Case Note & Summary
The petitioner, a teacher, challenged the order of the Education Officer dated 7 August 2014 withdrawing the approval granted to him on 19 October 2013. The High Court noted that the Division Bench in Writ Petition No.10133/2016 had held that power of review is not inherent and must be conferred by statute, except when the order is obtained by fraud. The respondents did not file any reply alleging fraud by the petitioner. Consequently, the court allowed the petition, quashed the withdrawal order, and directed payment of salary as per the original approval from May 2019 and arrears within three months.
Headnote
A) Administrative Law - Power of Review - Inherent Power - Unless statute prescribes power of review, authority cannot review its own order; exception only when order obtained by fraud - Held that withdrawal of approval without statutory power and without allegation of fraud is illegal (Paras 4-5).
Issue of Consideration
Whether the Education Officer has the power to withdraw approval granted to a teacher without statutory authority or proof of fraud.
Final Decision
The petition is allowed. Rule made absolute in terms of prayer clause (b). The order dated 7 August 2014 withdrawing approval is quashed. Petitioner shall be paid salary as per approval dated 19 October 2013 from May 2019 and arrears within three months.
Law Points
- Power of review is not inherent
- must be conferred by statute
- exception only when order obtained by fraud
Case Details
2019 LawText (BOM) (04) 245
WRIT PETITION NO. 8505 of 2014
B.R. GAVAI, DAMA SESHADRI NAIDU
Mr.D.W.Bhosale for the petitioner, Mr. S.A.Rajeshirke for respondents 2 & 3, Mrs. R.M.Shinde, AGP for respondents 1 & 4
Shri Nagnath Yeshwant Mali
Education Officer (Sec) & ors.
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Nature of Litigation
Writ petition challenging withdrawal of approval granted to a teacher.
Remedy Sought
Quashing of order dated 7 August 2014 withdrawing approval and restoration of approval dated 19 October 2013.
Filing Reason
The Education Officer withdrew the approval granted to the petitioner without statutory authority and without alleging fraud.
Previous Decisions
The Division Bench in Writ Petition No.10133/2016 held that power of review is not inherent and must be conferred by statute, except when order obtained by fraud.
Issues
Whether the Education Officer has the power to withdraw approval without statutory authority or proof of fraud.
Submissions/Arguments
Petitioner argued that the withdrawal order was illegal as the Education Officer had no power to review its own order. Respondents opposed on ground that the officer who granted approval had ulterior motive and departmental proceedings were pending against her.
Ratio Decidendi
Power of review is not an inherent power; unless statute prescribes it, authority cannot review its own order. The only exception is when the order is obtained by fraud. In the absence of any allegation or proof of fraud, the withdrawal of approval is illegal.
Judgment Excerpts
Unless the statute prescribes the power of review, the authority cannot review its own order.
The only exception permissible is when an order sought to be reviewed is obtained by practicing the fraud on the authority who has passed the order.
Procedural History
The petitioner filed Writ Petition No.8505 of 2014 challenging the Education Officer's order dated 7 August 2014 withdrawing approval. The petition was heard along with Civil Application No.659 of 2016. After hearing, the court allowed the petition on 15 April 2019.
