- (1.) Heard Shri Anil Bhushan, Sr. Advocate assisted by Shri Adarsh Bhushan, learned counsel for the petitioner. Learned Standing Counsel appears for State respondent nos.1 and 2. Shri B.K. Yadav appears for respondent nos.3 and 4. By means of this writ petition, the petitioner has prayed for quashing the order dated 3.4.2013 passed by the Director of Education (Basic) and orders dated 18.4.2013, 6.5.2013 and 15.5.2013 passed by the District Basic Education Officer, Firozabad and further prayed for direction to the respondents to release the entire retiral benefit of the petitioner. Brief facts giving rise to the present writ petition are that the petitioner was appointed as Asstt. Teacher in Primary Pathshala Bhondela Second, Distt. Firozabad in 1984. In 2001 he has been promoted as Assistant Teacher in Junior High School Rajmal Tundla, Distt. Firozabad. The date of birth of the petitioner is 7.7.1949 and he has attained the age of superannuation on 6.7.2011 but after getting the sessions benefit he has been allowed to continue upto 30.6.2012. It is averred that before retirement no dues certificate has been issued to the petitioner for the purposes of pension by the Asstt. Basic Education Officer vide order dated 6.6.2012. It is also averred that during the posting of petitioner in Junior High School Rajmal, Tundla Distt. Firozabad in 2007-08 the petitioner was directed to construct the building of Primary Pathshala, Pahadipur, Tundla, Distt. Firozabad. The said work was required to be completed with the help of Gram Pradhan of the aforesaid village. On the oral direction of the Assistant Basic Education Officer to utilize the fund of boundary wall in making kitchen for school for the purposes of mid day meal, the petitioner has got constructed kitchen and utilized the fund of boundary wall. As such the allocation, which was earmarked for the construction of boundary wall was utilised for the construction of kitchen. It is categorically averred in the writ petition that no dues certificate had been issued by the Asstt. Basic Education Officer after completion of the work.
(2.) Some complaints have been made by the villagers as well as teachers of the aforesaid school after the retirement of the petitioner and as such the District Basic Education Officer vide order dated 13.9.2012 had stayed the retiral benefits of the petitioner. In this background the petitioner had filed Writ Petition No.66126 of 2012 challenging the order dated 13.9.2012. The said writ petition was finally disposed of vide order dated 18.12.2012 with direction to the Director of Education (Basic) to decide the claim of the petitioner. In compliance thereof the Director of Education (Basic) vide order dated 3.4.2013 had issued a recovery of Rs.1,13,290/- from the petitioner. Shri Anil Bhushan, Sr. Advocate submits that the District Basic Eduction Officer is the appointing authority hence the Director of Education has no authority under the law to pass such punishment order and since the petitioner has attained the age of superannuation on 30.6.2012 as such relation of master and servant was automatically come to an end and therefore the Director of Education (Basic) had no jurisdiction to pass such punishment order without holding any enquiry. He also submitted that the petitioner was working as teacher in Junior High School as such rules of U.P. Basic Education Staff Rules, 1973 (in short 'Rules of 1972') and for the purposes of disciplinary proceedings the U.P. Government Servant (Discipline and Appeal) Rules, 1999 (in short 'Rules of 1999') would be applicable in the present case. He further makes submission that with regard to departmental proceedings in case of minor punishment Rule 10 of the Rules of 1999 will apply and as per Rule 10 the punishment order can only be passed against an employee only after information regarding substance of charges levelled against him and as such the chargesheet ought to be served to the delinquent employee. But in the present matter neither any chargesheet was given nor the department had initiated any disciplinary proceedings and as such the order for recovery cannot be sustained. It is further submitted that the order impugned also cannot be sustained in the absence of any approval of Hon'ble the Governor under Regulation 351-A of Civil Service Regulations, which is mandatory for initiation of any enquiry proceedings after the retirement. Shri Anil Bhushan, learned senior counsel for the petitioner also submits that in the present matter there was no pecuniary loss caused to the government and as per the oral instructions of the Asstt. Basic Education Officer the petitioner had constructed the kitchen for the purposes of mid day meal and as such he has not siphoned or embezzled any amount. Therefore, the recovery order cannot be sustained in the aforesaid facts and circumstances.
(3.) The counter affidavit has been filed in the matter on behalf of respondent nos.1 and 2 and specific stand has been taken in the matter. It has been averred that the matter relates to school building, which is controlled throughout the State under the Sarv Shiksha Abhiyan (Sabhi Ke Liya Shiksha Pariyojana Parishad), which is an autonomous and independent body duly registered under the Societies Registration Act, 1860. The U.P. State Project Director is the Chief Executive of the Parishad. The State Project Director interalia is the Controlling Authority in the matter relating to school building under the Sarv Shiksha Abhiyan, which also time to time issue guidelines, disbursing fund also and controls the quality etc. and at the district level the lowest officer is the District Coordinator (Building), who happens to be the immediate supervisory authority under the District Basic Shiksha Adhikari in every district. It has also been averred that the school building has to be constructed in accordance with norms and guidelines and map/drawing prescribed by the Project Directorate and the fund has to be utilised strictly headwise. The money released by the Project Directorate for school building was withdrawn by the petitioner/Pradhan in their joint account for being used for the construction of school building according to the plan and guidelines but in violation of the guidelines money has been siphoned and as such the petitioner being custodian / trustee of the government money is liable to repay the loss to the government. Learned Standing Counsel on the basis of counter affidavit has tried to justify his stand.;