JUDGMENT
Jasraj Chopra, J.
1. By this writ petition filed under Article 226 of the Constitution, the petitioner has challenged the legality of the order Annexure-3 dated 29-7-1989 whereby he has been suspended from service with effect from 19-7-1989 on the ground that he bas remained in custody for more than 48 hours between 15-7-1989 and 17-7-1989.
2. It is alleged that a cross beating took place between the petitioner’s family and one Hukmichand family, who happens to be his neighbored. As a result thereof, the petitioner’s father lodged a FIR against 9 persons beating No. 184 of 1989 on 15-6-89 at about 11 P.M. Shri Hukmichand also filed a FIR against the petitioner and his other family members bearing No. 183 of 1989 at P.S. Nagore on 15 6-1989 at about 10.30 P.M. On the basis of this FIR, it is alleged that initially a case Under Section 147, 148,149, 448 and 336 IPC was registered against the petitioner and his family members and on the basis of his father’s FIR, a case Under Section 147, 148, 149, 323, 336 and 452 IPC was registered. However, later on the offences Under Section 324, 325 and 307 IPC were added in the case filed by Shri Hukmichand and consequently, the petitioner was arrested on 17-7-1989 and he was released on bail on 19-7-1989 and, therefore, be remained in police and judicial custody for more than 48 years.
3 It is further alleged that thereafter, the petitioner filed an application Annexure-4 dated 21-7-1989 that be may not be suspended but vide Order Annexure-3 dated 29-7-1989, he has been suspended from service with effect from 19-7-1989. It is said that the petitioner remained on leave from 14-7-1989 to 18-7-1989 and, therefore, his suspension has been made effective from 19-7-1989.
4. The petitioner has submitted that it was a private dispute between the parties and it had nothing to do with the discharge of his official duties involving moral turpitude and, therefore, his suspension is wholly arbitrary and violative of Article 14 of the Constitution of India. He has further submitted that his suspension has been ordered merely because the petitioner has remained in police and judicial custody for more than 48 hours and hence, the suspension is manifestly illegal. Even the order Annexure-3 dated 29-7-1989 is also illegal because it is retrospective in operation. According to the petitioner, his suspension has been so ordered on account of the provisions of Sub-rule (2) of Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules (for short ‘the Rules) by taking it that if a person has been detained in custody for a period exceeding 48 hours then he shall be deemed to have been suspended. He has submitted that Rule 13(2) of the Rules envisages suspension only if a person is in custody and that custody is continuing so as to disable the Government servant from discharging the duties. It was further submitted that the petitioner has been allowed bail and therefore, he could not have been put under suspension on the ground that he remained in custody for more than 48 hours. According to him, Rule 13(2) itself is ultra virus to Article 14 of the Constitution as it is arbitrary and the words ‘shall’ used in Rule 13(2,i should be read as ‘may’. The suspension cannot be ordered automatically in cases where a disciplinary proceeding is contemplated or criminal case is under investigation or trial against a Government servant. It can be done, only, if there are reasons to believe, on the basis of material available, that he may be guilty of gross misconduct or corruption which if proved, will lead to dismissal or removal or where there are reasons to believe that if a Government servant is allowed to continue in active service, he may tamper with evidence or in a case in which bail has been refused to him and has been sent to prison, but no such condition to suspend him existed in the instant case.
5. A reply to the writ petition was file on behalf of the respondents wherein it was contended that the suspension of a Government servant, who has remained for more than 48 hours in custody Is automatic as per Rule 13(2) of the Rules. It was submitted that an appeal has been provided against such a suspension and even a review petition can be filed and therefore, the alternative remedy was available to the petitioner and, therefore, he cannot get any relief from this Court. It was also submitted that the order Annexure-3 dated 19-7-1989 is an interlocutory order because its review is possible. According to the respondents, the suspension remains in vogue till it is revoked by a competent authority. The family members of Shri Hukmichand have been severally beaten. Although, cross Firs have been filed but in the case against the petitioner which was initially registered under 6s 452, 323 and 336 IPC, the offences Under Section 324, 325 and 307 IPC have also been added. The petitioner Rajendrasingh is called as Rajaram and be submitted his casual leave application on 14-7-1989 for grant of leave upto 18-7-1989 and after his release on bail on 19-7-1989 he tried to join his duty under a false pretext that he has been authorized by the authority concerned to work at Naka Chowki whereas this posting was not there. The person working at that Chowki approached the Revenue Inspector posted at Mabi Gate Naka and apprised him with all the facts, which transpired between him and the petitioner. Upon this, the Revenue Inspector immediately went to the said Naka Chowki and restored the status-quo ante. It is alleged that in that interregnum period of half an hour, the petitioner authorized issue two three octopi receipts to show that he was on duty. It was submitted that the Order Annexure-3 should have been made effective from 15-7-1989 but my mistaken it was made effective from 19-7-1989. When the petitioner was ipso facto under suspension as per Rule 13(2) of the Rules, there was no question of filing an application not to suspend him That was only a tactic adopted by the petitioner. It was also submitted that Rule 13(2) provides that a Govt, servant who is detained in custody for a period exceeding 48 hours shall be deemed to have been suspended and shall remain under suspension until further orders and so, the second part of the Rule that be shall remain under suspension unit further orders, nullifies the contention of the petitioner that the word ‘shall’ used in Rule 13(2) has to be taken as ‘may’. This submission is totally misconceived and is ill founded. Rules 13(0 is an enabling provision vesting power in the concerned authority to suspend a person but Rule 13(2) is a deeming provision and on the happening of a certain event mentioned there in is to remain in custody for over a period of 48 hours, it comes into force automatically. Moreover, the virus of the Rule can be challenged only before the Division Bench and not before the single Bench.
6. Later, the petitioner filed an application to amend the writ petition adding the relief that the order Annexurt-3 has been made by a person who is not validity appointed as Administrator of the respondent Municipal Board as no notification has been issued appointing Shri Bhanwarlal as Administrator of the respondent Municipal Board as provided by 8. 293-A of the Rajasthan Municipalities Act, 1959. Consequently, the amendment application was allowed and the writ petition was amended accordingly. Thereafter, a reply to the amended writ petition was filed in which it was claimed that the challenge to the appointment of Shri Bhanwarlal as Administrator of the respondent Municipal Board is collateral and he has not been made party to the writ petition and, therefore, this relief cannot be granted to the petitioner because the writ of quo warran to can be issued against the person concerned and not against the Institution. Thereafter, a further application was filed to amend the writ petition praying therein that Shri Bhanwarlal, Administrator, Municipal Board, Nagore be imp leaded as respondent No. 3. That application was also allowed and the amended writ petition was filed challenging the appointment of Shri Bhanwarlal as Administrator of the respondent Municipal Board.
7. On behalf of respondent No. 3, it was contended that the de facto doctrine is now well established that the acts of the Officers defector performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit are generally as valid and binding, as if they were the acts of officers de jure. In support of this submission, reliance was placed on Gokaraju Rangara v. State of A.P. . It was also contended that the writ of quo warrantor challenging the appointment of respondent No. 3 Shri Bhanwarlal has been sought on the ground that no notification has been issued in the Official Gazette about his appointment as Administrator of the respondent-Municipal Board nor terms of his appointment have been specified. It is not the case of the petitioner that respondent No 3 Shri Bhanwarlal was ineligible for appointment to the post of Administrator of the respondent Municipal Board. When he was eligible for appointment as Administrator, such a notification could be issued ever now and, therefore, this writ petitioner should be dismissed. It was further submitted that the petitioner has failed to avail the statutory remedy by way of filing the appeal Under Section 310 of the Rajas-than Municipalities Act and therefore, even on this ground, this writ petition deserves to be dismissed, It was also submitted that the Government of Rajasthan had issued notification Under Section 293A of the Rajasthan Municipalities Act. When the writ petition was originally filed, no challenge was made to the authority and title of the Office of the answering respondent. The respondent No 3 Shri Bhanwarlal has submitted his appointment order along with his reply, which is marked as Annexure-R. 1 dated 11-3-1987. According to respondent No. 3, the suspension of the petitioner is based on a deeming provision and it cannot be deemed to have been revoked on his. Release on bail from custody.
8. I have heard Mr. M. Mridul, the learned Counsel appearing for the petitioner and Mr. Bheem Arora, the learned Counsel appearing for the respondents and have carefully gone through the record of the case.
9. In this case, the following questions arise for the determination of the Court;
(1) Whether the suspension under Rule 13(2) of the Rubs is automatic or any order is required to make it effective and whether that order remains in force tile) it is revoked?
(2) Whether the order Anaexure-3 dated 29-7-1989 is a valid order in the eye of law and whether the person making it bad an authority to do so and if not, what are its consequences.
(3) Whether challenge to the appointment of respondent No. 3 Shri Bhanwarlal as Administrator of the respondent Municipal Board is collateral to the proceedings or this question has been raised as a principal question in the case and even if it is held that his appointment was not regular, whether his actions are saved on the basis of the doctrine of defecto?
and
(4) Whether this writ petition should be dismissed on the ground of alternate remedy or on the ground that the order Annexure-3 is an interlocutory order, which can be reviewed by an order of the competent authority?
Mr. Bheem Arora, the learned Counsel appealing for the respondents has also raised the following two preliminary objections:
(1) That this writ petition is not maintainable on the ground that the petitioner has failed to avail the alternative efficacious remedy available to him and, therefore, it should be dismissed on this ground.
(2) That this writ petition deserves to be dismissed on the ground of delay.
10. The crucial question that arises for the decision of this Court relates to the interpretation of Rule 13(2) of the Rules. Rule 13(2) reads as under:
(2) A Government servant who is detained in custody whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to have been suspended with effect from the date of detection, by an order of the Appointing: Authority and shall remain under suspension until further orders.” The contention of Mr. M. Mridul, the learned Counsel appearing for the petitioner is that if an employee remains in custody for more than 48 hours, it does not mean that he will be treated as suspended from service forthwith. In this respect, he has placed reliance on a decision of this Court in Ashok Gaur v. Slate of Raj and Anr. 1987 (II) RLR 63, wherein it has been observed that an order of suspension should not be passed by invoking powers under Rule 13 simply because a disciplinary proceeding is contemplated or a criminal case is under investigation or trial against a Govt, servant. The appointing authority has to exercise his discretion in this regard. Actually these observations have been made by their Lordships of the Supreme Court while interpreting Rules 13(1) of the Rules and not while interpreting Rule 13(2) of the Rules As regards Rule 13(2), their lordships observed as follows:
Sub-rule (2) of Rule 13 is quite specific which says that in case a. person remains under custody exceeding 48 hours, he may be suspended with effect from the date of detention and such suspension shall continue till farther orders.
It is, therefore, clear that their lordships while referring to Sub-rule (2) of Rule 13 have observed that it is a deeming provision and if a man remains in custody for a continuous period exceeding 48 hours shall be deemed to have been. Suspended with effect from the date of his detention and that suspension remain in force until further orders. Had been, the intention of the framers of the Rules that suspension is not to be automatic then they must have added clause (c) to Rule 13(1) and must have provided that a Government servant may also be placed under suspension if he is kept in custody beyond 48 hours in respect of a criminal charge. The very fact that the detention of a person beyond the period of 48 hours have been separately provided in Sub-rule (2) of Rule 13 clearly goes to show that the framers of the law wanted to distinguish such cases from the categories of cases which are provided in Rule 13(1). There was no compulsion for the framers of the law to provide this exigency separately by adding Sub-rule (2) to Rule 13 which not only provides that the Government servant who is detained in custody whether on a criminal charge or otherwise for a period exceeding 48 hours shall be deemed to have been suspended with effect from the date of his detention by an order of the appointing authority but it also provides that be shall remain under suspension until further orders. Thus, this deeming provision taken into consideration two aspects of the matter (i) that if the Government servant has remained in custody for more than 48 hours whether in pursuance of a criminal charge or in pursuance of any other exigency, it shall be deemed that he has been suspended with effect from the date of his detention by an order of the competent authority and no formal order is required to suspend him; and (ii) that he shall remain under suspension till that suspension is revoked by the competent authority. Thus, the provision made in the second part of Rule 13(2) fortifies the contention of Mr. Bheem Arora, the learned Counsel appearing for the respondents that the framers of the Rules had categorically and explicitly made their intention very clear in providing for this exigency separately by adding Sub-rule (2) to Rule 13 that the person who remains in custody for more than 48 hours on a criminal charge or otherwise will be deemed to have been placed under suspension from the date of his detention and he will have to remain under suspension until further orders. If the suspension is not to be automatic or ipso facto then there was no necessity to provide that he shall remain under suspension until futher orders. It categorically clarifies the mind of the framers of the Rules that they wanted this deeming provision to be effective, as regards the suspension of a Govt, servant who remains in custody for more than 48 hours, It was not at all the intention of the framers of the law that the suspension will become effective only when (he Government servant is not bailed out and if he is bailed out. his suspension would come to an end automatically. It was to cover up this exigency that the frameis of the law have provided that a Government servant shall be deemed to be placed under suspension on account of his custody exceeding 48 houses and will remain under suspension till that order is revoked or it is ordered otherwise. Thus, I am unable to accept this contention of Mr. M. Mridul, the learned Counsel appearing for the petitioner that the service career of a Govt, servant will be sealed by an indiscreet act of the S.H.O. The SHO after arrest of a person can keep that person in custody only for 24 hours and that too in cases of non-bailable offences and not in cases of bailable effaces. If the offence or offence are bailable the S.H.O. will have to grant him bail. However, in cases of non-bailable offences, he has to forward the accused to the concerned Magistrate after expiry of 24 hours and there-after, the remand is granted by the Magistrate after exercising his judicial discretion and therefore, it cannot be said that the rate of a Government servant is in the hands of the S.H O. alone.
11. A some what similar provision exists in Rule 7(2) of the West Bengal (Classification, Control and Appeal) Rules, 1971, which provides that a Government Servant who is detained in custody for a period exceeding 48 hours will be deemed to have been placed under suspension and the said suspension does not stand revoked as soon as he is relieved from custody and is acquitted of the criminal charge. This Rule came up for consideration before a learned single Judge of the Calcutta Hingh Court in M.K. Doss v. State of West Bengal 1980(1) SLR-678, wherein it has been held that as soon as a Government Servant is detained in custody for a period exceeding 48 hours under Rule 7(3), he is ipso facto placed under suspension His said suspension does not stand revoked as soon as he is released from custody or acquitted of the criminal charge. He has to remain under suspension until further orders. In other words, the appointing authority is required to make an order revoking the suspension which has occurred under Rule 7(3) It may be stated here that Rule 13(2) of the Rules is almost in peri.materia with Rule 7(3) of the West Bengal (Classification, Control and Appeal) Rules, 1971 and, therefore, the contention of Mr.Mridual that suspension is not ipso facto cannot be accepted There is no dispute about the fact that the petitioner has remained in custody for snore than 48 hours and, therefore, it will be deemed that he has been placed under suspension by an order of the appointing authority from the date he was arrested and such suspension shall continue till it is revoked.
12. It was argued by Mr. M. Mridul, the learned Counsel appearing for the petitioner that in this case, a separate order suspending the petitioner from service with effect from 19-7-1989 has been passed on 29-7-1989 by the Executive Officer of the Municipal Board, Nagore. Although, it was contended on behalf of the respondents that in the order Annexure-3 dated 29-7-89 the date 19-7-1989 has wrongly been written and actually, it should have been 15-7-1989, In other words, according to the respondents, vide order Annx -3 dated 29-7-1989, the petitioner should have been placed under suspension first 15-7-1989 and not from 19-7-1989. It appears that the petitioner applied for leave from 14-7-1989 to 18-7-1989 and, therefore, the order Annexure-3 dated 29-7-1989 was made effective from 19 7-1989 because the petitioner was on leave from 14 7-1989 to 18-7-1989. Be that as it may, this order was not at all necessary and it could not have been passed suspending the petitioner with retrospective operation. Such an order was not necessary and, therefore, it is a superfluous order and the Courts will view it with this angle that neither this order was necessary nor it is a correct order, which could have been passed in the facts and circumstances of this case. The suspension of the petitioner is automatic and therefore; it requires no order of the appointing authority to suspend biro. It is no where contended before me that the Executive Officer had no authority to suspend him, What has been contended before me is that the respondent No. 3 Shri Bhanwar Lal, who happens to be the Administrator, Municipal Board, Nagore had no authority to issue such an order and i. was his capacity to work as an Administrator, that has been challenged by amending this writ petition. Actually, the respondent No. 3 Shri Bhanwar Lal Verma, who was transferred as Additional Collector Nagore vide Order Annexure-R 2 has been appointed by virtue of his Office as the Administrator, Municipal Board, Nagore. As the order Annexuie 3 dated 29-7-1989 has sot been passed by respondent No. 3, Shri Bhanwar Lal the challenge made to his Office is collateral in nature and, therefore, his authority could not have been brought under challenge making it a primary ground of challenge in this writ petition. The order Annexure-3 dated 29th July, 1989 is no nest, a surplus age or a superfluous or an invalid order. It was not at till necessary to pass such an order keeping in view the provisions of Rule 13(2) of the rules. I need not therefore, detain myself to consider the submission of Mr. been Arora the learned Counsel appearing for the respondents that on account of the de facto doctrine, the order Annexure-3 should be treated as a valid order in the eye of law. I may state here that the doc-trine of de facto was pressed before me probably under the misconception that the order Annexure-3 dated 29-7-1989 has been passed by respondent No. 3 Shri Bhanwar La], who happens to be the Administrator, Municipal Board Nagore but a perusal of the Order Annexure-3 itself shows that it has been passed by the Executive Officer, Municipal Board, Nagore and, therefore. I need not refer to the authorities cited by the learned Counsel appearing for the parties as regards the applicability of the doctrine of de facto in the facta and circumstances of this case. I may further state that the petitioner has not challenged the authority of the Executive Officer, who has passed the order Annexure-3. Rather, he has challenged the authority of the Administrator, who has nothing to do with the order Annexure-3.
13. It was next contended by Mr. M. Mridul, the learned Counsel appearing for the petitioner that the appointment of respondent No. 3 Shri Bhanwar Lal on the post of Administrator, Municipal Board, Nagore has not been notified in the Official Gazette specifying his period of posting and, therefore, as per the Division Bench decision of this Court in Municipal Board Begun and Ors. v. State cf Rajas than and Ors. DB Civil Writ Petition 1275 of 1987, decided on 3-8-1989, his appointment as Administrator should be quashed. It has not been disputed before me that challenge to the authority of a particular holder of an office cannot be agitated collaterally. It has been observed by their Lordships of the Supreme Court in Gokaraju Rangaraju case (supra) that challenge to the authority of an Officer to work on a particular post should be direct and not collateral in nature, In this case, the respondent No. 3 Shri Bhanwar Lal has been made a party to the proceedings and a direct challenge has been made to his authority but in the facts and circumstances of this case, this challenge appears to be collateral because the order Annexure-3 has not been passed by him but it has been passed by the Executive Officer, Municipal Board, Nagore. The order Annexure-3 has been held to be congest and superfluous and, therefore, this order Annexurt-3 has no implication whatsoever in the facts and circumstances of this case. In that view of the matter, the challenge to the authority of respondent No. 3 is. Collateral in nature and it cannot be gone into in this writ petition.
14. Even if for the sake of argument, it be held that the challenge is direct because respondent No. 3 has been made a party to the proceedings then too, the respondent No. 3 can be removed from his office by issuing a writ of quo warran to. It has been held held by a learned single Judge of this Court in D.C. Jain v. University ofJodhpur that the writ of quo warrantor is not a writ which issues as a matter of course and as a matter of right. Indeed it is in the discretion of the High Court to refuse or grant it according to the facts and circumstances of the case. The High Court would inquire into the conduct and motive of the petitioner and the court might in its discretion decline to grant quo warrantor where the petitioner is moved by extraneous, consideration and not in public interest.
15. In P.L. Lakhanpal v. AN. Ray , a Full Bench of the Delhi High Court has held that where there is no inherent lack of qualifications as regards the holder of a post but the appointment of the Officer is in violation of any provision and if such a defect can be removed by reappointing him then in such cases, writ of quo warrantor should not be issued. In this case, the appointment of respondent No. 3 Shri Bhanwarlal has been challenged on the ground that the Order Annexure-3 has been passed by him but a perusal of that order shows that it has not been passed by him. This order Annexure-3 has been passed by the Executive Officer, Municipal Board Nagore and this order has been held to be no nest and superfluous. It was not required to be passed as per Rule 13(2) of the Rules and, therefore, in such circumstances, I do not deem it proper to issue a writ of quo warrantor in favour of the petitioner and against respondent No. 3 Shri Bhanwarlal Verma.
16. In State of Haryana v. Haryana Coop Transport , the award was made by the Labour Judge who was not validly appointed and, therefore, a direct challenge was made to his authority to act as a Labour Judge and therefore, if was held that such a challenge is the main challenge and a writ of quo warranto can be issued. In this case, the order Acnexure-3 has been passed by the respondent No. 3 and, therefore, State of Haryana’s case (supra) has no application to the facts and circumstances of this case.
17. In view of the aforesaid discussion, it is clear that the effect of Rule 13(2) of the Rules is that a Government servant who has remained in custody for more than 48 hours on a criminal charge or otherwise will be deemed to have been placed under suspension from the date of his arrest under an order of the appointing authority, whatsoever he may be and that suspension is to be continued till it is revoked and, therefore, such a suspension can only come to an end when an order revoking it is made and not otherwise. Question No. 1 stands answered accordingly.
18. So far as Order Annexure-3 dated 29-7-89 is concerned, it is an invalid order because it as retrospective in operations Moreover, issue no nest and superfluous and therefore, it is un under consequence. As the suspension of the petitioner is automatic the invalidity of Order Annexure-3 will not affect his suspension. The question not stands answered accordingly.
19. The challenge to the appointment of Shri Bhanwarlal as Administrator of the respondent Municipal Board is collateral in nature and, therefore, no writ of quo warranto can be issued against him. The question No. 4 is intimately connected with the preliminary objections No. 1 and 2 raised by the learned Counsel appearing for the respondents and hence, I shall deal with them now.
20 It was contended by Mr. Bheem Arora, the learned Counsel appearing for the Respondents that this writ petition is not maintainable on the ground that the petitioner him failed to avail the alternate efficacious remedy available to him and, therefore, it deserves to be dismissed. Mr. Arora has submitted that c 13(5) provides that an order of suspension made or deemed to have been made under this Rule may at any time be revoked by the authority, which made or is deemed to have made the order or by any authority to which that authority is subordinate. Mr. Arora has submitted that in this case, the order of suspension Annexure-3 has been passed by the Executive Officer and so, a request could be made to him to revoke this order but no such request has been made. Actually, a request was made by the petitioner to the Administrator vide application Annexure-4 not to suspend him out instead of accepting his request, he has been passed under suspension vide Order Annexure-3. To has further submitted by Mr. Arora that the order of suspension is appeasable under Rule 13(2) of the Raj. Civil Services (Classification, Control and Appeal) Rules, 1958 which provides that a Government servant may appeal against an order of suspension as the authority to which the authority which made or is deemed to have made the order is immediately subordinate. He has, therefore, submitted that alternative efficacious remedy was available to the petitioner but he has failed to avail that remedy.
21. On the other hand, Mr. M. Mridul, the learned Counsel appearing for the petitioner has submitted that Rule 13(5) does not give any right to the petitioner to file a review petition before the reviewing authority to which the appointing authority is subordinate. The remedy is not available as of right but it is only an enabling provision. Mr. Mridul has submitted that the review has not been granted as of right and once the remedy cannot be availed as of right, that cannot be considered to be an alternate efficacious remedy. In this respect, reliance has been placed on a decision of the Patna High Court in Ranchi Club v. State , wherein it has been observed that the provision in Article 226(3) being a provision in exclusion of the jurisdiction has to be construed strictissimi juries The relevant enquiry for the purpose of such exclusion should be whether the enactment under which an order is made has provided a remedy equivalent to or amounting to a substantive right for the person aggrieved to have the locus stand at a prescribed forum and to be heard there as a matter of right, Such is not the case here. The remedy under Rule 13(5) is not a substantive remedy. It is only an enabling provision, which empowers the appointing authority or his superior to the review the order in suitable cases.
22. It has been held by a Division Bench of the My sore High Court in M. Bashav. C. Sultan AIR 1959 Mysore-17, that specific legal remedy much would bar a writ of certiorari can only mean that the petitioner must have a right to approach a court and be must have a right to a remedy if his case was just. In the case on hand, as observed earlier Rule 13(5) is an enabling provision and it does not concern any right as is conferred by rule, 22. The contention of Mr. Mridul is that the petitioners appointing authority is Municipal Board and respondent No. 3 Shri Bhanwarlal being the Administrator of the Municipal Board is his appointing authority. He has further submitted that although, his suspension Order (Annexure-3) has been passed by the Executive Officer, Municipal Board, Nagore and who is not his appointing authority and, therefore, it is not clear to whom the appeal can be made Section 310 of the Rajasthan Municipalities Act, 1959 deals with conditions of service of subordinate officers, Ministerial establishment and other servants. Section 310(3) provides that all persons appointed under Sub-section (1) or Sub-section (2) shall be under the control and supervision of the president of the Chairman, as the case may be, and Sub-section 310(5) lays down that a person appointed under Sub-section (1) or Sub-section (2) may be dismissed, removed o other wise punished in accordance with rules than obtaining by the appointing authority subject to a right of appeal from such dismissal, removal or punishment within the prescribed time limit, (i) to the State Govt. If the order appealed from is passed by a council or board, and (ii) to the council or board, if such order is passed by the Commissioner or Chairman Mr-Mridul has submitted that the impugned order Annexure-3 has been passed by the Executive Officer and his appointing authority is the Board and, therefore, it is not clear that the appeal against his suspension may lie to whom. In this respect, the contention of Mr. Arora is that the State Government has delegated its powers of hearing appeals to (he Regional Assistant Director Under Section 310(15) of the Rajasthan Municipalities Act, which is apparent from the judgment of this Court in Ratidhir Singh v. State of Rajasthan 1983 RLR-583, wherein in Para 6 of the Judgment there is a reference of the Government Notification be. F. 3(135) LSG/77-lV dated 21-1-1978 whereby the State Government has delegated its powers of hearing appeals Under Section 310(5) of the Sajastban Municipalities Act to the Regional Assistant Director.
23. Mr. Mridul has submitted that Section 310(5) of the Rajasthan Municipalities Act deals with the cases of dismissal, removal or punishment and not the cases of suspension. Although, ordinarily one who has right to hear the appeals against dismissal and removal can certainly bear the appeals against suspension also but an appeal against suspension has been provided separately under Rule 22 of the Rules but no such separate provision has been made in the Rajasthan Municipalities Act and the Rajasthan Municipal Service Rules or filing appeals against suspension of Municipal employee and as such, it is not specifically clear as to before whom it Will lie. At best, the petitioner can approach the Administrator for revocation of the order Annex-3 but that too will be against the principles of natural justice because he is already prejudice against the petitioner-The petitioner has already questioned the validity of his appointment as Administrator in this writ petition and therefore, the petitioner should not be forced to approach him in the peculiar facts end circumstances of this case. According to Mr. Mridul, the alternative remedy even if effective should not bar the writ jurisdiction in the facts and circumstances of this case. In this respect, Mr. Mridul while relying on an authority of their Lordships of the Supreme Court in Ranjit Thakur v. UIO has submitted that it is the essence of a judgment that it is made after due observance of the juridical process; that the Court or Tribunal passing it observes, at least the minimal requirements of natural justice is composed of impartial persons acting fairly and without bias and in good faith and a judgment which is the result of has or want of impartiality is a nullity and the trial ‘Coram non judicial’. Mr. Mridul has submitted that in this case, the Administrator has already taken decision to get him suspended in spite of his application requesting him cot to suspend him on account of a case in which cross beating took place between the two neigh hirers and That incident has no relation to the official business of the petitioner. As observed above, the petitioner has already challenged the appointment of respondent No. 3 Shri Bhanwar Lal as Administrator and naturally, he must be prejudiced against the petitioner and, therefore, in all fairness, the petitioner must not be forced to approach the Administrator. It will be against the principles of natural justice and unreasonable and improper in the facts and circumstances of this case.
24. Mr. Mridul, the learned Counsel appearing for the petitioner has further referred to the Authorities of this court in Gafoor v. RTA, Jaipur AIR 1976 Raj. 167; Nawal Kishore v. State of Rajasthan 1979 WLN WO 93 and Furshottam Singh v. UOI 1980 WLN 321, wherein it has been held that the objection that the petitioner had an alternative remedy does not survive when the writ petition had already been admitted and heard on the merits.
25. Reliance was further placed court decision of this Court in Udm Ram Naib Tehslldar Ratangarh 1958 RLW 241, wherein it has been observed at the High Court will not reject the applications on the ground that the applicants bad another remedy under some law when the remedy under that other law cannot be apparent from the orders and notices issued by the authorities concerned. In such cases, the court would not be prepared to hear the Officer who has been guilty of all these to say that though he never mentioned the law under which he was acting or the capacity in which he was acting, we should debar the third persons with whose rights he has meddled, now that he is telling this court the law under which he acted and the capacity in which he acted.
26. In Bhanwar Lal v. Municipal Board, Nagaur and Ors. 1987(1) WLN 690, it has been observed that there has been a flagrant violation of Section 25F of the Industrial Disputes Act and also discrimination has been made improperly between persons similarly situated the court is of the opinion that the alternative remedy even if available to the petitioner need not be a ground for refusing relief by this Court, specially when the matter had already been admitted after a show cause notice and arguments on merits have also been beard by this Court. Although, it is not a case which has been admitted so far but Jin view of the discussion made herein above I am firmly of the view that even if the alternative remedy was available to the petitioner as an effective remedy, this petition which has been heard finally in such great detail, after a show cause notice to the non-petitioners, cannot be thrown out on that ground.
27. Mr. Arora has next contended that this writ petition deserves to be dismissed on the ground of delay. This writ petition was filed on 1-8-1989 and, the impugned order Annexure-3 was passed on 29-7-1989 and, therefore, it cannot be said that this writ petition is belated. Therefore, this objection of Mr. Arora is over ruled.
28. It was a lastly argued by Mr. Mridul that in the facts and ctrcumstances of this case, the petitioner’s suspension should be revoked by this court. Mr. Mridul took me through the FISs as also the bail order passed by the Court below. Actually, it is a private dispute between the two neighbored and it has no bearing to the official conduct of the petitioner involving any moral turpitude. The offence Under Section 307 IPC was added after about one month of the incident. If the petitioner has tried to join his duties under one pretext or the other, that has not been made the basis of his suspension in this case. Thus, keeping in view all the facts and circumstances of this case, I am firmly of the view that the suspension of the petitioner deserves to be revoked.
29. The upshot of the entire discussion is that even if the alternative remedy was available to the petitioner, this petition which has been head finally after a show cause notice to the petitioner cannot be thrown out on this ground. It is further held that Rule 13(2) of the Rules provides for automatic suspension of a Govt, servant who has remained in custody for more than 48 hours on account of a criminal charge or otherwise and that order remains in force till it is revoked or otherwise set aside. The challenge to the appointment of respondent No. 3 Shri Bhanwarlal as Administrator of the respondent Municipal Board is collateral in nature and, therefore, no relief can be granted to the petitioner on that account. The petition in this case is not belated and hence both the preliminary objections raised by Mr. Arora are overruled. So far as the Order Aunexure-3 dated 29-7-1989 is concerned, it is an invalid order because it is retrospective in operation. However, it is no nest and superfluous and therefore, it is of no consequence. As the suspension of the petitioner is automatic, the invalidity of O der Annexures-3 will not effect his suspension. Thus, the order Annexure-3 deserves to be quashed as it is no nest and superfluous. The challenge to the appointment of Shri Bhanwarlal as Administrator of the respondent-Municipal Board is collateral in nature and, therefore, no writ of quo warranto can be issued to set aside the appointment of Shri Bhanwarlal as Administrator of the respondent Municipal Board.
30. In this result, this writ petition is partially allowed. The suspension of the petitioner from the date of his arrest cannot be quashed. The challenge to the appointment of respondent No. 3 Shri Bhanwarlal as Administrator of the respondent Municipal Board is collateral in nature and, therefore, no relief can be granted to the petitioner on that account. However, the respondents are directed to revoke the suspension of the petitioner forthwith and the petitioner be taken on duty within a period of fifteen days from today. He be paid his usual salary from the date he join his duties. The parties are directed to bear their own costs of this writ petition.