- (1.)CHALLENGE in tlu's original petition against an order of suspension issued by the 2nd respondent, the Commissioner and Secretary to vigilance (D) Department, against the petitioner's is mainly on the ground that the 2nd respondent has no jurisdiction to issue the order. The 1st petitioner is an Executive Engineer and 2nd petitioner is a Head Draftinan in Puhlic Works department under the 1st respondent. During the period 1991-92 and 1992-93 respectively the petitioners were working in the Integrated Tribunal Development Project (I. T. D. P. ). They were posted to the project, as the project was undertaken by the Public Works department. Under Ext. P1 order dated 2 J-10-1994, which is under challenge in lliis original petition, petitioners were placed under suspension with immediate effect pending investigation and disciplinary action against them on the allegation that they abused their official position and committed grave irregularities and malpractices in the execution of second reach of poduvayal-Ainbannoor road, Pudur Panchayat and misappropriated an amount ol'rs. 12,923/- with the active help and connivance of the Convenor of the work. Ext. P1 order has been issued by the Commissioner and Secretary to Government, Vigilance Department.
(2.)PETITIONERS would contend that the order of suspension is bad for two reasons, viz. , the order has been issued by an authority, which has no jurisdiction to issue the order as per the provisions contained under rule 10 of the Kerala Civil Services (Classification, Control and appeal) Rules and that no public interest would be served by the suspension of the petitioners. Relevant portion of Rule 10 reads as follows: - "10. Suspension- (1) The appointing authority or any authority to which it is subordinate or any other authority empowered by the government in that behalf may at any time place a Government servant under suspension, a) where a disciplinary proceeding against him is contemplated or is pending; or b) where a case against him in respect of any criminal offence is uiider investigation or trial; or c) where final orders are pending in the disciplinary proceeding. if the asppropriate authority considers that in the then prevailing circumstances it is necessary in public interest, that the government servant should be suspended from service". PETITIONERS contend that the Secretary to Government, vigilance (D) Department is neither the appointing authority nor an authority to which it is subordinate. The appointing authority is the Government and since the petitioners are members of service under the Public Works Department, orders are to he issued by the 3rd respondent, the Secretary to Public Works department, Government of Kerala. He is also not an authority empowered by the government in mat behalf as contemplated by Rule 10. Ft is further contended that an amendment to the Rules of Business of the Government of Kerala under g. O. (MS) No. 169/94/gad dated 23-4-1994 produced as Ext. R2 (a ) along with the counter affidavit of the 2nd respondent docs not amount to empowerment as-envisaged by Rule 10. Learned Counsel appealing on behalf of the petitioners pointed out several notifications issued under sub-rule (1) of Rule 10 of the kerala Civil services (classification, Control and appeal) Rules, 1960 empowering officers other than those who comes under the I st and 2nd part of sub-rule (1) of Rule 10. He contends that no such notification has been issued by the Government in exercise of its power under sub-rule (1) of Rule 10 empowering the 2nd respondent to issue an order of suspension against the petitioners. According to the petitioners, Ext. R2 (a ) is no substitute for a notification to be issued in exercise of the powers under sub-rule (1) of Rule 10 of the Kerala Civil Services (Classification, Control and appeal) Rules. These mles are issued under Art. 309 of the Constitution of India, where as Ext. R2 (a ) has been issued in exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution by the Governor of kerala. He further contends that going by the provisions contained under Rule 10 of the Kerala civil Services (Classification, Control and appeal) Rules the 2nd respondent cannot have any jurisdiction to issue Ext. P2 order and that if mere is a conflict between the mles issued under Art. 309 of the Constitution and Art. 166, then the rules issued under Art. 309 shall prevail. In support of the above contentions petitioners rely on two decisions.
In O. P. No. 18372/94 the question arose whether an officer who was empowered under the proviso to Rule 3 to impose certain penalties like censure, withholding of increments, recovery from pay etc. can pass an order of suspension under sub-rule (1) of Rule 10. A learned judge of this Court took the view that a notification authorising an officer to impose penalties specified in (i) and (iii) to (viii) or Rule 11 (1) of Kerala Civil services (Classification, Control and appeal ) Rules will not confer on him the authority to pass an order of suspension under Rule 10. Petitioner relies on this decision in support of his contention that without a specific notification under Rule 10 the 2nd respondent cannot be authorised in any other manner to issue an order of suspension. A decision of the apex Court in State ofharyana v. Shri. P. C. Wadwa, IPS, Inspector General of police and another, AIR 1987 SC 1201, is relied on by the petitioners in support of their contentions that the Rules of Business framed under Art. 166 cannot override the provisions of statutory rules.

I find no merit in the contention of the petitioners that the 2nd respondent has no jurisdictiontoissueext. P1. admittedly, the government is the appointing authority in the case of the 1st petitioner. As far as the 2nd petitioner is concerned Government is a superior authority to the appointing authority. Therefore, petitioners cannot have any complaint, if the order of suspension is issued by the Government, Rule 4 of the Rules of business of the Government of Kerala issued by the Governor of Kerala in exercise of his powers under clauses (2) and (3) of Art. 166 of the Constitution of India provides that the business of the Government shall be transacted in the departments specified in the First Schedule, and shall be classified and distributed between those departments as laid down therein. Petitioners concede that the order of suspension can be issued against them by the 3rd respondent, secretary to Government Public Works Department. The 3rd respondent is thus enabled to pass such an order only because of the specific allocation of the business of the Government as per the First Schedule issued under Rule 4 of the rules of Business of the Government of Kerala. Ext. R2 (a ) is an amendment to the very same rules. By such amendment the following business of the Government viz. , issuance of orders sanctioning prosecution of a public servant under, the code of Criminal Procedure, 1973 (Central Act 2 of 1974) or and the Prevention of Corruption Act, 1988 (Central Act 49 of 1988) placing him under suspension and finalising the disciplinary proceedings against him under the relevant rules and orders in pursuance of a vigilance enquiry contemplated/ initiated against the public servant has been allocated to the Vigilance Department. Such allocation empowers the 2nd respondent to issue the impugned order.

(3.)THE two decisions relied on by the petitioners cannot have any application in the present case. In O. P. No. 13372/94 this Court had held that a notification issued under Rule 13 of THE Kerala Civil Services (Classification, Control and appeal) Rules cannot be a substitu to for a notification under Rule 10 (1 ). THE authorisation given under Rule 13 was to impose certain penalties specified in items (i) and (iii) to (viii) of Rule 11 (1) on-members of the State Services. It is therefore clear the notification does not and cannot authorise an officer to exercise the power of suspension under Rule 10. This decision js of no help to the petitioners. In AIR 1987 SC page 1201 (Supra) the question which came up for consideration was whether the state Government was justified in specifically empowering the Home Secretary as the reporting authority for the purpose of writing a confidential report instead of Inspector General of Police. Under the rules framed by the Central government in exercise of its power under S. 3 of the All India Services Act, 1951, it was provided that the reporting authority means the authority who was during the period for which the confidential report was written immediately superior to the member of the Service and such other authority as may be specifically empowered in this behalf by the Government. THE Supreme Court took the view that the expression 'immediately superior' indicates that the reporting authority should be the immediate superior officer in the same service to which the member of service belongs. After interpreting the provisions contained in Ss. 3 and 4 of the Police Act, 1861 and Rule 1 and 2 of the Punjab Police Rules, 1934, it was held that the administration of police throughout a general police-district shall be. vested in the Inspector General of Police who is the Head of the Police Department. THErefore, there is no immediate superior officer to him in the police service. THEn the question arose whether the State Government can specifically empower any authority to be the reporting authority of the Inspector General of Police under the second part of clause 254 Nilhyariandan v. State of Kerala (Uslm, J.) 1995 (2) (e) of Rule 2 of the Rules framed by the central Government under All India Services Act, 1951. THE Supreme Court took the view thai State Government can specifically empower only such authority as the reporting authority as is superior in rank to the Inspector General of police. Reliance was placed on the Business of the Haryana Government (Allocation) Rules, 1974 on behalf of State of Haryana in support of its action in empowering Home Secretary as the reporting authority in the case of inspector General of Police. . It was contended that as per the Rule the Home secretary being the head of Home Department and as the Police Department has been placed under the Home Department, the Home Secretary must necessarily be the head of the Police Department. THE Supreme Court took the view that under R. 4 of the Business Rules Secretary of each department of the Secretariat is the head of the Department and thus the Secretary of Home Department may be the head of Home Department enabling him to conduct the business of the Government in respect of Police Department. But he does not thereby become head of the police Department. It was further held that the Rules of Business even though framed under Art. 166 cannot override the provision contained under the Police Act and the Rules framed therein in accordance with which inspector General of Police, Haryana is the head of the Police Department. THE immediate authority superior to the Inspector General of Police is Minister in-charge of the Police Department and the only authority who could be specifically empowered as the reporting authority in regard to the Inspector general of Police under Cl. (a) of R. (2) of therulesis the Mi nisler-in-charge and the Chief Minister being superior to the Minister-in-charge. In acting as the reporting authority the Minister-in-charge may be assisted by the Home secretary, but the confidential report relating to the performances of the inspector General of Police has to be written by the Minister-in-charge. THE decision of the High Court of Punjab and Haryana quashing the confidential rep?) rt of thel. G. of Police written by the then Home Secretary was upheld by the supreme Court. This decision also, I am afraid, is of no help to the petitioners. As mentioned earlier, according to the petitioners, it is the 3rd respondent viz. , Secretary to Public Works Department who has the power to issue order of suspension representing the appointing authority, viz. ,government. For 3rd respondent is enabled to do so not by way of a notification under Rule 10 (1) of the Kerala Civil Services (Classification, control and appeal) Rules. THE allocation of the business of the Government by which the Secretary, Departments of Public Works was enabled to issue such an order is under the Rules of Business of the Government of Kerala and not under any other enactment or statutory rule. Thus, amendment to the Rules of Business of the Government of Kerala as evidenced by Ext. R2 (a ) is not in conflict with any other statute or statutory rules. It is also not necessary to issue a notification under Rule 10 (1) authorising the 2nd respondent. THErefore, I hold that Ext. P1 is not bad for lack of jurisdiction.
The 2nd contention raised is that Ext. P1 has not been issued-in accordance with R. 10 as it was not issued in public interest. In the nature of the allegations put forward against the petitioners I am of the view that public interest would be served in keeping them under suspension pending finalisation of investigation and disciplinary proceedings. The petitioners have not made out a case for interference by this Court under Art. 226 of the constitution of India. In the result, the original petition fails and it stands dismissed. . .

;