This is a writ petition filed by the Committee of Management, R.B.S. Purva Madhyamik Vidhyalaya, Lacchmanpur, Saraya, Basti, a recognised institution under the U.P. Basic Education Act, 1972 against the order dated 25.4.1997, passed by the Assistant Director of Education (Basic), VII Region, Gorakhpur, asking the District Basic Shiksha Adhikari, Basti to reconsider the matter relating to the removal of Ram Dheeraj Singh, respondent no.3 from the post of Head Master and the order dated 12th June, 1997, passed by the District Basic Shiksha Adhikari, Basti refusing to grant the approval to the resolution of the Committee of Management by which Ram Dheeraj Singh was removed from the post of Head Master.
It appears that in the year 1996, the post of Head Master of the institution fell vacant. The petitioner published an advertisement on 2nd July, 1996, inviting the applications for the appointment on the post of Head Master. In pursuance thereof, Ram Dheeraj Singh, respondent no.3, applied, disclosing his academic qualifications, including having experience of three years of teaching as a Up Pradhan Adhyapak in an institution. He was called for interview on 30th July, 1996. On 30th July, 1996, the Selection Committee interviewed various applicants, including the respondent no.3. The respondent no.3 was placed at the first place in the merit list and one Ram Dhani Verma secured second position. The report of the Selection Committee was placed before the Committee of Management. The Committee of Management on 30th July, 1996, recommended name of respondent no.3 for appointment on the post of Head Master and sent all the papers to the respondent no.1 for approval. On 8th August, 1996, the respondent no.1 granted approval for appointment of respondent no.3 and he was appointed on 10th August, 1996 on probation for one year. The appointment letter is Annexure-3 to the writ petition.
It is the case of the petitioner that during the months of October and November, 1996, several complaints were received from the teaching staff against the respondent no.3 regarding indiscipline prevailing in the institution as well as misbehaviour of the respondent no.3 with the members of the staff. The petitioner, vide its letter dated 11th December, 1996, called for an explanation from the respondent no.3. The Manager of the institution also asked two members of the Committee of Management, namely, Rajendra Singh and Arjun Nath Pandey to enquire about the working of the respondent no.3 with reference to the complaints. The aforesaid two members submitted their report dated 21st December, 1996 in respect of the non-functioning of the institution properly and smoothly by the respondent no.3 and incapable of maintaining discipline amongst the teaching staff and the students as well as his misbehaviour with the teachers. It has also been stated in the report that the respondent no.3 remained absent from attending the institution for a number of days without any leave application or prior information to the Manager of the Institution inasmuch as the respondent no.3 remained absent on 13.11.1996, 14.11.1996, 18.11.1996, 20.11.1996 in the month of November and on 9.12.1996, 10.12.1996, 15.12.1996 to 23.12.1996, 27.12.1996 to 31.12.1996 in the month of December, 1996 without any leave application. Thereafter, the Manager of the Institution has given his report dated 21st December, 1996, which was placed before the Committee of Management on 22nd December, 1996.
It is contended that on 15.12.1996, the Manager of the institution sent intimation 'Under Postal Certificate' to the respondent no.3 to appear on 22nd December, 1996 before the Committee of Management and submit his version, but inspite of full opportunity having been afforded to the respondent no.3, he did not intentionally appear before the Committee of Management on 22nd December, 1996. Accordingly, the Committee of Management on 22nd December, 1996, after considering the entire matter and other materials on record, passed a resolution for termination of his services. All the papers alongwith the resolution dated 22nd December, 1996 were forwarded to the respondent no.1 for approval.
It appears that by the resolution, withdrawal of grant of approval for appointment on the post of Head Master was sought, instead of granting approval for termination of service of respondent no.3. The respondent no.1 sent a letter dated 17th February, 1997 stating therein that the approval to the appointment on the post of Head Master granted in favour of respondent no.3 could not be withdrawn under the provisions of U.P. Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers) Rules 1978 (hereinafter referred to as the 'Rules of 1978'). On the receipt of the aforesaid letter from the respondent no.1, the petitioner convened another meeting of the Committee of Management on 27th February, 1997 and considered entire matter afresh and passed a resolution on 27th February, 1997, terminating the services of the respondent no.3, during his probation period in view of his unsatisfactory working as well as not running the institution smoothly and not maintaining discipline in the institution. On 15th March, 1997, the respondent no.1 granted approval for termination of services of the respondent no.3. On the receipt of the approval letter dated 15th March, 1997, the petitioner sent a Registered letter dated 17th March, 1997 to the respondent no.3 on 18th March, 1997 informing him about termination of his services.
It appears that before passing the approval order dated 15th March, 1997, the respondent no.1 got an enquiry made from the respondent no.2 regarding teaching experience certificate dated 16.10.1995 of the respondent no.3. The respondent no.2 made the enquiry from the District Basic Shiksha Adhikari, Lucknow. The District Basic Shiksha Adhikari, Lucknow vide its letter dated 18th February, 1997 informed that there was no sanctioned post of Up Pradhan Adhyapak in Tula Devi Shiksha Mandir Junior High School, Gomti Nagar, Lucknow and the respondent no.3 did not work as Up Pradhaan Adhyapak during the said period as mentioned in the Experience Certificate dated 16.10.1995.
It appears that against the grant of approval dated 15th March, 1997, passed by the respondent no.1 in respect of termination of the services of the respondent no.3, the respondent no. 3 filed a representation before the Assistant Director of Education (Basic), VII Region, Gorakhpur, who vide its order dated 25th April, 1997 sent back the representation of the respondent no.3 to the respondent no.1 for reconsideration of the matter in accordance with the provisions of Rules of 1978. On 12th June, 1997, the respondent no.1 allowed representation of the respondent no.3 and rejected the resolution, passed by the petitioner, for termination of services of the respondent no.3.
Being aggrieved by the order of the respondent no.1, dated 12th June, 1997 and the order dated 25th April, 1997, passed by the respondent no.4, the present writ petition has been filed.
Counter and rejoinder affidavits have been exchanged.
Heard Sri Indra Raj Singh, learned counsel for the petitioner and Sri Uma Nath Pandey, learned counsel appearing on behalf of the respondent no.3 as well as learned Standing Counsel, appearing on behalf of respondent nos. 1, 2 and 4.
Learned counsel for the petitioner submitted that Rule 4(2) of Rules of 1978 prescribes minimum qualifications for the appointment of the Head Master which the respondent no.3 did not possess; the appointment of the respondent no.3 was for the period of one year on probation; he was given opportunity before passing of the resolution for termination of services, which he could not avail and in any view of the matter since the working of the respondent no.3 was not satisfactory, his services were terminated. He further submitted that in case of termination of services of the petitioner, during the probation period, no opportunity was required; the respondent no.4 had no right to entertain the representation of the respondent no.3 and direct the respondent no.1 to reconsider the matter afresh inasmuch as such direction was ex parte, without giving opportunity of hearing to the petitioner; once the respondent no.1 approved the resolution for termination of the services, he had no power under the Act or Rule to review his own order. Thus, the order dated 12th June, 1997 allowing the representation of the respondent no.3 and reviewing its earlier order dated 15th March, 1997 is patently without jurisdiction and illegal. Reliance has been placed on the decisions of the Apex Court in the cases of Om Prakash Mann v. Director of Education (Basic) and others, reported in AIR 2006 SC 3096, Tikaram v. Mundikota Shiksha Prasarak Mandal and others, reported in AIR 1984 SC 1621 (Paragraphs 3 and 4) and in the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitaram (U.P.) and others, reported in 1987 UPLBEC 734 (Paragraph 11). He further submitted that against the order approving termination of the services of the respondent no.3, the respondent no.3 had a right of appeal before the U.P. Basic Education Board under Rule 12 of Rules of 1978. Instead of filing the statutory appeal, the respondent no.3 filed the representation before the respondent no.4, which was not maintainable and not entertainable, despite that the respondent no.4 has entertained the representation and directed the respondent no.1 to reconsider the matter and the respondent no.1 has illegally entertained the representation of the respondent no.3 and allowed the same, reviewing its earlier order dated 15th March, 1997.
Sri Uma Nath Pandey, learned counsel appearing on behalf of the respondent no.3, submitted that the order dated 15th March, 1997 of the respondent no.1 was passed as a result of misrepresentation of fact and, thus, the respondent no.1 was competent to review its earlier order. Reliance is placed on the decision of the Apex Court in the case of Indian Bank v. Satyam Fibres (India) Pvt. Ltd., reported in (1996) 5 SCC 550 (Paragraphs 20, 23, 27 and 32).
Learned Standing Counsel supported the orders of the Authorities below. However, admitted that there was no provision in Rules of 1978 for review of its own order.
I have considered rival submission.
The question whether the respondent no.3 possessed requisite qualification for being appointed as the Head Master of the Institution or not has not been raised before the authorities below and there is no adjudication in this regard. Therefore, such plea cannot be entertained at this stage. However, there appears to be substance in the argument of learned counsel for the petitioner that in the absence of any provision in the Act or Rule, the respondent no.1 has no jurisdiction to review its earlier order dated 15th March, 1997.
The case in hand is not a case of misrepresentation or fraud on the part of the petitioner. On the basis of the complaints and materials available, the resolution was passed by the Committee of Management terminating the services of the respondent no.3. The entire papers have been sent to the respondent no.1 for grant of approval of the resolution. Therefore, the question of any misrepresentation or fraud does not arise. It is the settled principle of law that unless there is a specific power provided under the Act or Rule for review of order, the authority cannot exercise power of review. In the case of Dr. Smt. Kuntesh Gupta v. Management of Hindu Kanya Mahavidyalaya, Sitaram (U.P.) and others, wherein the Apex Court in Paragraph 11 has held that "It is now well established that a quasi judicial authority cannot review its own order, unless the power of review is expressly conferred on it by the statute under which it derives its jurisdiction...."
Against the order dated 15th March, 1997, granting approval for termination of services of the respondent no.3, the respondent no.3 had a right to appeal before the Board under Rule12 of Rules of 1978, which has admittedly not been preferred and the right to appeal has been waived. The respondent no.4 was neither the appellate authority nor the revisional authority, therefore, he had no jurisdiction to entertain the representation of the respondent no.3 and to direct the respondent no.1 to reconsider the matter. Therefore, the order dated 25th April, 1997, passed by the respondent no.4 was wholly without jurisdiction. In the absence of any provision, under the Act or Rule, to review its own order, the respondent no.1 has committed patent illegality in reviewing its own order dated 15th March, 1997 by which he has already granted approval to the resolution for termination of services of the respondent no.3. Thus, the order dated 12th June, 1997, passed by the respondent no.1 was without jurisdiction.
The decision cited by the learned counsel for the respondent no.3 does not apply in the present case.
In view of the above, it is not necessary to go into the merits of the resolution passed by the Committee of Management.
In the result, the writ petition is allowed. The order dated 25th April, 1997, passed by the respondent no.4 and the order dated 12th June, 1997, passed by the respondent no.1 are hereby quashed.
No order as to cost.
Order date: 2nd November, 2012 bgs/-