Hon'ble Shashi Kant,J.
(Delivered by Hon'ble Sudhir Agarwal,J.)
1. Heard Sri Devendra Pratap Singh, learned counsel for the petitioner, learned Additional Chief Standing Counsel for respondents 1 to 6 and 8 and Sri Ram Kumar Verma, Advocate, for respondent 7.
2. This writ petition has been filed by Ambika Singh Uchchattar Madhyamik Vidyalaya, Raghunathnagar, Karan Chhapra, P.S. Dokti, District Ballia (hereinafter referred to as "Institution") through its Manager Bachchaji Singh praying for issue of writ of certiorari quashing two recovery certificates dated 16.04.2015 issued by District Social Welfare Officer, Ballia (hereinafter referred to as "DSWO, Ballia") seeking recovery of Rs.1,45,560/- and Rs.1,02,240/- towards the amount of scholarship on the ground that in the inspections made, the Institution was not found existing and therefore amount of scholarship in various years, has misappropriated by Manager/Principal.
3. The details of amounts of scholarship for Scheduled Caste, General candidates, as well as Other Backward Classes in various years, given in recovery order dated 16.04.2015, read as under :
o"kZ vuqlwfpr tkfr lkekU; tkfr dqy ;ksx Nk= la-
/kujkf'k Nk= la-
/kujkf'k Nk= la-
/kujkf'k 2007&08 & & 7 5040 7 5040 2010&11 13 9360 43 30660 56 40320 2011&12 9 6480 33 23760 42 30240 2012&13 17 12240 66 47520 66 59760 2013&14 4 9000 23 16560 27 19440 dqy ;ksx 198 1]42]560 Year Scheduled Caste General Category Total Student No. Amount Student No. Amount Student No. Amount 2007&08 & & 7 5040 7 5040 2010&11 13 9360 43 30660 56 40320 2011&12 9 6480 33 23760 42 30240 2012&13 17 12240 66 47520 66 59760 2013&14 4 9000 23 16560 27 19440 Total Sum 198 1]42]560 (English Translation by Court) o"kZ Nk= la-
izsf"kr fiNM+k oxZ /kujkf'k 2010&11 30 21]600-00 2011&12 16 11]520-00 2012&13 72 51]840-00 2013&14 24 17]280-00 ;ksx 142 1]02]240-00 Year Student No. Disbursed amount for Backward Class 2010&11 30 21]600-00 2011&12 16 11]520-00 2012&13 72 51]840-00 2013&14 24 17]280-00 ;ksx 142 1]02]240-00 (English Translation by Court)
4. The said amount was sought to be recovered as arrears of land revenue and hence recovery citations issued by Tehsildar on 25.01.2005 are also under challenge.
5. The averments made in the writ petition are that Institution is imparting education from Class 9 to 12 and recognized by U.P. High School and Intermediate Education Board, Regional Office Varanasi (hereinafter referred to as "Board") vide order dated 26.10.2004 as a self financed institution with effect from High School Examination - 2006. Board also granted recognition to run Intermediate classes in Humanity (ekufodh oxZ) and Science (foKku oxZ) vide Board's letter dated 31.07.2014. This Recognition was granted from Intermediate Examination -2016 and onward.
6. The strength of teaching and non-teaching staff has been stated in para 10 of writ petition, which reads as under :
7. A writ petition No.45110 of 2012 was filed by one Virendra Singh claiming that there are certain non-existing educational institutions but with the collusion of Educational Authorities, the same are running on papers. Consequently, this Court vide judgment dated 12.09.2012 directed District Magistrate to make inquiry. Pursuant thereto Depyty Collector, Bairia made physical verification under order of District Magistrate, Ballia and submitted report. Thereupon District Magistrate passed order dated 8th April, 2013, relevant extract whereof reads as under :
^^mi ftykf/kdkjh] cSfj;k ls izdj.k dh tkap ;kph Jh fojsUnz flag mijksDr ds mifLFkfr esa djk;h x;hA tkWap vk[;k ds lkFk ekSds dk utjh uD'kk Hkh layXu fd;k x;k gSA mi ftykf/kdkjh dh tkWap vk[;k Lo;a esa foLr`r ,oa Li"V gSA tkWapksijkar ;g fu"d"kZ fn;k x;k gS fd ekSds ij pkj fo|ky; dze'k% jkethr flag tw-gk- Ldwy j?kqukFk uxj] d.kZNijk] vfEcdk flag m-ek-fo- j?kqukFk uxj] d.kZNijk] xk;=h flag fojsUnz flag laLd`r mPprj ek-fo- jÄqukFk uxj] d.kZNijk o jkejrh flag ckfydk b-dk- j?kqukFk uxj] d.kZNijk fLFkr gS] ftldk fuekZ.k ,d nwljs ls lVs gq, fd;k x;k gSA mDr lHkh fo|ky;ksa esa vyx&vyx pkgjnhokjh o njokts cus gq, gSaA lkFk gh fo|ky; ds uke ls cksMZ Hkh yxs gq, gSaA ekSds ij jkethr flag f'k'kq f'k{kk lnu j?kqukFk uxj] d.kZNijk o Hkkjrh fo|k efUnj d.kZNijk fLFkr ugha feys vkSj u gh buds uke ls fo|ky; dk cksMZ gh yxk gSA i=koyh ij miyC/k [krkSuh ds voyksdu ls Hkh Li"V gS fd rhu fo|ky;ksa dh Hkwfe la[;k;as vyx&vyx gSA vk[;k ls Li"V gS fd mijksDr pkjksa fo|ky; vyx&vyx pkgjnhokjh esa gS vkSj vyx&vyx pkj njokts yxs gSaA nks fo|ky; ekSds ij fLFkr ugha gSaA ;kph ds dFkukuqlkj fo|ky;ksa dh tkWap mlds mifLFkfr esa dh x;h gSA vr% pkjksa fo|ky; ,d gh izkax.k esa fLFkr ugha gSaA mi;qZDr foospuk ,oa mi ftykf/kdkjh] cSfj;k dh vk[;k ds ifjizs{; esa ;kph dk izR;kosnu fnukad 25-10-2012 o 03-01-2013 fujLr djrs gq, fuLrkfjr fd;k tkrk gSA ftyk csfld f'k{kk vf/kkdjh] cfy;k dks funsZf'kr fd;k tkrk gS fd jkethr flag f'k'kq f'k{kk lnu ,oa Hkkjrh fo|k efUnj d.kZNijk ds lEcU/k esa ;g lqfuf'pr djsa fd okLro esa bu fo|ky;ksa dk HkkSfrd vfLrRo gS vFkok ugha vkSj dgha fcuk fdlh vfLrRo ds ekU;rk vkfn rks ugha iznku dj nh x;h gSA vkns'k dh izfr ftyk csfld f'k{kk vf/kdkjh] cfy;k dks vko';d dk;Zokgh gsrq izsf"kr dh tk;A vkns'k dh ,d izfr ;kph dks Hkh miyC/k djk nh tk;A** The enquiry in the matter was got conducted by the Sub Divisional Magistrate, Bairia in presence of the aforesaid petitioner Sh. Virendra Singh. The site-map of the spot has been annexed to the enquiry report. The enquiry report of the Sub Divisional Magistrate is itself detailed and clear. After enquiry it has been found that the four schools namely Ramjit Singh Junior High School Raghunath Nagar, Karnachhapra, Ambika Singh Higher Secondary School, Raghunath Nagar Karnachhapra, Gayatri Singh Virendra Singh Sanskrit Higher Secondary School, Raghunath Nagar, Karna chhapra and Ramrati Singh Girls Inter College, Raghunath Nagar, Karnachhapra are located on the site which have been constructed next to each other. All the aforesaid schools have their separate boundaries and doors. Moreover, boards displaying names of schools are installed. Ramjit Singh Shishu Shiksha Sadan, Raghunath Nagar, Karnachhapra and Bharti Vidya Mandir, Karnachhapra were not found on the spot nor are boards displaying schools' names installed there. It is clear from the perusal of khatauni available on record that three schools have their separate land numbers. It is clear from the report that all the aforesaid four schools are situated within separate boundary having separate four doors. Two schools are not located on the site. As per petitioner's statement, the enquiry of the schools has been conducted in his presence. Hence, the four schools are not situated in the same compound.
In view of the aforesaid discussion and report of the Sub Divisional Magistrate, Bairiya, the petitioner's representations dated 25.10.2012 and 03.01.2013 are disposed thereby cancelling them. The District Basic Education Officer, Ballia is directed to make it ensure regarding Ramjit Singh Shishu Shiksha Sadan and Bharti Vidya Mandir, Karnachhapra whether there exist these schools or not and whether affiliation has been granted without them being in existence. A copy of the order be sent to the District Basic Education Officer, Ballia for necessary action. A copy of order be made available also to the petitioner." (English Translation by Court)
8. This order dated 8th April, 2013 was again challenged by Virendra Singh in Public Interest Litigation (PIL) No.48025 of 2013 which was disposed of vide judgment dated 11.09.2013 which reads as under :
"Heard learned counsel for the petitioner and learned counsel for the State.
Petitioner had earlier approached this Court through a writ petition filed as a public interest litigation. That writ petition was disposed of by order dated 12.9.2012 contained in Annexure-7 to the writ petition with a direction to the District Magistrate, Ballia to get an inquiry conducted and to dispose of the petitioner's representation/grievance by a reasoned order. In compliance, the District Magistrate, Ballia has passed the impugned order dated 8.4.2013 contained in Annexure-11 to the writ petition. On the basis of reports from different authorities, he has found that four educational institutions were existing at the spot of inspection with separate boundaries and entrances but two institutions were not found in existence at that spot. With regard to such two institutions, namely, Ramjeet Singh Shishu Shiksha Sadan and Bharti Vidya Mandir, Karna Chhapra, the District Magistrate has issued a direction in the last paragraph of the order to District Basic Education Officer, Ballia to ensure whether these two institutions are physically in existence or not and whether recognition has been granted to them without any physical existence.
We are not persuaded by submissions advanced on behalf of the petitioner seeking interference with the aforesaid order of the District Magistrate, Ballia. However, the last submission that the District Basic Education Officer, Ballia should be asked to conclude the inquiry and submit a report to the District Magistrate, Ballia within a reasonable time is found to have merit.
Accordingly, we dispose of this writ petition with a direction to respondent no. 3-Basic Shiksha Adhikari, Ballia to comply with the direction of the District Magistrate in order dated 8.4.2013 and submit a report to the District Magistrate regarding physical existence of two institutions without any delay. If the report has not been submitted to the District Magistrate so far, same should be submitted within one month from today. Thereafter, the District Magistrate will pass further orders within four weeks."
9. Pursuant to the aforesaid direction, another order was passed by District Magistrate, Ballia on 12.11.2013 directing to make recovery of amount of scholarship from Ramjeet Shishu Shiksha Sadan and Bharti Vidya Mandir Karnchapra, Ballia, which were not found in existence.
10. Virendra Singh again come to this Court in Public Interest Litigation (PIL) No.19578 of 2014, which was also disposed of vide order dated 11.04.2014 which reads as under :
"In the public interest petition, a direction has been sought to the District Magistrate and the District Basic Education Officer, Ballia to take action for the recovery of amounts which were disbursed by way of scholarship to certain alleged institutions. The District Magistrate in his report dated 12 November 2013 has found that there were no such institutions in existence; no recognition had been granted and the scholarships and grants, if any, already paid over, would have to be duly recovered in accordance with law.
Having regard to the finding which is contained in the report of the District Magistrate dated 12 November 2013, we now order and direct that the second and third respondents shall take necessary steps expeditiously for ensuring that any defalcation of funds which may have been made, is duly remedied by adopting both proceedings for recovery and if necessary, by pursing criminal proceedings against those who are responsible and the second and third respondents shall particularly affix responsibility and enquire into whether there was any wrong doing on the part of the departmental staff and, if so, action shall be taken in accordance with law.
Though in the report of the District Magistrate, it has been stated that there were no such institutions in existence, we clarify that due steps will be taken to verify the physical existence of the institutions concerned and, in the event, such institutions or any of them are found available, opportunity of being heard shall be granted to them.
We, accordingly, dispose of the petition. There shall be no order as to costs." (emphasis added)
11. The verification and inspection was made by District Basic Education Officer, Ballia (hereinafter referred to as "DBEO, Ballia") and he submitted report on 31.05.2014. Based on said report, District Magistrate Ballia passed another order dated 10.09.2014 in which actual spot position of various educational institutions inspected by DBEO, Ballia was mentioned as under :
dz-la-
fo|ky; dk uke EkkU;rk dh fLFkfr Lakpkyu dh fLFkfr Hkou dh fLFkfr vH;qfpr 1 jkethr flag f'k'kq f'k{kk lnu foHkkxh; ekU;rk ugha lapkfyr ugha ik;k x;k HkkSfrd :i ls fo|eku ugha ** 2 Hkkjrh; fo|k efUnj d.kZNijk ** ** ** ** 3 gfjtu cky f'k{kk fudsru j?kqukFkiqjk d.kZNijk ** ** ** ** 4 jkethr ckfydk fo|ky; j?kqukFk uxj] d.kZNijk ** ** ** ** 5 jkethr flag tw-gk- d.kZNijk LFkk;h tw-gk- vuqnkfur lapkfyr Hkou fo|eku gS ** 6 vfEcdk flag m-ek- fo- j?kqukFk uxj] d.kZNijk Ekk/;fed Lrj ij ekU;rk izkIr Lakpkfyr ugha ik;k x;k vi;kZIr ,oa th.kZ 'kh.kZ ** 7 Xkk;=h flag ohjsUnz flag laLd`r m-ek- fo|ky; j?kqukFkiqj d.kZNijk laLd`r cksMZ }kjk ekU;rk izkIr ** ** ** 8 jkejrh flag ckfydk b.Vj dkyst j?kqukFkiqj d.kZNijk Ekk/;fed Lrj ij ekU;rk izkIr Lkapkfyr ugha ik;k x;kA vi;kZIr ,oa th.kZ 'kh.kZ ** Sl.No.
Name of School Status of Recognition Status of Functioning Staus of Building Remark 1 Ramjeet Singh Shishu Shiksha Sadan No departmental recognition Found not functioning Physically not in existence ** 2 Bhartiya Vidhya Mandir Karnchapra ** ** ** ** 3 Harijan Bal Shiksha Niketan Raghunathpura Karnchapra ** ** ** ** 4 Ramjeet Balika Vidyalaya Raghunath Nagar, Karnchapra ** ** ** ** 5 Ramjeet Singh Jr.High Karnchapra Aided permanent Jr. High School.
Functioning Building is in existence ** 6 Ambika Singh Uchchtar Madhyamik Vidyalaya, Raghunath Nagar, Karnchapra Recognized upto to the Secondary Level Found not functioning Insufficient and dilapidated ** 7 Gayatri Singh Virendra Singh Sanskrit Uchchtar Madhyamik Vidyalaya Raghunathpur Karnchapra Recognized by Sanskrit Board ** ** ** 8 Ramrati Singh Balika Inter College Raghunathpur Karnchapra Recognized upto to the Secondary Level Found not functioning Insufficient and dilapidated ** (English Translation by Court)
12. District Magistrate passed order directing DBEO, Ballia and DSWO, Ballia to take appropriate action for recovery of amount of scholarship disbursed to the said Institutions which has been misappropriated and also take appropriate action against management.
13. Petitioner claims that in the earlier inspection, Institution was found in existence and running and, therefore, recovery order from petitioner is patently illegal. However, neither inspection report dated 31.05.2014 submitted by DBEO, Ballia, which is Annexure 13 to writ petition nor District Magistrate, Balia's order dated 10.09.2014, which is Annexure 8 to the writ petition are under challenge.
14. Respondents 2, 3, 4, 5 and 6 have filed collective counter affidavit which has been sworn by Sri Krishna Kant Rai, District Backward Welfare Officer, Ballia (hereinafter referred to as DBWO, Ballia"). It is stated that as per inspection report it was found that petitioner's alleged Institution was in 93 decimal of land and recognized by Educational Authorities in utter disregard of norms prescribed for the said purpose. The condition of construction was also bad and it was in dilapidated condition. It is for this reason District Magistrate recommended strict action against erring officials. It was also pointed out that pursuant to recovery in question, petitioner had already deposited Rs.70,000/- through cheque dated 30th May, 2015. In para 17 of counter affidavit, it is said that even entry in Khatauni was made after petitioner got recognition letter and, therefore, it is evident that he got recognition by fraud and misrepresentation. Para 17 of counter affidavit read as under :
"That the contents of para 3, 4, 5, 6, 7, 8, 9, 10 and 11 of the petition are not admitted in the form they stand. In reply thereto, it is submitted that at the time of recognition was granted as admittedly his name has been entered in the relevant Khatauni only on 17.08.2015 in gata no.2392 on 50 decimal. The photostat copy of the relevant Khatauni is enclosed herewith and marked as Annexure No.CA-8 to the present counter affidavit. The Intermediate Education Board Regional Office, Varanasi for High School on 26.10.2004 and 31.7.2014 for Intermediate with specific covenant as detail in the terms and conditions as detailed in the letters dated 26.10.2004 and 31.7.2014. Since in the enquiry it was found that the name of the petitioner institution is not mentioned in the revenue record couple with the fact that the petitioner institution was physically is not running position and had obtained the recognition by fraud and misrepresentation and as such the very averment made under para reference are based on surmises and conjectures and the petitioner is required to put strict proof of the averment made therein."
15. A supplementary counter affidavit has been filed and another order passed by this Court in Public Interest Litigation No.8959 of 2015 also brought on record. This PIL was also filed by Virendra Singh wherein Court, took into consideration subsequent events after judgment dated 11.04.2014, and has expressed dissatisfaction in the manner in which DBEO, Ballia and DSWO, Ballia have functioned. The relevant extract of the judgment dated 21.04.2015 reads as under :
"On 10 September 2014, the District Magistrate passed an order directing the District Basic Education Officer, Ballia as well as the District Social Welfare Officer, Ballia and the Sub Divisional Magistrate, Ballia to initiate steps in accordance with law. The steps which were indicated by the District Magistrate included (i) cancellation of the recognition of those institutions which were in existence; (ii) initiating steps for the recovery of scholarships which had been paid over to institutions which were found to be non-existent; (iii) initiating action against those officers and employees who are responsible for the disbursement of Government funds in a negligent manner to institutions which were found not to be in existence; (iv) initiating steps against the Managers of the institutions concerned.
Despite these directions of the District Magistrate, the grievance of the petitioner was that no steps were taken, following which a fresh writ petition was filed. The petition was initially entertained on 13 February 2015 by directing the Standing Counsel to seek specific instructions from the District Magistrate, District Social Welfare Officer and District Basic Education Officer in regard to the steps which were taken in pursuance of the order of the District Magistrate and in compliance with the order of the Division Bench of this Court. Thereafter, since no instructions had been made available to the learned Standing Counsel, an order was passed on 19 March 2015 directing the District Magistrate to file a personal affidavit, failing which, he was directed to remain present before the Court. On 16 April 2015, this Court was informed that a counter affidavit of the District Magistrate was under preparation and hence the petition was directed to be listed today. Finally, after this delay which has occurred in the meantime, a counter affidavit has been filed by the District Magistrate, Ballia. The counter affidavit which has been filed by the District Magistrate, in fact, is indicative of the fact that it was only on 16 April 2015 that some effort was made to comply with the previous directions issued by this Court on 11 April 2014 and the directions which were issued by the District Magistrate on 10 September 2014. In the counter affidavit, it has been stated that on 16 April 2015 the District Social Welfare Officer has issued a recovery certificate for the recovery of amount allegedly paid to the Ramrati Singh Balika Inter College Raghunathpur Karnchapra Murlichhapra Ballia and Ambika Singh Uchchatar Madhyamik Vidyalaya Raghunathpur Karnchhapra Murlichhapra, Ballia and Ramjeet Singh Shishu Shiksha Sadan Raghunath Nagar Karnchhapra Murlichhapra, Ballia. On the same day, the District Social Welfare Officer has requested the District Basic Education Officer to lodge a first information report. On 17 April 2015 the District Basic Education Officer has forwarded the recommendation to the Principal Secretary, Basic Education to initiate departmental proceedings against one Awadhesh Narain Singh, Block Education Officer, who was responsible for the recommendation of disbursement of scholarships to such institutions. On 17 April 2015, the District Inspector of Schools requested the Principal Secretary, Secondary Education to initiate departmental proceedings against the persons responsible for the disbursement of the scholarships. Accordingly, it has been stated that one first information report has been lodged against the Principal of the Ramjeet Singh Junior High School Karnchhapra Murlichhapra, Ballia and Bhartiya Vidya Mandir, Chhapra, Ballia.
We are not satisfied with either the bona fides of the District Basic Education Officer or the District Social Welfare Officer. These officers of the State were duty bound to comply with the order passed by the Division Bench on 11 April 2014 and the subsequent order of the District Magistrate dated 10 September 2014. Evidently, they have dragged their feet oblivious of the public interest involved. The matter is serious because it relates to the mis-utilisation of funds from the public exchequer which were meant for grant of scholarships to deserving students. These steps which have now been taken belatedly ought to have been taken without waiting for the order of the Court in the second writ petition which has been filed in the public interest. Moreover, it appears that action has been directed against one departmental officer who was then holding the post of Block Education Officer. The involvement of all the concerned officers in the defalcation of funds must be duly inquired into.
We are of the view that the entire issue should be looked into carefully by the Principal Secretary, Basic Education who shall conclude the enquiry no later than within a period of two months from the receipt of a certified copy of this order. Based on the material which comes on the record before the Principal Secretary, necessary steps shall be directed to be initiated against any official at the district level or otherwise who is found guilty of negligence or connivance in such unlawful activity involving the siphoning of public funds. The Principal Secretary shall ensure that first information reports are registered against all those found to be involved, in the management of the institutions or if the institutions are non-existent, against all those who are found to have been in connivance. This exercise shall be completed within the aforesaid period of two months from the receipt of a certified copy of this order. The District Magistrate, Ballia shall also scrupulously ensure that recovery certificates are issued for the recovery of amounts wrongfully paid over and that the certificates are duly enforced in accordance with law.
The Principal Secretary shall in the course of enquiry also assess whether there was any negligence on the part of the District Basic Education Officer as well as the District Social Welfare Officer and if so, necessary steps shall be taken in accordance with law. We, accordingly, dispose of the petition however with the clarification that if it becomes necessary for the petitioner to do so, he would be at liberty to file a fresh proceeding in the event of any further inaction on the part of the State.
The petition is, accordingly, disposed of. There shall be no order as to costs." (emphasis added)
16. When the present writ petition was heard on 12.01.2018, it was pointed out to us that recovery of the above amount of scholarship being made from petitioner is illegal for the reason that alleged amount of scholarship was directly disbursed to so called students by DSWO, Ballia himself and not through Management of the Institution, therefore, embezzlement, if any, towards alleged fictitious disbursement of scholarship is on the part of DSWO, Ballia and not petitioner. Consequently we passed following order on 12.01.2018 :
"1. It is pointed out that thrice investigation with regard to existence of petitioner's educational institution was made and every time existence of institution was not found doubtful. On the contrary, institution was found existing but in third report it is mentioned that institution was not functional. However, impugned orders of recovery have been passed by District Social Welfare Officer, Ballia and District Backward Class Welfare Officer, Ballia by observing that petitioner's institution was found non existent and, therefore, order is passed on non-est fact and a fact which was found otherwise in three investigation reports. It is further submitted that amount of scholarship to students was directly disbursed by District Social Welfare Officer, Ballia to those students and not through the management of institution, therefore, if there is any embezzlement of said amount, it is the District Social Welfare Officer, Ballia, who is responsible and management does not come into picture.
2. We find prima facie that both submissions are correct and it is the District Social Welfare Officer, Ballia and District Backward Class Welfare Officer, Ballia, who are responsible in the matter and entire recovery should be ordered from them.
3. Learned Standing Counsel from the counter affidavit has disclosed that District Backward Class Welfare Officer, Ballia, who has passed one of the impugned order is Sri Krishna Kant Rai.
4. Let State Government disclose name of District Social Welfare Officer, Ballia who has passed impugned order and also file a supplementary counter affidavit within ten days. State Government shall also instruct both the officers to remain present in Court on the next date and show cause as to why recovery in question be not made from these officers.
5. List this matter on 29.01.2018."
17. Pursuant to the said order an affidavit has been filed by Sri Krishan Kant Rai, District Handicapped Class Welfare Officer, Ballia who is also holding charge of District Backward Class Welfare Officer, Ballia stating that he is holding dual charge since 3rd August, 2017 and earlier Sri Upendra Narain Singh was working as District Backward Class Welfare Officer, who retired on 31st July, 2015. It is also said that recovery certificate was issued by Upendra Narain Singh, the then DBWO, Ballia and not the present officer. It is also brought on record that as per Government Order dated 29.04.2010 disbursement of scholarship has to be made on the basis of the recommendation made by officers of Education Department, on the basis of their report certifying disbursement of amount through District Social Welfare Officer and Backward Class Welfare Officer.
18. Para 5 of affidavit of Sri Krishna Kant Rai reads as under :
"That in this regard, it will not be out of place to mention here that the State Government had issued a consolidated instruction vide notification dated 19 April, 2010 for disbursement of scholarship amount to the concerned institution on the basis of the recommendations made by the official of the Education Department, who on the basis of the report certifies the disbursement of the amount through District Social Welfare Officer and Backward Class Welfare Officer. The photostat copy of the Government order dated 29 April, 2010 is enclosed herewith and marked as Annexure No.1 to the present affidavit."
19. It is said that concerned District Inspector of Schools released list of Institutions alongwith CD giving number of students and scholarship is then released by respective officers i.e. DSWO, Ballia and Backward Class Welfare Officer.
20. In the present case, demand letter dated dated 17.10.2012 and 30.10.2013 was received by District Backward Class Welfare Officer, Ballia and in the said letters, number of students of respective classes was also mentioned. It is admitted that amount of scholarship was directly disbursed for respective financial years in the accounts of those students. Para 9 of affidavit of Krishna Kant Rai are reads as under :
"That on the basis of such demand letters the amount towards scholarship was directly disbursed by the deponent for the respective financial year directly in the accounts of the students of the respective institutions. A copy of which has already been placed by the petitioner as Annexure A-11 from page 49 to 65 of the paper book."
21. Thus affidavit of Sri Krishna Kant Rai, DBWO, Ballia has made it clear that even in respect of an Institution which was not running at all, fictitious students list was prepared and submitted by District Inspector of Schools Ballia for disbursement of scholarship and thereafter concerned Welfare Officer disbursed the said amount to the students directly. Thus, an apparent collusion of Education Authorities as well as District Welfare Officers is evident. Moreover, we also find it surprising, how Board could grant recognition to an Institution which was not in a condition of running at all, inasmuch as, High School and Intermediate Classes could not be run in just 93 decimal of land and it appears that officials of Board also did not make any spot inspection and submitted a false report. Their accomplicity is also evident.
22. This extent of involvement of officials of Board, District Level Educational Authorities like District Inspector of Schools and District Basic Education Officer and Welfare Officers namely DSWO, Ballia and District Backward Class Welfare Officer is really surprising and more surprising is that State Government has not taken any effective punitive and preventive action against concerned officers.
23. It is a serious matter. It is true that amount of scholarship has been directly disbursed by officials of Government to the students but collusion and conspiracy on the part of petitioner in submitting fictitious list of students to District Inspector of Schools and in getting it verified shows involvement of the Institution also, and this cannot be ignored.
24. The facts showing an apparent misappropriation of public funds with active connivance and collusion of officers of State Government are self evident. It is a glaring example of institutionalized bureaucratic collusion to swallow huge public money by preparing totally forged documents. If an institution itself is not running, question of students and disbursement of scholarship to them does not arise and this is apparently a manipulation.
25. Laxity on the part of superior officers including Principal Secretary, Secondary Education and Basic Education despite a direction of this Court, as noticed above, leaves no manner of doubt to draw a conclusion that chain runs from District to Secretariat. This is a blatant example of corruption on the part of these officers and unfortunate disturbing factor is lack of interest on the part of superior responsible officers towards corrective, preventive and punitive measures.
26. Normally, it is difficult to prove corruption by direct evidence unless one is caught red-handed accepting undue advantage but here things are self-evident still there is a resilient inaction on the part of higher authorities against erring officers who are indulged in corruption.
27. Though in a civilised society, corruption has always been viewed with particular distaste to be condemned and criticised by everybody but still one loves to engage himself in it if finds opportunity, ordinarily, since it is difficult to resist temptation. It is often, a kind, parallel to the word 'bribery', meaning whereof in the context of the politicians or bureaucrats, induced to become corrupt. The Greek Philosopher Plato, in 4th Century BC said, "in the Republic that only politicians who gain no personal advantage from the policies they pursued would be fit to govern. This is recognised also in the aphorism that those who want to hold power are most likely those least fit to do so." While giving speech before the House of Lords William Pitt in the later half of 18th Century said, "Unlimited power is apt to corrupt the minds of those who possess it." Lord Acton in his letter addressed to Bishop Creighton is now one of the famous quotation, "Power tends to corrupt and absolute power corrupts absolutely."
28. Corruption is a term known to all of us. Precise meaning is illegal, immoral or unauthorized act done in due course of employment but literally it means "inducement (as of a public official) by improper means (as bribery) to violate duty (as by committing a felony)." It is an specially pernicious form of discrimination. Apparently its purpose is to seek favourable, privileged treatment from those who are in authority. No one would indulge in corruption at all if those who are in authority, discharge their service by treating all equally.
29. We can look into it from another angle. Corruption also violates human rights. It discriminates against the poor by denying them access to public services and preventing from exercising their political rights on account of their incapability of indulging in corruption, of course on account of poverty and other similar related factors. Corruption is, therefore, divisive and makes a significant contribution to social inequality and conflict. It undermines respect for authority and increases cynicism. It discourages participation of individuals in civilised society and elevates self interest as a guide to conduct. In social terms we can say that corruption develops a range bound field of behaviour, attitude and beliefs. Corruption is antithesis of good governance and democratic politics. It is said, that when corruption is pervasive, it permeates every aspect of people's lives. It can affect the air they breathe, the water they drink and the food they eat. If we go further, we can give some terminology also to different shades of corruption like, financial corruption, cultural corruption, moral corruption, idealogical corruption etc. The fact remains that from whatever angle we look into it, the ultimate result borne out is that, and the real impact of corruption is, the poor suffers most, the poverty groves darker, and rich become richer.
30. In the case in hand, it may not be necessary for this Court to go in the concept of corruption further in depth and suffice it to observe that despite observation made by this Court and findings recorded by District level authorities that Educational Institution in question was not in a running condition, still no effective steps have been taken as to how and in what manner scholarship meant for students was distributed. When it comes to the knowledge of superior Government authorities, that there is defalcation of public exchequer, they are under an obligation themselves to take appropriate action, civil, criminal and departmental, as the case may be, against erring officials and also to recover losses sustained by public exchequer. This has not been done despite dissatisfaction expressed by this Court it its judgment, as noticed above.
31. In P. K. Chinnasamy Vs. Government of T.N. and others, AIR 1988 SC 78 Court said that every public servant holds office in trust to the public and, therefore, to justify expenditure of public revenue, a duty is cast upon him to discharge his duty with integrity and best ability commensurating to the requirement of the office. Superior officers discharging supervisory powers are under an obligation to ensure that officers, lower in rank, are not indulged in corrupt, illegal practices, defalcation or laundering of public money. Whenever they come to such a situation where one or more officers have not discharged their duties showing utmost integrity and have misappropriated or caused loss to public exchequer, immediate appropriate severe action is needed.
32. We are sorry to observe that senior officers have failed to perform their duties as expected in law from them. It is not a question of quantum of amount swallowed by public servants but it the basic attitude, aptitude and character including conduct, which needs to be taken into account. In the present case recovery from petitioner though apparently may not be of a huge amount but we have no hesitation in putting on record that omission of small level of corruption ultimately go cancerously. This country has now reached a stage where we find level of corruption running in several thousand of crores and going to even lacs of crores. Everyone wherever is possible, indulging in such activities depending on one's capacity, capability and opportunity. This Court do not mean to say that all are corrupt. Fortunately that is not so. Still we have sufficiently large number of people who do not indulge in such activities and bold enough to discard any attempt, if made by someone, but those who want to take advantage of such widespread corruption, have now become so fearless that they can dare to approach and go to any extent to lure those who are in authority, to seek favour in one or the other manner. In their belief, everyone has some price, degree may defer. Fortunately, this country still have sufficiently large number of people who are beyond such vice. Probably it is for this reason we are still marching ahead and developing with galloping pace but now time has come when stern steps have to be taken with determination and cementised will to nip out corruption at every level, lest it may be too late.
33. This country has already celebrated more than seventy years of independence but still we are not able to check corruption which is deep rooted in society of which bureaucrats are also part. It has become an convenient tool and pastime for everyone to talk tough with abhorrence but whenever gets opportunity like to indulge in it.
34. In this more than seventy years of independence, if we search avenues where we have made a considerable national development and that too multifold, the obvious discovery would be 'corruption'.
35. It has various shades. It is not confined to only one field of acceptance of bribe, cash and kind, but has different colours and nuances.
36. There are some statutes in the name of checking/preventing this menace, but that is virtually toothless, a paper tiger. These statutes have not proved at all, in actual sense, a deterring measure, for the civil servants and others engaged in such activities. In fact these activities are beyond any limits and bounds. They have crept in all the wings of State, whether executive, legislature or even judiciary.
37. Corruption has been defined in different dictionaries and some of which, useful for our understanding, may be reproduced as under.
38. "The Concise Oxford Dictionary of Current English" published by Oxford University Press, first published in 1995, at page 301 defines corruption as under:
"Corruption: 1 moral deterioration, esp. widespread. 2 use of corrupt practice, esp. bribery or fraud. 3 a irregular alteration (of a text, language, etc.) from its original state. b an irregularly altered form of a word. 4 decomposition, esp. of a corpse or other organic matter. [Middle English from Old French corruption or Latin corruptio (as Corrupt)]."
39. In P. Ramanath Aiyer "Concise Law Dictionary With Legal Maxims, Latin Terms & Words and Phrases" published by Lexis Nexis Butterworths Wadhwa Nagpur, Third Edition Reprint 2010, at page 268:
"Corruption. Something against law; something forbidden by law, as certain acts by arbitrators, election or other officers, trustees; an act done with intent to gain an advantage not consistent with official duty and the rights of others."
40. In "Judicial Dictionary" by KJ Aiyer, 14th Edition, Lexis Nexis Butterworths India, New Delhi, 2007, at page 288:
"Corruption. The term covers 'criminal misconduct'. A public servant is said to commit an offence of criminal misconduct in the discharge of his duty, if he, by corrupt or illegal means, or by otherwise abusing his position as a public servant, obtains for himself or for any other person, any valuable thing or pecuniary advantage.
An attempt to obtain a bribe in a single case, which was never paid, does not fall under cll (a), (b) or (d) of s 5, and therefore, is not 'corruption', within the meaning of the Prevention of Corruption Act 1947.
41. In "Encyclopaedic Law Dictionary (Legal & Commercial)" by Dr. A.R. Biswas 3rd Edition 2008, published by Wadhwa and Company, at page 369:
"Corruption. Corruption is impairment of integrity, virtue or moral principle, depravity; inducement to wrong by bribery or other unlawful or improper means; a departure from honesty, integrity or fair dealing."
42. In the context of some statutory provision or even otherwise the word "corruption" has been explained in various decisions by the Courts also and some of such may be referred as under.
43. In Secretary, Jaipur Development Authority Vs. Daulat Mal Jain, 1997 (1) SCC 34:
". . . . When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as 'corruption'."
44. In High Court of Judicature at Bombay Vs. Shirishkumar Rangrao Patil, 1997(6) SCC 339:
"Corruption, appears to have spread everywhere. No facet of public function has been left unaffected by the putrefied stink of 'corruption'. 'Corruption' thy name is depraved and degraded conduct...... In the widest connotation, 'corruption' includes improper or selfish exercise of power and influence attached to a public office."
45. In B. R. Kapur Vs. State of T.N., 2001(7) SCC 231:
". . . . scope of 'corruption' in the governing structure has heightened opportunism and unscrupulousness among political parties, causing them to marry and divorce one another at will, seek opportunistic alliances and coalitions often without the popular mandate."
46. In State of A.P. Vs. V. Vasudeva Rao, 2004 (9) SCC 319:
". . . The word 'corruption' has wide connotation and embraces almost all the spheres of our day-to-day life the world over. In a limited sense it connotes allowing decisions and actions of a person to be influenced not by rights or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations."
47. In the context of the Prevention of Corruption Act and Section 161 Indian Penal Code the Courts were mainly concerned as to when it can be said to be an offence and that is how it has been interpreted and some of such decisions may also be looked into. (1942 Rangoon 30; State of Madras Vs. Rajagopala Ayyer, AIR 1956 Mad 613; and, Bishambhar Lal Vs. State of Punjab AIR 1966 Punj 175).
48. In general the well accepted meaning of corruption is the act of corrupting or of impairing integrity, virtue, or moral principle; the state of being corrupted or debased; lost of purity or integrity; depravity; wickedness; impurity; bribery. It further says, "the act of changing or of being changed, for the worse; departure from what is pure, simple, or correct; use of a position of trust for dishonest gain."
49. We do not intend to indulge in further discussion on this aspect since it needs be debated, at different forum, so as to enlighten the people, and to pursue them to stand against, and to arm them, so as to route it out. This Court is well aware that in this process, prime responsibility lie on the executive. But in reality it is now of paramount importance that judiciary must take this task upon itself also. The cases involving corruption must be dealt with extraordinary pace. It must ensure that those indulged in corruption are prosecuted and punished at the earliest and within a reasonable time. The judiciary should not show any leniency on corruption and corrupt people whether small or larger, one. A message must go that corruption at all cost shall result in severe and deterrent punishment. The booty, loot or benefit, one has earned by indulging in corruption, must be forfeited so that it may become a part of public revenue, and may be utilised for public benefit, instead of allowing it to remain with the corrupt beneficiaries, otherwise, the effectiveness of deterrence shall stand lessened. The law enforcement machinery, i.e., investigators must probe such matters independently, without any interference and should ensure completion of investigation within record time. Everyone who abate, allow to perpetuate by inaction, encourage it and similarly all other persons connected in one or the other way, be dealt with in the same manner as if the corrupt person, and should be punished severely, but with a pace so that others may learn lesson and continue in their memory. It be not allowed to be eroded with passage of time. All this require determination and will, at different level and needs be looked into with real sincerity since time has ripened now.
50. Though situation is grim, hopes are losing, but, still we have a feeling of improvement and see a ray of hope. We think, our observations will have some impact on superior officers of department(s) including Secretaries and Principal Secretaries and they will now have no hesitation but to proceed promptly, effectively and meaningfully so as to catch hold of guilty persons, punish them and cause a lesson to others so as to desist from such activities.
51. So far as present writ petition is concerned, we have already said that recovery in question is pursuant to order of District Magistrate, passed on 10th September, 2014, based on inspection report dated 31.05.2014 of DBEO, Ballia. Both these orders are not under challenge. In absence of challenge to principal orders, consequential steps for recovery cannot allowed to be challenged.
52. In P. Chitharanja Menon and others Vs. A. Balakrishnan and others, AIR 1977 SC 1720 court held that in absence of challenge to basic order subsequent consequential order cannot be challenged. Similarly in Roshan Lal and others Vs. International Airport Authority of India and others, AIR 1981 SC 597 it was held that unless basic order is challenged, consequential orders neither can be challenged nor be examined by the Court. This Court has also followed the above law in Gaon Shiksha Samiti, Auraiya and another Vs. State of U.P. and others, 2003(3) AWC 2466.
53. In these facts and circumstances while exercising our power under Article 226 of Constitution of India we do not find any justification to quash recovery orders, impugned in the present writ petition. Writ petition is accordingly dismissed.
54. However, we direct State Government to take forthwith criminal as well as departmental action against all officers, concerned in the matter, who were responsible, firstly, in granting recognition to petitioner's institution by Board, and granting sanction and disbursement of scholarships to various categories of students, and ensure an effective action and consequential punishment to these officials within a reasonable time and not beyond six months from the date of communication of this order so that in future other officer(s) may not dare to do similar fraudulent act and punishment to these officer(s) become an example and lesson to other officer(s).
55. A compliance report shall also be submitted by Secretary/Principal Secretary, Basic Education as well as Secretary/Principal Secretary, Secondary Education within fifteen days after expiry of six months' period, as directed above.
56. There shall be no order as to costs.
Order Date :- 31.5.2018 KA (Shashi Kant,J) (Sudhir Agarwal,J)