JUDGMENT M. Katju, J.
1. This writ petition has been filed against the impugned order dated 6.3.97 (Annexure-3 to the petition) and for a mandamus directing the respondents to release the petitioner's gratuity with interest and full pension of the petitioner.
2. I have heard Sri T. P. Singh and Sri Ashok Bhushan learned counsel for the petitioner and learned standing counsel for the respondents.
3. The petitioner retired on 31.7.91 as Associate District Inspector of Schools. Fatehpur. From 27.8.85 to 30.5.87, the petitioner worked as Basic Shiksha Adhikari. Allahabad and thereafter he was transferred out of Allahabad. A charge-sheet dated 26.8.87 was issued to him regarding certain allegations during his tenure as Basic Shiksha Adhikari, Allahabad. True copy of the charge-sheet is Annexure-1 to the petition. The petitioner submitted a reply to the charge-sheet on 12.5.88. It is alleged that thereafter the petitioner was not given opportunity to produce his evidence nor cross-examine the witnesses against him. After his retirement, he was not paid his gratuity but was paid only provisional pension. The petitioner filed Writ Petition No. 24969 of 1994 in this Court in which an order was passed directing the enquiry to be completed within three weeks. Thereafter notice dated 5.5.94 was issued to the petitioner along with the enquiry report. True copy of the letter dated 5.5.94 has been annexed as Annexure-2 to the petition. Thereafter the impugned order dated 6.3.97 was passed reducing the petitioner's pension to 50% and withholding the entire gratuity amount. Aggrieved, this petition has been filed in this Court.
4. The order dated 6.3.97 is based on the allegations against the petitioner on charges No. 5, 6 and 11. As regards the other charges, it has been stated In the enquiry report dated 14.10.92 that no financial loss was caused to the State Government on these charges. Charge No. 5 relates to appointment of some Sanskrit teachers made by the petitioner on 24.1.86 in certain Basic Schools in urban areas, whereas it is alleged that the posts had been allotted for the rural areas in view of the order of the Director of Education (Basic) passed on 27.1.86. These appointments were ordered to be cancelled by the Regional Assistant Director of Education (Basic), Allahabad vide order dated 4,8.86. Writ petitions were filed by the Sanskrit teachers who were appointed by the petitioner and interim orders were passed by the High Court on the strength of which these teachers are still continuing in service and are being paid salary by the State Government. Thus, it is evident that the said teachers are being paid salary on account of Interim orders of the High Court and hence it cannot be said that financial loss was caused to the Government by the petitioner. Moreover, there is no allegation in the impugned order that the petitioner obtained any benefit in making such appointments or that they were made mala fide. In fact the order of the Director of Education (Basic) to the effect that appointment, will be made in rural areas was passed after the petitioner had made the appointments, and hence the petitioner cannot be blamed, for this.
5. As regard charge No. 6 which relates to appointment of Urdu teachers, such appointments were cancelled subsequently, but against the cancellation orders the teachers filed Writ Petition No. 11730 of 1986, Kishwar Sultan and others v. Basic Shiksha Adhikari and an interim order was passed as follows :
"Till further orders of the Court, operation of the order dated 26.6.86 passed by Basic Shiksha Adhikari shall remain stayed. Petitioner shall be entitled of their salary."
6. This Interim order is still continuing and the teachers are getting salary pursuant to the above order. Here also it has to be said that the salaries are being paid to the Urdu teachers in pursuance of the interim order of this Court, and hence obviously the petitioner cannot be blamed for the same. Moreover salaries are being paid for the work done by the teachers.
7. As regards charge No. 11, the allegation is that the petitioner paid City Compensatory Allowance to the employees of the Basic Shiksha Parishad which was not admissible to them. In this connection, it is mentioned in paragraph 22 of the writ petition that the question regarding payment of CCA is pending before the High Court in Writ Petition No. 1430 of 1984. In fact the CCA was being paid to those employees since before joining of the petitioner as Basic Shiksha Adhikari. Hence it is not the petitioner who has for the first time started paying CCA to the members. The amount paid to such employees is Rs. 6.607 only. If the employees are not entitled to the said allowance, the same can be adjusted from their salary or other dues.
8. In paragraph 25 of the petition, it is alleged that some letter dated 13.5.92 was written to the enquiry officer Sri Hari Prasad Pandey to submit further report with regard to the alleged financial loss. It is alleged in paragraph 25 of the petition that no opportunity was given to the petitioner with regard to the details required by the letter dated 13.5.92, and neither the State Government nor the enquiry officer gave an opportunity of hearing to the petitioner before submitting the additional report dated 14.10.92. The petitioner has alleged that no notice under Regulation 351A of Civil Service Regulation was issued to the petitioner nor any "enquiry report was submitted after due participation of the petitioner in the enquiry. It is alleged in paragraph 28 of the petition that the report dated 14.10.92 was ex parte and without notice to the petitioner. In paragraph 29 of the petition it is alleged that the finding in the impugned order that the petitioner caused financial loss of Rs. 5,62.982 to the State Government is incorrect and unfounded.
9. In paragraph 32 of the writ petition, it is alleged that as regards charge No. 1 the only allegation is that the petitioner filled up the post of Assistant Teachers in Primary institution without approval of the District Selection Committee, and the petitioner has not fulfilled the quota reserved for the reserve candidates. The petitioners reply was that he made appointments after approval from the Selection Committee and the quota of the reserved category was carried forward. As regards, charge No. 2 the petitioner has stated that he made appointments on the basis of the addresses given by the candidates to the department in their application, and the petitioner did not make appointment to any person outside the district. As regards charge No. 3 the petitioner has alleged in Para 34 that the Selection Committee itself included the names in the selection list and petitioner had only followed the recommendations of the Selection Committee. As regards charge No. 4 it is alleged in Para 35 that actions done by the petitioner in posting of the employees and teachers was in accordance with exigencies of administration. Similarly the petitioner has given reply to other charges in paragraphs 36 to 41 of the-writ petition.
10. It is alleged in paragraph 44 of the writ petition that the petitioner is not more than 64 years of age. In paragraph 45 of the petition, it is stated that the petitioner has an unemployed son to support. Due to the impugned order, the petitioner cannot make two ends meet.
11. A counter-affidavit has been filed. In paragraph 5 of the counter-affidavit, it is stated that the enquiry officer gave full opportunity of hearing to the petitioner and thereafter submitted his enquiry report on 16.12.92. In paragraph 6 of the counter-affidavit, it is stated that while working as District Basic Education Officer. Allahabad, the petitioner committed grave financial irregularities and hence an enquiry was instituted. In paragraph 13 of the counter-affidavit, it is stated that the petitioner has caused grave financial loss to the State Government and the charges have been found to be proved in the enquiry. In paragraph 14 of the same. It is stated that the petitioner made several irregular appointments of Sanskrit Teachers. In paragraph 15 of the same, it is stated that petitioner made 20 illegal and irregular appointments of Urdu Teachers and most of them were not have requisite minimum qualifications.
12. A rejoinder-affidavit has also been filed and we have perused the same.
13. In our opinion, the impugned order is wholly arbitrary and Illegal. The main charges against the petitioner are regarding making irregular appointments of Sanskrit and Urdu Teachers. As already mentioned above these appointments were later on cancelled by the High Court granted interim orders in writ petitions and payments of such teachers are being made in pursuance of the interim orders of this Court. Hence it cannot be said that the petitioner has caused financial loss to the Government. As regards the allegation that the Sanskrit teachers should have been appointed in rural areas, the petitioner has pointed out that the order for posting these persons in rural areas was Issued after the petitioner had made appointments. Hence the petitioner can hardly be blamed for the same.
14. On the fact and circumstances of the case, we are of the opinion that the Impugned order dated 6.3.97 depriving the petitioner of his gratuity and half of his pension is arbitrary and illegal.
Accordingly the said order is quashed. Petition is allowed. No order as to costs.