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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
O R D E R
S.B.Civil Writ Petition No. 1962/2005
(Dr. Arjun Ram Kala Vs. State of Rajasthan & Ors.)
.........
Date of Order : 11/11/2008
PRESENT
HON'BLE MR. JUSTICE H.R.PANWAR
Mr. Hemant Dutt for the petitioner.
None present for the respondents though served.
BY THE COURT
No one appears for the respondents though served.
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 an
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authority who is not competent and have no jurisdiction to pass
such suspension order.
I have heard learned counsel for the petitioner.
Carefully gone through the record including the reply filed by the
respondents to the writ petition.
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
Delpartment, 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 of
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District Election Officer cum District Collector, Nagaur. Hence this
writ petition.
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”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,
4revision 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.”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,
5Nagaur. 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.”
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. 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
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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.
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
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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.
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.
(H.R.PANWAR), J.
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