Court No. - 19
Case :- WRIT - A No. - 5096 of 2019 Petitioner :- Rashtriya Inter College, Muzaffarnagar, And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Nipun Singh Counsel for Respondent :- C.S.C.,Arun Kumar Rana
Hon'ble Saurabh Shyam Shamshery,J.
Petitioner No.1 - Rashtriya Inter College, Shahpur, Muzaffarnagar through its Principal and petitioner No.2 - the Principal of said college have approached before this Court by way of filing the present petition challenging the order dated 16.11.2018 passed by respondent No.2 - District Inspector of Schools, Muzaffarnagar whereby the suspension order of respondent No.3 dated 1.11.2017 was revoked/quashed in purportedly exercise of appellate jurisdiction. This Court, on 4.4.2019, passed the following order :-
"Learned counsel for the petitioner places reliance upon a Full Bench judgment of this Court reported in Rishikesh Lal Srivastava Vs. State of U.P. and others reported in 2009 (9) ADJ 361 to submit that no interference against an order of suspension passed against a Class-IV employee would be possible at the level of the Inspector and it is only against a final order that the authority can intervene. Submission is that the order of Inspector, impugned in the present writ petition, is wholly without jurisdiction.
Learned Standing Counsel may obtain instructions in the matter. Post as fresh on 11.4.2019."
On 11.4.2019, this Court has passed a detailed order as respondent No.2 has acted contrary to the law as settled by this Court in "Rishikesh Lal Srivastava vs. State of U.P. and others" reported in 2009 (9) ADJ 361 whereby it has been reiterated that the D.I.O.S concerned can only decide in his appellate jurisdiction the final order whereas admittedly the suspension order, which has been revoked by him is an interim order and not a final one.
By the said order, this Court has asked D.I.O.S, Muzaffarnagar to file a personal affidavit along with his personal appearance to explain why he has committed an error even when the matter was remanded back. The relevant part of the order is quoted hereinafter :-
This Court while entertaining the instant petition after noting the contention of counsel for the petitioner as well as judgement of the Full Bench, directed the learned Standing Counsel to obtain instructions in the matter by order dated 4.4.2019.
In compliance of the said direction, instructions has been furnished to learned Standing Counsel by the District Inspector of Schools, wherein he has reiterated the stand taken in the impugned order, without adverting to the observations made in the order passed on 4.4.2019.
Let respondent no.2 appear before this Court on 29.4.2019 and explain as to under which provision of law he has exercised the power in passing the order impugned herein. He shall file his personal affidavit in this regard.
List on 29 April 2019 as a fresh case.
Learned Additional Chief Standing Counsel Sri R.P. Dube shall communicate this order to the concerned respondent to ensure its due compliance.
Today, a personal affidavit of Shri Praveen Kumar Mishra, presently posted as D.I.O.S, Muzaffarnagar has been filed after serving a copy to the other parties. The said affidavit is taken on record.
Shri Praveen Kumar Mishra, D.I.O.S. is present is person today in the Court.
In paragraphs No.9 and 10 of the personal affidavit, the D.I.O.S. tendered the apology. For reference, paragraphs No. 9, 10 and 13 are reproduced hereinafter :-
9. That in this connection it is stated here that the deponent is tender his unconditional apology in passing impugned order dated 16.11.2018 and assured this Hon'ble Court that no such type of mistake or blunder be committed by the deponent in future.
10. That with the leave of the Court, the deponent be permitted to withdraw the impugned order dated 16.11.2018 passed by deponent and permitted to pass an order after giving opportunity of hearing to parties concerned.
13. That due to some much misunderstanding the deponent has committed blunder in passing the impugned order dated 16.11.2018 (Annexure-1 to the writ petition) treating the said application as Appeal. In fact it should not be done by the deponent and in place thereof the said application to be treated under Regulation 39 (3) of Chapter - 3 of the Regulations framed under U.P. Intermediate Education Act, 1921 and order passed under said Regulation 39 (3).
In view of the above, the Court is satisfied with the explanation of D.I.O.S. and the apology has been accepted.
Heard Shri Nipun Singh, leaned counsel for the petitioner, Shri R.P. Dubey, learned counsel appearing on behalf of respondents No.1 and 2, Shri Arun Kumar Rana, learned counsel appearing on behalf of respondent No.3 and perused the record.
There is no dispute among the Advocates, the legal position which has been narrated in the order passed by this Court on 11.4.2019 is that the suspension order cannot be revoked by the D.I.O.S. concerned under the provisions of Chapter II of Regulation 13 of U.P. Intermediate Education Act, 1921 which is also clear from the judgment passed in Rishikesh Lal Srivastava (Supra).
Accordingly, the order impugned in the present writ dated 16.11.2018, annexed as Annexure no.1 to this petition, is set aside and the suspension order dated 1.11.2017 is hereby restored.
At this stage, learned counsel for respondent No.3 submits that he is in suspension since 1.11.2017 and till date, no inquiry has been completed. He further submits that respondent No.3 is always ready to co-operate with the inquiry.
Learned counsel appearing on behalf of the Management submits that all endeavour be taken to complete the inquiry within a period of three months from today. It will be appreciated that both the parties will co-operate to complete the inquiry.
With the aforesaid observations, the petition is allowed.
Order Date :- 29.4.2019 Rishabh