Karnataka High Court
Sri Taralabalu Jagadguru Education ... vs The Joint Director, Department Of ... on 4 September, 2007
Equivalent citations: 2007 (6) AIR KAR R 339
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
Page 1925
1. This writ petition by the private management of an educational institution is directed against the order dated 27.2.2006 passed by the Joint Director of Department of Collegiate Education, Shimoga, in an appeal which has been disposed of on 24.10.2005 purporting to exercise his review power on an application filed by the 2nd respondent-employee of the institution, who had preferred the appeal earlier.
2. The appeal itself preferred under Section 94(5) of the Karnataka Education Act, 1983 (for short 'the Act') was one directed against an order dated 31.5.1999 passed by the Management stopping the time bound promotion to the 2nd respondent.
3. It appears, the appeal was filed before the 1st respondent by the 2nd respondent on 16.6.2000 Though in terms of Section 94(5) of the Act, appeal should have been preferred within three months from the date of communication of the order appealed against, obviously the appeal was beyond the permitted time. Though the factual position is this, it appears, the appeal remained on the board of the 1st respondent-Joint Director for as many as five yeans or more and ultimately was dismissed on 24.10.2005 on the ground that it is barred by limitation, copy produced as Annexure-D to the writ petition.
4. It is subsequently that the 2nd respondent woke up to the reality and it appears, made an application on 28.11.2005 seeking for recalling the order dated 24.10.2005 on the premise that the Appellate Authority was of the wrong impression that the appellant has not made out a case for condoning the delay and that the appellate authority should have allowed the application for condoning the delay in the facts and circumstances and should have entertained the appeal on merits. Though such application for review, filed by the 2nd respondent, purporting to be under Section 151 CPC read with Section 94(5) of the Page 1926 Act, was opposed by the petitioner-Management by filing objections, the 1st respondent-Appellate Authority being of the view that the objections were not weighty and wherefore, allowed the review application, recalled its earlier order dated 24.10.2005 not only restored the appeal, but also allowed the application for condonation of delay this time and thought it fit to take up the appeal for disposal on merits yet again. It is this order dated 27.1.2006, copy produced as Annexure-G, which is questioned in this writ petition.
5. The petition having been admitted, respondents having been put on notice, further proceedings pursuant to the order dated 27.1.2006 was stayed by this Court on 22.2.2006. The respondents have entered appearance. The 1st respondent is represented by Sri Khureshi, learned AGA, the 2nd respondent is represented by Sri M.R. Shailendra, learned Counsel. Statement of objections have been filed on behalf of the 2nd respondent and an application for early hearing has been filed for early disposal of the case.
6. At the request of the counsel appearing for the parties and having agreed the matter is taken up for disposal.
7. I have heard Sri. Murthy, learned Counsel for the petitioner, Sri. Khureshi, learned AGA for 1st respondent, and the counsel for the 2nd respondent - Sri. M.R. Shailendra.
8. Submission of Sri. Murthy, learned Counsel for the petitioner, is, two fold. It is firstly urged that the Appellate Authority has no power to review its earlier order dated 24.10.2005 purporting to act on an application filed under Section 151 CPC R/W. Section 94(5) of the Act. What is submitted is, Section 151 of the CPC is not a provision applicable to the proceedings of an appeal under Section 94(5) of the Act.
9. The second contention is, that Section 94(5) of the Act stipulates the period of limitation of three months from the date of receipt of the order appealed against, that unlike the provisions of Section 94(1) & (2) wherein in respect of appeal to the Appellate Tribunal, the provisions of Sections 4 and 5 of the Limitation Act are made expressly applicable, this is not so made applicable in a situation governed by Section 94(5) of the Act and therefore, even assuming for argument sake that the Appellate Authority could have reviewed his earlier order, he had no power or jurisdiction to condone the delay and therefore, taking up of the appeal on merits is nevertheless bad in law and accordingly, the impugned order is required to be quashed.
10. Countering such submissions, the learned Counsel for respondent No. 2 submits that so far as the jurisdiction for exercising review power by the 1st respondent is concerned, it has to be traced to the review power conferred under the Act under Section 132 of the Act read with the provisions of Section 133 of the Act. Submission is that, while there is express power of review conferred on the authorities including the State Government under Section 132 of the Act, the State Government is also Page 1927 enabled under Section 133 of the Act to delegate its powers and issue such directions, as it may deem fit, to any of the officers of the State Government to exercise such powers as the State Government itself may have under Section 133 of the Act or issue such directions to such officers to perform in such manner as is the direction by the Government. It is therefore, submitted that in the instant case, the State Government having directed the 1st respondent, acting on a petition filed under Section 133 of the Act by the 2nd respondent before the Government and having issued an order to the 1st respondent to examine the matter which was pending before the 1st respondent in accordance with the Act and Rules, this order has enabled the 1st respondent to exercise the power of review also and therefore, if the 1st respondent has thought it fit to exercise such powers for the purpose of recalling his earlier order of dismissing the appeal as a sequel of dismissing the application for condonation of delay, it cannot be characterised that the 1st respondent lacks jurisdiction to exercise the review power for such purpose. A copy of this order whereunder the State Government had issued directions to the 1st respondent is placed before the Court along with a memo filed today before this Court and Sri Murthy, learned Counsel for the petitioner is also shown the same.
It is nextly contended that while the provisions of Section 94(2) expressly confer that Sections 4 and 5 of the Limitation Act are made applicable to an appeal under Section 94(1) to the Education Appellate Tribunal, the mere absence of such express provision should not be construed to hold that the provisions of Sections 4 and 5 of the Limitation Act are excluded from its applicability in respect of the appeal under Section 94(5) of the Act. Submission is that, unless Section 5 of the Limitation Act is expressly excluded by the statute it should be construed that it can be read as applicable.
11. Learned AGA supports the impugned order.
12. While examining the first contention viz. that the 1st respondent lacks jurisdiction to review his earlier order and as the question goes to the root of the matter, provisions of Section 94, Sections 130 to 133 are to be looked into which reads as under:
94. Appeals:
(1) Any teacher or other employee of a private educational institution who is dismissed, removed or reduced in rank may within three months from the date of communication of the order prefer an appeal to the Tribunal.
(2) The provisions of Sections 4 and 5 of the limitation Act, 1963 shall be applicable to such an appeal.
(3) If, before the date of commencement of this Act, any teacher or other employees has been dismissed, or removed or reduced in rank or his appointment has been otherwise terminated and any appeal preferred before that date-
(a) by him against such dismissal or removal or reduction in rank or termination; or Page 1928
(b) by him or by the Governing Council against any order made in any appeal referred to in Clause (a);
is pending before any officer, such appeal shall, notwithstanding anything in Sub-section (1), stand transferred to the Tribunal, if he makes an application in that behalf to such officer.
(4) The Tribunal shall dispose of the appeal filed under Sub-section (1) or transferred under Sub-section (3) after giving the parties the opportunity of being heard.
(5) In respect of an order imposing a penalty other than those specified in Sub-section 91) of Section 92, on any teacher or other employee, an appeal shall he to the competent authority within three months from the date of communication of the order imposing such penalty.
(6) xxxxxx (7) xxxxxx
130. Appeals - Save as otherwise provided in this Act, any person or Governing Council aggrieved by an order passed by an officer or authority under this Act may within the prescribed period prefer an appeal to the prescribed appellate authority.
131. Revision by the State Government - (1) The State Government may either suo motu or on an application from any person interested, call for an examine the record of an educational institution or of any authority, officer or person in respect of any administrative or quasi-judicial decision or order, not being a proceeding in respect of which a reference to an arbitrator or an appeal to the High Court is provided, to satisfy themselves as to the regularity, correctness, legality or propriety of any decision or order passed therein, and if, in any case it appears to the State government that any such decision or order should be modified, annulled or reversed or remitted for reconsideration, they may pass order accordingly.
Provided that the State government shall not pass any order adversely effecting any party unless such party has had an opportunity of making a representation.
2) The Stats Government may stay the execution of any such decision or order pending the exercise of powers under Sub-section (1) in respect thereof.
3) Every application preferred under Sub-section (1) shall be made within such time and in such manner and accompanied by such fees as may be prescribed.
(4) The provisions contained in the proviso to Sub-section 91) and in Sub-sections (2) and (3) of Section 131 shall so for may be, apply in respect of any proceeding under this section as they apply to a proceeding under Sub-section (1) of that section.
Page 1929 132: Review:
The state Govt. or the Commissioner of Public Instruction or the Director may suo motu at any time or on an application received from any person interested within ninety days of the passing of any order under the provisions of this Act review any such order, if it was passed by them or him under any mistake, whether of fact or of law, or in ignorance of any material fact.
(2) The provisions contained in the proviso to Sub-section 91) and in Sub-sections (2) and (3) of Section 131 shall, so far may be, apply in respect of any proceeding under this section as they apply to a proceeding under Sub-section (1) of that section.
133: Powers of the Government to give directions:
1) The State Government may, subject to other provisions of his Act, by order direct the Commissioner of Public instruction or the Director or any other officer not below the rank of the District Educational Officer to make an enquiry or to take appropriate proceeding under this Act in respect of any matter specified in the said order and the Director or the other officer, as the case may be, shall report to the State Government in due course the result of the enquiry made or the proceeding taken by him.
2) The State Government may give such directions to any educational institution or tutorial institution as in its opinion are necessary or expedient for carrying out the purposes of this Act or to give effect to any of the provisions contained therein or of any rules or orders made thereunder and the Governing Council or the owner, as the case may be of such institution shall comply with every such direction.
3) The State Government may also give such directions to the officers or authorities under its control as in its opinion are necessary or expedient for carrying out the purposes of this Act, and it shall be the duty of such officer or authority to comply with such directions.
13. The appeal preferred by the 2nd respondent before the 1st respondent was one under Section 94(5) of the Act and admittedly beyond the period of 90 days. The appellate Authority did consider the application for condonation of delay on its merits and being of the view that there is no merit in the application, on facts held that the delay cannot be condoned that it had not been satisfactorily explained and therefore, the application for condonation of delay should be disallowed and as a consequence the appeal also came to be dismissed.
14. The appellate authority has proceeded on the premise that it can entertain an application under Section 5 of the Limitation Act. The question of applicability perhaps could have been examined and a ruling given in this regard if it was really necessary, but for the fact that the outcome of this writ petition is based more on the question of jurisdiction, which if answered against the 2nd respondent, it would virtually preempt any further question of considering the question of applicability of Section 5 of Page 1930 the Limitation Act. Moreover, as the Appellate Authority has proceeded on this premise and had examined an application under Section 5 of the Limitation Act on merits, the question may survive only at the instance of the petitioner if that alone was the ground which makes any difference to the impugned order.
15. Insofar as the power of review is concerned, it is the power which has to be conferred by the statute and no statutory functionary can assume such power or can claim any inherent power of review. That is the settled legal position. It is because of this position, the learned Counsel for the respondent No. 2 has placed reliance on Section 132 of the Act. Section 132 of the Act, no doubt, confers the power of review, but it is on the State Government or the Commissioner of Public Instructions or the Director. In the present situation the Competent Authority for the purpose of appeal under Section 94(5) of the act being the Joint Director in terms of a Government notification issued for such purpose, the Joint Director becomes a statutory functionary for purpose of appeal under Section 94(5) of the Act.
16. The power of review is not conferred either on an appellate authority as a curie designata under Section 132 of the Act or a persona designata on the Joint Director. Therefore, the Joint Director cannot exercise the power of review either while acting either as a Joint Director simplicitor or while exercising the appellate power under Section 94(5) of the Act.
17. It is for this reason, the learned Counsel for the respondent No. 2 has again placed reliance on Section 133 of the Act and seeks to draw sustenance to the contention that the 1st respondent has the power of review, on a combined reading of the provisions of Sections 132 and 133 of the Act.
18. While it is no doubt true that the State Government under the provisions of Section 133 of the Act can issue directions to the Commissioner of Public Instructions or the director or any other officers not below the rank of District Educational Officer to make an enquiry or to take appropriate proceedings under this Act in respect of the subject matter mentioned in the very order and to submit the report to the Government and may also issue such directions to the officers or the authorities under its control as it deems fit under Section 133(3) of the Act and reliance is placed on this provision for issuing the order dated 16.8.2001, I am of the view that the powers of the State Government under Section 133 of the Act cannot be so understood as to confer the power of review by delegation on a statutory functionary i.e. an appellate authority functioning under Section 94(5) of the Act. Though the Joint Director who is notified as the Competent Authority to function as an appellate Authority is an officer subordinate to the Director and may be under the direct control of the State Government, it is also a well settled principle of law that no directions can be issued in the matter or manner in respect of exercise of quasi judicial powers such as the one exercised by an Appellate Authority and as the Joint Director acting as an Appellate Authority under Section 94(5) of the Act exercises such quasi Page 1931 judicial powers, the State Government cannot issue any directions to the Joint Director in respect of any matter which is required to be considered by the Joint Director as an appellate authority.
19. The application for condonation of delay under Section 5 of the Limitation Act, being an application before the Appellate Authority who has the power to entertain the appeal and also the discretion to condone the delay or otherwise and this being in the discretion of the appellate authority, the State Government cannot in law issue any direction to dispose of such application one way or the other. But more importantly the order dated 16.08.2001 relied upon by the learned Counsel for respondent No. 2, in fact, does not issue any such directions to the Appellate Authority touching upon either any aspect of the appeal or the application for condonation of delay which were pending before the Appellate Authority so as to confer a power of review, but only directs the Appellate Authority to dispose of the application and appeal in accordance with the Rules after hearing the petitioner. At best it can be construed as one to provide an opportunity of hearing. Therefore, neither the fact of there being an order of 16.8.2001 passed by the Principal Secretary to Government and purporting to issue directions to the Appellate Authority nor the legal position can advance the case as canvassed on behalf of the 2nd respondent to contend that the Appellate Authority had the power of review and therefore, could have recalled the order dated 24.10.2005.
20. The impugned order dated 27.01.2006 in Appeal No. 3/2000-01 Annexure G to the writ petition passed by the 1st respondent-Appellate Authority, purporting to be one in exercise of the review power, is clearly lacking jurisdiction, cannot be sustained and it is accordingly, quashed by issue of a writ of certiorari. Rule made absolute.
21. Writ petition is allowed in terms of the above order. Parties to bear their own costs.