition is liable to be dismissed. 38. 38. In respect of the aforesaid charges, the petitioner in para 4 of the rejoinder affidavit has stated that the charge with respect to not acting in accordance with law is not correct. As a matter of fact the petitioner immediately informed the higher authority and there is no delay or slackness on the part of the petitioner and even if slightest delay is attributable towards the petitioner, the same is not intentional or deliberate for the reason that the petitioner had assumed the charge on the post in question on 8.7.2017 and thereafter he was engaged in adjustment/transfer of the teachers working in the primary schools of the district; on 25.7.2017 & 26.7.2017, the petitioner could not perform his official duty due to strike and protest of Shiksha Mitra and further from 14.8.2017 to 7.9.2017, the petitioner was busy in proceeding on-line transfer and adjustment of the teachers of the district. Thereafter, the petitioner after going through the documents related with the appointments has submitted detailed report before the Regional Assistant Director of Education (Basic) Kanpur on 7.10.2017, therefore, it cannot be said that the petitioner did not act promptly. In the backdrop of the aforesaid facts, the stand of the petitioner is that the charges levelled against the petitioner are not so serious which may result in inflicting major penalty rather are petty in nature. Therefore, there was no occasion to place the petitioner under suspension. 39. It is also relevant to point out that in paragraph 39 of the writ petition, the petitioner has stated in specific words that he assumed the charge in Kanpur on 8.7.2017 and before that all the selection process were completed. Surprisingly, in the counter affidavit instead of giving reply either in affirmative or in negative, in a cursory manner, the contents have been denied. 40. Undoubtedly, the petitioner has played no role either in granting recognition to the institutions concerned or in approving appointments made in the institutions in question, as he has joined as District Basic Education Officer, Kanpur Dehat on 8.7.2017 and prior to that selection and appointments in the concerned institutions have been made. The only charge levelled against the petitioner is that he did not respond to the letters of the higher authority promptly. 41. The only charge levelled against the petitioner is that he did not respond to the letters of the higher authority promptly. 41. A perusal of the impugned suspension order dated 25.4.2018 reveals that it has been passed on the basis of the letter of the Director of Education (Basic), Lucknow, which is the foundation and basis for placing the petitioner under suspension. However, in the said report dated 26.2.2018, the name of the petitioner does not find place in the list of erring officials or responsible for illegal appointment of the Headmaster of the concerned institutions but in the report dated 26.2.2018 four officers/employees, namely, Sri Nand Lal, Sri Ram Sagar Pati Tripathi, Sri Ashok Kumar Mishra and Sri Jasim Ahmad Farooqui, are said to be responsible. In the letter dated 28.12.2017, the Assistant Director of Education (Basic) has alleged that the petitioner is guilty of not co-operating in the inquiry set up for illegal appointments of Headmaster in the five institutions under Rule 3 of Rule, 1999. The order of suspension reiterated the recommendation made by the Assistant Director of Education (Basic). The exercise of discretion by the appointing authority was neither on objective consideration nor in accordance with the rules. 42. From analyzing the aforesaid facts and circumstances of the case, we are of the opinion that the State Government has suspended the petitioner without applying his own independent mind to the facts of the case and without recording any prima-facie satisfaction about the seriousness of the allegations made against the petitioner. He has suspended the petitioner merely on the recommendation made by the Additional Director of Education (Basic), which is contrary to first proviso of Rule 4 (1). We are of the considered opinion that the first proviso to Rule 4(1) is mandatory and any exercise of power of suspension by the appointing authority without adverting to it would be invalid and contrary to law. The appointing authority was in this case guilty of violating the first proviso of Rule 4(1) of the Rules, 1999. 43. Considering the facts in its entirety and the legal position enumerated hereinabove, we direct the petitioner to make a detailed representation to the State Government for revocation of the impugned order of suspension raising all the pleas which have been raised herein within a week. 43. Considering the facts in its entirety and the legal position enumerated hereinabove, we direct the petitioner to make a detailed representation to the State Government for revocation of the impugned order of suspension raising all the pleas which have been raised herein within a week. The State Government, on its turn, shall examine the representation and decide the same with an speaking order expeditiously in light of the observations made herein-above. It is further provided that till the decision is taken by the State Government, the impugned suspension order dated 25.4.2018 shall remain in abeyance. 44. Subject to the aforesaid observations and directions, this writ petition is disposed of finally.