R.R.K.Trivedi, J. - (1.) A learned Single Judge in Civil Misc. Writ Petition No 37167 of 1994 Jagjit Singh v. State of U. P, decided on 19-12-1894 reported in (1996) 1 UPLBEC 405 declared Rule 49-A (2) (a) of U. P. Civil Services (Classification, Control and Appeal), Rules, 1930 (hereinafter referred to as the Rules) as null and void being violative of Articles 14 and 21 of the Constitution of India. Another learned Single Judge in Civil Misc. Writ Petition No. 38588 of 1914 Chandra Shekhar Saxena v. Director of Education (Basic), U. P., Allahabad, disagreed with the view expressed in the case of Jagjit Singh v. State of U. P., and consequently referred two questions for decision by a Larger Bench Hon'ble the Chief Justice nominated Division Bench of consideration of the questions. However, the Division Bench while considering the questions referred to it came across Division Bench view in case of Anand Kumar Gupta v. State of U. P. and Ors., (1993) 1 UPLBEC 165 (DB) wherein it has been laid down that even in the absence of any order of suspension passed in writing, a Government servant shall be deemed to have been placed under suspension from the date of his detention. As the Division Bench disagreed with the aforesaid view, it referred the aferesaid two questions for consideration of a Full Bench. Thus, this matter has come before us.
(2.) During the course of hearing Shri Rakesh Dwivedi, learned Additional Advocate General mentioned that the judgment of the learned Single Judge in care of Jugjit Singh v. State of V. P., has been challanged in Special Appeal No. 436 of 1995 which is pending and the appeal may also be heard along with Writ Petition No. 39588 of 1994 as in both the cases, the judgment declaring Rule 49-A (2) (a) of the Rules as null and void being violative of Articles 14 and 21 of the Constitution of India is subject matter of consideration. On this request the record of the aforesaid appeal was also summoned by us. The questions referred to this bench are as under : "1. Whether Sub-Clause (a) of Sub-rule (2) of Rule 49-A of the Civil Service (Classification, Contol and Appeal) Rules, 1930 as applicable in Uttar Pradesh is violative of Articles 14 and 21 of the Constitution of India and null and void ?" "2 Whether the legal fiction evisaged under Rule 49-A, (2) (e) or (b) can come into play even in the absence of an order of suspension passed in writing ? "
(3.) It would be appropriate to take notice of the judgments by other Division Benches relevant to the subject matter of controversy before us which have not been mentioned in the referring orders, In the case of Hari Shanker Dwivedi v. Board of Revenue through its Secretary and Anr., 1936 AWC 1118 (DB) (LB) a Division Bench of this Court (Lucknow Bench) expressed the view that a Government Servant detained in custody for a period of 48 hours will be treated to have been placed under suspension by an order passed by appointing authority although in fact such an order was not passed Such suspension will not lapse on his being released from detention. He will be deemed to be under continued suspension. The judgment was delivered for Division Bench by Hon'ble Mr. Justice S. Saghir Ahmad (as his Lordship then was), in Special Appeal No. 303 of 1992 (decided on 21-7-1992) Shri Kalika, Singh v. Director General and Ors., a Division Bench took the view that an order in writing was necessary to invoke the deeming provisions of Rule 49-A (2) of the Rules. In this case the employee after release was allowed to join his duty and continued to function for about six months when the impugned order of suspension was passed. The order was set aside in appeal. In Special Appeal the judgment was delivered by Hon'ble Mr. Justice M. K. Mukherjee, Chief Justice (as his Lordship then was). In Writ Petition No. 11437 of 1987 Dr. Tej Narain Chandra v. State of U.P. and Ors., decided on 22-3-1995, a Division Bench placing reliance on the judgment dated 21-7-1992 in the aforesaid Special Appeal No. 303 of 1992 has held that considering the underlying policy and the object behind Rule 49-A (2) (a) of the Rules, the suspension contemplated therein cannot be treated to be an automatic suspension. It cannot come in existence in absence of an order having been passed by the appointing authority in this regard. This provides an inherent mechanism or an interimsic check preventing any uncalled for or unjustified hardship to the concerned employee.;