ORDER
K. Ramamoorthy, J.
1. The management of a school is represented by the petitioners 1 & 2(hereafter called the ‘management’). The management has filed the writ petition challenging the order of the Delhi School Tribunal dated the 5th of September, 1995. Besides challenging the order of the tribunal, the management has also challenged the constitutional alidity of Delhi School Education Act, 1972 and also the order of the Director of Education dated the 31st of August, 1989, by which the Deputy Director of Education had not approved the penalty of removal imposed on the fourth respondent, Shri Radhey Shyam Gupta. The facts necessary for the disposal of the writ petition could be stated very briefly in the following terms:
2. The management directed disciplinary action against the respondent No.4 and the management held an inquiry and, eventually, imposed the penalty of removal from service and on the 16th of September, 1988, as per the provisions of the Delhi School Education Act, 1972, sought the approval of Section 8(2) of the D the Director of Education to give effect to the order of removal. That was refused by the Director of Education and the same was conveyed to the management by order dated the 31st of August, 1989.
3. The management sought review of the order of the Deputy Director of Education by approaching the Lt.Governor and the Director of Education exercising power of review, by order dated the 22nd of September, 1991, reviewed the earlier order passed on the 31st of August, 1989 and granted approval to the management. Against this order, the fourth respondent filed an appeal to the Delhi School Tribunal in Appeal No.7/92.
4. By order dated the 5th of September, 1995, the Delhi School Tribunal allowed the appeal and directed the fourth respondent to be treated in service throughout and also directed the grant of all consequential benefits to the fourth respondent. The management has filed the writ petition, as I noticed above, claiming the reliefs.
5. Mr.S.N.Bhandari, the learned counsel for the management, submitted that the tribunal had committed a serious error in allowing the appeal as while granting approval, the authority concerned was not obliged to give any reason or opportunity to the concerned teacher, and therefore, the view taken by the tribunal is not in accordance with law. The second submission of Mr.S.N.Bhandari, the learned counsel for the management, was that sub-Section 8 (2) of the Act gives right of appeal only to the employee and to the management and the provision is violative of Article 19(1)(g) and Article 14 of the Constitution of India. The third submission by Mr.S.N.Bhandari, the learned counsel, was that while passing an order on the 31st of August, 1989 refusing to grant approval, no reasons have been given by the Director and inasmuch as it was a cryptic order and it does not in accordance with law and it was liable to be set aside.
6. I shall take up the first point about the order granting approval by the Director of Education dated the 22nd of November, 1991 reviewing the earlier order dated the 31st of August, 1989. Under the provisions of the Delhi School Education Act, 1972, there is no provision empowering the Director of Education to review his own order. It is well settled that the power to review must be provided in the statute concerned and if no power is vested with the authority to review its own order, the power to review can never be exercised. Therefore, the order of the Director of Education dated the 22nd of November, 1991, reviewing the earlier orders, was without any authority of law and, therefore, it is wholly void in law and it cannot be sustained. Therefore, the Delhi School Tribunal was fully justified in setting aside the order of the Director of Education.
7. The learned counsel for the management, Mr.S.N.Bhandari, submitted that the provisions of Section 8, in so far as it denies right of appeal to the management, is contrary to Article 14 and Article 19(1)(g) of the Constitution of India. The relevant averments relating to this challenge are as follows:-
“A challenge is also made to the constitutional validity of sub-Section (2) and (3) of Section 8 of the DELHI SCHOOL EDUCATION ACT, 1973, in that, the said provisions being unreasonable as well as onerous, are violative of Articles 19(1)(g) and 14 of the Constitution of India. In the submissions of the petitioners, these provisions cannot be treated as reasonable restrictions, saved by Clause (6). The SINE QUA NON for prior approval of the Director of Education, in specified cases of disciplinary action, against the delinquent employees, effect the autonomy and bonafide judicious discretion of the School Authorities in matters which are legitimately and solely within its province. Strangely enough, in matters of disciplinary cases, these provisions do not lay down any guideline to control the discretion of the Governmental Authorities, while granting and/or refusing to accord approval for the action to be taken against the erring employees. Unguided and arbitrary powers have been given to the Governmental Authority’s decision to sit in judgment over the Disciplinary Authority’s decision to take disciplinary action and such an interference is wholly unreasonable, uncalled for and unwarranted. It may not be out of placed to point out that these provisions permit the Government Authorities to pass capricious, whimsical and one sided orders without actually providing guidelines and without providing for rectification of the Orders by any Higher Authority, either by way of appeal or revision in so far as the School-Managements, are concerned. In the submission of the petitioners-herein, there is every likelihood of the power being misused and/or abused. Even in a case, the “disciplinary Authority” makes out a good case, it is possible for the Governmental Authorities to refuse to grant approval by giving some reasons. In so far as the Disciplinary Authorities, operating in schools are concerned, there is no higher authority prescribed and/or notified in the Section who could examine the propriety or reasons given and/or to revise and review the decision of the concerned Governmental Authorities. The reasons to be recorded are only for the personal and/or subjective satisfaction of the Governmental Authorities and not for furnishing any remedy to the aggrieved school-management. In absence of guidelines, there are no means to find out whether the reasons given for refusal to approve the tentative decision of the School Authorities, are proper and germane. As already submitted, there is no Higher Authority prescribed in the section which could examine the propriety or reasons given and revise or review the decision of the Authority and the reasons to be recorded are only for its personal or subjective satisfaction.
It may be relevant to point out that against the decision of the Director of Education, declining to accord approval, there is no right of appeal provided. The employer/school management is without any remedy to challenge even an arbitrary decision of the Director of Education, with-holding the approval in bonafide cases. On the contrary, if approval is granted, an erring employee can go in for appeal. No remedy is, however, available to the School Management, which is virtually the other party to the dispute. Suffice it to say that there is no provision to set right an arbitrary exercise of the powers of the Director of Education, in so far as the School Managements, are concerned. Even otherwise, there is no infrastructure or inbuilt procedure for proper working of this sub-Section (2) and (3). No time limit has been prescribed, for granting or refusing approval and the provisions do not contemplate enquiry or hearing and no statutory procedure is prescribed.”
8. The challenge by the management of sub-Sections 2 & 3 of Section 8 is not at all justified. Firstly, the management allowed the order dated the 31st of August, 1989 of the Deputy Director of Education refusing to grant approval to become final, the management sought review of the order when the authority had no power of review. Secondly, having allowed the order of refusal of approval to become final, the management cannot seek to challenge after the tribunal had dealt with the matter. Further, the provision had been made for the benefit of the teachers. If the Director of Education refused to grant approval, the Management can always have recourse to the remedy under Article 226 of the Constitution of India. The submission that
there is discrimination is without any force. The Supreme Court in “The State of West Bengal Vs. Anwar Ali Sarkar & Another”,
“Frank Anthony Public School Employees’ Association Vs. Union of India & Others”, , had laid down the scope of Article 14 of the Constitution of India and I am not able to see any discrimination in the provisions of sub-Sections (2) and (3) of Section 8 of the Delhi School Education Act, 1973. In my view, in the light of the principles laid down by the Supreme Court of India, the attack on sub-Sections (2) & (3) of Section 8 of the Delhi School Education Act, 1973. is not tenable. I have, therefore, no hesitation in rejecting the contention.
9. The third submission that the Director of Education had not given any reasons for refusing of approval on the 31st of August, 1989, and therefore, it is bad in law, is also not a valid ground. If an approval is not granted by the Director of Education, the management cannot give effect to its order of removal unless it is challenged, and the management cannot go against that order. The Director of Education, while dealing with application for approval, is not obliged to go into the merits of the contentions of the management and the employee. The Director of Education had to have a prima facie view of the matter. Therefore, the management cannot now be heard to say, after having attempted to get the order reviewed, that the order dated the 31st of August, 1989, refusing to grant approval, is vitiated. The object of vesting such power with the Director of Education is to protect the employees being unnecessarily harassed by the management. Six years after the order was passed and that too, after the order passed by the Delhi School Tribunal, the management cannot challenge the order dated the 31st of August, 1989.
10. For the foregoing reasons, I do not find any merits in the writ petition. Accordingly, it stands dismissed.
11. There shall be no orders as to costs.