Court No. - 29

Case :- SPECIAL APPEAL No. - 149 of 2021

Appellant :- Nilansh

Respondent :- The Secretary In Charge / Amin - Auctioner And 4 Others

Counsel for Appellant :- Mayank Kumar Agrawal

Counsel for Respondent :- Archit Mandhyan

Hon'ble Munishwar Nath Bhandari,Acting Chief Justice

Hon'ble Piyush Agrawal,J.

Heard Shri Mayank Kumar Agrawal for the petitioner -

appellant and Shri Adarsh Bhushan for the respondents.

By this appeal, a challenge is made to the judgement dated

16.03.2021; whereby, the writ petition, preferred by the

petitioner, was disposed of without causing interference in the

order of suspension, so as the charge sheet.

Learned counsel for the appellant submits that the suspension

order, so as the charge sheet, were not by the competent

authority as per Rule 7 of the Uttar Pradesh Government

Servant (Discipline & Appeal) Rules, 1999 (hereinafter referred

to as, 'the Rules of 1999'). The petitioner - appellant was

appointed as Class - IV servant and for him, the competent

authority was the Secretary of Mandi Samiti. The order of

suspension, so as the charge sheet, has been issued by the

officiating Secretary. According to the learned counsel for the

appellant, the order of suspension and service of charge sheet

could have been issued by a regular Secretary and not by

officiating. The officiating Secretary cannot be considered to

be the Secretary. In view of the above, the order of suspension

as well as the charge sheet should have been quashed by the

learned Single Judge. The learned Single Judge, however,

refused to cause interference in the suspension and the charge

sheet, only for the reason that during the pendency of the writ

petition, the petitioner - appellant was served with the charge

sheet containing ten charges. The writ petition was amended to

challenge the charge sheet also.

The order does not specify the reason of suspension and

otherwise, not shown to be in contemplation of any action

against the petitioner. An unreasoned order should have been

interfered by the learned Single Judge and accordingly, the

prayer is to cause interference in the order of suspension on this

ground also.

The reference of the Rule has been given to indicate

competence of the authority for passing the order of suspension

as well as for issuance of the charge sheet. The prayer is to

cause interference in the judgement of the learned Single Judge

and accordingly, it be set aside, along with the order of

suspension, so as the charge sheet.

We have considered the submissions made by the learned

counsel for the petitioner - appellant and perused the record.

The facts brought before the Court show that the petitioner -

appellant was appointed as Class - IV servant on compassionate

ground on 01.03.2019. It is not in dispute that the appointing

authority is the Secretary of the Mandi Samiti. The petitioner -

appellant was, initially, appointed on probation for one year.

The period of probation was extended by another one year, even

before the expiry of it. The challenge to the aforesaid was

made; however, we are not required to travel on those facts

because what has been challenged is the order of suspension

and the charge sheet on two grounds.

The first ground is about the competence of the authority to

issue the order of suspension and the charge sheet. The charge

sheet as well as the order of suspension has been issued by the

Secretary of Mandi Samiti, but according to the petitioner -

appellant, it should have been by a regular Secretary and not by

officiating. We do not find any bar under the Rules of 1999 that

an officiating or temporary Secretary cannot issue charge sheet,

even though he is discharging regular duties of the post. The

nature of appointment of the disciplinary authority has not been

specified under the Rules of 1999. It may be officiating,

temporary or regular. It is not on record that the Offic