Z U AHMED Vs. G M SADIQ

JUDGEMENT

(1.) THIS is a writ petition by Dr. Z U. Ahmed against the Board of Governors of the Regional Engg. - College, Srinagar who are 12 in number. There are two more respondents who are the Agent, State Bank of India Srinagar and the Manager National and Grindlays Bank, Srinagar. The petitioner was appointed as first Principal of the College in the year 1959 by order of the Government of Jammu and Kashmir vide order No 565 -C of 1959 dated 23rd Nov. 1959. The term of appointment of the Principal was five years initially but if found physically fit at the end of the five years} he had to continue as Principal till he attained the age of 60 years. The Regional Engineering -College was registered under the Societies Registration Act on 1 -4 -1960 vide certificate No. 44 issued by the Registrar Joint Stock Companies. The petitioner continued as its Principal till the year 1966 when some charges of corruption, as defined in the Prevention of Corruption Commission Act of 1962, were brought against him and he was charge sheeted by the Anti -Corruption Commission of the State, and placed under suspension by the Government of Jammu and Kashmir on 3 -3 -1966. The petitioner filed a writ petition in the High Court challenging the jurisdiction of the Anti -Corruption Commission to hear the case against him and at the same time challenging the order of suspension passed by the State Government. This writ petition was accepted by a Division Bench of this Court by its order dated 15th May 1967 the proceedings against the petitioner before the Anti -Corruption Commission were quashed and the order of suspension passed against the petitioner by the State Government also was quashed. In pursuance of that order the petitioner straight went to the Regional Engineering College and there assumed the charge of the Principal which he was holding before the proceeding against him had started, relieving Mr. Moonis Raza who was working as the Principal then .The petitioner sent letters of the resumption of his charge to the respondent No. 1 who is the Chairman of the Board of Governors of the Regional Engineering College and other authorities and began to function as the defacto Principal of the institution. On 18th of May 1967 the respondent No. 1, G. M. Sadiq the Chairman of the Board of Governors sent a letter to the petitioner which is Annexure A to Mr. Sadiqs affidavit informing the petitioner that it was not possible for the Chairman to disturb the present arrangement i.e. the continuance of Mr. Moonis Raza as the Principal of the College and the case of the petitioner would be placed in the meeting of the Board of Governors which was scheduled to be held on 25 -5 -1967. This letter is No: 5375. The petitioner therefore moved the present writ petition on 23rd of May 1967 but after the respondents put in their objections the petitioner put in a detailed petition on 3 -10 -1967. The contents of the petition as amended are that he was lawfully appointed as the Principal of the College and after the acceptance of his earlier writ petition by the High Court, he was relegated to his previous petition i.e. Principal ship of the College. He actually worked as Principal for four days from 15th of May 1967 to 18th of May 1967. On his rejoining Mr. Moonis Raza, who was working as the Principal, handed over the charge of the Principal ship to the petitioner in pursuance of the judgment of the High Court. The Chairman had no power to issue the letter of 18th May 1967 which was received by the petitioner on the 19th of May 1967. He could exercise only such powers as were delegated to him by the Board of Governors. The petitioner was the rightful Principal as also Ex -Officio member -cum -Secretary of Board of Governors. No meeting could be held without notice to him and without permitting him to work as member Secretary of the same. The Board of Governors had no power to suspend the petitioner because there was no power in the Board to suspend the petitioner. It was not a term of his service and there was no other post equivalent to the post of the Principal in the College. The Bye laws adopted by the Board of Governors were of doubtful legal consequence. Mr. Moonis Raza had re -languished his Principalship in favour of the petitioner and therefore once the petitioner had assumed his charge, as the Principal of the College, Mr. Moonis Raza could not continue as its Principal The presence and participation of Mr. Moonis Raza in the meeting of 25th May 1967 was un -authorsied, the whole meeting was unconstitutional and illegal. About the proceeding that took place on 25th of May 1967 three different versions were conveyed to the petitioner. The Chief Secretary Mr. Dave had made certain suggestions but they were ultimately not adopted. Even in the meeting Mr. G. H. Khan had dissented from the decision which was intended to be taken and ultimately taken by the Board of Governors. Out of 12 members only 6 were present of whom some were officials of the Government of Jammu and Kashmir of which respondent No. 1 was the Chief Minister. The order of suspension of the petitioner besides being illegal on other grounds was no proper because the petitioner was given no hearing before the other was passed. The Chairman had not been given any powers to take any such action against the petitioner as proposed by him The action of the Board of Governors taken in its meeting of 25th of May 1967 vis -a -vis the petitioner was a direct disregard of the order passed by the High Court and even amounted to gross contempt of the same. The petitioner therefore sought the following reliefs by means of this present petition: -

(2.) IN this writ petition respondent No. 1 Mr. G. M. Sadiq, the Chairman of the Board of Governors has put in two affidavits, one in reply to the original petition and the other in reply to the amended petition of the petitioner. The first affidavit of respondent No. 1 is dated 23 -9 -1967 and the second 19 -11 -1967. This affidavit was adopted by Mr. Moonis Raza respondent No 12, Mr. G. K. Chandiramani, Addl. Educitional Secretary Government of India, respondent No. 3 by means of their affidavits dated 19 -11 -1967 and 30 -10 -1967 respectively. Messrs G. H, Khan respondent No. 11 and Mr. D. Swarup respondent No 8 by means of their affidavits dated 23 -9 -1967 and 19 -7 -1967 respectively supported the petition of the petitioner. The petition is opposed by the majority of the Board of Governors. The main objections to the petition of the petitioner by the contending respondents are contained in the affidavits of Mr. G. M. Sadiq respondent No. 1. The substance of the objections raised is that the Board of Governors is, a non -statutory autonomous body and therefore not amenable the writ jurisdiction of the High Court. The petitioner was not validly appointed. The appointment of the petitioner was contractual and therefore no writ can lie for any alleged breach of the contract on the part of the Board of Governors. The Board of Governors is a registered society registered under the Societies Registration Act. The Principal is the ex -officio/ member Secretary but his absence from a meeting cannot make the proceedings of that meeting illegal. The Board of Governors was no party to the previous writ petition of the petitioner and therefore the judgment passed in that petition is not binding on them. The employment of the petitioner was of a private nature which was to remain, in existence for five years and after that there were other conditions contained in the original order of appointment of 1950 vide Govt. Order 565 -C. He had to be physically fit and if there was to be nothing seriously wrong, the petitioner could be retained in service till he attained the age of 60 years. The petitioner did not even produce any certificate of his fitness as the initial term of five years had already expired on the date of the order of the High Court in the previous writ petition. Even if the proceedings before the Anti -corruption Commission had be enquashed by the High Court and his order of suspension by the State Government was quashed, the petitioner could not of his own resume the charge of the Principal of the College. He had to report to the Board of Governors. During the suspension of the petitioner, the Board of the Governors had appointed Mr. Moonis Raza as the principal by means of Resolution No. 10 dated 24 -6 -1966. The Chairman had received a letter of Mr. Moonis Raza intimating to him of the assumption of charge by the petitioner on 17 -5 -1967 but the respondent No. 1 had by his letter already referred to, dated 18th of May 1967 intimated to the petitioner that the existing agreement of Mr. Moonis Raza to continue as the Principal could not be disturbed. The petitioner had gone on leave from 5th of March 1966 to 10th March 1966 but he had remained away without any extension in leave. There was nothing wrong in convening the meeting on 25 -5 -1967, The petitioner knew of the said meeting, He did not attend the meeting. The Chairman had been authoritized by the Board to issue the letter dated 18th May 1967 Bye -laws under the Memorandum of Association and Rules had been passed by the Board of Governors after getting the same duly vested by the Government of India, on 8 -4 -1967. In pursuance of these bye -laws, the petitioner was placed under suspension and an enquiry into the allegations against him was directed to be held by Mr. W. V. Onk Joint Secretary, Ministry of Home Affairs Government of India. The petitioner could not assume the charge of the Principalship without reference to the Board of Governors. There was no contempt of the order of this Court dated 15th of May 1967 committed or intended to be committed by the Board of Governors. It was repeated a number of times in the objections that the Board of Governors was not a party to the previous writ petition and hence any judgment passed in that case was not binding on them.

(3.) WE have heard arguments of the learned counsel for the parties in this case and have given our careful consideration to the various arguments addressed and the law cited by the learned counsel for the petitioner. A preliminary objection has been raised on behalf of the contending respondents that this writ petition does not lie. This argument is baised on the following premises that the Board of Governors is an autonomous body governed by its own Memorandum of Association, Rules and Bye -laws, it is not as such amenable to the writ jurisdiction of the High Court. The service of petitioner in the Regional Engineering is of a contractual nature and therefore even if a breach is committed by the Board of Governors, about any term in the contract with the petitioner, that can not give the petitioner a locus standi to move the present writ petition. This proposition of law is a very important one and has come for consideration before courts of law in India in a number of cases. It can be very easily stated that the dicta of different courts are not unanimous on this point but certain general principles can safely be deduced from the various authorities even if apparently some of them are conflicting in nature. The petitioner has cited a number of cases in which it has been held that writs can be issued against corporation, registered bodies and even individual persons Some of the authorities relied upon by the petitioner may be mentioned as under: -