1 S.B.CIVIL WRIT PETITION NO. 9939/2008 Tej Karan Vs. State of Rajasthan & Anr. Date of Order :: 18.11.2009 HON'BLE MR. JUSTICE GOVIND MATHUR Mr. V.K. Mathur, for the petitioner/s. Mr. Hemant Choudhary, for the respondents. ... As a consequent to registration of a criminal case for the offences punishable under Section 7 and 13(1)(d) of the Prevention of Corruption of Act, 1988 read with Section 120B IPC, the petitioner, a Patwari was placed under suspension by the Commissioner Colonization, Bikaner vide order dated 5.8.2006, passed while exercising powers under Rule 13 (1)(b) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (herein after to be referred to as the Rules of 1958). A challenge to the order aforesaid was given by the petitioner by way of filing a petition for writ (SBCivil Writ Petition No.1575/2008) and that came to be decided on 5.3.2008 in following terms: “Learned counsel for the petitioner wants to submit representation pursuant to the Circular issued by the Government for review of order of suspension on every six months basis. The present writ petition is disposed of in view of the liberty sought. If representation is made by the petitioner, the respondents are directed to consider and decide the same within a period of two months from the date of receipt of representation.” 2 In view of the liberty granted under the order dated 5.3.2008 the petitioner submitted a detailed representation to the Principal Secretary, Government of Rajasthan, Department of Colonization on 17.4.2008 and that came to be rejected on 7.7.2008. The Commissioner Colonization while rejecting claim of the petitioner made under the representation referred above observed that as per the Government of Rajasthan order dated 10.8.2001, if a public servant is arrested red- handed in a case relating to acceptance of bribe/illegal gratification he should be placed under suspension without any exception, and as such, suspension of petition was maintained. Being aggrieved by the order dated 7.7.2008 this petition for writ is preferred on various grounds, including that the powers under Rule 13(1)(b) of the Rules of 1958 are always required to be exercised with adequate application of mind by the authority empowered to exercise such powers, and in the instant case the competent authority without proper application of mind, just by acting upon the Government of Rajasthan order dated 10.8.2001 placed the petitioner under suspension vide order dated 5.8.2006 and also affirmed the same by the order dated 7.7.2008. To substantiate the contention reliance is placed by the petitioner upon judgment of this Court in the case of Samrath Singh Vs. State of Rajasthan & Anr. (SBCivil Writ Petition No.8249/2007) decided on 30.9.2009 wherein while taking into consideration the circular dated 10.8.2001 this Court held as under: 3 “Sub-rule(1) of Rule 13 empowers competent authority with a broad discretion to place a government servant under suspension in the event of contemplation of pendency of disciplinary proceedings or where a case against him in respect of criminal offences under investigation or trial. The Government of Rajasthan by circular dated 10.8.2001 provided certain instructions to the competent authorities to exercise powers under Rule 13 referred above. As per circular dated 10.8.2001, it is clarified that if a public servant is caught red- handed accepting bribe by the Anti Corruption Bureau, then he should be placed under suspension without any exception and the suspension of such public servant should not be revoked till his exoneration by the competent court. The circular further provides that in any case where sanction is granted for prosecution of a public servant in a case relating to corruption, such public servant should be placed under suspension compulsorily and that should not be revoked till pendency of criminal case before the court concerned. According to circular dated 10.8.2001 a public servant should be mandatorily placed under suspension, if a challan has been filed before the competent court by the prosecution against him relating to the offences of murder, dowry, dowry death, rape and other offences involving moral turpitude and the public servant placed under suspension for the reasons aforesaid should be continued as such till his exoneration. It is pertinent to note here that the circular in question at the one hand restricts discretion of the competent authority as given under Rule 13 to place an incumbent under suspension and at the same time also snatches away the power of the competent authority to revoke such suspension as prescribed under Rule 13(5) of the Rules of 1958. True it is, suspension of a civil servant is an administrative action and the government is having ample power to provide necessary guidelines to the competent authorities for exercising powers as per Rule 13, but at the same time it is also well settled that the administrative instructions can always 4 be given to fill up the unoccupied field, however, such instructions in no way encroach the space already under occupation of an statute. In the present case the circular dated 10.8.2001 nowhere provides instructions to the competent authority as to how powers under Rule 13 are required to be exercised, but it imposes mandate upon the discretion of the competent authority. Such imposition of a mandate over statutory discretion is not permissible under administrative jurisprudence. The State Government would have been right in providing guidelines or a mode to exercise discretion under Rule 13 of the Rules of 1958. The State Government could have given instances and instructions to the competent authority to exercise its discretion to place an incumbent under suspension in particular circumstances but not an order to place government servant under suspension mandatorily in specific cases. It is for the competent authority to examine facts of each and every case and to settle desirability to place an incumbent under suspension by applying objective discretion. The suspension of an employee, looking to the facts and circumstances of the case may be desired urgently or on emergent basis but in those circumstances also the competent authority must record its satisfaction for exercising powers under Rule 13. If such satisfaction is not recorded and suspension is made merely on basis of the instructions given in circulars or merely by a word of mouth or by slip of pen, then that is nothing but colourable exercise of power.” In the present case from recital of the order dated 7.7.2008 it is apparent that the petitioner was placed under suspension ipse dixit by relying upon the circular dated 10.8.2001. From record of the respondents it does not reveal that the appointing authority/the authority empowered to place the petitioner under suspension applied its mind while issuing the order dated 5.8.2006 as required to do so. 5 Sh. Hemant Choudhary, learned counsel for the respondents, in pursuant to the order dated 20.10.2009 has made available the record wherein case of the petitioner was considered for his placement under suspension and also where the review application submitted by the petitioner was considered and rejected. From examination of the record aforesaid it reveals that suspension of the petitioner was made on receiving information regarding lodging a criminal case against him and that was done in light of circular dated 10.8.2001. In the case of Samrath Singh (supra) this Court examined necessary requirements to exercise powers under Rule 13(1)(d) of the Rules of 1958 and held that the competent authority is required to examine facts of each case independently to settle desirability of placeing a government servant under suspension. Such a desirability and reasons, though are not required to be communicated to the government servant, but those should be recorded by the competent authority while exercising power under Rule 13 (1)(d) of the Rules of 1958. As said above in the instant case adequate application of mind by recording reasons to place the petitioner under suspension is conspicuously absent, and therefore, in view of the law laid down by this Court in the case of Samrath Singh (supra) this petition deserves acceptance. Accordingly, the same is allowed and further continuation of the petitioner under suspension in pursuant to the order dated 5.8.2006 is 6 declared unwarranted. The respondents are directed to revoke suspension of the petitioner forthwith, however, it shall be open for the competent authority to examine all the existing circumstances and need to place the petitioner under suspension by proper exercise of the powers as per Rule 13 of the Rules of 1958. If the suspension is at all necessary in interest of service the respondents may do so. (GOVIND MATHUR), J. Jgoyal '