The requirement of reviewing suspension orders within 90 days, as mandated by the Assam Services (Discipline and Appeal) Rules, 1964, applies to deemed suspensions as well, and failure to conduct the review within the stipulated time renders the suspension and its continuation unsustainable in law.

JUDGMENT :

N. KOTISWAR SINGH, J.

1. The present appeal has been preferred against the order dated 28.11.2019 passed by the Ld. Single Judge in WP(C) No. 8229/2019 by which the Ld. Single Judge set aside the suspension order dated 15.06.2019 of the respondent [writ petitioner in WP(C) 8229/2019] and the subsequent notifications dated 08.11.2019 and 27.11.2019, continuing the suspension as being not sustainable in law, on the ground that there was no review of the suspension within 90 (ninety) days from the date of suspension but the review was held after 145 (one hundred and forty five) days which was not permissible.

2. The writ petitioner/respondent herein was appointed as an Agricultural Development Officer, Govt. of Assam on the recommendation of the Assam Public Service Commission (APSC) vide order dated 17.03.2016 and was posted at Bengtol Circle, Chirang under the BTC, Kokrajhar.

3. On a complaint made by one of the unsuccessful candidates in the selection process for the said post, an FIR was lodged in the Bhangagarh Police Station, which was registered as Bhangagarh Police Station Case No. 159/2017 under Sections 120(B)/420/468 of the IPC read with Sections 7/13(1)(a)(d)(iii)/13(2) of the Prevention of Corruption Act, 1988 and the petitioner was arrested in connection with the said case on 09.05.2019 and was detained in custody for more than 48 (forty eight) hours. Though the petitioner was subsequently released on bail on 26.07.2019, as his detention was for more than 48 hours, he was deemed to be placed under suspension and in fact, to that effect an order was passed on 15.06.2019 in exercise of powers conferred under Section 6(2) of the Assam Services (Discipline and Appeal) Rules, 1964 with effect from the date of his arrest on 09.05.2019.

4. The petitioner remained under suspension and his suspension was extended by a subsequent notification issued on 08.11.2019 for another 3 (three) months w.e.f. 09.08.2019 and thereafter, again by another notification dated 27.11.2019 for further 3 (three) months' period w.e.f. 09.11.2019.

5. The aforesaid suspension order dated 15.06.2019 and the extension of the suspension order dated 27.11.2019 were put to challenge before this Court in the aforesaid writ petition, WP(C) No. 8229/2019.

6. The Ld. Single Judge after discussing the law in this regard, allowed the writ petition, W.P.(C) No. 8229/2019 by setting aside the suspension order as well as the extension of suspension order by subsequent orders.

7. The Ld. Single Judge, while coming to the aforesaid conclusion had relied on the decision of the Hon'ble Supreme Court in Ajay Kumar Choudhuary v. Union of India, (2015) 7 SCC 291 by holding that the suspension order requires to be reviewed before expiry of 90 (ninety) days and the subsequent review must be also held before expiry of extended period of suspension and if the said exercises are not undertaken, such suspension order will be liable to be set aside.

8. In the present case, the Ld. Single Judge noted that though the writ petitioner was placed under suspension vide order dated 15.06.2019, no review was held before expiry of 90 (ninety) days and the subsequent review of the suspension was held after 145 (one hundred forty five) days, which according to the Ld. Single Judge, was not permissible.

9. Ld. Single Judge also noted the submission made on behalf of the State Government that the State Government had granted prosecution sanction vide order dated 24.10.2019 and as such, considering the gravity of the charge against the petitioner, the review for continuation of the suspension was made after sanction was granted and as such, it may not be appropriate to set aside the suspension order.

10. Ld. Single Judge took note of the aforesaid submission and held that since neither the suspension order was reviewed before expiry of 90 (ninety) days nor the memorandum of charges were served to the petitioner within 90 (ninety) days, suspension order dated 15.06.2019 can no longer be val