R.S. Mongia, J.@mdashThe petitioner js the Managing Committee of Banwari Lal Jingal Suiwala College, Tosham, District Bhiwani, which is a State aided recognised institution. The College is affiliated to Ma-harshi Dayanand University, Rohtak, and is covered by the provisions pf the Haryana Affiliated Colleges (Security of Service) Act, 1979, and the rules made thereunder known as Haryana Affiliated Colleges (Security of Service) Rules, 1993, (hereinafter referred to as Act and Rules respectively).
2. On the recommendations of a duly constituted Selection Committee, respondent No. 4, Shri Attar Singh Sheoran, was appointed as a Lecturer in History in the College vide appointment order dated December 5, 1995. He was kept on probation initially for a period of two years. Respondent No. 4 joined the College on Decembers, 1995. As per the averments made in the petition, the work and conduct of respondentNo. 4 was found to be highly wanting and it was brought on the record of the College as under :-
"(a) Respondent No. 4 who permanently resides at Charkhi Dadri acts as a Journalist and Correspondent of newspapers) from Charkhi Dadri and gets published political news/stories. It was no- ticed that respondent No. 4 had no interest in teaching or to maintain academic atmosphere in the College, rather was found busy in writing political news/stories in the newspapers.
It is relevant to state here that though the College is affiliated with Maharashi Dayanand University, Rohtak but in the absence of any notification of Code of Conduct, it is Code of Conduct adopted by Kurukshetra University which is being followed. The Code of Conduct for teaching employees (Article 22) of the Kurukshetra University Calendar Volume 1 Appendix IX speaks : "No teacher shall, except with the previous permission of the Governing Body, own wholly or in part, or conduct or participate in editing or managing of any newspaper or any periodical or act as correspondent or a newspaper."
(b) A criminal case vide FIR No. 127 dated 21.7.1996 was registered against respondent No. 4 in the City Police Station, Charkhi Dadri under Sec-lions 420, 467, 468 IPC in which he was arrested and he remained in police/judicial custody. The prima facie allegation levelled against respondent No. 4 casts aspersion on his conduct and character.
(c) Respondent No. 4 was running an STD/ISD booth at Charkhi Dadri which was not only part time but a whole time business being run by him.
(d) Respondent No. 4 with a view to convert his "absence" into "presence" in the attendance register, made unauthorised alteration and thus tampered with the office record.
(e) Respondent No. 4 was found to be extremely negligent in performance of the official duties as-signed to him. For example, he was appointed as the Chief Editor of the College Magazine on 1.8.1997 but he did not work as such even for a day for the reasons best known to him. His performance as Chief Proctor was also found to be equally dismal.
(f) Respondent No. 4 was found to be totally irregular in duties as he was found to have proceeded on medical leave without informing either the Principal of the College or General Secretary of the Management.
(g) Respondent No. 4 was found to be totally undisciplined and whenever the Principal of the college would seek his explanation on the complaints received against respondent No. 4, the latter never submitted his explanation in a language/tenor which is expected from a College Lecturer."
It has further been alleged that on account of unsatisfactory performance of duties by respondent No. 4 during the period of probation, the Managing Committee of the College in its meeting held on October 26, 1997, vide resolution No. 3, resolved to extend the period of probation of respondent No. 4 as also of ten other Teachers. This decision was conveyed to all concerned vide notice dated November 11, 1997. Copy of the resolution dated October 26, 1997 and the notice sent to all the Lecturers informing them of the extension in the period of probation have been appended as Annexure P-2 and P2/A with the writ petition.
It is further the case of the petitioner that as work and conduct of respondent No. 4 even during the extended period of probation, remained unsatisfactory, the petitioner Managing Committee tenantively proposed to take action under rule 8(2)(b)(i) of the Rules and consequently the case of respondent No. 4 was referred to the Committee constituted under proviso to rule 8(2)(b)(ii) of the Rules. The said Committee consisted of the following members :-
" 1. Shri Bhim Aggarwal,
General Secretary,
Banwari Lal Jindal Suiwala College,
Tosham.
2. Sh.A.K.Katishik,
Principal,
Govt. College, Nalwa,
(Hr. Govt. Nominee).
3. Dr. U.K. Awasthy,
Reader, Deptt. of Sociology,
M.D. University, Rohtak,
(Vice Chancellor''s Nominee)
4. Dr. K.S. Yadav, Principal,
Govt. College,
Krishan Nagar (Narnaul).
5. Dr. O.d. Sharma,
Principal,
B.L.J.S. College, Tosham."
The aforesaid Committee considered the case of respondent No. 4 and Ors. in its meetings held on September 19, 1998, and October 11, 1998. The Committee recommended as follows qua respondent No. 4:
"RECOMMENDATIONS OF THE COMMITTEE"
After the indepth deliberation and the scrutiny of the relevant record the committee felt that the work and conduct of Sh. Attar Singh,.Lect. in History was not only unsatisfactory but rather unbecoming a teacher. Therefore, it was unanimously resolved that the services of Sh. Attar Singh, Lect. in History and Sh. Inderjeet Singh, Library Attendant be dispensed with at the earliest."
The aforesaid recommendations of the Committee were considered by the Managing Committee in its meeting held on November 6, 1998, and it accepted the recommendations of the Committee and resolved to terminate the services of respondent No. 4. A copy of the resolution has been appended as Annexure P-3. On the basis of the decision of the Managing Committee, the Secretary of the Managing Committee issued an order on November 7, 1998, informing respondent No. 4 that his services stood terminated with immediate effect, i.e., November 7, 1998.
Respondent No. 4 submitted a representation-cum-appeal to the Director, Higher Education, respondent No. 3, under rule 8(2)(b)(iii) of the Rules. Initially, respondent No. 3 granted exparte stay on November 25, 1998, in favour of respondent No. 4 regarding termination of service. Thereafter both the parties, i.e., respondent No. 4 and the petitioner-Managing Committee were heard by respondent No. 3. After hearing the parties representatives as also perusing the record produced before respondent No. 3, the representation-cum- appeal of respondent No. 4 against termination of his services was rejected by the Director, Higher Education, on December 17, 1998. A copy of the same has been appended as Anncxure P-6. Against the order of the Director, Higher Education, dated December 17, 1998, respondent No. 4 filed a revision petition before the State Government u/s 11 of the Act. An objection was raised before the Financial Commissioner and Secretary, Education, Government of Hary-ana, regarding the maintainability of the revision petition. However, the Financial Commissioner-cum-Secretary, Education Department, decided the revision petition on merits after hearing both the parties and perusing the record. Vide order dated June 2, 1999, copy Annexure P-7, the then Financial Commis-sioner-cum-Secretary, Education (Shri Vishnu Bhag-wan, IAS) rejected the revision petition of respondent No. 4 on merits.
A review petition is stated to have been filed by respondent No. 4 before the Financial Commissioner-cum-Secretary, Education. A new Financial Commis-sioner-cum-Secretary, Education (Shri Prem Prashant) had come in place of Shri Vishu Bhagwan and he entertained the review application and issued a memo dated November 15, 1999, to the petitioner-Managing Committee that it had been decided to hear . both respondent No. 4 as well as the petitioner on the review application on November 30, 1999.
It is alleged that after the receipt of the memo dated November 15,1999, the Managing Committee immediately sent a representation through fax message as well as by registered post on November 26, 1999, to the Financial Commissioner-cum-Secretary, Education, pointing out that the appeal and the second appeal (revision) filed by respondent No. 4 had already been entertained and rejected by the Director, Higher Education, and the State Government respectively and there was no rule or law providing or review of the matter and the entertainment of the review petition was without jurisdiction. The petitioner did not appear on the date fixed and even on the adjourned date and did not produce any record before the Financial Commis-sioner-cum-Secrctary, Education. Vide exparte order dated December 14, 1999, copy Annexure P-11, the Financial Commissioner accepted the review petition and set aside the order of the earlier Financial Commissioner dated June 2, 1999, as also the order of the Director, Higher Education, dated December 17, 1998, and directed the Management of the College to allow respondent No. 4 to take charge immediately and the intervening period would be considered as duty for all purposes. It is under the aforesaid circumstances that the present petition had been filed by the Managing Committee to challenge the order dated December 14, 1999, copy Annexure P-l 1.
3. The Motion Bench while issuing notice of motion on January 31, 2000, had stayed the operation of the order Annexure P-11. Separate replies - one on behalf of the respondents No. 1 to 3 and the other on behalf of respondent No. 4 - have been filed.
4. Before noticing the arguments of the learned counsel for the parties, we may notice the provisions of the Act and the Rules, which have a bearing on this case. Rule 8 of the Rules deals with probation, which is in the following terms :
8. "Probation - (1) The persons appointed to any post in the Service shall remain on probation for a period of two years in the first instance, if appointed by direct recruitment and one year if appointed otherwise.
(2) On the completion of the period of probation of a person the appointing authority may,
(a) If his work or conduct has, in its opinion, being satisfactory, confirm such person from the date of completion of his probation period or if a permanent post is not available, declare that he has completed his probation satisfactorily; or
(b) If the work or conduct of a person in its opinion has not been satisfactory,
(i) dispense with the services, if appointed by direct recruitment, or revert him to his former post, if appointed otherwise or deal with him in such other manner as the terms and conditions of his previous appointment permit;
(ii) extend his period of probation and thereafter pass such orders as it could have passed on the expiry of the first period of probation :
Provided that the total period of probation including extension, if any, shall not exceed three years :
Provided further that if it is proposed to take action under sub- clause (i) or (ii) then the case of the official shall be referred to a committee consisting of the following members :-
(1) President or his nominee;
(2) Dean of the Colleges of the University or his nominee;
(3) Nominee of Government on the Managing Committee;
(4) Principal of the College concerned;
(5) Principal of another College not under the same Managing Committee.
The Managing Committee shall take a final decision in the matter in accordance with the recommendations of this Committee.
(iii) If the Managing Committee does not agree with the report of the Committee constituted under rule 8(b)(ii) or the Committee is unable to come to a decision by amajority, then the matter will be referred by the Principal to the Director whose decision will be final. However, an employee against whom an order of termination of services has been passed without complying with the provision of these rules, may, within a period of thirty days of the date of communication of orders make an application to the Director whose decision will be final in the matter."
5. Section 11 of the Act pertaining to the power of revision of the State Government is in the following terms :
"Power of revision. - The State Government may, either of its own motion or an application received in this behalf, at any time call for the record of any proceedings which is either pending before the Director or in which the Director has passed any order for the purpose of satisfying itself as to the legality or propriety of such order and may pass such order in relation thereto as it thinks fit :
Provided that the State Government shall not pass order under this section prejudicial to any party without giving such party a reasonable opportunity of being heard."
6. The following points have been raised by the learned counsel for the petitioner :
(i) The Financial Commissipner-cum-Secretary, Education, Haryana, exercising the powers of the State Government had no power to review the earlier order passed by the same authority by which the revision petition filed by respondent No. 4 was dismissed vide order dated June 2, 1999, copy Annexure P-7.
(ii) Even if assuming for the sake of argument, a review petition did lie, the exercise of such power is at the behest of the Chief Minister who had no authority to interfere with the quasi-judicial functions of the Financial Commissioner-cum-Secre-tary, Education, under the Act.
(iii) The order passed on review, copy Annexure P-11, is not only on extraneous consideration but also is not sustainable on merits.
7. In support of the first point learned counsel for the petitioner submitted that in the absence of a specific power conferred under Statute/Rules, a quasi-judicial authority has no power to review its own order. In support of this contention learned counsel for the petitioner relied on Supreme Court judgment reported as
8. On the second point learned counsel for the petk tioner referred to the impugned order and drew our attention to the particular portion (to which reference would be made hereinafter) that review petition had been entertained at the behest of the Chief Minister. Learned counsel for the respondents argued that Chief Minister had just forwarded the petition to the Financial Commissioner-cum-Secretary, Education, for deciding the same in accordance with law which the Financial Commissioner did by passing the impugned order.
9. After hearing learned counsel for the parties on this point, we are of the view that there is substance in the argument of the learned counsel for the petitioner. Admittedly, the Financial Commissioner-cum-Se-cretry, Education, exercises quasi-judicial powers while deciding a revision petition u/s 11 of the Act. It is further not disputed that neither under the Act nor under the Rules, there is any power conferred on the revisional authority u/s 11 of the Act to review its own order. In Dr. Smt. Kuntesh Gupta''s case (supra), the Vice Chancellor of the University had not approved the dismissal of the appellant before the Supreme Court. However, later on he reviewed the order and approved the dismissal of the appellant. After noticing the arguments on behalf of the Vice Chancellor that particular material was not before the Vice Chancellor when he had not approved the dismissal, the Apex Court held that in the absence of specific power of review the Vice Chancellor could not review the order. It will be apposite to reproduce paras 10 and 11 of the judgment :
"10. It has been strenuously urged by Mr. Jain, learned counsel appearing on behalf of the appellant, that the Vice-Chancellor had no power of review under .the Statutes of the University or under the U.P. State ''''Universities Act, 1973 and, as such, the Vice Chancel-tor acted wholly without jurisdiction in entertaining an application for review filed by the Authorised Controller. On the other hand, it is submitted by Mr. Kacker, learned counsel appearing on behalf of the Vice Chan-cellor, that as the two reports dated August 1, 1986 and July 18, 1986 of the Joint Director of Higher Education, U.P., alleging certain grave financial irregularities were not before the Vice Chancellor, the Vice Chancellor was entitled to review her order and after considering the said reports reviewed her order and approved the order of dismissal of the appellant from service. Further, it is submitted by the learned counsel that the High Court was justified in the entertaining the writ petition of the appellant, as there was an alternative remedy u/s 68 of the U.P. State Universities Act and the impugned order could be challenged before the Chancellor of the University on reference of the question to the Chancellor under the provision of Section68.
11. 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. The Vice Chancellor in considering the question of approval of an order of dismissal of the Principal, acts as a quasi-judicial authority. It is not disputed that the provisions of the U.P. State Universities Act, 1973 or of the Statutes of the University do not confer, any power of review on the Vice Chancellor. In the circumstances, it must be held that the Vice Chancellor acted wholly without jurisdiction in reviewing her order dated January 24, 1987 by her order dated March 7, 1987. The said order of the Vice Chancellor dated March 7, 1987 was a nullity."
Reference may also be made to two other judgments of the Apex Court, In
"The first question that we have to consider is whether Mr. Mankodi had competence to quash the order made by the Saurashtra Government on October 22, 1956. It must be remembered that Mr. Mankodi was functioning as the delegate of the State Government. The order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. The question whether the Government''s order is correct or valid in law does not arise for consideration in these proceedings so long as that order is not set aside or declared void by a competent authority. Hence the same cannot be ignored. The Subordinate Tribunals have to carry out that order. For this reason alone the order of Mr. Mankodi was liable to be set aside."
In
A Division Bench of this Court in Surjit Singh v. State of Punjab and Ors., 1980 I ILR 11 (P&H), held that though the order of the State Government u/s 197 of the Code of Criminal Procedure granting approval for prosecution may be an administrative order, yet in the absence of any power of review the State Government cannot change that order.
10. We do not agree, especially under the circum- stances of this case, with the contention of the respondents that if on facts some material is brought to the notice of the authority, the same can be-reviewed. The answerto this argument is contained in thejudgment in Dr. Smt. Kuntesh Gupta''s case (supra). In the earlier order which was passed by the revisional authority on June 2, 1999, copy Annexure P-7, it has been observed in para 5 as under :-
"5. I have seen the record of the case and have heard both the parties at length. Shri Attar Singh Sheoran was duly charge-sheeted and was given fair opportunity to defend himself. I have also seen the cuttings of news items published in his name. He admittedly running, of STD PCO at Charkhi Dadri and told now he has given it to one Shri Dalbir Singh. Lodging of F.I.R. and civil court cases against him was admitted by the appellants. A committee of 5 members was constituted as per provisions of Rules and committee u-nanimously resolved to dispense with his services.
Simply because the Financial Commissioner had changed, it did not give him a right to review the order passed by the earlier Financial Commissioner. Moreover, from the impugned order dated December 14, 1999, copy Annexure P. 11, passed on the review petition.
11. It is observed even by the Financial Commissioner that respondent No. 4 Attar Singh had made a petition to the Hon''ble Chief Minister, who directed that he has raised new substantial points in his representation and as such Financial Commissioner-cum-Secretary, Education Department, may review his case after giving due opportunity of hearing to Shri Attar Singh. This does indicate that the review petition was entertained at the behest of the Chief Minister. The first order on revision dated June 2, 1999, was passed by the then Financial Commissioner after perusing the record and hearing both the parties at length.
12. In view of the aforesaid observations we are of the view that the Financial Commissioner-cum-Edu-cation Secretary has no power to review under the Act or the Rules as the same has not been specifically conferred on him. There is no inherent power of review. Otherwise also the first order dated June 2, 1999, was passed by the Financial Commissioner after perusing the record and hearing both the parties. There was no occasion to review that order.
13. For the view we have taken above, it is not necessary to deal with the third point submitted by the learned counsel for the petitioner as we are of the opinion that the impugned order, copy Annexure P-11, dated December 14, 1999, is wholly without jurisdiction and liable to be quashed.
For the foregoing reasons, we allow this writ petition and quash the order dated December 14, 1999, copy Annexure P-11. The parties are left to bear their own costs.
14. Petition allowed.
