IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.19489 of 2010 Pankaj Kumar Gupta, S/O Late Suryadeo Narayan Gupta, resident of village- Phateh Tola, P.O. & P.S. Tripolia, District- East Champaran at Motihari. ……… Petitioner Versus 1.The State Of Bihar 2.The Principal Secretary, Planning and Development Department, Govt. of Bihar, Patna, Old Secretariat 3.The Joint Director, Planning and Development Department, Govt. of Bihar, Patna, Old Secretariat 4.The District Magistrate, Siwan …….. Respondents ----------- 2. 15/04/2011 After filing of the writ application, respondents have issued one notification dated 25.11.2010, which has been brought on record as Annexure-4 with I.A.No.721 of 2011, praying therein for liberty to the petitioner to challenge the same. I.A. is allowed. Petitioner is granted liberty to challenge the said notification, as contained in Annexure-4 with the I.A. Heard learned counsel for the petitioner and Mr.Ajay, learned Standing Counsel No.11 for the respondents. From the impugned Annexure-4, it appears that the petitioner was taken into custody in connection with a substantive criminal case. He was released on bail on 18.9.2010. Thereafter, he submitted his joining on 20.9.2010. However, no order was passed on his joining and the 2 matter was referred to the Department for guidelines. Thereafter, by this impugned notification petitioner’s suspension has now been withdrawn, but with effect from 20.9.2010, the date on which he submitted his joining, and he has been put under suspension again from that very date in view of the fact that a departmental proceeding is pending against him and another substantive criminal case is also pending against him. Learned counsel for the petitioner submits that in view of Rule 9(3)(2) of Bihar Government Servant (Classification, Control and Appeal) Rules, 2005, respondents could not issue an order of suspension without accepting his joining. He also submits that in any case, they could not suspend the petitioner retrospectively from the date of submission of his joining. He also submits, in respect of the criminal case that the said case, which is said to be pending, has in fact already ended in acquittal of the petitioner. Learned counsel for the respondents submits that the suspension of the petitioner was not on the ground that previous criminal case was also pending against him, rather the 3 ground of suspension is that the departmental proceeding is pending against him on the charge that during custody in connection with the said criminal case he had withdrawn salary by forging the records. However, he does not deny that under the Rules any Government servant cannot be suspended retrospectively. Law is well settled by a number of judgments of the Apex Court that a suspension order cannot be with retrospective effect. Apex Court has held that in case such an order comes before a Court, the Court can always hold that the order will operate only prospectively i.e. from the date of issue of the order and previous period shall be treated as duty rendered by the Government servant. However, submission of learned counsel for the petitioner that without acceptance of joining no fresh order of suspension can be issued does not have much substance. The moment it is mentioned in the order that he is being released from suspension, that amounts to acceptance of his joining, even if that is not said in the order in so many words. In the circumstances, this Court directs the respondents to treat the joining of the 4 petitioner as accepted from 20.9.2010 itself, and treat the petitioner on duty and entitled for full salary and all allowances till the date of notification dated 25.11.2010. Since admittedly, departmental proceeding is pending against the petitioner, this Court refrains from interfering with the suspension order which of course will operate prospectively. The departmental proceeding pending against the petitioner shall be expedited and an early decision shall be taken in the same. The writ application is disposed of with the aforesaid observations and directions. Pradeep/ ( J. N. Singh,J.)