- (1.) SUNIL Ambwani, J. Heard Shri B. D. Mandhyan, Senior Advocate assisted by Shri M. N. Singh for the petitioner and learned Standing Counsel for the State respondents.
(2.) BY means of this writ petition, the petitioner has challenged an order dated 13. 11. 2007, passed by the District Magistrate, Sant Ravidas Nagar, by which he has ceased petitioner's administrative and financial powers as the elected Pradhan of Gram Panchayat Baraila, Block Bhadohi, District Sant Ravidas Nagar, under section 95 (1) (g) of U. P. Panchayat Raj Act, 1947, and has directed the Block Development Officer, Bhadohi to appoint a 'three-member committee', to exercise such powers until the formal enquiry under the U. P. Panchayat Raj (Removal of Pradhans, Up Pradhans and Members) Enquiry Rules, 1997 (in short, Rules of 1997) is concluded. Before making the order, the District Magistrate appointed the District Basic Education Officer, Sant Ravidas Nagar, to enquire into the complaint against the petitioner, and to submit his preliminary enquiry report. The District Basic Education Officer, in his report dated 30. 8. 2007, reported that the Pradhan is not serving with 'mid day meal' to the school children under the 'mid-Day Meal Scheme' in primary school Baraila w. e. f. 15. 12. 2006. On an inspection the children informed the enquiry officer on 10. 8. 2007, that the 'mid-day meal' was not cooked and served to them. The Pradhan has received the foodgrains for cooking the meal regularly, from the fair price shop keeper. Shri B. D. Mandhyan contends that under Rule 4 the enquiry officer could be either the District Panchayat Raj Officer or any other 'district level officer'. The preliminary enquiry could only be conducted by a 'district level officer'. The District Basic Education Officer is a district level officer. He however did not conduct the enquiry himself. Instead he directed the Assistant Basic Education Officer, to visit the primary school Baraila, Vikas Khand Bhadohi on 10. 8. 2007, and to make a report. He submits that the allegations against the petitioner were not substantiated, as 'mid day meal' was cooked and served every day when the school was opened in the months of July, 2007 to November, 2007 and has annexed the register certified by the headmaster of the school to prove the service of 'mid day meal' to the children.
(3.) IT is submitted that under the Rules of 1997, the financial and administrative powers may be ceased, only after a preliminary enquiry is made by the District Magistrate through an enquiry officer. The 'enquiry officer' is defined in the rules as the 'district Panchayat Raj Officer' or any other 'district level officer', to be nominated by the District Magistrate. The District Basic Education Officer is a district level officer. He could not have delegated the powers further to the Assistant Basic Education Officer. He has relied upon the judgements in Chunmun v. District Magistrate, Sonbhadra and another 1998 (89) RD 771 (HC) Smt. Sandhya Gupta v. District Magistrate, Auraiya and others, 1999 (90) RD 246 (HC) Smt. Sarojana Devi v. State of UP and others 2001 (92) RD 720 (HC) Chandrajit Raj Bhar v. District Magistrate, Pilibhit and others, 2002 (93) RD 139 Smt. Shanti v. District Magistrate, Sultanpur and others, 2000 (2) A. W. C. 1395 (LB) Moti Lal v. District Magistrate, Lalitpur and another, 2003 (94) RD 327 (HC) Krishna Devi (Smt.) v. District Magistrate, Ghaziabad and others, 2003 (95) RD 569 (HC) Satish Chandra Tripathi v. State of U. P. and others, 2004 (96) RD 47 and Rajeshivari Kushwaha (Smt.) v. District Magistrate Kanpur Nagar and others 2004 (97) RD 664 (HC) in support of his submissions regarding the competence of the officer to conduct the enquiry. In Chunmun (supra), a Junior Engineer was entrusted and had completed the preliminary enquiry. In Smt. Sandhya Gupta (supra) the Court could not find as to who conducted the preliminary enquiry. The record proved that Naib Tehsildar and Junior Engineer had submitted the report to the Sub-Divisional Magistrate, who forwarded the same to the District Magistrate. In Smt. Sarojana Devi (supra) the preliminary enquiry report was submitted by the Assistant District Panchayat Raj Officer. In Chandrajit Raj Bhar (supra) the preliminary enquiry was conducted by the Assistant Engineer, PWD Pilibhit. In Rajeshwari Kushwaha (Smt.) (supra) the preliminary enquiry was conducted by the Deputy Director (Panchayat) and in Smt. Shanti (supra) the preliminary enquiry was conducted by Alp Sankhyak Kalyan Adhikari. In all these cases it was held that the rules provde for an enquiry by the enquiry officer and since the enquiry officer is defined in the rules, no other officer can make the preliminary enquiry.;