S.D. Senior Secondary School, Narwana vs State of Haryana

S.S. Nijjar, J.—This writ petition under Articles 226/227 of the Constitution of India seeks quashing of orders Annexures P-4 and P-6.

The original order of termination of service passed by the petitioner- Management was challenged by respondent No. 3 by filing a civil suit. The suit was dismissed. The appeal against the dismissal of the suit was also dismissed. Now it is stated by Mr. Narula that Regular Second Appeal No. 1203 of 1993 is pending for final disposal in this Court. In this writ petition, the only point raised is that the order-Annexure P-6 is without jurisdiction as the State Government had no power to direct that the appeal of the respondent be reheard. According to learned counsel, rehearing of the appeal would amount to review of the order-Annexure P-2. Since no po,wer of review has been granted to the Director under the Act, the appeal could not be directed to be reheard.

Mr. Narula, on the other hand, submitted that the State Government has all the powers u/s 7 of the Haryana Aided Schools (Security of Service) Act, 1971 (hereinafter referred to as the Act) to pass order, in the interest of justice, Learned counsel has also submitted that this writ petition deserves to be dismissed as at the time of filing of the writ petition, the Management of the School was not approved by the Director as required under Rule 2 of the Haryana Aided Schools (Security of Service) Rules, 1974. Since the Management had not been approved, no resolution could have been passed in filing the present writ petition.

I have considered the submissions made by the learned counsel for parties anxiously.

Respondent No. 3 joined the service of the petitioner-School as J.B.T. Teacher on 19.9.1974. His services were terminated by order dated 16.10.84, after conducting a departmental enquiry. The charges were found to have been proved against respondent No. 3. As the order of dismissal of an employee of an aided school can only take effect on confirmation by the District Education Officer, the necessary application was made by the petitioner-Management, u/s 3(2) of the Act. By order dated 26.11.1984, the action taken by the petitioner-Management was approved by the District Education Officer, Jind. Respondent No. 3 filed an appeal against the order of termination before the appellate authority i.e. D.P.I., Haryana u/s 3(4) of the Act. This appeal was dismissed by order dated 20.1.1987 which was communicated to the petitioner on 3.2.1987. A perusal of this order shows that the objection raised by the petitioner-Management with regard to the appeal filed by respondent No. 3, being barred by limitation, was rejected, however, on merits, it was held that the respondent No. 3 was given adequate opportunities to defend himself. The allegations of malafide levelled against the petitioner were also rejected. It was held that respondent No. 3 has not been able to prove that the members of the Enquiry Committee were biased against him. Respondent No. 3 thereafter filed a civil suit challenging the orders dated 16.10.1984, 26.11.1984, 30.4.1984 and 3.2.1987. This suit was filed on 3.4.1987. The civil suit was dismissed on 14.12.1991. Thereafter, the petitioner filed the First Appeal which had also been dismissed. As noticed earlier, the Regular Second Appeal is pending adjudication in this Court. Inspite of having filed the aforesaid Civil Suit, respondent No.3 also made a representation to the Commissioner and Secretary, Government of Haryana, Education Department, for setting aside the order-Annexure P-2 passed in the appeal which had been preferred by respondent No.3 against the order of the D.E.O. approving the action taken by the petitioner-Management. Exercising its power u/s 7 of the Act, the Commissioner and Secretary to Government of Haryana, Education Department on 17.5.1990, has passed the following order :-

"Under Security of Service Act, 1971, Section (7), the appeal of Shri Rattan Singh, JBT Teacher is ordered to be reheard by Director Education, Haryana."

Section 7 of the Act is as under :-

"Power to make rules

If any difficulty arises in giving effect to the provisions of this Act, the State Government may, by order do anything not inconsistent with such provisions which appears to it to be necessary or expedient for the purpose of removing the difficulty."

A bare perusal of this Section clearly shows that it empowers the State Government to pass any order consistent with the provisions of the Act. These orders are to be passed only for removal of difficulty in giving effect to the provisions of the Act. This provision cannot be used as a lever to grant a power of review to the appeallate authority which does not exist under the Act. Since the power of review is statutory in nature, the Commissioner and the Secretary has no jurisdiction to direct the appellate authority, to review its earlier order. In the case of Dr (Smt.) Kuntesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur (U.P.) and Others, . the Supreme Court has held that the power of re- view has to be expressly conferred on an authority by the statute under which it derives its jurisdiction. Similarly, a Division Bench of this Court in the case of Harbhajan Singh v. Financial Commissioner (Taxation) Punjab and another 1989 PLJ 273, has observed as under :-

"4.....There is no power of review. u/s 24 of the Act, powers have been given to Chief Settlement Commissioner to exercise supervisory powers of revision in respect of the decisions of subordinate officers. The power of revision is a specific power conferred upon the Chief Settlement Commissioner by the legislature to be exercised for specific purpose on specific grounds. Section 25 of the Act deals with the review of an order of the Settlement Officer passed u/s 5 of the Act from which no appeal is allowed u/s 22 of the Act. A very limited power of review has been given to the Settlement Officer who can review the orders under circumscribed limits, no such powers can be exercised by any other officer. The Tribunals have no inherent right to review the order unless such power has been specifically conferred....."

In fact, the direction given is wholly contrary to the provision of Section 7 of the Act reproduced above. I, therefore, find no force in the submission made by Mr. Narula to the effect that the Secretary/Commissioner had exercised the powers which are vested in him u/s 7 of the Act. In my view, the directions issued by the Secretary are wholly without jurisdiction. Even otherwise the order dated 17.5.1990 cannot be sustained as it would amount to nullifying the decision of the Civil Court and the Appellate Court. I also do not find any force in the submission made by Mr. Narula that the writ petition is not maintainable as at the time of filing of the writ petition, the management was not approved by the Director as required under Rule 2(e) of the Rules. It is not disputed that as a matter of fact, subsequent to the filing of the writ petition, the management has been approved under the Rules, Therefore, at best this may have been an irregularity which, in my view, would be curable. The same having been cured by the subsequent acceptance of the management would not render the writ petition not maintainable.

In view of the above, this writ petition is allowed. Order-Annexure P-6 is hereby quashed and set aside. No costs.

Petition allowed