- (1.) Learned Standing Counsel was allowed a month's lime to file counter-affidavit on 31.7.2008. Almost two and half years since then have passed but respondents have chosen not to file any counter-affidavit. In the circumstances, this Court has no option but to proceed to dispose of the writ petition on the basis of material available on record.
(2.) Sri Nisheeth Yadav, learned Counsel for the petitioner contended that the impugned order of suspension has been passed not by the competent authority but by an authority, may be higher in status, but not competent to pass the order of suspension under the Rules. He further submitted that suspension even otherwise is penal in nature inasmuch as no inquiry whatsoever has been initiated till date and, therefore also, it is liable to be set aside. The petitioner was appointed as Class-IV employee on 10.3.1987 by Regional Transport Officer, Agra. Later on he was promoted as Enforcement Constable by Regional Transport Officer as stated in para 5 of supplementary affidavit. The impugned order of suspension has been passed by the Additional Transport Commissioner (Enforcement), U.P., Lucknow. Rule 3(a) of U.P. Transport Department Enforcement Staff (Group D) Service Rules, 1979 (hereinafter referred to as the "1979 Rules") defines appointing authority and reads as under : "3(a) 'Appointing Authority' means the Assistant Transport Commissioner (Administration) for the posts at the Headquarters of the Transport Commissioner and the Regional Transport Officer for the posts in the Region;" The petitioner has categorically stated that he was appointed as Enforcement Constable by Regional Transport Officer and that is what provided in 1979 Rules.
(3.) Rule 4(1) of U.P. Government Servant (Discipline and Appeal) Rules, 1999 (hereinafter referred to as the "1999 RULEs") empowers the appointing authority to place a Government servant under suspension where an inquiry is contemplated or proceeding in the discretion of appointing authority. Second proviso says that the concerned Head of the Department empowered by the Governor by an order in this behalf may also place Government servant or class of Government servant belong to Group 'A' and 'B' posts under suspension. Obviously this proviso has no application to the case of petitioner because he is a Class-IV employee. Third proviso says that a Government servant belong to Group 'C and 'D' posts may be placed under suspension by an authority subordinate to appointing authority provided such power is delegated to it. There is nothing in RULE 4(1) of 1999 RULEs which empower any higher other authority to place a Group 'C and 'D' Government servant under suspension. I find substance in the submission of learned Counsel for the petitioner that the Additional Transport Commissioner (Enforcement), U.P., Lucknow does not come within any of the above category prescribed under Rule 4(1) of 1999 Rules so as to assume jurisdiction to place petitioner under suspension. The Additional Transport Commissioner (Enforcement) U.P., Lucknow is admittedly higher in hierarchy to Regional Transport Officer. In respect to Group 'C' and 'D' employees the rule provides that suspension can be made by appointing authority or by an authority who is next lower in rank to whom the power of suspension is delegated. It thus makes it clear that rule does not permit a higher authority to pass an order of suspension so far as Group 'C' and 'D' employees is concerned. An authority lower in rank and that too next lower in rank to appointing authority if delegated power of suspension it can be exercised by it otherwise only by appointing authority. No provision has been shown by learned Standing Counsel to show that a higher authority has been empowered to place suspension a Group 'C' or 'D' Government servant or that there is any amendment in the rules empowering Additional Transport Commissioner (Enforcement) U.P., Lucknow to place an Enforcement Constable under suspension who is appointed by Regional Transport officer. This results in making the impugned order of suspension wholly illegal and without jurisdiction.;