Maneswar Barman vs State of Assam and Others

A.H. Saikia, J.—Admittedly the writ petitioner has been working as Principal and Ex-officio Secretary as well of the Governing Body (for short "GB") of the Digboi College since 27.10.1997 as normally the Principal of the College has to act as Ex-officio Secretary of the "GB" as per law. On 7.10.2002 the Respondent No. 2, the Director Higher Education, Assam being the competent authority and empowered by Rule 3 of the Assam Non-Government College Management Rules, 2001 (as amended) (for short, the ''Rules'') constituted the. ''GB'' of the said College as follows -

"GOVT. OF ASSAM OFFICE OF THE DIRECTOR OF HIGHER EDUCATION, ASSAM, KAHILIPARA, GUWAHATI-19

No. G.(B)/13/2001/24 Dated Kahilipara the 7.10.2002 ORDER

In exercise of the power conferred on, vide Notification No. B(2)M 294/ 2001/4 dated Guwahati the 15th June, 2001 and Govt. Notification No. B(2)H 294/2000/39 dated 16.10,2001, the undersigned by Rule 3 of the Assam Non-Government College Management Rules, 2001 as amended, the Governing Body in respect of the Dibgoi College, situated in the District of Tinsukia, Assam and affiliated by the Dibrugarh University, is hereby constituted with the following persons as shown with immediate effect for a period of three years :

(a) President :- Shri B. K. Phukan, Advocate

(b) Secretary, Ex-Officio :- Principal of Digboi College.

(c) Vice-Principal :- Member Ex-officio,

(d) Member nominated by the D.H.E :- Shri Goluk Ch. Kakoty,Retd. Principal

(e) Member Guardian :- Sri Dimbeswar Das,

(f) Woman member :- Mrs. Jugo Dutta, Retd. Principal

(g) Member :- To be nominated by the University.

(h) Member :- -Do-

(i) Member :- Teachers representative elected) (to be

(j) Member :- -Do

(k) Member from the Non-Teaching staff. :- To be nominated.

(I) Member (Donor) :- Mr A. K. Goswami I. O. C. Digboi.(AOD)

Sd/Dr. H.K. Sahoo, Director of Higher Education, Assam, Kahilipara, Guwahati -19 Memo No. G.(B)/13/2001/24A Dated Kahilipara the 7.10.2002."

In terms of the above constitution, the petitioner being the Principal of the College has continued to be the Ex-officio Secretary of the "GB". But to his utter surprise, while the Petitioner has been functioning as Secretary of the "GB", the Respondent No. 2 vide his order dated 21.1.2003 (Annexure-B to the writ Petition) nominated one Shri S. S. Roy Choudhury, Vice Principal of the said College, the Respondent No. 4 as Secretary of the "GB" of the College with immediate effect and the said order is also quoted hereunder-

"GOVT OF ASSAM. OFFICE OF THE DIRECTOR OF HIGHER EDUCATION, ASSAM, KAHILIPARA, GUWAHATI -19

Sub : Nomination of Secretaryship in Digboi college.

ORDER

Sri S. S. Roy Choudhury Vice Principal of the Digboi college, is hereby nominated as Secretary of the Governing Body of the college with immediate effect.

Sd/- Dr. R.K. Sahoo, Director of Higher Education, Assam, Kahilipara, Guwahati -19 Memo No. G.(B)AC/42/98/208 Dated Kahilipara the 21st Jan/2003"

The legality and correctness of the aforesaid order is the subject-matter of challenge in this writ Petition. This Court by order dated 28.1.2003 at the time of issuance of notice of motion granted interim relief to the Petitioner by staying the operation of the impugned order above referred with the liberty to the Respondents especially Respondent Nos. 3 and 4 to move this court for modification/alteration or vacation of the interim order, if so advised, making the notice returnable to a date on 21.2.2003. After receiving notices and before the said returnable date, the Respondent Nos. 3 and 4 presented a Misc application being Misc case No. 169/03 praying for vacation and/ or alteration of the interim order dated 28.1.2003 passed by this Court. On consideration of the said application and after hearing the learned counsel for the parties this court by order dated 11.2.2003 fixed the matter for admission on 17.2.2003. Accordingly the matter has been taken up to-day for admission. At this juncture, taking into account the nature of controversy involved in this case, and its importance as a whole, the learned counsel for the parties have agreed that the matter may be disposed of finally today itself instead of adjudicating upon the Misc. case for vacation of the interim order and accordingly this court does propose to terminate the writ petition conclusively today itself. It is stated at the bar on behalf of Respondent No. 3 and 4 that the Misc. application filed in the Misc. case, i.e., 169/03 may be treated as affidavit-in-opposition to the present writ petition. This court does so accordingly. Though no response has been filed on behalf of the State/Respondents, the relevant records relating to this case has been produced.

I have heard Mr. B.C. Das, learned counsel appearing on behalf of the writ Petitioner and Mr. C.K. Sarma Baruah, learned Sr. counsel assisted by Mr. J.K. Parajuli, the learned counsel appearing on behalf of respondent Nos. 3 and 4. Also heard Ms. Rekha Chakraborty, the learned State counsel appearing on behalf of State/ Respondents.

Before delving upon the rival contentions advanced on behalf of the parties, it would be apt and expedient to refer to the relevant provisions of law essential for the purpose of effective adjudication of the issue in hand. The Rules provide for constitution and composition of ''GB'' and also procedure for holding meeting of the ''GB'' the power of constitution of the ''GB'' including the nomination of Vice Principal or the senior most member of the teaching staff to act as Secretary in lieu of the Principal of the College being Ex-Officio Secretary has been vested with the Director. According to Rule 2(c) of the Rules, the Director means the Director of Higher Education, Assam Rules 3 and 4 provides as follows -

"3. Constitution of the Governing Body :-

Every Non-Government College affiliated to any Central or State University of Assam and duly concurred by the State Government, shall be governed by the Governing Body to be constituted by the Director.

Composition of the Governing Body :-

(1) The Governing Body shall consist of :

(a) One President ;

(b) One secretary, the Principal of the College shall be the Ex-officio Secretary of the Governing Body :

Provided that if circumstance so demands, the Director may nominate Vice-Principal or the senior most member from the teaching staff of the College to act as the Secretary in lieu of the Principal of the College, for a period of six months, and beyond that period with the State Government''s prior approval ;

(c) The Vice Principal-Member-Ex-officio;

(d) Two members to be nominated by the affiliating University concerned ;

(e) Two members to be nominated by the Director from the field of education, out of which one should be from the guardians.

(f) One woman member to be nominated by the Director, provided that there is no woman member in the Governing Body :

(g) Two teachers to be elected annually by the teachers from amongst themselves for a period of one year from the date of constitution of the Governing Body ;

Provided that the teachers so elected shall not be eligible for being re-elected for the third successive term.

(h) One member from the non-teaching staff to be nominated by the Principal annually from the date of constitution of the Governing Body;

(i) Except in cases where here is a life member in Governing Body in pursuant to any agreement to the context, the donors providing Rs. 50,000 or more shall elect one member among themselves to the Governing Body for a period of one year.

(2) The minimum number of members of the Governing Body shall be ten and shall not exceed twelve.

(3) Whenever the Governing Body is constituted the Director of Higher Education shall nominate one member to be the President of the Governing Body".

Again Rule 13 envisages as under -

"13. Meeting of the Governing Body :-

(1) The Governing Body shall meet at least once in every four months but it may meet at shorter interval also, if circumstance so demands and the President of the Governing Body is satisfied that such meeting is necessary.

(2) A meeting of the Governing Body shall be called by the Secretary with prior consent of the President, if it is not a requisitioned meeting by the 2/3 (two-third) members of the Governing Body with not less than 7 (seven) days notice.

(3) The notice of the meeting shall set forth the business to be transacted at the meeting and no business other than so stated shall be transacted, except with the consent of the three-fourth of the members present.

(4) Except any emergency meeting, which shall be so notified, all meetings of Governing Body shall be held in the College premises."

Aconjoint reading of the above referred provisions of law envisaged in the Rule seemingly shows that the Principal of the College shall be the Ex-officio Secretary of the ''GB'' on being constituted by the Director. According to the proviso of Rule 4(1)(b) the Director may nominate Vice Principal or the senior most Member of the teaching staff of the College to act as a Secretary in place of the Principal who is the ex-officio Secretary, for a period of six months or beyond that period with the prior approval of State Govt. if circumstance so demands, meaning thereby, the Principal may be divested of the post of Secretary by the Director if he is satisfied that there are certain circumstances existed for taking such action. It is also clear that unless such circumstances occur, the question of nominating Vice Principal or other senior most member as Secretary does not arise. As regards the holding of meeting of the ''GB'' the requirement of law is that in every four months at least there shall be meeting of the ''GB'' the same may also be held at shorter interval if situation so arises for such purpose and if the President of the Governing Body is satisfied that such meeting is necessary. As per the Rules, it is the duty of the Secretary to convene a meeting of the Governing Body with prior consent of the President. An emergency meeting shall be held by way of requisitioned meeting by 2/3rd members of the ''GB'' with 7 days'' notice.

According to Mr. Das, learned counsel for the Petitioner, the impugned order ex-facie reflects nothing about the existence of any such circumstance which prompted the authority to nominate Respondent No. 4, the Vice Principal to act as a Secretary in place of the petitioner. Even no reason whatsoever has been recorded by the Director which led him to pass the impugned order. It is stated that the said competent authority in exercise of its administrative discretion is duty bound to act in a just proper and reasonable manner which appears to be totally absent in taking the impugned action. It is also urged on behalf of the petitioner that no opportunity of hearing has been given to him prior to reaching such decision of his replacement from the Secretaryship of the ''GB''.

In support of his submission that the impugned action of replacement of the Secretaryship is available only on condition that certain circumstances must exist, Mr. Das has relied upon two decisions of the Division Bench of this Court viz., (i) Sushil Kumar Sen and Anr. v. State of Assam and Ors. reported in (1983) 2 GLR 353 and (ii) Dr. Mohini Kumar Saikia Vs. The President, S.D.O. (Civil) Governing Body D.R. College, Golaghat and Another, In Sushil Sen''s case (supra), this court in dealing with the power of the Inspector of Schools pertaining to dissolution and re-constitution of Managing Committee as provided under Rule 6 of Assam Aided Higher Secondary and Middle School Management Rules, 1976 held that though the Inspector of Schools had the power to dissolve and re-constitute the Managing Committee at any time that was subject to two conditions : (a) the circumstances must so demand and (b) that must be subject to the approval of Director of Public Instruction. It was observed that the State respondents by the averments made in their affidavit could not throw any light as to what had led the Inspector of Schools to exercise its power under Rule 6 and in absence of any such affidavit from the said officer or of records, the action taken by the said officer was held to be a case of ultra vires exercise of power. Be it noted that in the said case, the re-constitution of the Managing Committee after dissolution of the old committee of one Vivekananda Vidya Mandir M. E. School was challenged on the ground that the old committee was dissolved arbitrarily and without giving any opportunity.

In Dr. Mohini Saikia''s case (supra) this court had the occasion to deal with the provisions of Rule 22 of Assam Aided College Management Rule 1976 (for short, the Rules of 1976) which was superseded by the Rules which has come into force with effect from 15.6.2001 with amendment on 16.10.2001. Like Rule 4(l)(b) of the Rules, the Rule 22 of the said Rules of 1976 also dealt with the provision for removal of a Principal of a College running in deficit from Secretaryship of ''GB'' of the College and nomination of Vice Principle in his place. But such removal under the said Rule 22 was permissible only on two conditions, i.e. (i) if he had committed any serious lapse and (2) his continuance as Secretary of the ''GB'' of the College would jeopardize the very purpose of the nominating him as Secretary of the College ''GB'', empowering the Director of Public Instruction to make such replacement and nomination. Under the present Rule, only difference is that the Director of Higher Education has been empowered for making such replacement and nomination only on one condition, i.e., if circumstance so demands. Adjudicating upon exactly a similar case like present one, this court in the above cited case, held that the impugned order of removal of the Principal from the Secretaryship of the GB and subsequent nomination of the Vice Principal to act as Secretary did not spell out any such allegation against the petitioner as envisaged under Rule 22 of the Rules of 1976 and there is no reason was shown for his replacement and as such the said action was held to be an arbitrary act on the part of the Director of Public Instructions. Paragraph 3 of Dr. Mohini Saikia''s case (supra) may be referred as follows :

"3. Mr. R.K. Manisena Singh, learned Advocate General Manipar, appearing on behalf of the Petitioner has contended that there was no material at the disposal of the respondents to show the existence of any lapse of the petitioner and/or that his continuance in office jeopardized the very purpose of nominating him as Secretary. We find that the impugned order does not spell out any such allegations against the petitioner. The Petitioner has asserted and has asserted in the petition that there was no reason for his replacement, it was arbitrary act of the Director of Public Instruction, Assam, In deed, it was for the respondents to show and satisfy that there existed ground for his replacement. In spite of the receipt of due notices served on the Director of Public Instruction by name as well as his designation, he has chosen not to represent the case. He has not filed any return nor has he produced any records. Under these circumstances we are constrained to hold that the impugned order is illegal, void and violative of Rule 22 of "the Rules". The act of respondents is arbitrary and made in contravention of Rule 22 of "the Rules". Accordingly we quash the impugned order".

In the instant case, an ordinary reading of the impugned order clearly indicates that no cogent or overwhelming reason was recorded to show the circumstances that necessitated to pass the impugned order. Accordingly, this court is of the view that the ratio of the above case is squarely applicable in this case and accordingly it is inclined to agree with the submissions advanced on behalf of the Petitioner.

As regards the exercise of discretionary power by the administrative authority, the following judicial authorities have been cited on behalf of the Petitioner :-

(1) Sabinus Ignatius Ekka and Anr. v. State of Assam and Ors., reported in (1999) 3 GLR 204.

(2) Kamlaben Rohitbhai Patel Vs. Additional Development Commissioner,

It is settled law that when an administrative authority is conferred with the discretionary power, the same is needed to be exercised to serve the public interest only. No unfettered or unbridled discretion has been vested upon the administrative authority and the discretion exercised is to be just, fair and reasonable and the same must be devoid of capriciousness biasness and arbitrariness. The instant case clearly demonstrates the absence of any such fair play in the administrative action, reasonableness and public interest.

Supporting the impugned order, Mr. C. K. Sarma Baruah, learned Sr. counsel has vehemently argued that the competent authority had passed the impugned order in absolute compliance of Rule 4(l)(b) inasmuch as there was enough materials before the competent authority against the petitioner for formation of opinion as regards the existence of circumstances and relying on those materials being the circumstances, the Petitioner was rightly replaced from his Secretaryship. According to him, despite repeated verbal and written requests from the President for holding the meeting of the ''GB'' the Petitioner failed to convene the meeting of the ''GB'' at least once in every four month in terms of Rule 13 of the Rules. The learned Sr. counsel has submitted that though the GB was reconstituted on 7.10.2002, till date no meeting of ''GB'' has been held under the Secretaryship of the Principal. That apart, there are serious allegations against the Petitioner''s performance as Secretary because he has been indulging himself in various illegal activities to the detrimental of the interest of the College. For instances, the Petitioner has been operating the College fund deposited in the Bank singly in gross violation of Rule 19(x) of the Rules which strictly demands for joint operation of all College funds by the President and the Secretary of the ''GB'' except Scholarship and Students'' Union Fund and he has also been continuing with the construction work of the administrative building and the canteen of the College without taking prior approval of the ''GB'' as well as the Director of Higher Education as required under the Rules. Mr. Sarma Baruah has also stated that all those matters relating to allegations against the Petitioner were discussed in threadbare in a meeting of the ''GB'' held on 2.1,2003, on the date, when the interim order was passed by this court staying the operation of the impugned order dated 21.1.2003 and the ''GB'' was authorised to take appropriate action against the petitioner. To bolster up his submissions, the Sr. counsel has relied on the minutes of the said meeting of the ''GB'', hand written copy of which is annexed to the Misc. application in Misc. case No. 169/03.

From the argument of the learned Sr. counsel, it transpires that though allegedly the petitioner has been indulging himself in all these illegal activities till date, no administrative action has been taken against him. That apart, it also clearly indicates that on the date of passing the impugned order, i.e., 21.1.2003, the allegations and resolutions as mentioned in the ''GB'' meeting dated 28.1.2003 were not before the competent authority and as such, undoubtedly those cannot be the circumstances for formation of opinion/ satisfaction for replacement of the petitioner from his Secretaryship. In absence of existence of any such circumstances, the passing of the impugned order itself appears to be an arbitrary act. Taking into consideration the submission of the learned Sr. counsel representating the respondents as well as the impugned order, this court is disinclined to agree with the arguments put forward on behalf of the respondents.

In addition, it is also seen from the reading of the impugned order that no opportunity of hearing was afforded to the Petitioner prior to his such replacement. There is no dispute at the bar that the petitioner has been working as Secretary. But his such sudden removal from the Secretaryship without showing any reason or giving any opportunity of hearing definitely appears to have offended the principles of natural justice.

Also perused the relevant records so produced by Mrs. R. Chakraborty learned State counsel and on careful scrutiny of the same, this court does not find any materials to support the submission of Mr. C.K. Sarma Baruah, learned Sr. counsel. It transpires from the perusal of the records that a request has been made by Sri R, Dhanowar, Minister, Excise, Assam, Dispur to the Director Higher Education, Assam vide Memo No. EM/14/2003/16 dated 20th January, 2003, enclosing the representation dated 7.1.2003 made by Shri B.K. Phukan, Advocate and President of Digboi College and another representation dated 17.1.2003 made by the Secretary of Dighboi College Teachers Council alleging anomalies made by the Principal and Secretary of Digboi College, to handover the Secretaryship of Digboi ''GB'' College to Vice-Principal of the said College in greater interest of the students'' community in particular and smooth functioning of the College administration in general and immediately thereafter the impugned order was passed on 21.1.2003 by the said competent authority. It appears that the impugned action was taken under the dictation of the said Minister concerned and also absolutely behind the back of the Petitioner without affording him any reasonable opportunity of hearing. It is also noticed that notwithstanding all those allegations, the impugned order did fail to spell out any such circumstance prompting the authority to nominate the Vice-Principal to act as Secretary replacing the petitioner from Secretaryship.

Since the impugned order passed ex-facie lacked existence of any circumstances as ordained in the proviso of Rule 4(1)(b) of the Rules and was passed without compliance of the principal of natural justice, this Court is constrained to hold that this impugned order was passed arbitrarily and the same is hereby quashed and set aside.

For the reasons, observation indicated above, the writ Petition stands allowed. However, considering the facts and circumstances of the case there will be no order as to costs.

Government records be returned to Ms. R. Chakraborty, the learned State counsel forthwith.