Point of law: A departmental proceeding can continue so long as the employee is in service. In the event, a disciplinary proceeding is kept pending by the employer the employee cannot be made to retire. There must exist specific provision in the pension rules in terms whereof, whole or a part of the pension can be withheld or withdrawn wherefor a proceeding has to be initiated.

JUDGMENT :

Irshad Ali, J.

1. Heard Sri G.C. Verma, learned counsel for the petitioner, learned Standing Counsel for respondent Nos.1 and 2, Sri P.K. Singh Bisen, learned counsel for respondent Nos.3 and 4 and Sri Avnish Kumar Singh, learned counsel for respondent No.5.

2. By means of the present writ petition, the petitioner is challenging an order passed by the Director of Education (Basic), whereby certain benefits have been granted to the respondent No.5 of the post of Headmaster of an institution run and managed by the private Management receiving aid from the State Government.

3. Brief fact of the case is that the respondent No.5 was granted appointment on the post of Headmaster and while holding the post, disciplinary proceeding was initiated against him and he was suspended vide order dated 9.8.2005, which was challenged by way of Writ Petition No.5489 (S/S) of 2005, wherein this Court granted interim order and in pursuance thereof, the respondent No.5 was reinstated in service and continued to discharge his duties. The interim order granted by this Court was modified on 25.1.2006 with the permission to conclude the disciplinary proceeding, if any, against respondent No.5. In pursuance thereof, the disciplinary proceeding was initiated and after its conclusion, papers were submitted before the District Basic Education Officer for grant of prior approval as required under Rule 15 of the Rules of 1978. The District Basic Education Officer, after hearing the parties, disapproved the proposal of the prior approval of the disciplinary proceeding of the respondent No.5 on the ground that while concluding the disciplinary proceeding proper opportunity of hearing was not provided to the respondent No.5.

4. After the order passed by the District Basic Education Officer, the Committee of Management resolved to initiate proceeding by giving full fledged opportunity of hearing to the respondent No.5. It is the case of the Committed of Management that after giving opportunity of hearing to the respondent No.5, disciplinary proceeding was concluded and papers were submitted before the District Basic Education Officer for grant of prior approval on 23.11.2007. The District Basic Education Officer issued notice to the respondent No.5 and thereafter, the respondent No.5 sought one month time to file reply to the same.

5. Writ Petition No.6419 (S/S) of 2008 was filed before this Court, challenging the notice issued by the District Basic Education Officer as well as against the resolution passed by the Committee of Management proposed to dismiss the respondent No.5 with the prayer to pay all consequential benefits of service. The said writ petition was decided vide order dated 1.10.2008, whereby direction was issued to decide the claim setup by the respondent No.5 before the Director of Education (Basic).

6. The judgment and order passed by this Court was subject matter of challenge in Special Appeal No.661 of 2008, whereby the order passed by the learned Single Judge was set aside and the Division Bench of this Court held that the Director of Education (Basic) has no jurisdiction to decide the issue of grant of prior approval, as required under Rule 15 of the Rules and under the Rules, Basic Education Officer is the competent authority to exercise this power. After the judgment, the District Basic Education Officer again issued notice on the matter of grant of prior approval. It is the case of the petitioner that concealing the fact of pendency of earlier writ petition, he moved an application for recall of the judgment. After the judgment passed by the Division Bench of this Court, the District Basic Education Officer issued notice under Rule 15. The notice was challenged before this Court by the respondent No.5, which was finally decided, whereby direction was issued that the competent authority shall decide the matter expeditiously, within a period of four months.

7. Thereafter, the respondent No.5 approached the Director of Education (Basic)