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Patna High CourtCWJC/5978/2017allowed

Srinivas Chandra Tiwary v. The State Of Bihar And ORS

2017-10-12Mr. Justice Prabhat Kumar Jha3 pages

IN THE HIGH COURT OF JUDICATURE AT PATNA

Civil Writ Jurisdiction Case No.5978 of 2017 ===========================================================

1. Srinivas Chandra Tiwary Son of Sri Bharat Prasad Tiwary, resident of E2/8 of Sadhnapuri, P.S.-Gardanibagh, District-Patna .... Petitioner

Versus

1. The State of Bihar

2. The Principal Secretary, Department of Education, Bihar, Patna

3. The Director, (Administration)-Cum-Additional Secretary, Department of Education, Bihar, Patna .... Respondents =========================================================== Appearance :

For the Petitioner : Mr. Vinod Kumar Kanth, Sr. Adv. with Mr. Prabhu Nath Pathak, Adv.

For the Respondents : Mr. Madanjeet Singh, GP XX =========================================================== CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL JUDGMENT Date: 12-10-2017 Heard Mr. Vinod Kumar Kant, learned senior counsel appearing for the petitioner and Mr. Madanjeet Kumar Singh, GP XX, appearing for the State.

2.

With the consent of both the parties, this writ petition is disposed off at the stage of admission, itself. 3.

The petitioner, the then Secretary, Bihar School Education Board and presently the Assistant Director, Mid Day Meal, has been put under suspension vide order, dated 26.12.2016, as contained in Memo No. 1056, by the Director Administration-cum-Additional Secretary, Education Department, Government of Bihar.

4.

Mr. Vinod Kumar Kanth, learned senior counsel appearing for the petitioner, submits that in view of Section 9 of the Bihar Government Servant (Classification, Control and Appeal) Rule, 2005, (hereinafter referred to for the sake of gravity as, "CCA Rules, 2005), says that the appointment authority or any authority to which the appointing authority is subordinate or the disciplinary authority or any

Patna High Court CWJC No.5978 of 2017 dt.12-10-2017 other authority empowered in that behalf by the Government by general or special order, may place a government servant under suspension. Secondly, the disciplinary authority or any other authority empowered by general or special order may put a person under suspension contemplating a departmental proceeding, but, the Director neither the appointing authority nor the superior to the appointing authority nor the disciplinary authority of the petitioner has put the petitioner under suspension and, therefore, the order of suspension was issued by an officer not competent under the Rule 9 of the CCA Rules, 2005, and same is illegal. 5.

The State of Bihar has filed counter affidavit, but, vide order, dated 07.09.2017, the State of Bihar was directed to file specific reply to the question whether the Director Administration is competent authority to place the petitioner under suspension, but, no specific reply is given in the entire counter affidavit.

6.

Mr. Madanjeet Kumar Singh, learned Government Pleader XX, has very fairly submitted that the Director Administration is not competent authority as he is neither the appointing authority nor the disciplinary authority of the petitioner.

7.

Having considered the facts and the submissions of both the sides, I find that the Director Administration-cum-Additional Secretary, Education Department, Government of Bihar, is not the competent authority to put the petitioner under suspension and the order is, thus, without jurisdiction. By supplementary affidavit the memo of charge is also served on the petitioner by the Secretary, the Bihar School Examination Board, who is also not competent under the Rules as

Patna High Court CWJC No.5978 of 2017 dt.12-10-2017 he is neither a disciplinary authority nor the appointing authority of the petitioner.

8.

Accordingly, Annexure 1 (Memo No. 1056, dated 26.12.2016), issued by the Director Administration-cum-Additional Secretary, Education Department, Government of Bihar, and the orders, as contained in Annexure 6 (A) and (B), issued by the Secretary, the Bihar School Examination Board, are set aside and the writ petition is allowed.

9.

The disciplinary authority, if so desires, may proceed further in accordance with law.

(Prabhat Kumar Jha, J) SA/- AFR/NAFR NAFR CAV DATE N/A Uploading Date 30.10.2017 Transmission Date N/A