GARG, J. - (1.) BOTH the abovementioned writ petitions are being decided by this common order as in both of them, the parties are the same and common questions of law and facts are involved. S. B. Civil Writ Petition No. 2857/2003
(2.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 18. 6. 2003 against the respondents with the prayer that by an appropriate writ, order or direction, the suspension order dated 12. 6. 2003 passed by the State Government (respondent No. 1) by which the petitioner was put under suspension and the order dated 16. 6. 2003 (Annex. 14) passed by the District Collector, Jodhpur by which he directed the Sub Divisional Officer, Osian to take over the charge of the post of Child Development Project Officer from the petitioner, be quashed and set aside and the petitioner may be allowed to work as Child Development Project Officer, Osian and further, the charge-sheet dated 18. 12. 2002 (Annex. 8) issued under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ``the CCA Rules'') be quashed and set aside etc. etc. The case of the petitioner as put forward by her in this writ petition is as follows:- The petitioner was appointed on compassionate ground to the post of Child Development Project Officer (for short ``cdpo'') vide order dated 29. 9. 1989, a copy of which is marked as Annex. 1. Thereafter, the petitioner was put under suspension vide order dated 21. 9. 1993 and that suspension order was challenged by the petitioner before this Court by filing writ petition being S. B. Civil Writ Petition No. 754/1998 and that writ petition was allowed by this Court vide order dated 25. 9. 2000 and the suspension order dated 21. 9. 1993 was quashed and set aside with a direction to the respondents to complete the enquiry within a period of six months and the petitioner was ordered to be reinstated in service. The further case of the petitioner is that since she was appointed on compassionate ground on substantive basis, therefore, on completion of five years service, she became eligible for promotion to the post of Dy. Director, ICDS and since no steps were taken by the State Government for promoting the petitioner and other persons appointed on compassionate ground to the post of Dy. Director, ICDS, therefore, a writ petition was filed before this Court being S. B. Civil Writ Petition No. 2116/2002 and the same is pending before this Court. The further case of the petitioner is that during the pendency of the above writ petition, the petitioner was confirmed on the post of CDPO with effect from 16. 7. 1998 through order Annex. 2 dated 8. 4. 2003. The further case of the petitioner is that later on, a fresh writ petition being S. B. Civil Writ Petition No. 2655/2002 was filed by the petitioner alongwith other CDPOs challenging the action of the State Government in appointing the Project Directors, DWDA on the post of Dy. Director, ICDS on the ground that post of Dy. Director was a State Service post and only such persons could be appointed on the post of Dy. Director, ICDS, who had fulfilled 5 years service on the post of CDPO and the Project Directors did not hold the State Service post and were not entitled to be appointed as Dy. Director, ICDS. However, that writ petition was dismissed by this Court, but on special appeal, the Division Bench of this Court through interim order dated 21. 11. 2002 directed that if the respondents No. 3 to 10 were allowed to function as Dy. Directors during the pendency of the appeal, they would not write the ACRs of the appellants of that case and a copy of that interim order dated 21. 12. 2002 passed by the Division Bench of this Court is marked as Annex. 3. The further case of the petitioner is that she was transferred to Osian vide order Annex. 4 dated 7. 9. 2002 and while she was working at Osian, she received a communication dated 17. 12. 2002 from the Dy. Director (Admn.) (respondent No. 3) stating therein that Dy. Director, ICDS had forwarded various complaints against her through letters dated 16. 10. 2002 and 7. 12. 2002 and the petitioner was called upon to furnish explanation to those complaints. A copy of the communication dated 17. 12. 2002 is marked as Annex. 5 and copies of the complaints forwarded alongwith the letters dated 16. 10. 2002 and 7. 12. 2002 are marked as Annex. 6 and Annex. 7 respectively. The further case of the petitioner is that she submitted explanation before the respondent No. 3 Dy. Director (Admn.), but ignoring the explanation of the petitioner and also ignoring the interim order of the Division Bench of this Court dated 21. 11. 2002 (Annex. 3), a charge-sheet under Rule 17 of the CCA Rules was issued against the petitioner on 18. 12. 2002 by the respondent No. 2 Director, Women & Child Development Department, Rajasthan, Jaipur. A copy of the said charge-sheet dated 18. 12. 2002 is marked as Annex. 8. A reply to the said charge-sheet dated 18. 12. 2002 (Annex. 8) was filed by the petitioner on 25. 1. 2003, a copy of which is marked as Annex. 9. The further case of the petitioner is that the respondents were acting in colourable exercise of power and were out to harass the petitioner and at the instance of respondent No. 5 Smt. Kamla Jawahar, Project Director, DWDA, the petitioner was transferred from Osian to Makrana through order dated 24. 1. 2003, a copy of which is marked as Annex. 10. The further case of the petitioner is that she challenged the said transfer order Annex. 10 dated 24. 1. 2003 before this Court by filing writ petition being S. B. Civil Writ Petition No. 404/2003 (writ petition No. 2) and this Court through interim order Annex. 11 dated 3. 2. 2003 stayed the operation of the transfer order dated 24. 1. 2003. The further case of the petitioner is that after the transfer order dated 24. 1. 2003 was stayed by this Court through order Annex. 11 dated 3. 2. 2003, the petitioner was threatened by the respondents that she should withdraw the special appeal otherwise she would face serious consequences. The further case of the petitioner is that the transfer order dated 24. 1. 2003 (Annex. 10) was cancelled through order dated 10. 6. 2003, a copy of which is marked as Annex. 12. The further case of the petitioner is that after the cancellation of transfer order Annex. 10 dated 24. 1. 2003, the petitioner was placed under suspension through order dated 12. 6. 2003, a copy of which is marked as Annex. 13 and through order Annex. 14 dated 10. 6. 2003, the District Collector, Jodhpur directed the Sub Divisional Officer, Osian to take over the charge of the post of CDPO from the petitioner. In this writ petition, the suspension order Annex. 13 dated 12. 6. 2003 as well as the order Annex. 14 dated 10. 6. 2003 have been challenged by the petitioner on various grounds and the main grounds are as follows:- (i) That the power under Rule 13 of the CCA Rules to place the petitioner under suspension has been exercised by the respondents with malafide as the only enquiry pending against the petitioner was under Rule 17 of the CCA Rules and to that effect, a charge-sheet Annex. 8 dated 18. 12. 2002 was also served on the petitioner and since that enquiry pending against the petitioner under Rule 17 of the CCA Rules was for imposing minor penalty, therefore, for that enquiry, the petitioner could not have been suspended. (ii) That furthermore, in the suspension order Annex. 13 dated 12. 6. 2003, the respondents have deliberately not made any reference to the pending enquiry against the petitioner under Rule 17 of the CCA Rules for which charge-sheet dated 18. 12. 2002 Annex. 8 was issued against her and furthermore, suspension order can be passed only when there is a gross misconduct on the part of the delinquent official which warrants suspension from service in public interest and in the present case, enquiry under Rule 17 of the CCA Rules was initiated against the petitioner and that enquiry was for minor penalty and thus, for that enquiry under Rule 17 of the CCA Rules, the suspension order could not have been passed at late stage. Hence, the impugned suspension order Annex. 13 dated 12. 6. 2003 is illegal and bad in law and liable to be quashed and set aside. Hence, this writ petition with the prayers as stated above. A reply to the writ petition was filed by the respondents No. 1 to 4 and their case is that the impugned suspension order Annex. 13 was not passed in colourable or malafide exercise of power and it is also wrong to say that the impugned suspension order Annex. 13 was passed only on the ground that departmental enquiry was pending consideration against the petitioner. The further case of the respondents No. 1 to 4 is that there had been serious complaints against the petitioner of gross financial irregularities, disobedience in compliance of the order of the seniors and various other complaints by the subordinate of harassment and colourable exercise of the powers and even the honorarium amount of lacs of rupees received from the Government was transferred to the personal account of the petitioner, which goes to show gross financial irregularities and copy of the complaints alongwith bank statement is marked as Annex. R/3. According to the respondents No. 1 to 4, a bare perusal of complaints would reveal how the gross financial irregularities were committed by the petitioner. The further case of the respondents No. 1 to 4 is that Dy. Director (World Food Programme) was sent to look into the entire state of affairs and he submitted a detailed report against the petitioner on 6. 6. 2003 and a copy of that report is marked as Annex. R/4. The further case of the respondents No. 1 to 4 is that subsequent to the above complaints, a further complaint was made to the Hon'ble Chief Minister against the petitioner and a copy of that complaint dated 8. 6. 2003 is marked as Annex. R/5 and on that complaint Annex. R/5, enquiry was got conducted through Tehsildar, Jodhpur and Dy. Director, ICDS, Jodhpur and they also confirmed the fact that gross irregularities were committed by the petitioner and copies of the reports submitted by the Dy. Director and Tehsildar to the District Collector, Jodhpur are marked as Annex. R/6. The further case of the respondents No. 1 to 4 is that thereafter, the District Collector, Jodhpur wrote a letter dated 11. 6. 2003 (Annex. R/7) to Director, Women and Child Development Department, Rajasthan, Jaipur (respondent No. 2) and in that letter Annex. R/7, the District Collector stated that since many serious irregularities had been committed by the petitioner, therefore, she should be put under suspension and strict action be taken against her. The further case of the respondents No. 1 to 4 is that in the above background, the impugned suspension order Annex. 13 dated 12. 6. 2003 was passed against the petitioner and thus, to say that it was passed keeping in mind the earlier charge-sheet Annex. 8 dated 18. 12. 2002 issued against the petitioner is wrong. Hence, it was prayed that the writ petition filed by the petitioner be dismissed. A separate reply to the writ petition was also filed by the respondent No. 5. A rejoinder to the reply filed by the respondents No. 1 to 4 was filed by the petitioner and it has been submitted by the petitioner that power under Rule 13 of the CCA Rules can be exercised only in two contingencies (i) where a disciplinary proceedings against him is contemplated or is pending and (ii) where a case against him in respect of any criminal offence is under investigation or trial. A perusal of impugned suspension order Annex. 13 would reveal that it was passed on the ground that a departmental enquiry was pending against the petitioner and no other ground was mentioned in it and, therefore, the basis of passing the impugned suspension order was nothing, but it was passed only on the basis of charge sheet Annex. 8 issued against the petitioner under Rule 17 of the CCA Rules. Furthermore, the report of the Tehsildar, on the basis of which, it was said that District Collector, Jodhpur proceeded further, is dated 13 June, 2003 and, therefore, it is wrong to say that the District Collector proceeded on the basis of report of the Tehsildar as the District Collector submitted his report on 11 June, 2003 through Annex. R/7 and, therefore, every thing was done by the respondents in colourable exercise of power. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record. For convenience, the impugned suspension order Annex. 13 dated 12. 6. 2003 passed against the petitioner is quoted here:- ********* A bare perusal of the impugned suspension order Annex. 13 shows that a departmental enquiry was pending consideration against the petitioner and in exercise of the power under Rule 13 of the CCA Rules, the petitioner was put under suspension.
(3.) THE case of the petitioner is that the word ``departmental enquiry'' appearing in the impugned suspension order Annex. 13 means enquiry under Rule 17 of the CCA Rules pending against the petitioner for which charge-sheet (Annex. 8) was issued against her, but on the contrary, the case of the respondents is that it reflects other materials, which were collected later on by several complaints made against the petitioner and, thereafter, through Annex. R/7 dated 11. 06. 2003, the District Collector sent a report that the petitioner had committed serious irregularities and, therefore, she should be suspended and strict action be taken against her and, therefore, in these circumstances, impugned suspension order Annex. 13 dated 12. 6. 2003 has no bearing or relevancy with the previous charge sheet dated 18. 12. 2002 (Annex. 8) issued against the petitioner. The relevant portion of Rule 13 of the CCA Rules is quoted here:- ``rule 13. suspension (i) The Appointing Authority or any authority to which it is subordinate or any other authority empowered by the government in that behalf may place a Government servant under suspension. (a) where a disciplinary proceedings against him is contemplated or is pending, or (b) Where a case against him in respect of any criminal offence is under investigation or trial. Provided that where the order of suspension is made by an authority lower than the Appointing Authority, such authority shall forthwith report to the Appointing Authority the circumstances in which the order was made. 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. 3 . . . . . 4 . . . . . 5 . . . . . '' Since there was no criminal case pending against the petitioner when the impugned suspension order Annex. 13 was passed, therefore, the case of the petitioner would be covered under clause (a) of sub-rule (1) of Rule 13 of the CCA Rules. ;