JUDGMENT A.P. Sahi, J.
1. Heard Sri Ashok Khare, Senior Counsel, assisted by Sri B.S. Pandey and Sri P.N. Tripathi, learned Counsel for the petitioner and Sri U.N. Sharma, Senior Counsel, assisted by Sri K. Sahi, learned Counsel for the respondent No. 2 and learned Standing Counsel for the respondent Nos. 1, 3, 4 and 5.
2. The petitioners have challenged the orders dated 15.4.2000, 17.4.2000, 19.4.2000 and 22.4.2000 respectively, passed by respondents, whereby services of the petitioners have been treated to have been terminated with effect from the date of the passing of the initial order's dated 3.8.1995 and 31.7.1995 respectively.
3. The facts, in brief, for the purpose of the present controversy are that the services of the two petitioners, who are the Head Mistress (petitioner No. 1) and Assistant Teacher (petitioner No. 2) respectively of a Primary School established and managed by respondent No. 2, were terminated by orders dated 3.8.1995 and 31.7.1995 respectively.
4. The petitioners filed a writ petition challenging the said orders before this Court and simultaneously approached the Basic Shiksha Adhikari, Basti requesting him to review the order of termination passed against them. The Basic Shiksha Adhikari, Basti vide orders dated 23.2.1996, which are appended as Annexures-1 and 2 respectively, recalled his earlier orders terminating the services of the petitioners on the ground that Basic Shiksha Adhikari enjoys powers of review under U.P. Civil Laws Amendment Act, which has been referred to in the order dated 23.2.1996.
5. It appears that thereafter a dispute arose with regard to the veracity of the signatures of the B.S.A. on the aforesaid orders dated 23.2.1996, as a result whereof the matter was referred to various authorities. Ultimately, this dispute travelled up to the Secretary, U.P. Basic Shiksha Parishad, who passed an order in the month of April 2000, which has been appended along with the counter affidavit as Annexure-7. By this order the Secretary, Basic Shiksha Parishad, who is the appellate authority in such matters, where the services of the employees have been terminated, directed the Basic Shiksha Adhikari to treat the services of the petitioners to have been terminated vide orders dated 3.8.1995 and 31.7.1995 respectively and to take appropriate action in this regard. The said order of the Secretary, Basic Shiksha Parishad was followed by an order of the Assistant Director of Education (Basic), VII Region, Gorakhpur directing the Basic Shiksha Adhikari to ensure the compliance of the order, which has been appended as Annexure 8 to the counter affidavit. The Basic Shiksha Adhikari thereupon has passed an order dated 22.4.2000, which is impugned in the present writ petition.
6. Sri Ashok Khare, learned Senior Counsel on behalf of the petitioner, has urged that the orders dated 15.4.2000, 17.4.2000, 19.4.2000 and 22.4.2000 respectively have been passed without giving opportunity of hearing to the petitioners. He further urged that the Basic Shiksha Adhikari had the power to review his orders as, in the instant case, the orders of termination had been passed on the basis of some mistake as referred to in the impugned orders. It has been further submitted that such a procedure is permissible in law and reliance has been placed on the decision of Committee of Management, Atarra Post Graduate College, Atarra, Banda v. Vice Chancellor, Bundelkhand University, Jhansi and Anr., 1988 UPLBEC 821.
7. On the other hand, Sri U.N. Sharma, learned Senior Counsel for the respondents, has urged that the Basic Shiksha Adhikari is not entrusted with any such power and that the aforesaid order dated 23.2.1996, being void, was rightly directed to be ignored and orders dated 3.8.1995 and 31.7.1995 were accordingly restored. He has further submitted that a lot of forgery has been committed by the petitioners, which has given rise to this controversy and even otherwise the above orders passed by the respondents, terminating the services of the petitioners do not call for any interference.
8. Having heard learned Counsel for the parties, the first question that arises for determination is that of the jurisdiction of the Basic Shiksha Adhikari to exercise the power in such departmental proceedings. It is undisputed that the Basic Shiksha Adhikari has the power to terminate the services of the petitioners under U.P. Basic Educational Staff Rules, 1973. A perusal of the said rules shows that the Basic Shiksha Adhikari has not been conferred with any power to review his own orders. The contention of the learned Counsel for the petitioners is that the order can be reviewed on the ground of misrepresentation, fraud or mistake. In the present case it is apparent that the Basic Shiksha Adhikari has proceeded to assume the jurisdiction under the U.P. Civil Laws Amendment Act. It is not understandable as to under which provision of the C.P.C. the Basic Shiksha Adhikari has such power. It is, therefore, obvious that the Basic Shiksha Adhikari, while passing the order dated 23.2.1996, proceeded on an erroneous assumption of law.
9. In the case of petitioner No. 1, the order dated 23.2.1996 (Annexure 1 to the writ petition) passed by the B.S.A. recites, that in view of the facts stated in the representation filed by the petitioner No. 1 and the order passed by District Magistrate therein, has persuaded the authority to review the earlier decision. It has been further stated that on an in-depth examination of the entire file and the report on the basis whereof the services of the petitioner No. 1 were terminated, the matter was required to be reviewed in the interest of justice. Lastly, the Basic Shiksha Adhikari has, in his wisdom, assumed an imaginary jurisdiction, which he describes to be flowing from some provision of the Civil Laws (Amendment) Act.
10. The order passed by the Basic Shiksha Adhikari in the case of petitioner No. 2 dated 23.2.1996 (Annexure 2 to the writ petition), in addition to other reasons, spells out a mistake having crept in the order, which was to the effect, that the previous enquiry report dated 1.5.2005 was not on the records as such the order was liable to be reviewed. He has also indicated that the reference to certain G.Os. in the order dated 31.7.1995 were out of context and has also referred to the earlier proceedings in respect of charge Nos. 1 to 6 which, according to him, were a foreclosed issue as such review was desirable in the interest of justice. The assumption of power under the Civil Laws (Amendment) Act has been repeated again.
11. The law on the subject, that is the power of review with administrative authorities, has been debated in detail, in its various shades. The decisions which are relevant to the issue are being mentioned hereinafter, which would narrow down the exercise of this Court in arriving at an appropriate conclusion.
12. The earliest decision on the subject worth referring to is the case of R.T. Rangachari v. Secretary of State, AIR 1937 PC 27. It was held therein, that once a decision had been taken by an authority in good faith and honestly, then it was not open to the successor in office to alter the decision merely because a different view was possible.
13. In the instant case, the same Basic Shiksha Adhikari Sri K.K. Shastri is the author of both the orders, the one terminating the services and the subsequent order reviewing the same. It is thus obvious that the same officer proceeded to rehear the same matter on the same issues, which was impermissible in law.
14. Coming to a later decision, it has been held by this Court, that an authority unless empowered specifically under the statute, does not have the power of review. However, the only exceptions to the said rule are that the authority has inherent powers to correct its own errors provided the order was obtained by fraud, misrepresentation or mistake. Reference may be made to Hawaldar Singh v. Up Shiksha Nideshak, 1976 AWC 123 where the approval to the appointment of the petitioner therein was put in abeyance. This Court held that once the approval under Section 16-F of the U.P. Intermediate Education Act was granted, the authority became functus officio thereafter and the matter could not be reopened unless it was established that the order was obtained by practising fraud or misrepresentation. In the case of Rajendra Tripathi v. D.D.E., 1976 AWC (Journal) 22 a direction issued by the Deputy Director of Education to the District Inspector of Schools to set. aside an order of approval was held to be without authority and the District Inspector of Schools was found not to possess the power of review in such a situation, unless there was an element of fraud or misrepresentation discernible on the facts of the case. Similarly in Radhey Shyam Chaubey v. District Inspector of Schools, 1978 AWC 40, it was held that upon an approval to the appointment made, a vested right is created and the same cannot be withdrawn unless there is proof of fraud, misrepresentation or mistake on record. In the matter of recognition of a Committee of Management by the District Inspector of Schools, it was held that the District Inspector of Schools had no power to review his own orders on a fresh assessment of facts and law. [See Jaswant Singh v. District Inspector of Schools, 1980 UPLBEC 43]. In another case of Prabandh Samiti v. State, 1987 UPLBEC 321, it was held that once the Scheme of Administration was approved under Section 16-A(5) of the U.P. Intermediate Education Act 1921, the Deputy Director of Education had no power to review unless there was an allegation of fraud and misrepresentation established on record.
15. A case decided by the Apex Court, which is nearer to the facts of the present controversy, is that of Kuntesh Gupta v. Vice Chancellor, wherein, the order of the Vice-Chancellor reviewing the earlier decision on the basis of certain reports, which were not on record previously, was held to be an order without jurisdiction. The reliance placed by Sri Ashok Khare, Senior Advocate on the decision reported in 1988 UPLBEC 821 (supra) is not applicable in the present controversy inasmuch as that was a case where the Committee of Management had deliberately misrepresented facts before the Vice-Chancellor, as such, the Court after recording a finding held that the Vice-Chancellor was misled to pass the initial order. It was further held that in the absence of statutory provisions, the power of review on grounds of fraud and misrepresentation is inherently available to every judicial tribunal. However, the Court ultimately quashed the order on the ground that it was in violation of principles of natural justice. In the instant case, as is evident from the orders dated 23.2.1996 there is no finding of any misrepresentation and hence the decision relied on behalf of the petitioners does not come to their aid.
16. In Brijendra Bahadur Singh v. District Magistrate, Gonda, 1991 RD (Supp) 120, it was held that the order of the District Magistrate advancing and pre-poning the date of meeting of no confidence was not an order of review and was merely an order to correct an error which was due to miscalculation. It was held that such a function was neither judicial nor quasi-judicial in nature and it did not decide any lis between the parties.
17. Our Court in the case of Sri Krishna Education Society v. State, , held that, while considering the question of cancellation of registration of a society under Section 12-D of the Societies Registration Act, 1860, the Assistant Registrar has the power to cancel the same if it has been obtained by fraud or misrepresentation. The Court further held that even otherwise administrative authorities have the inherent power to review if allegations of fraud or misrepresentation are proved.
18. On the question as to when an authority can correct itself on the ground of mistake, reference may be had to the Apex Court decision rendered in Lily Thomas v. Union of India, AIR 2000 SC 1650. It has been held that a mistake, which has crept on account of erroneous assumption of fact, which did not exist, the same, can be corrected and rectified. Accidental errors and errors to prevent gross miscarriage of justice can also be corrected. The errors should be substantial and of compelling character which can be described either as a glaring omission or patent mistake. However, the Court could not review on the same material because two views were possible on the same set of facts. The same judgment has held that merely because another view was possible, it cannot be a ground for review, as there is no provision for rehearing by an administrative authority unless a statute specifically confers such a jurisdiction. As held in the case of M.A. Haji v. Tehsildar Kozhi Kode, 2005 SC weekly 1285, a mistake having occurred and any error apparent on the face of record can be corrected provided the error is patent, manifest or self evident. It was further held that an error cannot be termed as an error on the face of record in case one has to travel beyond the record.
19. Applying the aforesaid principles, a perusal of the order dated 23.2.1996, in case of petitioner No. 1 would indicate that there is no finding of either any fraud or misrepresentation or mistake having been committed by the Basic Shiksha Adhikari while passing the earlier order of termination. In the absence of any such finding the exercise undertaken by the same Basic Shiksha Adhikari was nothing else but a clear act of over stepping his own jurisdiction. So far as the order in case of petitioner No. 2 is concerned, the Basic Shiksha Adhikari has recorded that the file did not, contain the report, which was subsequently brought to his notice and, as such, considering the same to be a mistake, as urged by learned Counsel for the petitioner, the same was sought to be rectified. The aforesaid finding is misconceived, inasmuch as, it is evident that the alleged report, which has been referred to in the order dated 23.2.1996, was admittedly not on record as per the own admission of the Basic Shiksha Adhikari. Thus there was no omission or deliberate mistake committed by Basic Shiksha Adhikari, which could have been rectified by reviewing the order. The said report was not on record and it is not the case of the Basic Shiksha Adhikari that the report was deliberately withheld or could not be brought to his notice by exercise of due diligence. On the contrary the said report, which is alleged to be dated 1.5.2005 was known to the petitioner. There is no explanation either in the writ petition or in any affidavit as to why the petitioners did not place it before the Basic Shiksha Adhikari. The said report was in the possession of the petitioners, which they allege to have been prepared and submitted along with their representations subsequently.
20. In view of the aforesaid facts, there was no mistake of the nature as described in the decisions referred to herein above, so as to attract the inherent power of the Basic Shiksha Adhikari to review the decision.
21. Apart from the aforesaid position, the only remedy to the petitioners against the order of termination was to file an appeal before the Secretary, Basic Shiksha Parishad (as has been held in the Division Bench decision in M.L. Maurya v. Committee of Management, 1987 UPLBEC 176). In view of this, neither the writ petition preferred by the petitioners before this Court was entertainable nor the Basic Shiksha Adhikari had any power to review his own orders.
22. The order dated 23.2.1996 being an order without jurisdiction was a void order.
23. Coming to the contentions advanced on behalf of the petitioners with regard to the orders impugned herein, once it has been found that the order dated 23.2.1996 was a nullity then the orders passed subsequently dated 15.4.2000, 17.4.2000, 19.4.2000 and 22.4.2000 become non est. As a sequel thereto, the orders dated 3.8.1995 and 31.7.1995 revive, against which the petitioners have a right of appeal before the Secretary, Basic Shiksha Parishad. Even otherwise, the impugned orders dated 15.4.2000, 17.4.2000, 19.4.2000 and 22.4.2000 were passed without giving any opportunity to the petitioners and as such there was a clear breach of the principles of natural justice. These orders, reflect an exercise, which can also be termed as being in excess of authority inasmuch as procedure of disciplinary proceedings are regulated statutorily under the 1973 Rules referred to hereinabove. It is hereby directed that the petitioners are at liberty to file an appeal against the said orders before the Secretary, Basic Shiksha Parishad within a period of one month from today. In case such appeal preferred within the aforesaid time, the same shall be entertained by the Secretary, Basic Shiksha Parishad and shall not. be turned down on the ground of laches and he shall decide the same after hearing the parties concerned in accordance with law. The Secretary, Basic Shiksha Parishad shall also proceed to decide the matter without being influenced by any of the orders under challenge in the writ petition and he shall provide full opportunity of rebutting the evidence, which has been relied in the orders dated 17.4.2000 and 22.4.2000 respectively.
24. It is further to be noted that the petitioners in the instant writ petition were favoured by an interim order dated 4.5.2000. The said interim order continued; whereafter the writ petition was dismissed in default on 31.11.2002 and subsequently restored on 16.12.2002.
25. It has been stated on behalf of the petitioners that on account of the aforesaid situation the respondents stopped making the payment of salary to the petitioners and interfered in their functioning and as a result thereof they were compelled to file an application, on which orders were passed on 28.1.2005 clarifying the status of the petitioners in this writ petition. It has been pointed out that a contempt petition was also filed, which is pending for consideration before this Court. A special appeal, being Special Appeal No. 157/2005, preferred by Basic Shiksha Parishad against the order dated 28.1.2005, was also dismissed on 16.2.2005.
26. From the order sheet it appears that the interim order dated 4.5.2000 was made time bound by the order dated 7.4.2005 and later on, on 11.4.2005 the case was directed to be listed peremptorily on 19.4.2005 and the order dated 7.4.2005 was further modified to the extent that status quo, as existed on that date with regard to the status of the petitioners, shall be maintained. In view of the aforesaid orders having been passed from time to time and in view of the fact that the petitioners have already been granted liberty to file the appeal, in the circumstances indicated herein above it is provided that till the disposal of the appeal, directions given in the order dated 11.4.2005 shall continue. The Secretary, Basic Shiksha Parishad, shall proceed to conclude and decide the matter preferably within two months from the date of the filing of the appeal by the petitioners before him.
With the aforesaid directions, the writ petition is disposed of. No order as to costs.