IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19753 of 2010 Smt.Dharamshila Kumari, W/o Sri Baldeo Prasad, resident of Mohalla- Ramchandra Pur, Biharsharif, District-Nalanda, at present Headmistress, Secondary School, Noorsarai, District- Nalanda …………. Petitioner Versus 1. The State of Bihar 2. The Director (Secondary Education), Bihar, Patna 3. The Regional Director of Education, Patna Division, Patna 4. The District Education Officer, Nalanda .. Respondents ----------- For the petitioner: Mr. R.K.Rajan, Advocate For the State: Mr. Nagendra Sharma, Ac to GP 8. ----------- 3. 11.7.2011 Heard learned counsel for the petitioner and learned counsel for the State. The petitioner seeks a direction upon the respondent-authorities to quash that part of the order dated 27.10.2010 by which while revoking the suspension of the petitioner during the pendency of the departmental proceedings, it has been directed that the regularization of the period of suspension shall be made after conclusion of the departmental proceedings. The short facts of this case are that the petitioner was suspended in anticipation of departmental proceedings by order dated 15.1.2010. Thereafter when the charge was not framed within three months, he approached this Court by filing CWJC 2 No. 8086 of 2010 which was disposed of by order dated 29.9.2010 in which it was held that if the charges had not been framed within three months of the order of suspension, the suspension would be deemed to have been revoked. By the impugned office order dated 27.10.2010 issued by the Director (Secondary Education), Bihar the suspension of the petitioner was revoked but it was directed that the period of suspension shall be regularized after the conclusion of the departmental proceedings. The petitioner is aggrieved with the last part of the order. It is submitted by learned counsel for the petitioner that the respondent-authorities are obliged to pass order under Rule 11(1) of the Bihar Government Servants (Classification, Control and Appeal) Rules, 2005 without waiting for the conclusion of the departmental proceedings, once the order of suspension has been revoked. He refers to Sub-Rule (5) of the said Rules in this regard. Learned counsel for the State, on the other hand, submits that the departmental proceeding itself having remained pending, no such order is required to 3 be passed in this regard and only after conclusion of the departmental proceedings, any such order for making payment of any further pay and allowances to the petitioner, apart from subsistence allowance, can be passed. For determination of the aforesaid issue, it may be useful to quote Rule 11 of the Bihar Government Servants (C.C.A.) Rules, 2005 which is in the following terms:- “11. Treatment of service on reinstatement and admissibility of pay and allowances after suspension.-(1) When a government servant under suspension is reinstated or would have been so reinstated but for his superannuation while under suspension, the disciplinary authority shall consider and make specific order regarding the following – (a) the pay and allowances to be paid to the government servant for the period of suspension ending with reinstatement or the date of his retirement on superannuation, as the case may be, and (b) whether or not the said period shall be treated as a period spent on duty. (2) Notwithstanding anything contained in Rule-10 of these Rules, where a Government Servant under suspension has died before the disciplinary or court 4 proceedings instituted against him are concluded, the period between the date of suspension and the date of death shall be treated as on duty for all purposes and his family shall be paid the full pay and allowances for that period to which he would have been entitled had he not been suspended. While making such payment adjustment shall be made in respect of subsistence allowance and other allowances already paid and the adjustment of Government dues or loans. (3) Where the disciplinary authority is of the opinion that the suspension was wholly unjustified, the Government Servant shall, subject to the provisions of sub-rule (8) of this Rule, be paid such full pay and allowances to which he would have been entitled, had he not been suspended. While making such payment adjustment shall be made in respect of subsistence allowance and other allowances already paid: Provided that where such authority is of the opinion that the termination of the proceedings instituted against the Government Servant had been delayed due to reasons directly for which the Government Servant is liable, it may, give the Government Servant an opportunity to make his or her representation and consider the representation, if any, submitted by him or her. After that it may direct, for reasons to be recorded in writing, that the Government Servant shall be paid for the period of such delay only such proportion of such pay and allowances as may be determined by it. (4) In cases falling under sub-rule (3) of this Rule, the period of suspension shall be treated as a period spent on duty for all purposes. 5 (5) In cases other than those falling under sub- rules (2) and (3) of this Rule, the Government Servant shall subject to the provisions of sub-rules (8) and (9), be paid such proportion of the full pay and allowances to which he would have been entitled had he not been suspended, as the disciplinary authority may determine. Such determination by the disciplinary authority shall be done after giving notice to the Government Servant of the quantum proposed and after considering the representation, if any, submitted by him in that connection within sixty days from the date on which notice aforesaid is served on the Government Servant. (6) Where suspension is revoked pending finalization of the disciplinary proceeding or proceedings in a Court, any order passed under sub-rule (1) of this Rule before the conclusion of the proceedings against the Government Servant, shall be reviewed on its own motion after the conclusion of the proceedings by the disciplinary authority and an order shall be made by him in accordance with the provisions contained in sub-rule (3) or sub-rule (5), as the case may be. (7) In a case falling under sub-rule (5) of this Rule the period of suspension shall not be treated as a period spent on duty, unless the disciplinary authority specifically directs that it shall be the period spent for any specified purposes. (8) The payment of allowances under sub-rule (2), sub-rule (3) or sub-rule (5) of this Rule shall be subject to all other conditions under which such allowances are admissible. (9) The proportion of the full pay and 6 allowances determined under the proviso to sub-rule (3) or under sub-rule (5) of this Rule shall neither be equal to full pay and allowances nor shall it be less than the subsistence allowance. From a perusal of the said Rule it is evident that it has made some changes vis-à-vis the provisions of Rule 97 of the Bihar Service Code in this regard. It is also to be noticed that under Rule 9 of the said Rules, the provision has been made for stricter compliance within the given time frame required for the framing of charges in a departmental proceeding failing which there are provisions of automatic revocation of suspension. Although Sub-Rule (1) appears to be in the same terms as Rule 97(1) of the Bihar Service Code but the same must be read along with sub-Rule (6) of Rule 11 which provides that where suspension is revoked pending finalization of the disciplinary proceeding or proceedings in a Court, any order passed under sub-Rule (1) of the Rules, before conclusion of the proceedings against the Government servant, shall be reviewed on its own motion after the conclusion of the proceedings by the disciplinary authority and an order shall be made in accordance with the provisions 7 of sub-Rule (3) or sub-Rule (5), as the case may be. The very existence of sub-Rule (6) makes it clear that the moment the suspension of the Government servant is revoked pending the continuation of departmental or court proceedings then the disciplinary authority is obliged to pass order under sub-Rule (1). However, it is made clear that the said order shall not be a final and conclusive order but would be subject to any fresh order that the disciplinary authority may pass after conclusion of the disciplinary or court proceedings. In the aforesaid view of the matter, it was not open to the disciplinary authority to have held in the impugned order dated 27.10.2011 that the regularization of the period of suspension shall be made after the conclusion of the disciplinary proceeding against the petitioner. The Director, Secondary Education was obliged to have passed an order under sub-Rule (1) of Rule 11 in accordance with the procedure laid down in sub-Rule (5) of that Rule, in case he did not intend to pass an order under sub-Rule (3) thereof. In the light of the aforesaid discussions, the 8 writ application is allowed. The last part of the order dated 27.10.2010 is quashed and the respondent Director, Secondary Education is directed to pass an order under Sub-Rule (1) of Rule 11 and in accordance with the other provisions of the said Rules. Let the order be passed within a period of six weeks from the date of receipt/production of a copy of this order. It is however, made clear that any such order that is passed, would be subject to a review on his own motion, if required, by the Director, Secondary Education, after the departmental proceeding is concluded. S.Pandey ( Ramesh Kumar Datta, J.)