Rasida Khatoon W/O Mainuddin Khan Vs the State of Rajasthan

Rasida Khatoon W/o Mainuddin Khan, aged about 70 Years, R/o Near Jama Masjid, Dholikhar, Karauli, Rajasthan -322241, Currently Serving as Chairperson, Nagar Parishad, Karauli, Rajasthan

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----Petitioner

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Versus

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The State of Rajasthan, Through Director and Joint Secretary, Local Bodies, Jaipur, Rajasthan

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Additional District Collector, Karauli, Rajasthan

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Tehsildar, Karauli, Rajasthan

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----Respondents

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S.B. Civil Writ Petition No. 653/2025

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Rasida Khatoon W/o Mainuddin Khan, aged about 70 Years, R/o Near Jama Masjid, Dholikhar, Karauli, Rajasthan - 322241

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----Petitioner

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Versus

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State of Rajasthan, Through Secretary, Local-Self Government, Secretariat, Jaipur, Rajasthan

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Director, Local Bodies and Joint Secretary to The Government (Local Self Department), Rajasthan

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(2 of 25)

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[CW-11862/2024]

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Additional District Collector, Karauli, Rajasthan

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Tehsildar, Tehsil Karauli, District Karauli, Rajasthan 5. Special Secretary, Law and Jt. Legal Remembrance And Judicial Inquiry Officer, Secretariat, Jaipur, Rajasthan.

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----Respondents

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For Petitioner(s)	:	Mr. S.S. Hora with Mr. Ishan Khandelwal
For Respondent(s)	:	Mr. Rajendra Prasad-AG assisted by Mr. Sheetanshu Sharma Mr. Tanay Goyal Ms. Dhriti Laddha Ms. Harshita Thakral Mr. G.S.Gill-AAG with Mr. S.P.S Rajawat-Asst.G.C. Mr. Manoj Kumar Mr. Prem Shanker Sharma with Mr. Jitendra Kumar Sharma Mr. Mahendra Shandilya Mr. Manish Kumar Meena Mr. PradeepKumar

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JUSTICE ANOOP KUMAR DHAND

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Order

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Reserved on 16/07/2025 Pronounced on 23/07/2025 Reportable

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For convenience of exposition, this order is divided in the following parts: -

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INDEX

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(1) Factual matrix of the case ……………...…………………….2

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(2) Submissions on behalf of the petitioner ……..…...……..3

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(3) Submissions on behalf of the respondents.....…...……..5

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(4) Discussions and Analysis......………………………………….8

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(5) Conclusion and Directions ……………………………….…..24

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Factual matrix of the case :-

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Since, these writ petitions involve common questions of law and facts, therefore, with consent of the counsel for the parties,

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(3 of 25) [CW-11862/2024]

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arguments have been heard together in all these matters and the same are being decided by this common order.

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The petitioner has submitted three different writ petitions by way of (i) challenging the suspension order dated 15.07.2024 passed by the respondents; (ii) challenging the judicial enquiry conducted against the petitioner under Section 39 of the Rajasthan Municipalities Act, 2009 (for short, ‘the Act of 2009’); (iii) challenging the enquiry report, submitted by the Enquiry Officer, on the ground that the enquiry was not conducted by the Enquiry Officer, so appointed for this purpose, but instead the powers were delegated to the subordinate authorities.

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Submissions on behalf of the petitioner:-

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Counsel for the petitioner submits that the petitioner was elected as Chairperson, Nagar Parishad, Karauli and certain complaints were submitted against her with regard to issuance of pattas. Counsel submits that as per the proviso attach to Section 39(1) of the Act of 2009, the State Government was supposed to conduct an enquiry through existing or retired officer not below the rank of State Level Services. Counsel submits that in the instant case, the Additional Collector, Karauli was appointed as the Enquiry Officer to conduct an enquiry against the petitioner, but he did not conduct any enquiry himself rather delegated his powers to the subordinate Officers viz., the Tehsildar, Karauli as well as to the Commissioner, Municipal Council, Karauli and collected the report with regard to the allegations from them. Counsel submits that on the basis of the report, received from the aforesaid Officers, the order dated 05.06.2024, incorporating the said

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[CW-11862/2024]

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(4 of 25)

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report, was sent by the Additional Collector, Karauli to the Director, Local Bodies, without any enquiry being conducted by him. Counsel submits that relying upon the aforesaid order/report dated 05.06.2024, a show cause notice under Section 39(1) of the Act of 2009 was issued and served upon the petitioner and she was placed under suspension vide impugned order dated 15.07.2024 and an order was also passed for conducting judicial enquiry against her. Counsel submits that as per the proviso attached to Section 39 (1) of the Act of 2009, it was incumbent upon the Enquiry Officer i.e. the Additional Collector, Karauli to hold and conduct the enquiry himself and could not have delegating his power to the subordinate officers i.e. the Commissioner, Municipal Council, Karauli and Tehsildar, Karauli. Counsel submits that under these circumstances, all the subsequent orders which were passed, based upon the report furnished by the Additional Collector have no bearing to the case and the same are not sustainable in the eyes of law and are liable to be quashed and set aside. Counsel submits that the general rule, whatever a person has power to do himself, he may do the same by means of an agent, has been limited by the operation of the principle that a delegated authority/power cannot be further delegated i.e. delegatus non protest delegare . Counsel further submits that if the order/report dated 05.06.2024 goes, the subsequent orders arising out of the aforesaid order will automatically fall. In such a factual situation the latin maxim sublato fundamento cadit opus comes into play which means that when the foundation is removed, the structure falls. Counsel further submits that the entire action against the petitioner is

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(5 of 25) [CW-11862/2024]

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initiated on the allegation that pattas were illegally issued in favour of certain known persons by her. Counsel submits that the petitioner was simply a co-signatory of the pattas and the another signatory was the Commissioner, Municipal Council, Karauli against whom neither any action has been taken nor he has been placed under suspension or any inquiry has been initiated against him. Counsel submits that the aforesaid selective action of the respondents is nothing but adopting a pick and choose approach in the matter, inasmuch as when both the persons were at fault then certainly, the action was also required to be taken against both of them i.e. against the said Commissioner as well as the petitioner. In support of his contentions, he has placed reliance upon the judgment passed by this Court in the cases of Satish Kumar Duhariya Vs. State of Rajasthan and Anr. (S.B. Civil Writ Petition No. 11706/2023, decided on 23.01.2024) and Vimla Devi (Smt.) Vs. State of Rajasthan and Ors. , reported in 2007 SCC Online Raj. 458 .

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S ubmissions by the rival sides:-

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Per contra , the learned Advocate General as well as the learned Additional Advocate General, have opposed the arguments advanced by counsel for the petitioner and submitted that certain complaints were received against the petitioner alleging misuse of her post and issuance of pattas. Counsel submits that the matter was examined by the Additional District Collector, Karauli, who sought report from the Municipal Commissioner as well as the Tehsildar, Karauli. Counsel submits that after receipt of the aforesaid report from the concerned Officers, a report was prepared and sent to the Government for further examination of

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[CW-11862/2024]

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(6 of 25)

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the matter through audit, etc. Counsel submits that the Additional District Collector was never appointed as an “Enquiry Officer”, rather he was simply asked to submit the report. Counsel submits that the proviso attached to Section 39(1) of the Act of 2009, does not mandate that the enquiry should be conducted only by a retired or existing officer not below the rank of State Level Service but a mechanism has been provided under the proviso which empowers the State to proceed in the matter either by conducting enquiry by itself or through the existing or Retired Officer of the rank of State Level Services or by any authority of the Government directly. Counsel submits that the allegations against the petitioner were prima facie found to be proved and accordingly, the matter was sent to the Government for taking appropriate action. Counsel submits that the report submitted by the Tehsildar, Karauli and the Commissioner, Municipal Council, Karauli was simply a fact finding report, hence the arguments raised by counsel for the petitioner with regard to delegation of power would not apply in the facts and circumstances of the present case. Counsel submits that the principle of delegatus non protest delegare is not applicable in the administrative actions or ministerial acts rather this principle applies to statutory judicial and quasi-judicial functions. Counsel submits that similar situation came up before the Co-ordinate Bench of this Court in the case of Narendra Kumar Khodaniya Vs. State of Rajasthan and Ors.

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while deciding SBCWP No. 15215/2024, vide order dated 23.09.2024 wherein the earlier judgment passed by the said Coordinate Bench in the case of Manszoor Ali Vs. State of Rajasthan and Ors. (SBCWP No. 17283/2021) was distinguished

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[CW-11862/2024]

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(7 of 25)

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and a view was taken by the said Co-ordinate Bench that the matter can be proceeded against the elected representative under Section 39 of the Act of 2009 on the basis of the fact finding report submitted by the Officers. Counsel submits that the petitioner cannot be allowed to claim negative parity on the ground that she was simply a co-signatory of the pattas. Counsel submits that even if the pattas have been issued under the signatures of the Commissioner, Municipal Council, Karauli as well as the petitioner and the action is taken against one of the authorities, the petitioner cannot be allowed to claim negative parity. Lastly, he argued that the petitioner is not only a signatory but also the a beneficiary in the matter. Counsel submits that on the basis of the report received from the aforesaid Officers, the matter was sent by the Additional District Collector to the Government where explanation/reply of the petitioner, was also sought under Section 39 (1) of the Act of 2009. After duly considering the reply submitted by the petitioner, a decision was taken by the State to conduct judicial enquiry into the allegations levelled against the petitioner as well as the other Officer, therefore, pending judicial enquiry, the petitioner was placed under suspension. Hence, under these circumstances, interference of this Court is not warranted and the present writ petitions are liable to be rejected.

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In rejoinder, counsel for the petitioner submits that there has been a complete non application of mind by the Government, while passing the suspension order against the petitioner. Counsel submits that the suspension order has been passed in a mechanical and perfunctory manner, without duly considering the

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[CW-11862/2024]

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(8 of 25)

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reply submitted by the petitioner and without proper deliberation and evaluation of the facts. Counsel submits that the petitioner is an elected representative having a limited term and in case, the charges are ultimately not found to be proved in the judicial enquiry and she is exonerated of all the charges, the time lost during her suspension cannot be restored. Counsel submits that the petitioner has no intention to influence or interfere with the judicial enquiry, hence, her suspension is not warranted. Lastly, he argued that the petitioner alone was not the competent authority to issue the pattas, rather the pattas were issued by the competent authority, after verification of the record and if no action has been taken against him, then certainly, no action is required to be taken against the petitioner as well.

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Discussions and Analysis:-

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Heard and considered the submissions made at Bar and perused the material available on record.

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Before dealing with the submission, it would be gainful to reproduce the provisions contained under Section 39(1) and (3) of the Act of 2009, which reads as under:-

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“ 39. Removal of member . - (1) The State Government may, subject to the provisions of sub Sections (3) and (4), remove a member of a Municipality on any of the following grounds, namely: -

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(a) that he has absented himself for more than three consecutive general meetings, without leave of the Municipality:

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Provided that the period during which such member was a jail as an under trial prisoner or as a detenue or as a political prisoner shall not be taken into account,

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(b) that he has failed to comply with the provisions of Section 37,

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(9 of 25)

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[CW-11862/2024]

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(c) that after his election he has incurred any of the disqualification mentioned in Section 14 or Section 24 or has ceased to fulfil the requirements of Section 21,

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(d) that he has –

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(i) deliberately neglected or avoided performance of his duties as a member, or (ii) been guilty of misconduct in the discharge of his duties, or

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(iii) been guilty of any disgraceful conduct, or

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(iv) become incapable of performing his duties as a member, or

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(v) been disqualified for being chosen as member under the provisions of this Act, or (vi) otherwise abused in any manner his position as such member, or

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(e) that after his election, it has come to the knowledge of the State Government that on the date of election, he was not qualified under section 21 or was disqualified under section 14 or section 24, to be chosen to fill the seat under this Act and his election as a member of a Municipality has not been questioned by an election petition and period of limitation for filing election petition has expired.

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Provided that an order of removal shall be passed by the State Government after such inquiry as it considers necessary to make either itself or through such existing or retired officer not below the rank of State level services or authority as it may direct and after the member concerned has been afforded an opportunity of explanation.

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(2) xxxx xxxx xxxx xxx

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(3) Notwithstanding anything contained in subSection (1) where it is proposed to remove a member on any of the grounds specified in clause (c) or clause (d) of sub-Section (1), as a result of the inquiry referred to in the proviso to that sub-Section and after hearing the explanation of the member concerned, the State Government shall draw up a statement setting out distinctly the charge against the member and shall send the same for enquiry and findings by Judicial Officer of the rank of a District Judge

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[CW-11862/2024]

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(10 of 25)

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to be appointed by the State Government for the purpose.”

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Perusal of the aforesaid provision indicates that a member of a Municipality can be removed from office if he/she has been found guilty in discharge of duties or has been found guilty of any disgraceful conduct. In the instant case, a memorandum of charges dated 26.06.2024 was served upon the petitioner enumerating several charges. The petitioner submitted her explanation with the reply and after considering the same it was found that the petitioner has misused her power and position by issuing pattas in violation of the Rules for her own benefit and such an act of the petitioner was found to be disgraceful. Hence, a decision was taken to hold and conduction a judicial enquiry against the petitioner and she was placed under suspension vide order dated 15.07.2024.

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The star argument of counsel for the petitioner is that the Additional Collector was appointed as the ‘Enquiry Officer’ and he was supposed to conduct the enquiry himself against the petitioner, however, instead of doing so, he purportedly delegated his power to the sub-ordinate Officers i.e. the Tehsildar, Karauli and the Commissioner, Municipal Council, Karauli. He submits that the order impugned was passed against the petitioner solely on the basis of the report of these two officers. Counsel submits that the delegated power cannot be further delegated. Counsel submits that the well known maxim delegatus non protest delegare , is applicable in this matter. Hence, the entire action initiated against the petitioner stands vitiated. Counsel submits that the foundation of the entire case is bad, hence other maxim “ sublato fundamento cadit opus ’ is also applicable in the present case. Hence, the

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[CW-11862/2024]

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(11 of 25)

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order/report dated 05.06.2024 and all actions taken thereupon i.e. initiation of judicial enquiry and placing the petitioner under suspension are legally untenable and liable to be quashed being bad in the eyes of law.

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Perusal of the entire record indicates that the Additional Collector was not formally appointed as the ‘Enquiry Officer” to conduct the enquiry against the petitioner. Rather, he was simply asked to submit a report with regard to the allegations levelled against the petitioner, in terms of the provisions contained under the proviso attached to Section 39 (1) of the Act of 2009 on the grounds mentioned in sub clause (c) to (d) attached thereto. The proviso attached to the Section 39 (1) reveals that an order of removal of a member shall be passed by the State, after holding an enquiry, as it considers necessary to make:-

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(i) either by itself; or

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(ii) through such existing or Retired Officer not below the rank of State Level Service; or

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(iii) by authority as it may direct and after affording an opportunity of explanation to such member. “Meaning thereby the enquiry may be conducted by the State itself or by any authority as may be directed by the State or by a retired or existing member of State Level Services. It is not necessary that the enquiry must always be conducted by an officer of the State Services authority.

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Now, the questions which remain for consideration of this Court is “whether the Additional Collector, who submitted the report against the petitioner, was appointed as the ‘Enquiry

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[CW-11862/2024]

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(12 of 25)

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Officer’ or not”, and “whether the report submitted by him holds any legal validity or not.”

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A complaint was received by the respondents wherein several allegations were levelled against the petitioner for misusing her power and postion. It was also alleged that the pattas were issued by her for her own benefits.

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Thereafter, the Director, Department of Local Bodies, Jaipur (for short, ‘the DLB’) asked the Additional Collector, Karauli to submit his report after conducting enquiry in the matter. Thereafter, the Additional Collector submitted the fact finding report, received from the Tehsildar, Karauli and the Commissioner, Municipal Council, Karauli and submitted the following order/report to the Director, DLB on 05.06.2024 which reads as under:-

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“ Jheku~ funs”kd egksn; Lok;Rr “kklu foHkkx th&3 jktegy jsthMsUlh ,fj;k flfoy ykbu QkVd lh Ldhe jktLFkku ljdkj t;iqjA

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fo’k; %& uxj ifj’kn djkSyh }kjk eksgje lIykbZ dh 5-50 djksM+ dh fufonk,as yxkdj fd;s x;s ?kksVys dh tkWp djokus o tkWp gksus rd fuyEcu djus ds Øe esaA

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izlax %& Jhekuth dk i=kad&i-2¼d½¼ ½@tkWp@Mh,ych@2024@818 fnukad 20-02-2024] 870 fnukad 2202-2024] 1337 fnukad 26-03-2024] 1851 fnukad 06-05-2024] 2028 fnukad 17-05-2024]2035 fnukad 17-05-2024 ds lanHkZ esaA

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egksn;]

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mi;ZqDr fo’k;kUrxZr izklafxd i= ds lanHkZ esa fuosnu gS fd Hkktik inkf/kdkjh ,oa dk;ZdrkZvksa }kjk izkFkZuk i= izLrqr dj uxj ifj’kn lHkkifr }kjk dpjk laxzg.k] lQkbZ en vkSj vkoklh; fef+Jr iV~Vksa esa tkucw> dj Hkkjh vfu;feRrk ds laca/k esa rglhynkj djkSyh ds i=kad 288 fnukad 31-05-2024 }kjk Li’V tkWp dj ,oa uxj ifj’kn }kjk izLrqr tckc ds izR;sd fcUnq dh jktLo fjdkMZ@nLrkost@ekSds ij tkdj tk¡p fjiksVZ izLrqr dh gS ftlds vuqlkj %&

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01- ;g gS fd Jhefr deksnk ifRu iq:’kksRre ds uke ls tkjh iVVs dh tkWp fjiksVZ esa uxj ifj’kn vk;qDr dk dFku gSa%& fd Jhefr deksnk ifRu iq:’kksRre }kjk iVVk vkosnu ds lkFk nLrkost is”k fd;s x;s Fks tks fuEu izdkj gSA

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(13 of 25)

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[CW-11862/2024]

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¼,½ uxjikfydk }kjk uhykeh dk IykWV ftldh jftLVªh fnukad 1112-1973

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¼ch½ uxjikfydk }kjk fuekZ.k eatwjh lu~ 1987 ¼lh½ uksVjh ls izekf.kr “kiFk i= fnukad 14-05-2000 ¼Mh½ uxjikfydk uksfVl fnukad 26-05-1981

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uxjikfydk }kjk vkosnd ds iVVs ls lEcfU/kr vkifRr vkea=.k lwpuk fnukad 23-10-2021 dks lekpkj i= jk’Vªnwr esa izdkf”kr@izdk”ku gksus ls iVVk tkjh gksus rd fdlh Hkh izdkj dh vkifRr izkIr ugha gqbZ o uxj ifj’kn ds ofj’B izk:idkj }kjk viuh ekSdk fjiksVZ esa ukyk gksuk iznf”kZr ugha fd;k x;k gSA

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Jhefr deksnk ifRu iq:’kksRre “kekZ fuoklh iqjkuk vk-Vh-vksvkWfQl ds ikl djkSyh ds uke tkWp djus ij irk pyrk gS fd uxj ifj’kn djkSyh }kjk 69&d iVVk foys[k ¼Qzh gksYM½ fefJr iVVk Øekad%,y-Mh-@2021&22@36279 fnukad 22-07-2022 dks tkjh fd;k x;kA mldh Nk;k izfr e; uD”kk dh iVokjh gYdk djkSyh 09 ls fjiksVZ yh xbZ ftlds vuqlkj deksnk ifRu iq:’kksRre “kekZ e.Mjk;y jksM djkSyh ds uke uxj ifj’kn djkSyh }kjk tkjh iVVk layXu uD”kkuqlkj ekSdk feyku djus ij [kljk uEcj 4334 fdLe xSj eqedhu ukys esa fLFkr gS tks jktLo fjdkWMZ tekcUnh esa uxj ifj’kn djkSyh ds uke ntZ gSA Jhefr deksnk ifRu iq:’kksRre “kekZ ds uke ls uxj ifj’kn }kjk mDRk tkjh iVVk jktLo fjdkMZ ds vuqlkj xSj eqedhu ukys esa fn;k x;k tks ekuuh; mPp U;k;ky; ds fu.kZ; vCnqy jgeku cuke jktLFkku ljdkj 2004 dh vosgyuk dh Js.kh esa vkrk gSA

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02- ;g fd vehuqnnhu iq= ebZuqnnhu dks vEcsMdj lfdZy ij 397-09 oxZ ehVj dk vifBr tkjh fd;k x;k gS ftlds lUnHkZ esa vk;qDr] uxj ifj’kn djkSyh dk dFku gS fd%&

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¼,½ vkosnd }kjk iV~Vs ds fy, Hkwfe dh jftLVªh;kW is”k dh xbZ gSA

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¼ch½ vkosnd }kjk pSufeyku xkbZMykbZu ds vuqlkj dk;kZy; uxj ifj’kn djkSyh ds x`gdj dh udy is”k dh xbZ gSA

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¼lh½ vkosnd ls iwoZ ekfyd dh jftLVªh;ksa dh udy is”k dh x;hA

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¼Mh½ vkosnu dks iV~Vk tkjh djus ls iwoZ ofj’B izk:idkj uxj ifj’kn djkSyh }kjk ekSdk voyksdu fjiksVZ dh x;h FkhA ftlesa mDr Hkwfe ij dksbZ Hkh efUnj ;k f”ko efUnj gksuk ugha n”kkZ;k x;k gSA

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¼bZ½ vkosnd ls iVVk vkosnu izkIr gksus ds i”pkr dk;kZy; uxj ifj’kn djkSyh }kjk vkifRr vkea=.k lwpuk lekpkj i= nSfud HkkLdj esa fnukad 03-11-2021 izdkf”kr@izdk”ku gksus ls iVVk tkjh gksus rd Hkh dksbZ vkifRr@,rjkt uxj ifj’kn djkSyh dks izkIr ugha gqbZ Fkh] jkT; ljdkj }kjk tkjh xkbZMykbZu vuqlkj iVVk tkjh fd;k x;k FkkA

¶122

mDr fcUnq ds laca/k esa tkWp djus ij ik;k dh uxj ifj’kn djkSyh }kjk vehuqnnhu iq= ebZuqnnhu fuoklh tkek eftLn djkSyh ds uke ls iqjkuh vkcknh {ks= HkVVk cLrh HkWoj foykl ds ikl djkSyh] tks lHkkifr j”khnk [kkrqu dk iq= gS] fefJr iVVk {ks=Qy 372-63 oxZehVj Øekad 07 fnukad 12-11-2021 tkjh fd;k x;kA tkjh fd;s x;s iVVs ds lkFk layXu uD”kk vuqlkj iVVs dh

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(14 of 25)

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[CW-11862/2024]

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if”pe Hkqtk dh dqy yEckbZ ¼64+10½ 74 QhV gSA f”kdk;r drkZ }kjk mi iath;d dk;kZy; djkSyh ls mi iath;u nLrkost dh lR;izfyfi izkIr dj tkWp gsrq izLrqr dh gS ftlds lkFk layXu Hkw[k.M ds uD”kk vuqlkj Hkh if”pe Hkqtk dh yEckbZ ¼64 + 10½ 74 QhV gSA la”kksf/kr iVVs ds lkFk lyaXu Hkw[k.M ds uD”ks esa if”pe Hkqtk dh yEckbZ c<+kdj 88 QhV vafdr dj nh xbZ gSA ewy iVVs ds lkFk layXu Hkw[k.M ds uD”ks esa mRrj fn”kk dh yEckbZ 58 QhV iznf”kZr dh gS ftls la”kksf/kr iVVs esa c<+kdj 60 QhV dj fn;k gSA bl izdkj uxj ifj’kn djkSyh }kjk mDr iVVk tkjh djus ds ckn iqu% vehuqnnhu iq= ebZuqnnhu dks mlh LFkku ij la”kksf/kr fefJr iVVk dzekad 07@239 fnukad 06-07-2022 tkjh fd;k x;kA la”kksf/kr iVVs dk {ks=Qy c<+kdj iwoZ esa tkjh iVVs ds {ks=Qy 372-63 oxZehVj ls 397-09 oxZehVj dj fn;k x;kA blh Hkw[k.M ds laca/k esa ekuuh; U;k;ky; laHkkxh; vk;qDr dksVk ds izdj.k la[;k 16@93 dY;k.k izlkn ,oa vU; cuke iz”kkld ua-ik- ,oa vU; djkSyh esa fu.kZ; fnukad 03-11-1997 eas bl Hkw[k.M esa fLFkr egknso eafnj rd vkus tkus gsrq 05 QhV pkSMk jkLrk NksMus ds fy, uxj ikfydk djkSyh dks vkns”k fn;s x;s gSA U;k;ky; vkns”k ds lkFk layXu uD”ks esa eafnj dks iznf”kZr fd;k x;k gSA fu.kZ; fnukad 0311-1997 dh izfr layXu gSA uxj ifj’kn }kjk tkjh ewy iVVk dzekad 07 fnukad 12-11-2021 ds lkFk layXu uD”ks esa Hkh 05 QhV pkSMk jkLrk iznf”kZr fd;k x;k gSA uohu la”kksf/kr iVVs dzekad 07@239 fnukad 06-07-2022 esa efnj vka Sj jkLrs dks foyksfir djrs gq, iVVk tkjh dj fn;k x;k gSA

¶126

03- ;g gS fd f”kdk;rdrkZ }kjk Mwc {ks= esa 66 vkoklh;@fefJr iVVs /kkjk 69 , ds rgr tkjh fd;s tkus dh lwph layXu dh gSA uxj ifj’kn us viuh tkWp esa f”kdk;rdrkZ }kjk crk;s x;s Mwc {ks= dh lwph ,oa blls lacaf/kr lwpuk uxj ifj’kn dk;kZy; esa vuqiyC/k gksuk crk;k gSaA tcfd f”kdk;r drkZ us uxjikfydk }kjk lgk;d vfHk;Urk ikWpuk flpkbZ mi[k.M f}rh; djkSyh dks vius i=kad% ua-ik-@,Q@¼ ½@97@1324 fnukad 02-08-97 ¼izfrfyfi layXu½ dj unh xsV izksVD”ku ds vUnj vkus okys edku ekfydksa dh lwph miyC/k djkbZ gSA tks f”kdk;r drkZ }kjk vkj-Vh-vkbZ- ds rgr lgk;d vfHk;Urk] ty la”kk/ku mi[k.M djkSyh ds dk;kZy; ls çkIr dh gS] f'kdk;r drkZ ds }kjk ;g Hkh crk;k x;k gS fd ikWpuk ckW/k dh Mwc {ks= lhek esa vkus okys edku ekfydks }kjk ikWpuk flpkbZ foHkkx djkSyh ls eqvkotk jk”kh ds pSd çkIr djus ds ckn Hkh uxj ifj"kn djkSyh ls vius ifjokjtuks ds uke ls iVVs tkjh djok fy, ftldh tk¡p gsrq dk;kZy; vf/k'kk"kh vfHk;Urk ty lalk/ku foHkkx djkSyh dks v/kksgLrk{kjdrkZ }kjk i= dekad 269 fnukad 16-05-2023 izsf’kr dj mu O;fDr;ksa ds uke dh lwph pkgh xbZ tks Jheku~ mi[k.M vf/kdkjh egksn; dks eqvkots ds fy, izLrqr dh xbZA mDr lwph pSd uEcj lfgr miyC/k ugha gksus ds dkj.k tkWp djuk laHko ugha gks ik;k gSA flpkbZ foHkkx ,oa uxj ifj’kn ds vf/kdkfj;ksa dh vifBr xfBr dj ekSds ij tkdj tkWp djuk mfpr gksxkA

¶127

04- ;g gS fd vk;qä] uxj ifj"kn djkSyh dk dFku ;g gS fd%& vYykuwj iq= 'kdwj [kkW vEcsMdj lfdZy yksVuihj djkSyh dks tkjh iêk 139-39 oxZehVj iwoZ esa LVsVxzkaV lu~ 1961 ds rgr iV~Vk tkjh

¶128

(15 of 25)

¶129

[CW-11862/2024]

¶130

gks j[kk FkkA blds vk/kkj ij jktLFkku ljdkj dh xkbZM ykbZu ds vuqlkj 69 , ds rgr iVVk fu;ekuqlkj tkjh fd;k x;k FkkA mDr ds laca/k esa tkWp djus ij iVVk fu;ekuqlkj tkjh fd;k tkuk çrhr gksrk gSA iV~Vs ,oa Hkw[k.M ds uD'ks dh Nk;k çfr t‚p fjiksVZ ds layXu gSA

¶131

05- ;g gS fd dk;kZy; gktk ds i=kad ih-th-@2024@172 fnukad 19-03-2024 ,oa 222&23 fnukad 13-05-2024 esa vafdr fcUnq la[;k 01 yxk;r 03 ls lacaf/kr nLrkost tk¡p gsrq miyC/k ugha djkdj vk;qDr] uxj ifj’kn djkSyh ds i=kad 248 fnukad 30-04-2024 ls voxr djk;k fd fjdkMZ 'kh?kz gh miyC/k djok fn;k tkosxkA ijUrq fjdkMZ vkfnukad rd vçkIr gksus ds dkj.k tk¡p djuk lEHko ugha gks ik;k gSA

¶132

06- ;g gS fd djkSyh iVokj gYdk 09 esa fLFkr Hkwfe [kkrk la[;k u;k 342 [kljk ua- 5267 ls 5271 o iVokj gYdk djkSyh 08 esa fLFkr Hkwfe [kkrk la[;k u;k 265 [kljk ua- 795 yxk;r 800] 827] 846 yxk;r 851] 863 yxk;r 871] 874 yxk;r 881 dh orZeku tekcUnh esa dkLrdkj dk uke ijekuUn nkl psyk ?ku';ke nkl tkfr ckcwth lk-nsg- ls lacaf/kr Hkwfe esa uxj ifj"kn }kjk Hkw jktLo vf/kfu;e dh /kkjk 90 ,@90 ch ds varxZr tkjh leLr iV~Vs ,d ls vf/kd [kljk uEcjks esa lfEefyr i êk tkjh fd;k x;k gS mu O;fä;ksa ds ukeksa dh lwph ,oa orZeku tekcUnh t‚p fjiksVZ ds lkFk layXu gSA

¶133

07- ;g gS fd vCnqy x¶ Qkj iq= vCnqy xQqj fuoklh unh xsV ds ikl] [kkj jksM] djkSyh ds uke uxj ifj"kn djkSyh }kjk 69, ds vUrxZr fn;k x;k vkoklh; iêk Øekad% LD/KRLI/2021&22@105967 fnukad 17-05-2022 {ks=Qy 400-37 oxZehVj ds laca/k esa f'kdk;rdrkZvksa dk ;g dFku gS fd vCnqy x¶ Qkj }kjk mDr vkoklh; iêk tkjh gksus ls iwoZ Loa; ds edku ds ik¡puk Mqc {ks= esa vkus ij Jheku Hkwfe vokIr vf/kdkjh djkSyh }kjk tkjh pSd la[;k 762686 ls 92299 :i;s dk eqvkotk çkIr fd;k x;kA mä ds laca/k esa nLrkostksa dh tk¡p djus ij ;g ik;k x;k fd uxjikfydk djkSyh }kjk lgk;d vfHk;Urk i‚puk flpkbZ mi[k.M f}rh; djkSyh dks vius i=kad% u-ik-@,Q@¼ ½@97@1324 fnukad 02-08-97 ¼çfrfyfi layXu½ }kjk unh xsV çksVD'ku ds vUnj vkus okys edku ekfydksa dh lwph miyC/k djkbZ gSA tks f'kdk;r drkZ }kjk vkj-Vh-vkbZ- ds rgr lgk;d vfHk;Urk] ty lalk/ku mi[k.M djkSyh ds dk;kZy; ls çkIr dh gSA mä lwph esa Øe la[;k 02 ij vCnqy x¶ Qkj iq= vCnqy xQqj] fuoklh unh xsV djkSyh dk uke vafdr gSA ¼layXu mijksäkuqlkj½

¶134

08- ;g gS fd dk;kZy; uxj ifj"kn djkSyh }kjk vkifÙk vkea=.k lwpuk dekad 2684&87 fnukad 06-09-2023 esa 94 vkosnudrkZvksa }kjk 90,@90ch ds vUrxZr vius Hkw[k.M dk fu;eu dj iêk gsrq vkosnu çLrqr fd;s x;sA ftuds vkosnu i= uxj ifj"kn esa çfØ;k/khu ds laca/k esa vk;qDr uxj ifj"kn djkSyh }kjk laoknnkrk C;wjks lans'k ds uke ls LFkkuh; laLdj.k esa Mhåihåvkjå nj ij çdkf'kr fd;k tkuk mYysf[kr gSA tcfd uxj ifj"kn }kjk

¶135

(16 of 25)

¶136

[CW-11862/2024]

¶137

laoknnrk C;wjks lans'k dks çdk'ku gsrq nh x;h çfrfyfi esa C;wjks lans'k dk;kZy; dk irk dk mYys[k ugha gSA ftlls tk¡p esa ;g Li"V ugha gks ik jgk gS fd uxj ifj"kn }kjk mijksDr lwpuk fdl ek/;e ls izdk”ku gsrq nh tkrh gSA

¶138

lkjka”kr% izdj.k esa izkIr f”kdk;rksa ds laca/k esa u-i- vk;qDr djkSyh ls tcko@rF;kRed fjiksVZ izkIr gksus rFkk mudk ijh{k.k rg- djkSyh ls djok;s tkus ,oa leLr fjdkWMZ dk voyksdu djus ij mi;ZqDrkuqlkj dqN ekeyksa esa vfu;ferrk mtkxj gksrh gS rFkk laiw.kZ fjdksMZ miyC/k ugha djok;s tkus ls dqN f”kdk;rksa ds fcUnqvksa dh tkWp ugha dh tk ldh gSA

¶139

v/kksgLrk{kdrkZ ds vfHker esa u-i- djkSyh ds fØ;kdYkkiksa@ys[kksa dh funs”kky; Lrj ls Vhe xfBr dh tkdj foLr`r vkWfMV@tkWp djokbZ tkuh pkfg,A ”

¶140

After receipt of the aforesaid report, a notice under Section 39 (1) of the Act of 2009 was given to the petitioner along with the enquiry report. Hence, it is clear that the Additional Collector was never ever appointed as an Enquiry Officer. He was simply asked to submit a report and the same was submitted by him after getting fact finding report from the Tehsildar and the Commissioner of Municipal Corporation, Karauli.

¶141

Now the next issue which emerges for consideration is “whether the summary report, obtained from the subordinate Officers, amounts to a delegation of power/authority to them?”.

¶142

The issue involved in the present petition is no more res integra, having already been thoroughly examined by the same Co-ordinate Bench in the case of Narendra Kumar Khodaniya (supra), who decided the matter of Manzoor Ali (supra) and it has been held in paras 21 to 31, which read as under:-

¶143

“21. The case of Manzoor Ali (supra), was a case of sub-section (3) of section 39 of the Act of 2009 and the inquiry in question in clear terms was mentioned as ‘preliminary inquiry’ and it was not the stand of the State Government that another inquiry as contemplated under section 39(1) of the Act of 2009

¶144

(17 of 25)

¶145

[CW-11862/2024]

¶146

will be undertaken, as is the position in the instant case.

¶147

True it is, that similar argument was advanced by the learned Additional Advocate General in the case of Manzoor Ali (supra) that it is only a fact finding inquiry, as has been advanced in the present case, but contradistinguished from the Manzoor Ali’s case, in the present case on 05.09.2024, the State Government has issued a notice under section 39 (1) of the Act of 2009. Moreso, not only the subject even the substance of the notice makes it clear that the statutory inquiry has commenced from 05.09.2024.

¶148

A careful reading of the judgment in the case of Manzoor Ali shows that a notice dated 08.12.2021 was under challenge therein, which was issued under section 39(3) of the Act of 2009 and the said notice was issued by the Director asking the petitioner as to why judicial inquiry be not conducted against him and prior to seeking such explanation he had directed the District Collector to conduct inquiry, who in turn had sent it to the Commissioner, Municipal Corporation who in turn appointed one Deputy Commissioner to be an inquiry officer and straightway on the basis of report sent by said Deputy Commissioner, the Director in that case had asked as to why case be not referred to judicial inquiry. As against this, in the instant case the Director has issued notice dated 05.09.2024 for the first time, eliciting petitioner’s response during holding an inquiry- it is a notice under section 39(1) of the Act of 2009, during the process of inquiry.

¶149

According to this Court, in the present day scenario, when a host of complaints are being filed against elected representatives, State cannot be expected to straightaway launch an inquiry under section 39(1) of the Act of 2009 and engage its officers for conducting the inquiry without first ascertaining the facts. In order to avert unnecessary exercise and to ward off frivolous complaints, if the State Government has got done a fact finding exercise through the respondent No.3-Deputy Director, it cannot be said that the same is void or without authority of law.

¶150

As such exercise is for ascertainment of facts, this Court does not find any infirmity, if the respondent No.3-Deputy Director constituted a committee and

¶151

(18 of 25)

¶152

[CW-11862/2024]

¶153

assigned or delegated the task of looking into the allegations levelled in the complaint.

¶154

Most important aspect of the matter is, that the respondent No.3 was not undertaking any statutory inquiry as contemplated under sub-section (1) of section 39 of the Act of 2009, and the communication dated 08.02.2024 was meant to assimilate facts.

¶155

The principle ‘delegatus not potest delegare’ cannot be applied to administrative actions or ministerial acts. This principle applies to statutory judicial and quasi-judicial functions. If the statute confers a power or delegates upon an authority a duty to perform certain act, such authority cannot ask someone else or delegate such power to another person, is the underlying principle. In absence of the inquiry being a statutory inquiry under sub-section (1) of section 39 of the Act of 2009, the fact that the job of inquiry has further been delegated and that the report of such delegatee has been sent by respondent No.3-Deputy Director by communication dated 28.08.2024, and acted upon, the process cannot be held to be vitiated.

¶156

This Court is of the considered view that practical necessity or exigency of the administration requires that the decision making authority who has been conferred with statutory power, be able to ascertain the foundational facts first, before initiating the actual proceedings or inquiry. Such exercise would as a matter of fact, avoid unnecessary harassment to none other than the elected representatives. Delegation to some extent becomes inevitable and an administrative necessity.

¶157

There is yet another aspect of the matter – by way of the communication dated 08.02.2024, the respondent No.2 (the Assistant Director) had asked the respondent No.3 (the Deputy Director), who is higher in the official hierarchy, hence, it cannot be said that the respondent No.2 had delegated his power to respondent No.3.

¶158

In the facts of the case in hands it cannot be said that there is an abdication of power by the State Government, when the inquiry has been initiated by the notice dated 05.09.2024, issued by the Directorcum-Joint Secretary of the Government.

¶159

As a consequence of the foregoing discussion, the present writ petition is dismissed.”

¶160

[CW-11862/2024]

¶161

(19 of 25)

¶162

The Co-ordinate Bench of this Court has held that the principle of delegatus non protest delegare is not applicable in to administrative action or ministerial act. Rather, the principle applies to statutory judicial and quasi judicial function. In absence of any enquiry under Section 39 (1) of the Act of 2009, the summary report obtained from the subordinate authorities cannot be held to be invalid and the entire process cannot be held to be vitiated on that ground.

¶163

This Court finds that even the maxim sublato fundamento cadit opus is not applicable in the facts and circumstances of the present case. As this Court finds no illegality in the order/report dated 05.06.2024 submitted by the Additional Collector to the Director, DLB, the subsequent actions taken against the petitioner viz., holding of judicial enquiry against her and placing her under suspension, stand on firm legal footing. The foundation of the proceedings initiated against the petitioner is legally valid and does not suffer from any legal infirmity. Therefore, this Court finds no error or arbitrariness on the part of the respondents in initiating the impugned actions against the petitioner. In the considered opinion of this Court, the Additional Collector was not appointed as the ‘enquiry officer’ for the purpose of conducting enquiry against the petitioner. He was simply asked to collect ‘the fact finding report’, which he did by obtaining the same from his subordinate Officers and after receipt of the aforesaid fact finding report, order/report dated 05.06.2024 was prepared and sent by him to the Government for further examination of the matter through audit, detailed inquiry, etc. Based on the order/report dated 05.06.2024, the impugned order was passed, initiating a

¶164

[CW-11862/2024]

¶165

(20 of 25)

¶166

judicial enquiry against the petitioner after placing her under suspension.

¶167

This Court now proceeds to deal with the next set of arguments advanced by counsel for the petitioner that severe and disproportionate action has been taken against the petitioner for the allegation of issuing pattas in contravention of the Rules. Counsel submits that the patta in question was counter signed by the petitioner as well as by the Commissioner, Municipal Council, Karauli, yet no action has been taken against the latter.

¶168

By advancing the above arguments, the petitioner is claiming “negative parity”. If any wrongdoing has been committed by a person or more i.e. the petitioner and the Commissioner, Municipal Council, Karauli while issuing pattas illegally, by misusing their power and postion, the petitioner cannot be allowed to claim immunity on the ground that no action has been taken against the Commissioner, Municipal Council, Karauli, who was also a counter signatory of the pattas. This Court finds no substances in the argument of the petitioner that the respondents have followed the practice of pick and choose while taking action against the petitioner alone. Such argument of the petitioner is legally not sustainable. If the pattas have been issued illegally, while giving benefits to the petitioner and the same have been counter-signed by the Commissioner, Municipal Council, Karauli, stern legal action must be taken against him as well strictly in accordance with law, after affording him a fair opportunity of hearing, complying the principles of natural justice. This Court hopes and trusts that the respondents will take appropriate legal measures/action against the said Commissioner, Municipal Council, Karauli, if his

¶169

[CW-11862/2024]

¶170

(21 of 25)

¶171

involvement in the issuance of illegal pattas is prima facie established.

¶172

It is well settled proposition of law that no negative equality can be claimed as a matter of right under Article 14 of the Constitution of India, as has been held by the Hon’ble Apex Court in the case of R. Muthukumar & Ors v. The Chairman And

¶173

Managing Director TANGEDCO & Ors 2022 SCC Online SC

¶174

151 in para 24, which reads as under :-

¶175

“28.A principle, axiomatic in this country's constitutional lore is that there is no negative equality. In other words, if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.”

¶176

In Basawaraj and Anr. v. Special Land Acquisition Officer (2013) 14 SCC 81 , the Hon’ble Apex Court has held in para 8 as under :-

¶177

“8. It is a settled legal proposition that Article 14 of the Constitution is not meant to perpetuate illegality or fraud, even by extending the wrong decisions made in other cases. The said provision does not envisage negative equality but has only a positive aspect. Thus, if some other similarly situated persons have been granted some relief/benefit inadvertently or by mistake, such an order does not confer any legal right on others to get the same relief as well. If a wrong is committed in an earlier case, it cannot be perpetuated.”

¶178

Similarly, in the case of The State of Odisha v. Anup Kumar Senapati 2019 SCC Online SC 1207 , it has been held by the Hon’ble Apex Court that :

¶179

“If an illegality and irregularity has been committed in favour of an individual or a group of individuals or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing a similarly wrong

¶180

[CW-11862/2024]

¶181

(22 of 25)

¶182

order. A wrong order/decision in favour of any particular party does not entitle any other party to claim benefits on the basis of the wrong decision.”

¶183

Meaning thereby, Article 14 of the Constitution of India is not meant to perpetuate any illegality even by extending the wrong decisions made in other cases. If any wrong is committed by the authorities, then in similar matter it cannot be allowed to be perpetuated. Equality cannot be claimed in illegality and, therefore, cannot be enforced by a citizen or Court in a negative manner. This Court trusts and believes that appropriate action would be taken by the respondents against all the erring Officers who are involved in the incident of issuing illegal pattas in contravention of the Rules.

¶184

The judgment relied upon by the petitioner in the case of Satish Kumar Duhariya (Supra) is distinguishable and not applicable in the facts and circumstances of the present case because in that case the suspension orders were passed against the Sarpanch and the Government Officers and an enquiry was initiated against them and subsequently while the enquiry was pending against them all, their suspension orders were revoked. However, in the instant case, neither any suspension order has been passed against the Commissioner, Municipality Council, Karauli nor has any enquiry been initiated against him. If he has committed a wrongdoing while issuing pattas illegally in violation of the Rules, it is expected that the respondents shall taking appropriate action against him as well. Nonetheless, that certainly cannot be a ground to quash the orders, placing the petitioner under suspension and holding judicial enquiry against her.

¶185

[CW-11862/2024]

¶186

(23 of 25)

¶187

It is a settled principle of law that this Court cannot interfere with the suspension orders lightly since suspension is only a deprivation of one’s status and that too temporarily, it does not amount to penalty and it is normally ordered when the allegations of misconduct and/or corruption are under scrutiny. Power of this Court in such like matters should be used sparingly and that too with utmost care and caution. No exceptional case has been made out by the petitioner for interfering in her suspension order.

¶188

In the case of Durga Ram Mali Vs. State of Rajasthan and Ors. reported in (2011) 4 RLW 3552 , it has been held by this Court that issue of suspension is not to be gone into by the Court and the same should be left to the objective satisfaction of the Government. It has been held as under:-

¶189

“I am of the opinion that when the matter of suspension is left to the objective satisfaction of the Government, the normal rule is that it is not unnecessarily justiciable before the High Court and the Court cannot look into the question as to whether the materials are adequate or inadequate from its point of view nor the Court should substitute its own satisfaction for that of the authority.”

¶190

In the case of Tararam Mali Vs. State of Rajasthan and

¶191

Ors., [S.B. Civil Writ Petition No. 11814/2019, decided on 30.09.2019], it has been held by the Co-ordinate Bench of this Court at Principal Seat at Jodhpur in para 51 as under:-

¶192

“The charges levelled against the petitioner and the material available, show that a judicial inquiry in the matter is imperative. In case the petitioner continues to hold the office, not only the inquiry officer would be under a moral pressure, the petitioner himself will be in a position to influence the witnesses and may try to withheld, if not temper the record.”

¶193

The facts, which have come on record, reveal that serious charge of issuing pattas illegally against the Rules, for her own

¶194

[CW-11862/2024]

¶195

(24 of 25)

¶196

benefits, have been levelled against the petitioner, who is a public representative and was holding the highest and esteemed post of Chairman, Municipal Council, Karauli. The State, finding her above conduct as disgraceful, issued charge-sheet to her levelling several charges and placed her under suspension and initiated a judicial enquiry against her. Hence, in the light of these circumstances, this Court comes to the conclusion that the decision of the State does call for any interference by this Court.

¶197

The judgments relied upon by counsel for the petitioner are not applicable under the facts and circumstances of this case.

¶198

Conclusion and Directions:-

¶199

In view of the aforesaid and upon an overall appraisal of the facts and the material on record, this Court does not find it to be a fit case to interfere with the State’s decision to place the petitioner under suspension.

¶200

In the light of the discussions made hereinabove, this Court finds no merit and substance in these writ petitions and the same are liable to be and are hereby rejected.

¶201

Stay application and all pending application(s), if any, also stand dismissed.

¶202

The respondents are expected to complete the enquiry proceedings against the petitioner expeditiously, as early as possible, not beyond the period of three months from the date of receipt of certified copy of this order, as the petitioner, being an elected public representative, is under suspension and she cannot be allowed to remain under suspension for an indefinite period.

¶203

Before parting with this order, it is made clear that the respondents/authorities shall conclude the enquiry on its merits,

¶204

[CW-11862/2024]

¶205

(25 of 25)

¶206

after affording due opportunity of hearing to the petitioner and without being influenced by any of the observations made herein by this Court.

¶207

Let a copy of this order be sent to the respondent Nos. 1 and 2 for necessary compliance of the order/direction issued in para 18 and 23 of this order.

¶208

(ANOOP KUMAR DHAND),J

¶209

Ashu/161-163

Rasida Khatoon W/O Mainuddin Khan v. the State of Rajasthan

Case brief

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Rasida Khatoon W/O Mainuddin Khan v. the State of Rajasthan

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