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2015 DIGILAW 750 (GAU)

Dal Pathak v. State of Assam

2015-06-12

MANOJIT BHUYAN

body2015
JUDGMENT : Manojit Bhuyan, J. Heard Mr. S.K. Medhi, learned counsel for the petitioner as well as Mr. M. Mahanta, learned counsel representing Respondent Nos. 1 & 2. Mr. N. Upadhyay, learned counsel represents Respondent No. 3. The governing body of M.C. College as well as the Principal of the College are represented by Senior Counsel Mr. K.H. Choudhury assisted by Mr. S.K. Muktar. In so far as Respondent No. 6 is concerned, service upon him is deemed to be complete in terms of the Office Note dated 29.04.2015. Considering the nature of the order that is being passed today, service of notice upon Respondent No. 7 is not deemed necessary. 2. The petitioner is the Head of the Department of Mathematics of Madhav Choudhury College, Barpeta. Additionally, he has also been selected and appointed as Associate N.C.C. Officer (ANO) by the Board of Officers of National Cadet Corps (NCC) on 29.01.2008, followed by approval thereof. The petitioner was also made to undergo pre-commission training course which he had duly completed. According to the petitioner such selection and appointment of the petitioner as an ANO was done in strict accordance with the provisions under the National Cadet Corps Rules, 1948 framed under the National Cadet Corps Act, 1948. 3. The controversy arose on and from the date when a Resolution was adopted by the Governing Body of the College on 29.07.2013 whereby it was resolved to replace the petitioner with another Prof. Harihar Deka of the Department of Political Science to discharge function as the N.C.C. Officer of the College. To that end, a copy of the Resolution dated 29.07.2013 was duly forwarded to the Commanding Officer, 7 Assam Bn. NCC on 05.08.2013 requesting for necessary action. The petitioner was also informed by the Principal of the College by letter dated 19.08.2013 indicating that the Governing Body had adopted a resolution to rotate the I/C Professor of NCC College Unit in order to improve the academic environment of the Department of Mathematics. By the said letter it was also indicated that intimation to that regard have also been sent to the Headquarter, 7 Assam Bn., N.C.C., Dhubri. It was also indicated that the petitioner is to hand over charge of N.C.C. Unit of the College by 31 August, 2013. 4. By the said letter it was also indicated that intimation to that regard have also been sent to the Headquarter, 7 Assam Bn., N.C.C., Dhubri. It was also indicated that the petitioner is to hand over charge of N.C.C. Unit of the College by 31 August, 2013. 4. A reply to the aforesaid letter of the Principal dated 19.08.2013 was made on 31.08.2013 whereby the petitioner informed that as an ANO his immediate authority is the Commanding Officer of 7 Assam N.C.C. Bn., Dhubri and as such he is not in a position to handover the charge of NCC to Prof. Harihar Deka. The action of the College administration was also brought to the notice of the Commanding Officer by the petitioner on 02.09.2013. The said controversy reached a point when on 16.09.2013 the Principal of the College asked the petitioner to give suitable explanation within 3 days as to why disciplinary action should not be initiated against him for insubordinate behaviour. 5. On the issue of the steps initiated by the College to replace the petitioner, the Commanding Officer also addressed a letter to the Principal of the College on 24.10.2013 making it clear that in so far as discharge of an Officer is concerned, the authority competent to do so is the Ministry of Defence, Government of India. Despite the clarification made by the Commanding Officer by the letter dated 24.10.2013, the petitioner was not allowed to discharge functions as an ANO of M.C. College. Constrained thus, the petitioner instituted the present proceedings. 6. Respondent Nos. 4 & 5 being the primary respondents here, has filed an affidavit clarifying its stand. It is the case of the Respondent Nos. 4 & 5 that since there was no response from the Commanding Officer over a long period of time, the Principal of the College was without any option but to act according to the resolution of the Governing Body. It is also the case of the Respondent nos. 4 & 5 that the Ministry of Defence, Government of India is not the authority competent to authorise discharge of an Officer. The power rests with the Commanding Officer and to that effect had also placed a document issued by the Commanding Officer of 25 M.V. Bn. N.C.C. Chhatispur, Ujjain to justify that in a matter of similar nature interference was made by the Commanding Officer. The power rests with the Commanding Officer and to that effect had also placed a document issued by the Commanding Officer of 25 M.V. Bn. N.C.C. Chhatispur, Ujjain to justify that in a matter of similar nature interference was made by the Commanding Officer. The issue rests only upon the point whether an Associate N.C.C. Officer selected and appointed under the provisions of the National Cadet Corps Rules, 1948 can be removed or discharged by a resolution of the Governing Body of a College. In this connection reference is made to the provisions under the National Cadet Corps Rules, 1948. Rule 29(1) provides that the authority competent to authorise the discharge of an Officer is the Ministry of Defence, Government of India. In this respect it is seen that the letter addressed to the Principal of the College by the Commanding Officer on 24.10.2013 also make mention that the Ministry of Defence, Government of India is the sole authority empowered to authorise discharge of an Officer. It is not in dispute that the petitioner was selected and appointed as ANO in strict accordance to the provisions under the National Cadet Corps Rules, 1948. Under the said Rules the procedure for discharge of an Officer having been laid down, as indicated above, no other authority including the Governing Body of the College is competent to act otherwise. It is no more res integra that where power is given to do a certain thing in certain way, it has to be done in that way or not at all, other modes of performances being necessarily forbidden. 7. The College Authority being full well aware of the provisions under the National Cadet Corps Rules, 1948 could not have initiated any action to discharge the petitioner from his duty as an ANO de hors the provision under Rule 29 of the aforesaid Rules. It is also not apprehended as to why the College authority have not taken any steps to approach the authority under Rule 29 if the discharge of the petitioner was so necessary for the interest of the College. 8. Be that as it may, the action of the College authority so impugned in the present proceedings do not inspire the confidence of the Court. It is in deviation to the provision under Rule 29 of the aforesaid Rules. 9. 8. Be that as it may, the action of the College authority so impugned in the present proceedings do not inspire the confidence of the Court. It is in deviation to the provision under Rule 29 of the aforesaid Rules. 9. Mention be made that by order of this Court passed on 08.11.2013 status-quo in respect of the petitioner as an Assistant N.C.C. Officer of the College was ordered to be maintained. 10. For all the reasons indicated above and having regard to the clear prescription of law provided under Rule 29 of the National Cadet Corps Rules, 1948 it leaves no room for doubt that the action of the Respondent College in passing the Resolution dated 29.07.2013 followed by its letter dated 19.08.2013, followed by the letter dated 16.09.2013 cannot stand the scrutiny of law and is liable to be interfered with, which is accordingly done. On setting aside of the aforesaid Resolution dated 29.07.2013 and letters dated 19.08.2013 and 16.09.2013, a direction is made to the Respondent Nos. 4 & 5 not to interfere with the petitioner in his discharge of duties as an Associate N.C.C. Officer of M.C. College, Barpeta. Needless to say that if the college authority wishes to proceed with the matter, in terms of the Resolution, the same has to be in strict accordance with the provisions under the National Cadet Corps Rules, 1948. 11. In view of the above, this writ petition stands allowed. The parties are made to bear their own costs.