JUDGMENT

N.D. Ojha, J. - The petitioner is an employee of the State of U.P. and was working as Store-Keeper in the U.P. Government Roadways Central Workshop, Kanpur on 31st May, 1971 when he was suspended by means of the impugned order, a true copy of which has been attached as Anexure `A' to the writ petition. The case of the petitioner is that there was no entitling the respondent to suspend the petitioner.

2. In paragraph 10 of the counter-affidavit filed on behalf of the respondent it has been stated that the petitioner was involved in a criminal case under Sec. 409, I. P. C. in respect of shortage of stores under his charge and was placed under suspension on that ground. From the contents of this paragraph it also appears that the petitioner has been released on bail. It was further stated in paragraph 11 of the counter-affidavit and was also contended by the learned Standing Counsel that the order of suspension was justified both by Subsidiary Rules 199 and 200 framed under Fundamental Rules and Rule 49-A of the U.P. Civil Services (Classification, Control and Appeal) Rules.

3. It may be pointed out that in the case of State of Uttar Pradesh v. Ansar Husain, 1964 ALJ 141, it was held by a Division Bench of this Court that Subsidiary rules were meant to supplement the Civil Services (Classification, Control and Appeal) Rules and Fundamental Rules.

4. Learned counsel for the petitioner contended that Subsidiary rules will not apply to the petitioner and in this regard he placed reliance upon Rule of the Subsidiary rules and Rule 2 of the Fundamental rules. Rule 1 of the Subsidiary rules reads thus :

"These rules may be called the Subsidiary Rules. They apply to all Government servants who are subject to the rules in Part I or Part II of this Volume and are under the administrative control of the Governor. In the case of Secretary of State's officers, the application of these rules is subject to the provisions of Sec. 247 of the Act."

Rule 2 of the Fundamental Rules reads thus :

"These rules apply to all Government servants the condition of whose service have been or may be prescribed by the Governor under sub-sec. (2) (b) of Sec. 241 of the Act."

5. The Act referred to in the Subsidiary Rules as well as the Fundamental Rules is the Government of India Act, 1935. Petitioner's counsel urged that the subsidiary rules apply only to those Government servants who are subject to the Rules in Part I or Part II of the Financial handbook. We are not concerned with Part I in the instant case and since Part II of the Fundamental rules did not apply to the petitioner who according to the respondent's case was a temporary Government Servant, Subsidiary rules will not be applicable to him. In support of this argument reliance was placed on Rule 2 of the Fundamental Rules quoted above. It was submitted that Fundamental rules applied to only such Government Servants the condition of whose service have been or may be prescribed by the Governor under Sub-sec. (2) (b) of Sec. 241 of the Government of India Act, 1935. Referring to the said sub-sec. (2) (b) of Sec. 241 it was contended that it contained a proviso to the effect that it shall not be necessary to make rule relating the conditions of service of Government Servants employed temporarily whose employment could be terminated by giving a month's notice. Since in the instant case according to the respondent the services of the petitioner were temporary and liable to be terminated by giving a month's notice, Fundamental rules contained in Part II of the Financial Handbook could not be applicable to the petitioner, and a fortiori the Subsidiary Rules would not apply to him because of Rule 1 of the said rules.

6. I am not inclined to accept this argument. The Government of India Act has been repealed by Article 395 of the Constitution. In view of Article 367 of the Constitution the provisions of the General Clauses Act will apply and if Sec. 8 of this Act is applied we have, in place of the wo