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Gauhati High Court · body

1996 DIGILAW 30 (GAU)

Ruhul Amin v. State of Assam and Ors.

1996-02-20

D.N.BARUAH

body1996
In this application under Article 226 of the Constitution the petitioner has challenged Annexure IX order dated 3.5.95 issued-by the Director of Public Instruction, Assam the respondent No.2 reconstituting a Governing Body for a period of three years with effect from the date of "issue of the order and also prayed for issuance of an appropriate writ or direction for approval of the Governing Body constituted by the General Committee of the college on 13.11.94 (Annexure V). 2. The case of the petitioner is that in the year 1981 people of Mairabari, Laharighat, Dhing and Alitangori Mouza of Morigaon District decided to establish a college at Mairabari with the fund that may be raised from the public. After the decisions the college was established with the finance received from the people of the locality. In 1984 the Government of Assam had sanctioned a sum of Rs.2,000/- as Government grant to the said college (Mairabari College). At that time the monthly expenditure of the college for salary of the teaching and non teaching staff and administrative expenses was amount Rs.25,000/- The college so established made considerable progress and was affiliated to the University. 3. According to the petitioner Mairabari College is a Government Aided College. However, the college does not receive any deficit grant by the Government. Therefore, it is not a Deficit Aided College. 4. The 4th respondent was the Principal-in-charge of the college and was not a regular Principal. There were allegations of financial irregularities against him in dealing with the college fund. Therefore, he was not made the Secretary of the college on the earlier occasion that is by the Governing Body which was constituted in the year 1991. There were also allegations of misappropriation which was detected at the time of audit for the period from 1.10.90 to 31.10.94. 5. With a view to constituting a new Governing Body of the college for the period from 2.11.94 a general meeting of the public of the locality was convened by the Secretary on 25.9.94 by letter dated 10.9.94. However, due to some reasons the aforesaid meeting had to be postponed and 23.10.94 was fixed for the general meeting as per Annexure II letter dated 10.9.94. However, due to some reasons the aforesaid meeting had to be postponed and 23.10.94 was fixed for the general meeting as per Annexure II letter dated 10.9.94. But before holding the meeting the 4th respondent by Annexure III letter dated 13.10.94 requested the President of the college to shift the date of the meeting to the first week of November, 1994 as such shifting was necessary in the interest of the college. The date of the meeting was refixed on 13.11.94 for holding a general body public meeting and the same was circulated by Annexure IV letter dated 13.11.94. On 13.11.94 a meeting of the general public was held and in the said meeting a new Governing Body of the college was reconstituted with seven members. The petitioner was selected as Secretary of the said Governing Body. According to the petitioner the said Governing Body was constituted in strict compliance with the Rules. 6. In the said meeting resolutions were adopted. By resolution No.7 the Governing Body of the college was formed. The said resolution was sent to the DPI for approval as required under the Rules. In the meantime the Director of Public Instruction issued Annexure VI notification dated 10.11.94 reconstituting a Governing Body with the members shown therein. As per the said notification Mazibur Rahman, MLAJ became the President. Principal-in-charge became the ex-officio Secretary of the Governing Body. 7. The petitioner challenged Annexure VI notification dated 10.11.94 before this Court (Civil Rule No.4936 of 1994). This Court by judgment and order dated 25.1.95 set aside Annexure VI notificaion and further ordered as follows : "However, in the facts and circumstances of this case and in order to avoid any further complications I hereby order for reconstitution of a new Governing Body. In order to avoid any apprehension and also to avoid further complication I direct the Director of Higher Education, Govt. of Assam, Kahilipara to convene the meeting for reconstituting a new committee of the Governing Body of the Moirabari College in the district of Morigaon within a period of 1 month from the date of receipt of this order. As the constitution of new Governing Body is long over due, the Director is directed to carry out this order within the stipulated time." However, the petitioner states that the order was not complied with. As the constitution of new Governing Body is long over due, the Director is directed to carry out this order within the stipulated time." However, the petitioner states that the order was not complied with. Thereafter an appeal (Writ Appeal No.95 of 1995) was filed against the said judgment by one Tabu Ram Taid. The appeal was also dismissed exparte. The appellate Court held that in case the power had been delegated to the Director of Public Instruction, Assam, the same had to be exercised independently by him and not at the dictates of any other person. The appellate Court also held that the order passed by the learned Single Judge did not suffer from any vice. The appellate Court further directed the Director of Instruction to pass order at the earliest. The Director of Public Instruction thereafter by Annexure IX order dated 3.5.95 dissolved the existing Governing Body and reconstituted the Governing Body for a period of three years. According to the petitioner this Court directed the Director, Higher Education, Assam to convene a meeting for reconstituting a new committee of the Governing Body of the college. However, the Director reconstituted the aforesaid Governing Body by Annexure IX order. The petitioner has alleged that there was no delegation of power to the Director to constitute a Body. Besides this Court directed to reconstitute a Body by convening a meeting and therefore, according to the petitioner, Annexure IX was absolutely illegal and without jurisdiction and cannot sustain in law. The petitioner has also averred that the 4th respondent the Principal-in-charge of the college had no competence to become the Secretary of the Governing Body in view of the fact that he committed serious financial irregularities of the college fund. On the previous occasion also the Governing Body constituted in respect of the said college did not give him the responsibility of the Secretary of the college in view of his improper dealings in the financial matters. The petitioner has submitted that the impugned Annexure IX order dated 3.5.95 was illegal, arbitrary and violative of the direction given by this Court and the Rules. Hence the present petition. 8. The respondents have not filed any affidavit-in-opposition. 9. I heard the learned counsel for the petitioner as well as the learned counsel for the respondent No.4. None appeared on behalf of the respondent Nos.1, 2 and 3 at the time of hearing. Hence the present petition. 8. The respondents have not filed any affidavit-in-opposition. 9. I heard the learned counsel for the petitioner as well as the learned counsel for the respondent No.4. None appeared on behalf of the respondent Nos.1, 2 and 3 at the time of hearing. 10. Records have also not been produced by the respondents, namely respondent Nos. 1 and 2. 11. Mr. DN Chowdhury, learned counsel appearing on behalf of the petitioner submitted that Rule 2 of the Assam Aided College Management Rules, 1976, for short 'the Rules' does not confer any power for constitution of a Governing Body by the Director of Public Instruction. The said Rule only confers powers on the Director of Public Instruction for giving approval only save in cases where the Secretary to the Government of Assam in the Education Department allow as an exception under special circumstances. Learned counsel further submitted that the action of the Director to constitute a Governing Body was absolutely without jurisdiction. He also submitted that in order to appreciate the decision of the Division Bench judgment, paragraph 4, 5 and 6 of that judgment should be read together for giving a harmonious interpretation. The judgment has also to be seen with reference to the judgment of the learned Single Judge. According to Mr. Chowdhury the directions given by the learned Single Judge had not been set aside by the appellate Court and those were totally ignored. 12. Mr. AM Mazumdar, learned counsel appearing on behalf of the 4th respondent on the other hand supported the Annexure IX order. According to him Annexure IX order was passed in strict compliance with the directions given by the Division Bench of this Court. 13. On the rival contentions of the learned counsel for the parties it is to be seen whether the impugned Annexure IX order dated 3.5.95 can sustain in law. 14. In order to appreciate the legal position it is necessary to go through the Rules and also the judgment of the learned Single Judge dated 25.1.95 and the judgment of the appellate Court dated 3.4.95. 15. Rule 2 of the Rules speaks about the approval of a Governing Body. 14. In order to appreciate the legal position it is necessary to go through the Rules and also the judgment of the learned Single Judge dated 25.1.95 and the judgment of the appellate Court dated 3.4.95. 15. Rule 2 of the Rules speaks about the approval of a Governing Body. I quote the Rule: "Every Government Aided College shall be governed by a Governing Body the constitution of which has been approved by the Director of Public Instruction, Assam save in cases where the Secretary to the Government of Assam in the Education Department allow as an exception under special circumstances." 16. Rule 3 of the Rules, deals with the constitution of a Governing Body. As per the said Rule normally a Governing Body shall consist of Secretary and other members as mentioned in the said Rule. Under the said Rule the Secretary to the Government of Assam in the Education Department may sanction Special Body under a special circumstance. In Deficit Aided College the Principal of the college should be nominated by the Government as ex-officio Secretary of the Governing Body. In other aided colleges and outsider may be nominated by the Government as Secretary and in that case the Principal of the college shall be nominated as member and Joint Secretary in the Governing Body by virtue of his office. 17. On going through the relevant provisions of the Rules it is clear that the Director of Public Instructions, Assam has power only to give approval to the Governing Body that may be constituted. The Director of Public Instructions does not have any power to constitute or reconstitute a Governing Body on its own. Secretary, Education Department of the Govt. only in a special case may constitute a Special Governing Body. 18. In the present case the petitioner has challenged Annexure IX order of reconstitution of Governing Body by the Director of Public Instructions. The Annexure IX shows that the reconstitution of the Governing Body was made as per the judgment of this Court passed in Writ Appeal No.95 of 1995. In the said appeal it was urged before the appellate Court that the Government had delegated the power to the Director of Public Instructions to constitute a Governing Body. The Annexure IX shows that the reconstitution of the Governing Body was made as per the judgment of this Court passed in Writ Appeal No.95 of 1995. In the said appeal it was urged before the appellate Court that the Government had delegated the power to the Director of Public Instructions to constitute a Governing Body. The appellate Court observed that a new Governing Body was nominated by the Director of Public Instructions, Assam on 10.11.94 which was challenged in the Civil Rule No.4936 of 1994. The learned Single Judge quashed the aforesaid notification on the ground that the aforesaid notification was not passed independently by the Director of Public Instruction to whom admittedly power of nomination had been delegated and he had acted at the dictates of the 3rd respondent. No material was produced before the appellate Court whether the power had actually been delegated to the Director of Public Instructions. Accordingly the appellate Court observed thus : "We are of the opinion that in case the power has been delegated to the Director of Public Instructions, Assam, the same had to be exercised independently by him and not on the dictates of any other person. The order passed by the learned Single Judge therefore, in our opinion, suffers from no vice." Accordingly, the appellate Court gave a direction as follows : "If that be so, we issue direction to the Director of Public Instruction, Assam to forthwith within the period of one month from the service of the order independently exercise the powers delegated to him for nomination of members of Governing Body. The entire process shall be completed by him in accordance with law within a period of one month from the date of service of certified copy of this order on him. The office will under the Registered A/D send a copy of this order to the Director of Public Instruction, Assam within 9 days who shall comply with the direction given by mis Court in accordance with law." 19. Thereafter the Annexure IX order was passed by the Director of Public Instructions. Annexure IX refers to the directions given by this Court. The said Governing Body was constituted by the Director of Public Instructions in exercise of powers delegated vide Govt. Notification No.ECL/11/76/20 dated 10.11.76 and substituted vide Govt. Thereafter the Annexure IX order was passed by the Director of Public Instructions. Annexure IX refers to the directions given by this Court. The said Governing Body was constituted by the Director of Public Instructions in exercise of powers delegated vide Govt. Notification No.ECL/11/76/20 dated 10.11.76 and substituted vide Govt. Notification No.ECL/119/76/Pt/10 dated 16.5.78 in pursuance of the order dated 2.4.95 of this Court in the Writ Appeal No.95 Of 1995 (in CR No.4936 of 1994) the Governing Body of Moirabari College was reconstituted. 20. From the said judgment of the appellate Court it appears to me that the appellate Court gave direction to constitute a Governing Body if the power was delegated to the Director of Public Instructions. Respondents have not been able to show anything from the records that the power had been so delegated to the Director of Public Instructions to constitute and/or reconstitute the Governing Body. As I have already indicated that as per the Rule 2 the Director of Public Instructions has only the power to approve or disapprove the constitution of a Governing Body and it is only the Secretary in the Education Department of the Govt. of Assam, may in special case allow reconstitution of Special Governing Body if circumstances so demand. As nothing has been shown in this regard in my opinion Annexure IX order of reconstitution of the Governing Body was illegal, without jurisdiction and liable to be set aside and quashed. 21. Accordingly, I set aside the Annexure IX order holding that the Director of Public Instructions has no jurisdiction and authority to constitute a Governing Body. 22. In the facts and circumstances of the case I make no order as to costs.