Sandhawalia, C.J:— Does rule 49-A of the Bihar Civil Services (Classification, Control and Appeal) Rules, 1930, suffer from the vice of arbitrariness and is consequently violative of Art. 14 of the Constitution? Who is the appointing authority of the members of the Bihar Engineering service Class 1 — The Governor or the Council of Ministers? This is the twin question which necessitates this reference to the Full Bench. Equally at issue is the correctness of view of the Division Bench in the case of Bachcho Lal Das… v. State Of Bihar & Others…, [1983 B.L.J.R 563].
2. Shorn of surplusages, the writ petitioner, Narayan Jha, an Executive Engineer in the Department of Irrigation, Bihar, assails the order of his suspension in annexure 9, dated 29 August, 1983, passed admittedly under rule 49-A of the Bihar Civil Services (Classification, Control and Appeal) Rules, 1930 (hereinafter referred to as the rules). It is first challenged on the ground of the very constitutionality of the said rule and, in the alternative, that the same is not in consonance therewith in so far as it has not been passed by the appointing authority, which is claimed to be the Council of Ministers itself.
3. Despite the somewhat voluminous pleadings, the facts giving rise to the basic issue can be noticed with relative brevity. The petitioner joined service as an Assistant Engineer in 1964 and was promoted as an Executive Engineer on 7 September, 1979, and posted in the Flood Control Division, Thakarha, in Gopalganj. He worked in the said capacity till 15 April, 1983. He was transferred to Purnea as Executive Engineer in the Master Planning, Investigation Division. It emerges from the pleadings that Piprasi-Pipraghat embankment on the right bank of river Gandak is jointly maintained by the States of Bihar and Uttar Pradesh to control the sporadic floods in river Gandak. The total length of the Piprasi-Pipraghat embankment in the State of Bihar itself is about 41.60 kilometers and it is the petitioner's claim that almost every year the floods in the Gandak pose a problem of inundation of large areas, and protection of the said embankment, which has to be tackled as one of emergency, and, to use the language of the petitioner, on a war footing. It has been averred that in the third week of June 1982, the Superintending Engineer directed the petitioner to construct some spurs when the water level in the Gandak had already started rising and thus leaving no sufficient time to execute the work. Nevertheless, the petitioner had to manage by taking great pains and could got the spurs erected on the embankment despite the monsoon having already started with its consequent heavy erosion. It is the petitioner's case that indeed he had requested to be relieved from the onerous duty of his charge on the Piprasi-Pipraghat embankment because he was anticipating that there would be havcc in the coming rainly season, but this request of his was declined by the authorities. It is then averred that on 24 July, 1982, the aforesaid embankment eroded at 28.75 kilometers and the field officials, including the petitioner, took emergency measures on war footing to save the embankment as also the lives and properties of lakhs of persons who ware in danger thereby. It is the petitioner's claim that whatever be had done and the inordinately heavy excuses which he had incurred were at the behest of his superior officers. However apparently under a cloud, the writ petitioner was transferred, vide notification, dated 8 April, 1983, to Purnea and he handed over charge on 15 April, 1983. It is then the petitioner's case that he was surprised to learn from a press report in the daily newspaper. The Searchlight that he had been suspended by the Government on the ground of certain grave irregularities having taken place with regard to Piprasi-Pipraghat embankment. Subsequently the order of suspension, dated 29 August, 1983 (annexure 9), was passed by the Governor by which the writ petitioner is primarily aggrieved. Apart from the averments in the writ petition itself, supplementary affidavits were filed both, to add to the factual matrix as also to the grounds for challenging the impugned order of suspension.
4. In the counter-affidavit filed on behalf of the respondent-State it is asserted that the Piprasi-Pipraghat embankment is an inter-State scheme of the State of Bihar and Uttar Pradesh which is monitored by the Government of India. It having been found that there was inordinately slow progress in the work which was to be executed by the Bihar Government, the Engineer-in-Chief visited the site on 5 May, 1982, and, submitted his report on 8 May, 1982, and, further categorical directions were issued to the Superintending Engineer to complete the work by 15 June, 1982. However, later the Minister Incharge, along with the Engineer in Chief, visited the site on 25 July, 1982, and found no progress in the execution of work and consequently an explanation from the delinquent officials was sought. Yet again the site was inspected by the Chief Engineer on 18 August, 1982, and it was found that Executive Engineer was absent. An enquiry disclosed that in fact he had gone to Patna with four Assistant Engineers, without permission. Further, the Executive Engineer did not submit the estimate nor the cost of expenditure to the Chief Engineer, despite repeated reminders. Subsequently, the flying squid of the Irrigation Department was directed to make a detailed report which was submitted on 4 November, 1982, in which serious charges were prima facie found to be established against the writ petitioner. Grave financial irregularities are averred to have been discovered including the fact that the under amounts of Rs. 4.30 lakhs and Rs. 5.70 lakhs (Rupees ten lakhs in all), which were called were wholly beyond the competence of the Executive Engineer. It is categorically averred that the whole action of the writ petitioner was contrary to law and in flagrant disregard of the provisions of the Bihar Public Works Department Code and the instructions laid down in S. 7 of the Bihar Financial Rules.
5. As regards the legal aspects, the respondent-State has taken the firm stand that rule 49-A of the rules does not in any way suffer from the vice of unconstitutionality. Equally categoric is its case that be appointing authority of the writ petitioner is the Governor (and not the Council of Ministers), in whose name the order of suspension has been expressly passed and that the Chief Minister is competent in law to exercise the said power of suspension.
6. Inevitably the controversy herein revolves around the language of rule 49-A of the rules and it, therefore, seems necessary to lead the relevant part of the same at the very outset:
“49-A. (1) The appointing authority or any authority to which it is, subordinate or the Governor, by general or special order, may place a Government servant under suspension—
(a) where a disciplinary proceeding against him is contemplated or is pending or; and
(b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.”
7. In first assailing the very constitutionality of the aforesaid rule, Sri Basudeva Prasad, learned counsel for the petitioner pressed the not unusual argument that the same was arbitrary because in terms it did not provide any meticulous guidelines with regard to cases in which suspension may be ordered and those in which it may not be so done. With some vehemence, it was contended that the rule leaves it to the whimsicality of the authority contemplating the disciplinary proceeding, whether to suspend a particular official or not. By way of comparison, a reference was made to rules 99 and 100 of the Bihar Service Code, 1952, which are somewhat exhaustive in nature, for contending that unless similar or analogously precise guidelines are provided, the present rule pertaining to suspension would suffer from the vice arbitrariness. Equally reliance was placed on the relevant provisions of the Manual of Departmental Enquiries.
8. For appraising the aforesaid contention what would perhaps call for notice at the very threshold is the fact that the impugned rule 49-A (inserted somewhat recently in 1978), is on the specific point in pari materia with rules 10(1)(a) and 10(1)(b) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which in turn had replaced the earlier identical rules 12(1)(a) and 12(1)(b) of the Central Civil Civil Services (Classification, Control and Appeal) Rules of 1957. It would thus appear that an identical provision in the Central Rules has now held the field for nearly three decades. Sri Basudeva Prasad was fair enough to concede before us that he could cite no authority in which the aforementioned Central Rules have either been held to be arbitrary or unconstitutional or even their validity was seriously assailed.
9. Be that as it may, the same by itself cannot be conclusive, and the compliment of a rational refutation has to be extended to the contentions pressed before us for assailing the constitutionality of rule 49-A. In this context it becomes necessary to first consider the very nature of an order of suspension made either during the pendency of a departmental proceeding or in reasonable contemplation thereof. It is well settled that suspension is of two kinds — one by way of punishment, and the other by way of a procedural aid to the holding of disciplinary proceedings. Admittedly herein we are concerned with the latter category. It seems to be undisputed that the concept of suspension during departmental proceeding has only the larger objective of ensuring a free and fair conduct of the enquiry that is either pending or is to follow. In this context, the fact that the suspension order is interlocutory or interim in nature can perhaps be hardly denied. The service rules invariably, if not inflexibly, provide for a subsistence allowance during the period and the delinquent official retains his lien on the post during the continuation of the departmental proceeding. This mellows the rigour of the order of suspension and in the event of the enquiry resulting in favour of the official, he would be invariably entitled to the revoking of the order of suspension and the reinstatement to the post with all the benefits of service and salary (sometimes even without having worked during the said period), as may be provided in the rules. There is thus no finality or irrevocability attaching to an order of suspension, which, as already noticed, retains its character of being interim or interlocutory, in nature.
10. The object and purposes of placing a public servant under suspension during or in contemplation of a disciplinary proceeding may be manifold and do not call for any exhaustive enumeration. However, its salient features are well known and may call for a passing notice. Where serious allegations of misconduct are imputed against an official, the service interest renders it undesirable to allow him to continue in the post where he was functioning. In case, where the authority deems a further and deeper investigation into the same as necessary, it becomes somewhat imperative to remove the official concerned from the spheres of his activities, as it may be necessary to find out facts from people working under him or to take into possession documents and materials which would be in his custody. Usually, if not invariably, it would become embarrassing and inopportune both for the delinquent official concerned as well as the inquiring authority to do so, while such official was present at the spot and holding his official position as such. It was sought to be contended that such a situation may be avoided by merely transferring the official. However, it would be for the authority concerned to decide whether such an official, against whom prima facie serous imputations have been levelled, should at all be allowed to function anywhere else. If it so decides, then suspension during the pendency or in contemplation of an inquiry might well become inevitable. It seems to be a fallacy to assume that suspension is necessarily and wholly related to the gravity of the charge. Indeed, it may have to be ordered to facilitate free investigation and collection of evidence. Just as criminal procedure is intended to subserve the basic cause of a free and fair trial, similarly, suspension, as an interim measure in aid of disciplinary proceeding, is directed to the larger purpose of a free and fair inquiry. It would thus seem that the power of suspension is not only necessary, but, indeed a salutary power, if reasonably exercised either during the pendency of in contemplation of a disciplinary proceeding.
11. It appears to me that the primary underlying argument raised on behalf of the writ petitioner is an argument of fear. Learned counsel's contention returned repeatedly to the point that in one case the authority concerned may choose to suspend and in another it may not. The basic apprehension here is that of abuse or misuse of the provision. It is well settled that merely because a provision conferring a power can be misused or abused is no reason for either voiding it or holding it as unconstitutional. Indeed, it seems impossible to conceive of any power which cannot be put to misuse, and this attribute seems inherent to the very concept of power. Merely because a discretion is vested by the rule in the authority for either suspending or not, would, in my view, render it reasonable and far from being unconstitutional on that score. If any inflexible rule were to be laid down that a delinquent official in certain circumstances must be suspended, it might well work hardship in a particular case. Therefore, in a somewhat sensitive field the vesting of discretion in that authority is inevitable and the same cannot be confined to a procrustean bed. As has already been noticed, suspension is not inflexibly related to the gravity of the departmental misconduct, but might be necessitated by a host of other factors, which defy enumeration. Therefore, the vesting of a reasonable discretion in the authority is inherent to the situation and no reason appears to either necessarily distrust the same or to presume that the power will necessarily be misused. The presumption in the eye of law is that high officials vested with powers would exercise the same fairly and reasonably and not indeed to the contrary.
12. Nor can it be held that the rule is wholly devoid of any guideline. The learned Advocate-General was right in contending that the requisite guideline which is in terms provided is the reasonable contemplation of a disciplinary proceeding against that official. Therefore, a fair assessment that an inquiry has become necessary is itself the prerequisite for the exercise of the power. If it can be established or is admitted that no disciplinary proceeding is in fact in contemplation, then such action would obviously be plainly beyond the rule. In such a situation any unauthorised action, which may have to be struck down, but not the rule itself. Indeed with illimitable fairness, Sri Basudeva Prasad has himself conceded that in case established grounds necessitate an enquiry, the power to suspend in contemplation thereof cannot be deemed unconstitutional. This appears to render the core of the argument as one of fear, namely, that the power under the rule would be abused. To reiterate, the possibility of abuse of power (which is otherwise necessary or salutary) is not by itself an adequate ground for striking down the provision conferring the same.
13. To conclude on this aspect, I am unable to detect any inherent arbitrariness or otherwise any unconstitutionality in the impugned rule. The challenge on this score, therefore, must stand rejected.
14. Repelled on the constitutional ground, learned counsel for the writ petitioner then tell back on his alternative argument that since the appointing authority of the writ petitioner was the Council of Ministers, the order of suspension could only be passed by the said Council of Ministers and not at the behest of the Chief Minister on his own or in the name of the Governor. The substratum of the contention was that the proposal for suspension mast necessarily have been placed before and considered by the Council of Ministers and should be either approved or in terms ordered as such.
15. It would appear that the stand of the writ petitioner that in fact his appointing authority is the Council of Ministers as such is somewhat factually tenuous. The fragmentary averments on which the learned counsel pinned himself upon appear at page 95 of the supplementary affidavit to the effect that his appointing authority was the State Government of Bihar, meaning thereby the Council of Ministers. I am unable to construe that where the appointing authority is prescribed to be the Government of Bihar, it necessarily implies that such appointing authority is the Council of Ministers stricto sensu. By the constitutional mandate of Art. 154, the executive powers of the State Government is vested in the Governor and is invariably to be exercised in his name. Therefore, in the eye of law, the appointment by the State Government is in essence an appointment by the repository of its executive powers, namely, the Governor. Again the writ petitioner has not placed on record (despite the plethora of his pleadings and a number of supplementary affidavits) the letter of his appointment to buttress his stand that the same was, in terms by the Council of Ministers itself. In the context of the whole argument turning on the appointing authority, the keeping back of the letter of appointment is indeed somewhat tell-tale.
16. Apart from the factual untenability of the aforesaid stand, it seems to be an equally slippery ground as regards the legal foundation. Undisputedly, the writ petitioner claimed to be a member of the Bihar Engineering Service, Class II and governed by the Bihar Engineering Service Class I, Rules, 1939. A reference thereto would indicate that recruitment to the service is from a twin source of direct recruitment and by promotion from the Bihar Engineering Service, Class II. In either case, the appointing authority, by the relevant provisions is the Governor in terms. Part V of the Bihar Engineering Service Class I Rules, 1939, provides for the procedure for direct recruitment, which visualises the same through the medium of the Bihar Public Service Commission. Rules 13 and 14, and the culminating provision of rule 16 are in the following terms:
“13. The Commission shall prepare a list of selected candidates the number of whom shall be such as may be fixed by the Governor.
14. The Commission shall submit their list to the Governor with the applications of the selected candidates, by such dates the Governor may direct.
16(a). The final selection of candidates shall be made by the Governor from amongst those who have been included in the list submitted by the Commission under rule 14 or in respect of whom a report has been submitted in accordance with rule 15 after considering the views, if any, submitted by the officer representing the department in accordance with rule 12.
(b) Every candidate so selected shall be examined by a Medical Board. A candidate who fails to satisfy the Medical Board shall not be appointed.”
17. A plain reading of the aforesaid rules, read in the context of the others in Part V, would leave little manner of doubt that as regards the direct recruitment, the same is routed through selection by the Bihar Public Service Commission, culminating in final appointment by the Governor from the list submitted to him. What is true of direct recruits seems to be equally valid in the context of those appointed to the service by promotion. Rules 17 and 18 of the Bihar Engineering Services Class I Rules provide that regarding vacancies to be filled by promotion, the Chief Engineer will nominate the officers from the Bihar Engineering Service, Class II, and submit such a list to the Governor who will forward the same to the Commission, which will then submit their recommendation to him. Ultimately, the final selection and appointment would be made by the Governor under rule 18.
18. It seems to be manifest from the above that both as regards the direct recruitment to the service, as also by way of promotion, the appointing authority is in terms the Governor. It was not denied before us that the Bihar Engineering Service Class I Rules, 1939, have the force of law. Therefore, in face of the clear statutory mandate, it is not possible to hold in law that despite the categoric declaration of the appointing authority being the Governor nonetheless it must be deemed to be the Council of Ministers.
19. Sri Basudeva Prasad, learned counsel for the writ petitioner, with considerable ingenuity attempted to argue that because the Governor is, by the mandate of Art. 163 of the Constitution, to act in accordance with the aid and advice of the Council of Ministers, therefore, any appointment by the Governor must be deemed to be an appointment by the Council of Ministers. I find myself unable to slide into this fallacy. Article 163(3) of the Constitution categorically bars any disclosure or examination of the advice tendered by the Council of Ministers to the Governor, who is the repository of the State's executive power under Art. 154. The Constitution, therefore, expressly and by a conclusive legal mandate vests the executive power in the Governor. That being so, it is not for the Courts to go behind that constitutional mandate and to hold that despite that declaration such executive power vests in the Council of Ministers and, consequently, all acts done in the name of the Governor must be deemed in the eye of law to have been done by the Council of Ministers with its necessary legal implications.
20. Sri Basudeva Prasad attempted to contend that the vesting of the executive power of the State in the Governor was merely a fiction. Even if it were to be so, it is well settled that when the law, in terms advisedly creates a fiction, it must be obeyed inflexibly and carried out to its logical end and the mind should not be allowed to boggle from the consequences which may flow thertfrom. It was said in the celebrated words of Lord Asquith in East End Dwelling Company, Ltd. v. Finsbury Borough Council, [1952 A.C 109]:
“If you are bidden to treat an imaginary state of affairs as real, you mast surely unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowd from or accompanied it. One of there in this case is emancipation from the 1989 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.”
The aforesaid observations have been repeatedly and approvingly affirmed by the final Court in State of Bombay v. Pandurang Vinayak, [A.I R. 1953 S.C 244] and Boucher Pierre Andre v. Superintendent, Central Jail, Tihar, [(1975) 1 SCC 192 : A.I.R 1975 S.C 164], and it would therefore, seen unnecessary to multiply authority on the point. Indeed, learned counsel for the writ petitioner was compelled to concede that despite the wide ranging exercise of the powers by the President and the Governor, as the repositories of the executive powers of the Union and the States no judgment has so far held that all the appointments in their names should be deemed to be those of either the Council of Ministers at the Centre or those of the State, barring the passing observations in the case of Bachcholal Das, [1983 B.L.J.R 563] (vide supra).
21. For the aforesaid reasons, I am enable to hold, in face of the clear mandatory provisions of the Bihar Engineering Service Class I Rules, 1939, that the appointing authority of the writ petitioner is any one other than the Governor of the State. This indeed was the firm stand taken on behalf of the respondent-State by the learned Advocate-General, and, I would unhesitatingly affirm the same.
22. In view of the aforesaid firm finding, if would be an exercise in futility to examine the alternative stand taken on behalf of the respondent-State that even if the appointing authority of the writ petitioner was assumed to be the Council of Ministers, the Chief Minister would be entitled to pass the order of suspension under the Rules of Executive Business. Since I do not find the least vestige of merit in the stand that the appointing authority of the petitioner is in the eye of law the Council of Ministers stricto sensu, it is wholly unnecesary to examine this alternative stand of the respondent-State. If suffices to mention that the same was vigorously assailed on behalf of the writ petitioner by Sri Basudeva Prasad and, in fairness to him, it must be noticed that he relied on many provisions of the Rules of Executive Business and a number of precedents, to which individual reference is now rendered irrelevant.
23. It now remains to examine the passing observations in the case of Bachcholal Das, [1983 B.L.J.R 563] (vide supra), A bare perusal of the three paragraphs (Paragraphs 11, 12 and 13) of the report, which alone deal with the point, would indicate that the issue was not adequately and exhaustively canvassed before the Beach. Article 154, which is the basic constitutional mandate and the inarticulate premise of the Parliamentary system of Government that the constitutional head is the legal repository of the executive powers of the State, was not even referred to, far from being put in the forefront. In the judgment reference was primarily made to certain provisions of the Rules of Executive Business for coming to the conclusion as to who was the appointing authority of the writ petitioner in the said case. With great respect, the merely procedural provisions of the Rules of Executive Business cannot possibly be conclusive on this point, in face of the statutory rules governing the issue of the appointing authority. It may be recalled that Tulzapurkar, J., speaking for the Full Bench in C.S karkhanis v. State of Maharashtra, [A.I.R 1977 Bom. 193], had concluded that the Rules of Business are directory in nature and no writ would be maintainable for their violation. It is equally well settled that in case of any conflict betwixt statutes having the force of law and the Rules of Business, the latter must give way to the former. Further, the Bench seems to have assumed merely because a matter under the Rules of Executive Business has to be placed before the Council of Ministers thereby the Council of Ministers would necessarily become the appointing authority thereof. Even if it were so, that some proposal for appointment has to be considered by the Council of Ministers, it would not follow therefrom that the appointing authority of the service is necessarily such a Council of Ministers. The distinction betwixt a selecting or a recommendatory body and the appointing authority is well known. Merely because proposals are to be placed before a body for information or recommendation, it would not, in the eye of law, make such a body the appointing authority or the final repository of executive power for such appointment. Indeed, the assumption that in that case the appointing authority was the Council of Ministers was taken at its face value and as one of first impression, without examining the question in depth or realising its larger ramifications. Learned Advocate-General, who had the occasion to represent the State in the said case, had pointed out that a reference to rule 33(a)(vii) of the Rules of Executive Business seems also to have gone unnoticed. With the greatest respects I must hold that on this specific point, the Judgment does not lay down the law correctly and is hereby overruled.
24. To finally conclude on the legal aspect, it is held that rule 49-A of the rules does not suffer from the vice of arbitrariness and is in no way violative of Art. 14 of the Constitution that the appointing authority of the Members of the Bihar Engineering Service, Class I, is the Governor and not the Council of Ministers; and that the decision in the case of Bachcholal Das, [1983 B.L.J.R 533] (vide supra), on this point does not lay down the law correctly.
25. Lastly, what appears to me as an argument of desperation, was also raised to the effect that the order of suspension was passed on non-existent facts. It was sought to be contended that the violation of the Service Rules and the Financial Rules by the writ petitioner was only technical in nature and should not have been made as adequate ground for suspension. This contention is only to be noticed and rejected. In Paras. 5, 6 and 7 of the counter-affidavit filed on behalf of the respondent-State the separate items of the alleged misconduct of the writ petitioner have been clearly enumerated. The order of suspension itself contains the following statements:
“Sri B.N Jha, Excutive Engineer Flood Control Division, Thakraha, Camp Gopalganj, is prima facie found responsible for the misconduct of having violated the rules and procedure in the disposal of tenders for the flood protection works of 1982 on the Piprasi-Pipraghat Embankment; of having committed irregularities in disposal of tenders and distribution of works; of having executed agreements for supply of materials without following the prescribed rules; of having misused lakhs of rupees of Government funds in the name of so-called works; of having put the Government to financial loss; of having ignored the orders of higher officers of insubordination; and, of having not carried out his official responsibilities properly, etc., for which depart mental proceeding is being initiated against him.”
[Translated from Hindi.]
26. It is common ground that the matter at issue is as yet the subject-matter of an exhaustive departmental enquiry against the writ petitioner and others. It is beyond the scope of the writ Jurisdiction to enter the thicket of facts in this context, and, at this stage, I see no reason to reject the firm stand of the respondent-State on affidavit regarding the prima facie irregularities and violation of rules and the alleged corruption, which is sought to be laid at the door of the writ petitioner. The submission in this contest has, therefore, to be also rejected.
27. In the light of the above, the writ petition must fail and is hereby dismissed. The parties, however, will bear their own costs.
28. Lalit Mohan Sharma, J.:— I agree that the appointing authority of the petitioner Is the Governor and not the Council of Ministers for the reasons mentioned in the Judgment of the Hon'ble Chief Justice and the view to the contrary expressed in the case of Bachcholal Das, [1983 B.L.J.R 563], is not correct; and, therefore, the order under challenge does not suffer from any infringement of rule 49-A. I also agree that rule 49-A is not ultra vires as urged on behalf of the petitioner' and further that the impugned order is not bad as having been passed on non-existent grounds.
29. On the question relating to the interpretation of the Rules of Executive Business, the argument of the learned Advocate-General, that, in passing the Impugned order the rules have not been violated, appears to be well founded.
30. The Advocate-General placed the rules at some length with special reference to the rules 10, 15, 16, 22, 27, 28, 32 and 34. Rule 9 declares that the Council of Ministers shall be collectively responsible for all advice tendered to the Governor and executive orders issued in his name in accordance with the rules; and, rule 10 enjoins all cases referred to in the Third Schedule to the rules (excepting the orders of the Chief Minister under rule 15) to be brought before the Council of Ministers. None of the items in the Third Schedule can be said to cover the present case. Item (27) deals with the appointment and promotion cases and item (23) relates to the “dismissal removal, or compulsory retirement”. The case of suspension has not been shown to be included in any item. The Advocate-General referred to item (10) which is in the following terms:
“(10) Any proposal to appoint and any proposal involving any action for the dismissal, removal or suspension of a Member of the Public State Service Commission.”
[Emphasis added.)
He argued that the inclusion of suspension in the tenth item which is confined to Members of the Public Service Commission, suggests that the omission of the said expression in the other items is deliberate. It is, therefore, not possible to assume that by implication, suspension of the class of officers to which the petitioner belongs is covered by the Third Schedule. Further, the 15th rule saves the power of the Chief Minister with reference to the cases referred to in the Third Schedule in case of emergency. Departmental Disposal of Business is dealt with in Part III and rule 22 authorises the Minister-In-charge to deal with suspension cases of Class II officers, but so far as Class I officers are concerned, rule 32(a)(vii) requires the cases (except those covered by rule 32(2)(i) to be “submitted to the Chief Minister” after the consideration by the Minister-la-charge. It is idle to contend that these cases have to be submitted to the Chief Minister only for his perusal. The rule cannot be interpreted as laying down an empty formality. The position of the Chief Minister is inherently superior and has been emphasised in many rules. Rule 32(a)(vii) ensures a personal examination by the Chief Minister himself in the cases of the officers of higher rank. It follows that authority to take a final decision in this regard rests with the Chief Minister. I am, therefore of the view that there is no violation of any of the rules involved in passing the impugned order.
31. The writ application is accordingly dismissed, but, without costs.
32. Birendra Prasad Sinha, J.:— I agree.
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