WP(C) 1571/2006 BEFORE HON’BLE MR. JUSTICE B.K.. SHARMA JUDGEMENT AND ORDER 1. The petitioner, an Officer of the Education Department being aggrieved by penalty imposed on him pursuant to a departmental proceeding, has prayed for setting aside and quashing the order of penalty and to grant him consequential p romotion to next higher grade at per with his juniors. 2. Briefly stated, the facts leading to filing of the writ petition are tha t the petitioner while was serving as Block Elementary Education Officer (BEEO) and In-Charge Deputy Inspector of Schools, was placed under suspension by order dated 20.11.02. He was placed under suspension pending departmental proceeding a nd in the interest of public service. By yet another notification issued on the same date, i.e. on 20.11.02, the Govt. of Assam in the Education Department canc elled all the orders of the D.I. of Schools, Dhakuakhana w.e.f. 2000 onwards rel easing the pay and allowances to large number of L.P. School teachers who had be en appointed in 1989. Be it stated here that at the relevant point of time, the petitioner was also functioning as D.I. of schools. According to the petitioner he did not do anything wrong in releasing the salaries of the techers. 3. The petitioner had occasion to approach this Court by filing a writ peti tion being W.P.(C) No. 6170/03 praying for setting aside and quashing of the ord er of suspension. The writ petition was disposed of by order dated 08.08.03 dire cting the respondents to pay the subsistence allowance to the petitioner if not already paid and to review the order of suspension. 4. By Annexure-B communication dated 03.02.03, the Sub-Divisional Officer ( C), Dhakuakhana submitted a report to the Commissioner and Secretary to the Govt . of Assam in the Education Department. As per the said report, the petitioner w hile was functioning as In-Charge, D.I. of Schools, Dhakuakhana illegally releas ed the salary of the good number of L.P. School teachers. The report indicated that the services of the teachers were earlier terminated and there were no vaca ncies to accommodate them. The report also indicated that huge amount was requir ed for payment of salary to such teachers and in the meantime the amount of Rs. 75,70,769/- had been drained from the State exchequer towards illegal payment o f salary. 5. The petitioner was issued with Annexure- (C) charge sheet dated 09.07.0 3. As per the charge levelled against the petitioner he had released monthly sal ary of 101 L.P. school teachers from the year 2000 onwards who were appointed du ring 1989 against non-existent posts and whose services were terminated during 1 992. As per the charge, the petitioner ignored the fact of termination of servic es of the teachers and the fact of non-existence of posts to accommodate them. 6. On receipt of the charge sheet, the petitioner submitted his written sta tement of defence denying the charge. His defence was that whatever action he ha d taken towards release of salary to the teachers was on the basis of the Govt. orders issued from time to time which again were on the basis of the orders pass ed by the High Court. As per the written statement of defence he had also verifi ed the appointment orders and the reports submitted by the respective Headmaste rs regarding continuation in service by the teachers with effect from the date of joining. In the written statement the petitioner also contended that since su bsequently the Govt. decided to regularize the service of the teachers and to re lease their salaries, he did not commit any wrong in releasing the salary before hand. 7. The petitioner also submitted Annexure-E representation dated 04.06.04 f or early disposal of disciplinary proceeding. Alongwith a copy of the Annexure-E representation, the petitioner has also annexed certain documents to show and to contend that he had released the salaries to the teachers on the basis of the directions issued by the higher authorities. The documents annexed to Annexure- E representation dated 04.06.04 are the letters from the Under Secretary to the Govt. of Assam in the Education (E) Department; the orders passed by the petiti oner himself; and the letters issued by the Secretary to the Govt. of Assam in t he Education Department and so also one order of the High Court on 24.09.01 pass ed in W.P.(C) No. 6791/01. 8. The letter dated 02.11.01 issued to the petitioner by the Under Secretar y was to take necessary action in the matter of the particular school pursuant t o the order passed by this Court in W.P.(C) No. 6791/01. There was no direction to the petitioner to release the salary of the teachers. There was no direction of this Court to release the salary. The direction issued was to examine the mat ter and upon such examination, if it was found that the writ petitioner had been appointed by the competent authority after following the selection process, the pay and allowances payable to the teacher should be paid. 9. Both from the aforesaid order of this Court as well as the letter writte n to the petitioner by the Under Secretary what has transpired is that a duty wa s cast upon the authority to make necessary verification regarding validity or otherwise of the incumbents and other attending circumstances and it was only up on meeting the requirements of the valid appointments, the pay and allowances wa s to be paid. Instead of doing so, the petitioner instantaneously released the s alary of the incumbents and his defence is that he had taken the action as per t he direction of the higher authority. The petitioner himself has annexed the cop y of the order dated 17.07.02 passed by him relating to salary of the particula r incumbents upon a reference to the aforesaid order of this Court. 10. On conclusion of the departmental enquiry conducted against the petition er, the enquiry officer submitted his report holding the petitioner guilty of ch arge. The report was submitted on 20.04.05. According to the petitioner, the en quiry officer has failed to appreciate the materials on record and has illegally held the petitioner guilty of the charge. 11. On being furnished with the copy of the enquiry report, the petitioner s ubmitted his representation against the same reiterating his earlier stand that entire action on his part towards release of the salary of the teachers was on t he basis of the orders passed by the higher authorities. His further stand was t hat since the Govt. itself subsequently regularized the services of the teachers , the allegation against him stood obliterated. 12. The petitioner has been imposed with the penalty of stoppage of one incr ement with cumulative effect. The penalty has been imposed by Annexure-H order dated 26.10.05 in which there is also a mention of the order passed by this Cou rt on 04.05.05 in W.P.(C) No. 02.07.05. In the meantime, same officers in the r ank of the petitioner had been promoted as D.I. of Schools. According to the pet itioner, he has been superseded in the matter of promotion by his juniors due t o pendency of the departmental proceeding. Now after imposition of penalty by th e impugned order dated 26.10.05, the sealed cover procedure adopted in his cas e has become infructuous. 13. It is in aforesaid backdrop the petitioner has questioned the propriety, legality and validity of the departmental proceeding initiated against him with consequential order of penalty. According to the petitioner the entire proceedi ng is liable to be interfered with with a direction to the respondents to promo te him at per with the juniors. 14. The respondents have filed their counter affidavit denying the contentio ns raised by the petitioner. It is the case of the respondents that there was no direction to the respondents to release the salary of the teachers and that the petitioner could not have released the salaries only on the basis of the letter s issued to him forwarding the representations of the teachers. The respondents have contended that only direction of the Govt. was to take necessary action as per the direction of the Court. 15. I have heard Mr. S.N. Sarma, learned Sr. counsel assisted by Mr. A.J. D as, learned counsel for the petitioner as well as Mr. U.K. Goswami, learned Sta nding counsel, Education Department who has also produced the records. 16. According to Mr. Sarma, learned counsel for the petitioner, the petition er having released the salaries to the teachers on the basis of the orders passe d by the Govt. itself, he could not have been made responsible for such release of salary. He has further submitted that since the illegal appointments of 101 t eachers made by the petitioner was subsequently regularized by the Govt., the action of the petitioner towards releasing their salaries, may be prior in poi nt of time, stood obliterated. 17. Mr. U.K. Goswami, learned Standing counsel, Education Department on the other hand submitted that when the materials are overwhelming towards establishi ng the guilt of the petitioner, the writ Court will be reluctant to sit on appe al over such materials so as to return a different finding than that of the fin dings arrived at by the enquiry officer and the disciplinary authority. Referrin g to the records produced by him he has submitted that except two or three order s, there was no order from the Govt. or from this Court directing the petitioner to release the salaries to huge number of teachers involving huge amount of mon ey. According to him the plea of the petitioner that he had released the salarie s only as per the direction of the higher authorities is not discernible from th e records. 18. I have considered the submissions made by the learned counsel for the pa rties. I have also scrutinized the records. No serious infirmity in respect of t he procedure adopted in conducting the departmental enquiry has been pleaded in the writ petition. The only defence of the petitioner is that the charge against him of illegal release of salaries to the school teachers itself is not sustain able inasmuch as he had released the salaries as per the direction of the higher ups and the orders passed by this Court. His further stand is that since the ap pointments of those teachers have subsequently been regularized, his action towa rds release of their salaries prior to such regularization is liable to be condo ned. 19. The scope and ambit of the writ court in interfering with the findings a rrived at by the enquiry officer and the disciplinary authority is well defined and need not be reiterated. Law is well settled unless it is shown that the find ings arrived at by the authorities are perverse and/or based on no evidence, the writ court cannot sit on an appeal over such finding by way of re-appreciating the evidence on record. In a departmental proceeding, even if there is some irre gularity, same by itself will not be enough to interfere with the proceeding unl ess prejudice is established by the delinquent. 20. As stated above, the petitioner has not pleaded any procedural irregula rity in conducting the enquiry. His only defence is that whatever action he had taken towards release of the salaries to the incumbents, same was as per the dir ection of this Court as well as the higher authorities. However, as per the own showing of the petitioner on the basis of the documents annexed to the writ peti tion, the claim of the petitioner falls through. At page38 of the writ petition, he has annexed the copy of the order dated 17.07.02 passed by him releasing the salary of the incumbents named therein w.e.f. 01.07.02. In the order there is r eference to the order passed by this Court on 24.09.01 in W.P.(C) No. 679/01 cop y of which has also been annexed to the writ petition at page 45. 21. By the aforesaid order, this Court only directed the respondents to exa mine the matter and to release the salary only if it was found that the writ pet itioner had been appointed by the competent authority after following the select ion process. There is nothing to indicate that the respondents, in fact, did exa mine the matter. There is also no finding recorded by the petitioner to the effe ct that the incumbents in the said case, in fact, was validly appointed after following the selection process. The petitioner simply passed the order dated 17 .07.02 upon reference to the order of this Court. He has also referred to the or der passed by the SDO (C), Dhakuakhana. The petitioner, a responsible officer in the Education Department, is expected to understand the true purport and import of the order of the Court. When there was specific direction of this Court to examine the validity or otherwise of the appointments of the incumbents, it was bounden duty of the petitioner to do so and then only to release the salary on t he basis of the finding that the incumbents were validly appointed. 22. Above is only one example on the basis of own documents on which the pet itioner has placed reliance. The records produced by the learned Standing counse l, Education Department clearly reveal that by scores of letters addressed to t he petitioner by the Under Secretary to the Govt. of Assam in the Education (E) Department, the request made to the petitioner was to release the salary of the incumbents named in the letters only if they were appointed against the existin g vacancies. Thus, it cannot be said that the direction issued to the petitioner were unqualified. Release of salary to the teachers was dependent on the fact o f their appointment against the existing vacancies. The charge against the petit ioner is that, he had released the salaries to the teachers whose services were already terminated and who were appointed against non existent posts. The direc tion issued to the petitioner being for release of salary only if the teachers w ere appointed against existing vacancies, it was incumbent on the part of the pe titioner to make necessary verification regarding validity of the appointment of the teachers and that too against the existing vacancies, but instead, the peti tioner on the basis of such communications released the salaries to the teachers . 23. The plea of the petitioner that since the appointments of the teachers h ave subsequently been regularized by the Govt. itself, the act done by him prio r in point of time also got rectified is not at all tenable. It is not known as to under what circumstances the illegal appointments of the teachers have subse quently been regularized. Be that as it may, subsequent rectification of the ill egal appointments of the teachers cannot absolve the petitioners from his illega l act of releasing the salaries prior in point of time unauthorizedly. 24. In a departmental proceeding, facts have to be proved and the persons pr oceeded against must have an opportunity to have his say in the matter. When th e petitioner has admitted the relevant facts on which a decision can be given ag ainst him, it cannot be said that the enquiry was in breach of the principles of natural justice. There is no distinction between admission of facts and admissi on of guilt. When the petitioner has admitted the facts, he is guilty. The facts speak for itself. It is the clear case of indiscipline and nothing less. The p etitioner, a responsible officer of the Education department could not have rel eased the salaries of a huge number of teachers on the basis of the kind of dire ction issued to him. The conduct of the petitioner in releasing the salaries to such teachers whose services stood already terminated and who were also appoin ted against non-existent posts, implies a willful abuse or an intentional wrong on the part of the petitioner. The Apex court in Tara Lochan Dev Sharma vs. Sta te of Punjab (2001 6 SCC 260) has observed thus: 16. In the system of Indian democratic governance as contemplated by the Con stitution, senior officers occupying key positions such as Secretaries are not s upposed to mortgage their own discretion, volition and decision-making authority and be prepared to give way or being pushed back or pressed ahead at the behest of politicians for carrying out commands having no sanctity in law. The Conduct rules of Central Government Services command the civil servants to maintain at all times absolute integrity and devotion to duty and do nothing which is unbeco ming of a government servant. No government servant shall in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his o fficial superior. In Anirudhsinhji Jadeja this Court has held that a statutory a uthority vested with jurisdiction must exercise it according to its own discreti on; discretion exercised under the direction or instruction of some higher autho rity is failure to exercise discretion altogether. Observations of this Court in Purtabpore Co. Ltd. are instructive and apposite. Executive Officers may in exe rcise of their statutory discretions take into account considerations of public policy and in some context, policy of a Minister or the Government as a whole wh en it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal judgment in individual cases unless expli cit statutory provision has been made for instructions by a superior to bind the m. 25. For the forgoing reasons and discussions, I am of the considered opinion that no case has been made out for interference under Article 226 of the Consti tution of India. Consequently the writ petition is dismissed. There shall be no order as to costs.