MOHINI KUMAR SAIKIA Vs. PRESIDENT S

JUDGEMENT

(1.) This is an application under Art.226 of the Constitution directed against a telegraphic order dt. June 7, 1983 removing the petitioner Dr. M. K. Saikia, Principal, Deb Raj College from the Secretaryship of the governing body of the College and nominating the Vice-Principal of the College ex-officio Secretary. The order was rendered by the Director of Public Instruction, Assam, respondents 11 and 12 purporting to act under R.22 of the Assam Aided College Management Rules, 1976. It may be stated that respondent No.11 is Shri S. Bharati, Director of Public Instruction, Assam and respondent No. 12 is none but the said Director. We shall therefore refer respondent 11/12 while referring to the Director of Public Instruction, Assam.

(2.) The petitioner is a qualified and responsible person. He was appointed Principal of Debraj Roy College, Golaghat. By virtue of his office he was the ex-officio Secretary of the Governing Body of the College. He was holding a permanent post and discharging his duties as the Principal and Secretary of the Governing Body of the College under R.3(c) of the 'Rules'. By R.3(c) the Principal is the ex-officio Secretary of the Governing Body. "The Rules" are statutory Rules. The Secretary can be replaced by the Director of Public Instruction. He is the only authority to take action under R.22 of "the Rules". We extract R.22 of "the Rules" hereinbelow : - "22. If it is found that the Principal of the College who is the ex-officio Secretary of a Governing Body of deficit College has committed any serious lapse and his continuance as Secretary of the Governing Body of the College will jeopardise the very purpose of nominating him as Secretary of the College Governing Body, the Director of Public Instruction may replace him and nominate the Vice-Principal of the College to act as ex-officio Secretary of the Governing Body till the charges on which the Principal of the College is proceeded with, are and he is acquitted of all charges honourably. If there is no Vice-Principal, the Seniormost lecturer of the college may hold charge of the Secretary of the Governing Body. The Secretary will be subject to disciplinary action against him under the relevant provision of the Assam Services (Discipline and Appeal) Rules, 1961 and any other rules framed from time to time in this behalf. It is seen from the Rules that the ex-officio Secretary of the Governing Body of a deficit college can be replaced by the Director of Public Instruction. However, he can be so provided : (1) it is found that he has committed any serious lapse and/or (2) his continuance as Secretary of the Governing Body of the College will jeopardise the very purpose of nominating him as Secretary of the Governing Body. The impugned order is extracted below :

(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 jeopardised 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 had 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. Indeed, 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.