JASRAJ CHOPRA, J. - (1.) BY this writ petition filed under Article 226 the Constitution, the petitioner has challenged the legality of the order Annex ure-3 dated 29. 7. 1989 whereby he has been suspended from service with effect from 19. 7. 1989 on the ground that he has remained in custody for more than 48 hours between 15. 7. 1989 and 17. 7. 1989.
(2.) IT is alleged that a cross-beating took place between the petitioner's family and one Hukmichand's family, who happens to be his neighbourer. As a result thereof, the petitioner's father lodged an FIR against 9 persons bearing No. 184 of 1989 On 15. 6. 89 at about 11 P. M. Shri Hukmichand also fild an FIR against the petitioner and his other family members bearing No. 183 of 1989 at P. S. Nagore on 15. 6. 1989 at about 10. 30 P. M. on the basis of this F. I. R. , it is alleged that initially a case under ss. 147, 148, 149, 448 and 336 IPC was registered against the petitioner and his family members and on the basis of his father's FIR, a case under ss. 147, 148, 149, 323, 336 and 452 IPC was registered. However, later on the offences under ss. 324, 325 and 307 IPC were added in the case filed by Shri Hukmichand and consequently, the petitioner was arrested on 17. 7. 1989 and he was released on bail on 19. 7. 1989 and, therefore, he remained in police and judicial custody for more than 48 years. It is further alleged that thereafter, the petitioner filed an application Annexure-4 dated 21. 7. . 1989 that he may not be suspended but vide order Ann-exure-3 dated 29. 7. 1989, he has been suspended from service with effect from 19. 7. 1989. It is $aid that the petitioner remained on leave from 14. 7. 1989 to 18. 7. 1989 and, therefore, his suspension has been made effective from 19. 7. 1989. The petitioner has submitted that it was a private dispute between the parties and it had nothing to do with the discharge of his official duties involving moral turpitude and, therefore, his suspension is wholly arbitrary and violative of Art. 14 of the Constitution of India. He has further, submitted that his suspension has been ordered merely because the petitioner has remained in police and judicial custody for more than 48 hours and hence, the suspension is manifestly illegal. Even the order Annexure-2 dated 29. 7. 1989 is also illegal because it is retrospective in operation. According to the petitioner, his suspension has been so ordered on account of the provisions of sub-r. (2) of r. 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules (for short 'the Rules') by taking it that if a person has been detained in custody for a period exceeding 48 hours then he shall be deemed to have been suspended. He has submitted that r. 13 (2) of the Rules envisages suspension only if a person is in custody and that custody is continuing so as to disable the Government servant from discharging the duties. It was further submitted that the petitioner has been allowed bail and therfore, he could not have been put under suspension on the ground that he remained in custody for more than 48 hours. According to him, r. 13 (2) itself is ultravfres to Art. 14 of the Constitution as it is arbitrary and the words 'shall' used in r. 13 (2) should be read as "may'. The suspension cannot be ordered automatically in cases where a disciplinary proceeding is contemplated or criminal case is under investigation or trial against a Government servant. It can be done, only, if there are reasons to believe, on the basis of material available, that he may be guilty of gross misconduct or corruption which if proved, will lead to dismissal or removal or where there are reasons to believe that if a Government servant is allowed to continue in active service, he may tamper with evidence or in a case in which bail has been refused to him and has been sent to prison, but no such condition to suspend him existed in the instant case. A reply to the writ petition was filed on behalf of the respondents wherein it was contended that the suspension of a Govt. servant, who has remained for more than 48 hours in custody is automatic as per r. 13 (2) of the Rules. It was submitted that an appeal has been provided against such a suspension and even a review petition can be filed and, therefore, the alternative remedy was available to the petitioner and, therefore, he cannot get any relief from this Court. It was also submitted that the order Annex. 3 dated 29. 7. 1989 is an interlocutory order because its review is possible. According to the respondents the suspension remains in vogue till it is revoked by a competent authority. The family members of Shri Hukmichand have been severally beaten. Although, cross FIRs have been filed but in the case against the petitioner which was initially registered under ss. 452, 323 and 336 IPC, the offences under ss. 324, 325 and 307 IPC have also been added. The petitioner Rajendrasingh is called as Rajaram and he submitted his casual leave application on 14. 7. 1989 for grant of leave upto 18. 7. 1989 and after his release on bail on 19. 7. 1989, he tried to join his duty under a false pretext that he has been authorised by the authority concerned to work at Naka Chowki whereas his posting was not there. The person working at that Chowki approached the Revenue Inspector posted at Mahi Gate Naka and apprised him with all the facts which transpired between him and the petitioner. Upon this, the Revenue Inspector immediately went to the said Naka-Chowki and restored the status quo ante. It is alleged that in that interregnum period of half an hour, the petitioner authorisedly issue two-three octroi receipts to show that he was on duty. It was submitted that the Order Annexure 3 should have been made effective from16. 7. 1989 but by mistake, it was made effective from 19. 7. 89. . When the petitioner was ipso facto under suspension as per r. 13 (2) of the Rules, there was no question of filing an application not to suspend him. That was only a tactic adopted by the petitioner. It was also submitted that r. 13 (2) provides that a Govt. servant who is detained in custody for a period exceeding 48 hours shall be deemed to have been suspended and shall remain under suspension until further orders and so, the second part of the rule that he shall remain under suspension until further orders, nullifies the contention of the petitioner that the work 'shall' used in r. 13 (2) has to be taken as 'may'. This submission is totally misconcieved and is illfounded. R. 13 (1) is an enabling provision vesting power in the concerned authority to suspend a person but r. 13 (2) is a deeming provision and on the happening of a certain event mentioned therein i. e. to remain incustody for over a period of 48 hours, it comes into force automatically. More-over, the vires of the rule can be challenged only before the Division Bench and not before the single Bench. Later, the petitioner filed an application to amend the writ petition adding the relief that the order Annexure-3 has been made by a person who is not validly appointed as Administrator of the respondent Municipal Board as no notification has been issued appointing Shri Bhanwarlal as Administrator of the respondent Municipal Board as provided by s. 293-A of the Raj. Municipalities Act, 1959. Consequently, the amendment application was allowed and the writ petition was was amended accordingly. Thereafter, a reply to the amemded writ petition filed in which it was claimed that the challenge to the appointment of Shri Bhanwarlal as Administrator of the respondent Municipal Board is collateral and he has not been made party to the writ petition and therefore, this relief cannot be granted to the petitioner because the writ of quo' warranto can be issued against the person concerned and not against the Institution. Thereafter, a further application was filed to amend the writ petition praying therein that Shri. Bhanwarlal, Administrator, Municipal Board, Nagore be impleaded as respondent No. 3. That application was also allowed and the amended writ petition was filed challenging the appointment of Shri Bhanwarlal as Administrator of the respondent Municipal Board.
(3.) ON behalf of respondent No. 3, it was contended that de facto doctrine is now well established that the acts of the Officers defacto performed by them within the scope of their assumed official authority, in the interest of the public or third persons and not for their own benefit, are generally as valid and binding as if they were the acts of officers de jure. In support of this submission, reliance was placed on Gokaraju Rangaraju V. State of A. P. (1 ). It was also contended that the writ of quo warranto challenging the appointment of respondent No. 3 Shri Bhanwarlal has been sought on the ground that no notification has been issued in the Official Gazette about his appointment as Administrator of the respondent Municipal Board nor terms of his appointment have been specified. It is not the case of the petitioner that respondent No. 3 Shri Bhanwarlal was ineligible for appointment to the post of Administrator of the respondent Municipal Board. When he was eligible for appointment as Administrator, such a notification could be issued even now and, therefore, this writ petition should be dismissed. It was further submitted that the petitioner has failed to avail the statutory remedy by way of filing the appeal under s. 310 of the Rajasthan Municipalities Act and therefore, even on this ground, this writ petition deserves to be dismissed. It was also submitted that the Government of Rajasthan had issued notification under s. 293-A of the Rajasthan Municipalities Act. When the writ petition was originally filed, no challenge was made to the authority and title of the Office of the answering respondent. The respondent No. 3 Shri Bhanwarlal has submitted his appointments order along with his reply which is marked as Annexure-R. 1 dated 11. 3. 1987. According to respondent No. 3 the suspension of the petitioner is based on a deeming provision and it cannot be deemed to have been revoked on his release on bail from custody. Ave heard Mr. M. Mridul, the learned counsel appearing for the petitioner and Mr. Bheem Arora, the learned counsel appearing for the respondents and hAve carefully gone through the record of the case. In this case, the following questions arise for the determination of the Court: (1) Whether the suspension under r. 13 (2) of the Rules is automatic or any order is required to make it effective and whether that order remains in force till it is revoked. (2) Whether the order Annexure-3 dated 29. 7. 1989 is a valid order in the eye of law and whether the person making it had an authority to do so and if not, what are its consequences; (3) Whether challenge to the appointment of respondent No. 3 Shri Bhanwarlal as Administrator of the respondent Municipal Board is collateral to the proceedings or this question has been raised as a principal question in the case and even if it is held that appointment was not regular, whether his actions are sAved on the basis of the doctrine of defecto and (4) Whether this writ petition should be dismissed on the ground of alternate remedy or on the ground that the order Annexure-3 is an interlocutory order which can be reviewed by an order of the competent authority ? Mr. Bheem Arora, the learned counsel appearing for the respondents has also raised the following two preliminary objections:- (1) that this writ petition is not maintainable on the ground that the petitioner has failed to avail the alternative efficacious remedy available to him and, therefore, it should be dismissed on this ground, (2) that this writ petition deserves to be dismissed on the ground of delay. The crucial question that arises for the decision of this Court relates to the interpretation of r. 13 (2) of the Rules. R. 13 (2) reads as under: (2) A Government servant who is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours shall be deemed to hAve been suspended with effect from the date of detention, by an order of the Appointing Authority and shall remain under suspension until further orders. ' The contention of Mr. M. Mridul, the learned counsel appearing for the petitioner is that if an employee remains in custody for more than 48 hours, it does not mean that he will be treated as suspended from service forthwith. In this respect he has placed reliance on a decision of this Court in Ashok Gaur V. State of Raj. (2 ). wherein it has been observed that an order of suspension should not be passed by invoking powers under r. 13 simply because a disciplinary proceeding is contemplated or a criminal case is under investigation or trial against a Govt. servant. The appointing authority has to exercise his discretion in this regard. Actually these observations hAve been made by their lordships of the Supreme Court while interpreting r. 13 (1) of the Rules and not while interpreting r. 13 (2) of the Rules. As regards r. 13 (2), their lordships observed as follows:- "sub-r. (2) of r. 13 is quite specific which says that in case a person remains under custody exceeding 48 hours, he may be suspended with effect from the. date of detention and such suspension shall continue till further orders. " It is, therefore, clear that their lordships while referring to sub-r. (2) of r. 13 hAve observed that it is a deeming provision and if a man remains in custody for a continuous period excceeding 48 hours shall be deemed to hAve been suspended with effect from the date of his detention and that suspension remains in force until further orders. Had it been the intention of the framers of the Rules that suspension is not to be automatic then they must hAve added clause (c) to r. 13 (1) and must hAve provided that a Government servant may also be placed under suspension if he is kept in custody beyond 48 hours in respect of a criminal charge. The very fact that the detention of a person beyond the period of 48 hours hAve been separately provided in sub-r. (2) of r. 13 clearly goes to show that the framers of the law wanted to distinguish such cases from the categories of cases which are provided in r. 13 (1 ). There was no compulsion for the framers of the law to provide this exigency separately by adding sub-r. (2) to r. 13 which not only provides that the Government servant who is detained in custody whether on a criminal charge or otherwise for a period exceeding 48 hours shall be deemed to hAve been suspended with effect from the date of his detention by an order of the appointing authority but it also provides that he shall remain under suspension until further orders. Thus, this deeming provision takes into consideration two aspects of the matter (i) that if the Government servant has remained in custody for more than 48 hours whether in pursuance of a criminal charge or in pursuance of any other exigency, it shall be deemed that he has been suspended with effect from the date of his detention by an order of the competent authority and no formal order is required to suspend him; and (ii) that he shall remain under suspension till that suspension is revoked by the competent authority. Thus, the provision made in the second part of r. 13 (2) fortifies the contention of Mr. Bheem Arora, the learned counsel appearing for the respondents that the framers of the Rules had categorically and explicitly made their intention very clear in providing for this exigency separately by adding sub-r. (2) to r. 13 that the person who remains in custody for more than 48 hours on a criminal charge or otherwise will be deemed to hAve been placed under suspension from the date of his detention and he will hAve to remain under suspension until further orders. If the suspension is not to be automatic or ipso facto then there was no necessity to provide that he shall remain under suspension until further orders. It categorically clarifies the mind of the framers of the Rules that they wanted this deeming provision to be effective, as regards the suspension of a Govt. servant who remains in custody for more than 48 hours. It was not at all the intention of the framers of the law that the suspension will become effective only when the Government servant is not bailed out and if he is bailed out, his suspension would come to an sad automatically. It was to cover up this exigency that the framers of the law hAve provided that a Government servant shall be deemed to be placed under suspension on account of his custody exceeding 48 hours and will remain under suspension till that order is revoked or it is ordered otherwise. Thus, I am unable to accept this contention of Mr. M. Mridul, the learned counsel appearing for the petitioner that the service career of a Govt. servant will be sealed by an indiscreet act of the S. H. O. The S. H. O. after arrest of a person can keep that person in custody only for 24 hours and that too in cases of non-bailable offences and not in a cases of bailable offences. If the offence or offences are bailable, the S. H. O. will hAve to grant him bail. However, incase of non-bailable offences, he has to forward the accused to the concerned Magistrate, after expiry of 24 hours and there-after, the remand is granted by the Magistrate after exercising his judicial discretion and therefore it cannot be said that the fate of a Government servant is in the hands of the S-H. O. alone. ;