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2009 DIGILAW 536 (GAU)

Md. Jehar Ali v. State of Assam

2009-08-07

BIPLAB KUMAR SHARMA

body2009
JUDGMENT B.K. Sharma, J. 1. The matter relates to the discharge of the petitioner from the services of the particular College of which he was the Principal. In the first writ petition, the challenge is regarding suspension and in the second writ petition, the challenge is regarding the order of discharge from service, both the writ petitions have been heard together and are being disposed of by this common judgment and order. 2. The issue involved is in a very narrow campus, whether the subject matter is amenable to writ jurisdiction. While it is the case of the petitioner that the College being in receipt of ad hoc grants-in-aid from the Government it can not be said to be a purely private college and thus the matter pertaining to discharge from service of an employee of the college can be looked into by the writ court exercising its power and jurisdiction under Article 226 of the Constitution of India. It is the case of the respondents that the college being a purely private one and there being no control of the Government in the matter of appointment and removal of the employees of the college, the writ petition is not maintainable as no direction can be issued to a private body exercising power and jurisdiction under Article 226 of the Constitution of India. 3. The petitioner while was serving as Lecturer of Uttar Barpeta College in the district of Barpeta was appointed as Principal, which was communicated to him by Annexure-A letter dated 26.8.2002, issued under the signature of the Secretary of the College. There is no dispute that his such appointment did not have any approval of any governmental authorities. 4. By annexure-E letter dated 31.8.2008, the President of the Governing Body of the college asked the petitioner to furnish reply within 15 days from the date of issue of the letter in respect of the charges mentioned in their letter. By the said letter, the petitioner was also placed under suspension. Making a challenge to the said letter dated 31.8.2008, placing the petitioner under suspension and also asking him to show cause in respect of the charges mentioned in the letter, the petitioner filed the first writ petition being WP(C) No. 4094/2008, which was entertained by order dated 24.9.2008. 5. By the said letter, the petitioner was also placed under suspension. Making a challenge to the said letter dated 31.8.2008, placing the petitioner under suspension and also asking him to show cause in respect of the charges mentioned in the letter, the petitioner filed the first writ petition being WP(C) No. 4094/2008, which was entertained by order dated 24.9.2008. 5. During the pendency of the writ petition, the petitioner was removed from service by Annexure-H letter dated 17.11.2008, addressed to him by the President of the Governing Body of the College. The grounds assigned for such course of action as indicated in the letter are as follows: 1. Your total failure to comply with the suspended letter dated 31.8.2008. 2. Your failure to comply with the Auditors' committee. 3. Large scale corruption committed from college fund and charges levelled against you. 4. Non-submission of important and relevant documents of the college having with your unauthorised custody. 5. Misleading the Judiciary and police administration using college stamp, pad and seal during suspended period. 6. Violation of all the points of suspended letter dated 31.8.2008. 6. Being aggrieved, the petitioner has filed the second writ petition being WP(C) No. 5069/2008. 7. In the writ petitions, the petitioner has placed reliance on the policy decision of the Government to provide financial assistance to the private educational institutions on need basis. The petitioner has also placed reliance on the Annexure-B letter dated 4.1.2007 addressed to the Accountant General (A & E), Assam, by the Government of Assam in the Education, Planning (H) Department, conveying the sanction of the amount of Rs. 3.30 crores for giving financial assistance to 120 colleges (Non-Government) at the rate indicated in the letter. The petitioner's college was also included for such financial assistance. The petitioner has also placed reliance on the Annexure-C letter dated 4.11.2006 issued by the Gauhati University to all the Principals of the Colleges affiliated to Gauhati University, other than the colleges maintained or aided on recurring basis by the Government of Assam. By the said letter, it was emphasised that such colleges are to be governed by a regularly constituted Governing Body as prescribed in Gauhati University statute. 8. By the said letter, it was emphasised that such colleges are to be governed by a regularly constituted Governing Body as prescribed in Gauhati University statute. 8. It is on the above basis, it has been contended by the petitioner that there being control of the Government over the college, the petitioner could not have been discharged from service by a stroke of pen without taking recourse to the procedure envisaged for regular departmental proceeding. Further plea of the petitioner is that the petitioner could not have been discharged from the service by the Governing Body of the College without obtaining the approval of the Director of Higher Education. 9. In the counter affidavit filed by the respondents, the aforesaid plea of the petitioner has been controverted. The stand of the respondents is that there is no control of the Government over the College, as it is a purely private college and thus the matter relating to employment and discharge of the employees of such private college cannot be agitated by filling the writ petition under Article 226 of the Constitution of India. 10. Mr. A.M. Mazumdar, learned senior Counsel assisted by Mr. D.A. Kayum, learned Counsel for the petitioner referring to the aforesaid documents relating to the grant of financial assistance and constitution of the Managing Committee of Non-Government colleges, submitted that there being some amount of control of the Government over the Management of the college, the discharge of the petitioner from service cannot be termed as a purely private affair of the private college and thus the writ petition is maintainable. 11. Controverting the above argument Mr. A.S. Choudhury, learned senior Counsel assisted by Mr. R. Ali, learned Counsel appearing for the respondents No. 4, 5 and 6 i.e., the Governing Body of the College, submitted that the college in question being a purely private one, its affairs relating to employment and discharge of employees cannot be agitated invoking the writ jurisdiction. Mr. Choudhury, learned Counsel also placed reliance on the decision of this Court in Saleha Begum v. State of Assam 2006 (1) GLT 86. 12. I have considered the submissions made by the learned Counsel for the parties and the materials on records. Learned Counsel for the parties have drawn attention to the provisions of the Assam Non-Government College Management Rules, 2001, stated to be applicable to the college in question. 12. I have considered the submissions made by the learned Counsel for the parties and the materials on records. Learned Counsel for the parties have drawn attention to the provisions of the Assam Non-Government College Management Rules, 2001, stated to be applicable to the college in question. This rule has made provisions for constitution and composition of the Governing Body of the Non-Government colleges. Rule 18 of the rules provides that the Governing Body of a Non-Government College not brought under the Deficit System of Financial Aid is not required to sent the proceedings of the meetings of the Governing Body to the Director. The main provision of Rule 18 provides for sending the minutes of the proceeding of the Governing Body meeting to the Director. However, an exception has been made in respect of Non-Government colleges which are not brought under the Deficit System of Grants-in-aid. It is an admitted position that the college with which we are concerned, is a Non-Government college, which is yet to be brought under the Deficit System of Grants-in-aid. If that be so, as per the requirement of the said rule, there is no necessity to send the resolutions of the Governing Body to the Director of Higher Education, Assam. 13. The above aspect of the matter has been highlighted by the Director of Higher Education in his affidavit filed on 18.7.2009, in which it has been stated that the college is neither a provincialised college nor it has been brought under the Deficit System of Grants-in-aid. It has further been stated that the college is not receiving any other grants. According to the said affidavit, the financial assistance provided to the college cannot be termed as ad hoc grant. Rule 1(3) of the aforesaid rules states that the rule will be applicable to Non-Government Colleges in Assam affiliated by any Central or State University of Assam and in receipt of Deficit System of Grants-in-aid or ad hoc grants-in-aid from the State Government. 14. Learned Counsel for the petitioner submitted that the financial assistance provided to the college being an ad hoc grants-in-aid, the provisions of the aforesaid rules are applicable. 14. Learned Counsel for the petitioner submitted that the financial assistance provided to the college being an ad hoc grants-in-aid, the provisions of the aforesaid rules are applicable. Ad hoc grants-in-aid is a recurring aid provided to the institutions unlike the one time financial assistance provided to the institutions like that of the petitioner's college, which has been provided with financial assistance by the Government of Assam under its particular policy decision. Such financial assistance cannot be said to be recurring ad hoc grants which is being provided to the educational institutions irrespective of the financial assistance provided to private institutions as per the Annexure-A policy decision of the Government. The annexure-A policy decision is of 2005, while the ad hoc grants-in-aid is being provided to the institutions from long time past. 15. Above aspect of the matter will also have to be understood in the context of Rule 18 of the aforesaid rules which clearly provides that so far as the Non-Government colleges are concerned which are not brought under Deficit System of Grants-in-aid, the governing body's are not required to send the proceedings of the meetings to the Director, Higher Education. The whole basis of the claim of the petitioner is that the impugned decision relating to the order of suspension and discharge from service without obtaining approval of the Director are bad in law. When the rules itself provide that no such approval is required, the petitioner cannot insist that the impugned orders must have the approval of the authority. 16. Neither in the matter of appointment nor in discharge of the petitioner from service, there was any requirement to get any approval of governmental authorities. It is the Managing Committee which appointed the petitioner and also terminated his service. The impugned resolution of the managing committee of the college is a decision of a private management, governed by private law. It can not be said to have involved in public law. It is the private body i.e., the Managing Committee of the college which has terminated the services of the petitioner. That being the position, there is also no requirement to obtain any approval of the governmental authorities. This is precisely the reason as to why the Director of Higher Education in his affidavit has clearly stated that his approval in the matter of termination of the services of the petitioner is not required. 17. That being the position, there is also no requirement to obtain any approval of the governmental authorities. This is precisely the reason as to why the Director of Higher Education in his affidavit has clearly stated that his approval in the matter of termination of the services of the petitioner is not required. 17. All the above aspect of the matter have been discussed in Saleha Begum (supra) on which Mr. Choudhury, learned Counsel appearing for the Governing Body has placed reliance. The appointment and termination of services of the petitioner by the Managing Committee of the privately managed college, in my considered view, cannot be brought within the purview of writ jurisdiction. 18. In the case of Supriyo Basu and Ors. v. W.B. Housing Board and Ors. (2005) 6 SCC 289 the Apex Court noticing that the society in question being not a department of the State and also not being a creature of a statute, but merely governed by a statute, upheld the decision of the High Court by which it was held that the writ petition was not maintainable as no statutory action had been assailed. It was noted by the High Court that the dispute involved in that proceeding essentially related to claims in the realm of private bodies. Same is the case in hand. 19. In the case of General Manager, Kisan Sahakari Chini Mill Ltd. v. Shatrughan Nishad (2003) 8 SCC 630, the Apex Court noticing the various earlier judgments held the writ petition to be not maintainable. That was a case relating to termination of service of the workmen of the Mill in question, a cooperative society. It was argued that even if the Mill is not an authority within the meaning of Article 12 of the Constitution, writ application can be entertained as mandamus can be issued under Article 226 of the Constitution against any person or authority which would include a private person of body. After noticing that the dispute did not involve any public function, the Apex Court held that the jurisdiction of the High Court under Article 226 of the constitution could not have been invoked. After noticing that the dispute did not involve any public function, the Apex Court held that the jurisdiction of the High Court under Article 226 of the constitution could not have been invoked. In the said case, the Apex Court summarised the expression "other authorities" after expressing a note of caution that it must be realised that it should not be stretched so far to bring in every autonomous body which has some nexus with the Government within the sweep of the expression. A note of caution was expressed that wide enlargement of the meaning must be tampered by wise limitation. 20. For all the aforesaid reasons, I am of the considered opinion that the writ petition is not maintainable and liable to be dismissed. However, it is made clear that it will be open for the petitioner to pursue his remedies against the impugned action of the respondents in appropriate forum. Petition dismissed.