KRISHNA GOPAL BHATTACHARYYA Vs. STATE OF ASSAM

JUDGEMENT

(1.) The constitutionality formation of Special Body for management of the affairs of the Dimoria College, is the subject-matter for adjudication in this writ proceeding. On the expiry of the term of the Special Body of the Dimoria College, District: Kamrup, on 28.8.1998, the Governor of Assam in exercise of the powers conferred under Rules 2 and 3 of the Assam Aided College Management Rules, 1976 constituted another Special body with eight members including one lady member for management of the affairs of Dimoria College with retrospective effect i.e., from 29.8.1998 vide notification under No. B(2)H.306/95/98 dated 30.11.1998. By the aforesaid notification, the petitioner No. 1, Krishna Gopal Bhattacharyya, a Professor of the Gauhati University, was made the President, while Shri Protul Sharma, Vice-Principal of the College, was made the secretary and the petitioner Nos. 3 to 7 along with one, Shri Arup Bora, were shown as members of the Special Body. It may be mentioned here that vide notification No. B(2)H. 306/96/65 dated 29.8.1996, on the expiry of the term of the then existing Governing Body, a Special Body was constituted with nine members wherein one Shri Ramen Das, Councillor of Ward No. 59, was nominated as a member of the Special Body along with all the other eight, members as those who were also the member of the Special Body constituted vide notification 30.11.1998. The term of the Special Body constituted on 29.8.1996 was extended for a period of another year vide Notification under No. B(2)H. 306/96/90 dated 2.3.1998, with retrospective effect from 29.8.1997. And while the Special Body was functioning as such, vide notification dated 30.12.1998 as aforesaid, after only thirty days of constitution of the Special Body by the notification dated 30.11.1998, the State Government dissolved the Special Body constituted vide Notification 30.11.1998 and reconstituted a new Special Body which, however, included the names of Arup Bora and Nameswar Boro, who happened to be the members of the erstwhile Special Body constituted vide Notification dated 30.11.1998. By the notification under No. B(2)H.306/96/101 dated 30.12.1998, Shri Bubul Das, Minister of Fisheries, Assam, was made the President and the Principal of Dimoria College (respondent No. 5) was nominated as the Secretary. Hence the writ petition questioning the legality and validity of the notification dated 30.12.1998, as arbitrary, discriminatory and mala fide.

(2.) The petitioners asserted that on assuming the charge of the Special Body under the Presidentship of the petitioner No. 1 in 1996, found that the respondent No. 5, the then Principal of the College as Secretary of the College allegedly misappropriate a sum of Rs. 11,95,225 from the College Fund during the year 1992-93,1993-94 and from the month of March, 1994 to September, 1994 by submitting false particulars and fake bills. The cetitioners also alleged a number of other irregularities relating to financial impropriety against the respondent No. 5 and the petitioner No. 1 being the President of the then Special Body/Governing Body, placed the respondent No. 5 under suspension vide his order dated 6.2.1997 on the basis of resolution dated 25.12.1996 adopted by the Special Body which was approved by the Director of Higher Education in-charge, vide communication No. G(B)GB.32/96.35 dated 6.2.1997. By the said order of the President of the Special Body, petitioner No. 2, Vice Principal in-charge of the Dimoria College, was ordered to take over charge of Principal of the College with immediate effect. A departmental proceeding was initiated against the respondent No. 5 which was subsequently cancelled and a do novo enquiry was ordered against the said respondent. The decision of the Special Body for order a de novo enquiry was challenged in Civil Rule No. 6001/97 by the said respondent and this Court by its order dated 11.11.1998 directed the respondent/ disciplinary authority to conclude the proceeding within a time limit and set aside the order of de novo enquiry. But the said judgment and order dated 11.11.1998 was assailed in a writ appeal being registered and numbered as W.A. 401/98, and the Division Bench by its order dated 24.12.1998, issued notice returnable by 25.1.1999 and in the interim, stayed operation of the aforesaid judgment and order dated 11.11.1998 until further orders. While the Special Body was functioning as such, the impugned Notification dated 30.12.1998 was issued which, according to the petitioners, was mala fide in exercise of the powers with an improper motive only with a view to show undue favour to respondent No. 5. The petitioners further pointed out that despite the order of this Court passed in W.A. 401 /98 dated 24th December, 1998, the newly constituted Special Body at the very first opportunity, took a resolution on 3.1.1999, directing the respondent No. 5 to discharge his duties as Principal and Secretary of the College and the Special Body, respectively. The petitioner contended that the entire exercise of constituting the new Special Body smacks of malafide and corrupt motive only to accommodate respondent No. 5 as the Principal and Secretary of the College and the Special Body, respectively. The petitioners further expressed their apprehension that on the strength of the impugned notification, the new Special Body was constituted with the intent to frustrate the move of the earlier Special Body and might withdraw the writ appeal filed by the earlier Special Body from the High Court.

(3.) Respondent No. 1, State of Assam, respondent No. 2. Deputy Secretary to the Govt. of Assam, Education Department, and respondent No. 3. The Director of Public Instruction, Assam (Higher Education), the State and its instrumentality, which passed/ issued the impugned notification, did not file any affidavit,, The case was contested only by the new Special Body represented by the Minister of Fisheries, Assam, who filed affidavit as the President of the Special Body denying and disputing the claim of the petitioners. The respondent No. 4 in its affidavit, hurled allegations against the earlier Special Body, since dissolved, headed by the petitioner No. 1, and brought allegations of financial impropriety, more particularly against petitioner No.2, the Secretary of the erstwhile Special Body. The Special Body in its affidavit, further brought allegation of mismanagement by the erstwhile Special Body and stated that in the circumstances, the State Government rightly acted by dissolving the erstwhile Special Body and constituting the new body. The respondent denied the allegation of misappropriation or financial irregularity and stated that the respondent No. 5 only became the political victim so much so that the Audit Report submitted by the Internal Auditor exonerated the said respondent No. 5. The respondent No. 4 stated that on the strength of the High Court order dated 11.11.1998 passed in Civil Rule No. 6001/97, the Director of Higher Education, Assam, passed an order withdrawing the approval to the resolution adopted by the Special Body on 25.12.1996, accorded on 6.2.1997, which resulted in revocation of the suspension order and on the strength of the said order, the respondent No. 5 assumed his chiarge as Principal of the College on 12.12.1998 and is discharging his duty as Principal. The said statement was, however, clarified by the President by stating that after the stay order of the High Court in the writ appeal, the: Special Body took a resolution allowing the senior most teacher of the College to act as the Principal-in-Charge vide resolution dated 23.2.1999, which was subsequently approved by the Director of Higher Education; and the said senior teacher is acting as the Principal and Secretary of the College and taot the respondent No. 5.