WP(C) 2154/2011 BEFORE HON’BLE MR. JUSTICE AMITAVA ROY JUDGMENT & ORDER (CAV) The petitioner seeks to impeach the order dated 6.4.2011 passed by the Commissioner & Secretary to the Govt. of Assam, Education (Higher) Depart ment annulling the Resolutions dated 29.11.2009, 24.8.2010 and 19.11.2010 of the Governing Body of the Hamidabad College (for short, hereinafter referred to as ’the College’) and consequently allowing the appeals filed by the respondent No. 4 against the same. An appropriate writ has also been sought for restraining the official respondents from foraying into the affairs of the College. A direction to allow him to continue as the in-Charge Principal of the institution in terms of his appointment order dated 29.11.2009 by the Governing Body of the College has also been sought for. 2. I have heard Mr AS Choudhury, Senior Advocate assisted by Mr IH Saikia, Advocate for the petitioner; Mr MK Choudhury, Senior Standing Counsel, E ducation Department for the State respondents; Mr PK Roy Choudhury, Advocate for the respondent No.4 and Mr N Choudhury, Advocate for the respondent No.5. 3. The rival pleadings, briefly though, are indispensable to sketch the backdrop of facts. According to the petitioner, he was appointed as a Lectu rer in Political Science of the College by the Governing Body thereof vide order dated 7.11.2000. The respondent No.4 was also appointed by the Governing Body a s a Lecturer in Mathematics by order dated 16.8.96. He was, thereafter, allowed to work as in-Charge Principal vide order dated 5.3.98. The petitioner has asser ted that the institution is a venture one and has not been provincialised till d ate. It is, thus, a private institution beyond the purview of the Assam Non-Gove rnment College Management Rules, 2001 (for short, hereinafter referred to as ’th e Rules’). The petitioner has averred on oath that this College does not receive deficit Grants-in-Aid or ad-hoc Grants-in-Aid as contemplated under Rule 1(3) o f the Rules. Though it is in receipt of financial assistance from the Government , the same is not demonstrative of its status as an institution governed by the Rules. The Governing Body of the College vide its Resolution No. 3 dated 29.11. 2009 relieved the respondent No.4 of the responsibility of the office of the Pr incipal of the institution on the ground of corruption, misappropriation of coll ege funds etc. and by a separate Resolution of the same date appointed the petit ioner as the in-Charge Principal of the institution. The petitioner, accordingly , assumed the new responsibility and has asserted that he is continuing with the said assignment since then till date. 4. The respondent No.4 meanwhile being aggrieved by his ouster from the office of the Principal of the College instituted Title Suit no. 476/2009 i n the Court of Munsiff No.1, Dhubri but though endeavoured by him, the learned C ourt did not grant any injunction as sought for. He also instituted WP(C) No. 21 1/2010 before this Court seeking interference with the order dated 29.11.2009 an d also a direction to the Additional Chief Secretary, Govt. of Assam, Higher Edu cation Department to dispose of his representation dated 21.12.2009 laid before him. WP(C) No. 211/2010 was disposed of on 11.1.2010 by this Court leaving the r espondent No.4 at liberty to file a fresh appeal on the issue before the Governm ent and directed the Secretary to the Govt. of Assam, Education (Higher) Departm ent to dispose of the same within a period of six weeks. The respondent No.4, in view of this development, thereafter filed a petition for withdrawal of the civ il suit but as he did not press the same, the suit was dismissed for default on 26.2.2010. 5. The Deputy Secretary to the Govt. of Assam, Education Department , however, forwarded the appeals dated 21.12.2009 and 12.1.2010 of the responden t No.4 to the Director of Higher Education, Assam for disposal. According to the petitioner, the aforementioned authority thereafter required him to submit the old Governing Body’s records. As those were not in his custody, he along with Sr i Satindra Naraya Das, President of the Governing Body appeared before the said authority and acquainted him with their inability. The Director of Higher Educat ion, Assam thereafter by order dated 23.7.2010 allowed the respondent No.4 to co ntinue to act as the in-Charge Principal of the College. According to the petiti oner, before passing such order neither he nor the President of the Governing Bo dy was heard. The Governing Body of the College, however, by its Resolution date d 31.7.2010 allowed the writ petitioner to continue as the in-Charge Principal o f the College noting inter alia the fact that the respondent No.4 had allegedly misappropriated an amount of Rs. 15,00,000/- from the college funds and that in connection therewith Fakirganj P.S. Case No. 67/10 under Section 406/ 408/420/ 4 68/506 IPC was pending against him. Meanwhile, however, the Director of Higher E ducation, Assam initiated Fakirganj P.S. Case No. 59/2010 under Section 409 IPC against the present authorities of the College as well as the respondent No.4 fo r the loss of records of the proceedings of the old Governing Body. In that case the police after investigation submitted a report holding only the respondent N o.4 responsible qua the allegation. The petitioner has asserted that since after 29.11.2009 the respondent No.4 has abandoned the College and though repeated no tices had been issued to him by the Governing Body, he has deliberately avoided the same. In the above premise, being faced with the order dated 23.7.2010 of th e Director of Higher Education, Assam, the petitioner approached this Court with WP(C) No. 4497/2010 and this Court by its order dated 13.8.2010 interfered ther ewith and directed him and the respondent No.4 to approach the Secretary to the Govt. of Assam, Education (Higher) Department. The aforementioned authority was thereby directed to dispose of the appeal of the respondent No.4 within a period of two months after affording opportunity of hearing to both the petitioner and the respondent No.4. 6. While the matter rested at that, vide Resolution dated 24.8.2010 of the Governing Body of the College, the respondent No.4 was placed under susp ension on the charge of unauthorized absence from duty since 30.11.2009 and misa ppropriation of college funds. Alleging that the concerned authority was out to dispose of the appeal of the respondent No.4 without affording reasonable oppor tunity of hearing to him, the petitioner instituted WP(C) 5018/2010 and during t he pendency of the this proceeding, the Additional Chief Secretary to the Govt. of Assam, Education Department passed the order dated 9.9.2010 allowing the appe al. WP(C) 5420/2010 was filed by the petitioner challenging this order. 7. The petitioner has alleged that on 17.9.2010, inspite of the or der of status-quo passed in WP(C) 5018/2010, the respondent No.4 forcefully occu pied the office of the Principal of the College for which the petitioner lodged an FIR on the basis of which Fakirganj P.S. Case No. 140/2010 under Section 143/ 147/148/149/ 542/325/506/294/380 IPC was registered. In this background though t he Governing Body of the college on 18.9.2010 resolved that the petitioner would continue to be the in-Charge Principal of the College, the respondent No.4 by deploying goons and his cohorts prevented the petitioner by show of force from e ntering the College premises. 8. Whereas, thereafter by order dated 9.11.2010 this Court disposed of WP(C) 5018/2010 and WP(C) 5420/2010, thus, interfering with the order dated 9.9.2009 passed by the Additional Chief Secretary, Govt. of Assam, Education Dep artment, the Governing Body of the College by is Resolution dated 18.11.2010 ter minated the services of the respondent No.4 as a Lecturer of the institution. Th e impugned order dated 6.4.2011 was thereafter passed in purported compliance of the order dated 9.11.2010 passed by this Court. According to the petitioner, th ereby the concerned State authority disposed of the appeals dated 12.1.2010, 15. 11.2010 and 9.12.2010 filed by the respondent No.4 in patent disregard and non-c ompliance of the order dated 9.11.2010. 9. The respondent No.3, the Director of Higher Education, Assam has endorsed the application of the provisions of the Rules to the College. The ans wering respondent has pleaded that the institution has been granted financial as sistance construable as ad-hoc Grants-in-Aid since the year 2007 and, therefore, it squarely comes within the purview of the Rules. With profuse reference to th e observations made in the order dated 6.4.2011, the said authority affirmed the validity thereof in toto. The respondent asserted further that the Governing Bo dy of the College had been constituted by the then Director of Higher Education, Assam as per the power conferred under Rule-3. The answering respondent, howev er, referred to certain irregularities recorded in the report of the Audit Depar tment vis-à-vis the accounts of the College for the period 1.4.2006 to 31.3.2009 . It was stated that an amount of Rs. 5,48,684/- had been received by the Colleg e as financial assistance and though the amount was drawn and credited in the Ge neral Fund Account but not recorded in the General Fund Cash Book, yet, the same was not utilized for the purpose for which the same had been sanctioned. 10. In his counter, the respondent No.4 while maintaining that his i nitial appointment on 16.8.96 as Lecturer in Mathematics in the College had been by the Secretary of the Sponsoring Body, has reiterated the factum of receipt o f financial assistance by the College since 2006 from the Government making it s ubject to the provisions of the Rules. Referring to an Office Memorandum dated 9 .6.2005 the answering respondent has insisted that financial assistance, deficit Grants-in-Aid or ad-hoc Grants-in-Aid are synonymous and that the Government un der the Rules has the power to control and manage the affairs of the institution . A decision of a Division Bench of this Court rendered on 21.6.2010 in W.A. No. 181/2010 has also been referred to. According to the answering respondent, the Resolution dated 29.11.2009 of the Governing Body was non-est having been taken by a Body the term whereof had expired on 9.10.2009. While stoutly denying the a llegation of corruption and misappropriation of college funds levelleled against him, the answering respondent insisted that he had been discharging his duties as in-Charge Principal of the College with effect from 13.4.2011 uninterruptedly . He denied the receipt of any notice from the Governing Body of the College and also questioned the legality of the Resolution dated 24.8.2010 of the Governing Body for want of quorum. He maintained that the order dated 9.9.2010 passed by the Director of Higher Education, Assam was valid as the petitioner avoided pers onal hearing inspite of opportunity therefor being afforded to him. He also alle ged the petitioner’s absence from the College from 17.9.2010 to 13.11.2010 and a lso charged him with the act of fabrication and manufacture of the Resolution da ted 27.10.2010. According to him, the impugned order dated 6.4.2011 is valid and that the Resolutions dated 19.11.2009, 24.8.2010 and 19.11.2010 had been rightl y interfered with. 11. The respondent No.5, Governing Body of the College, in its affid avit affirmed by its President Sri Satindra Narayan Das has assailed the tenabil ity of the order dated 6.4.2011 being not based on records. The respondent has a sserted on oath that the relevant Proceedings Book had been produced before the Commissioner & Secretary to the Govt. of Assam, Education (Higher) Department an d his attention was also drawn to the relevant Resolutions at the time of hearin g of the appeal. But the same were lost sight of while passing the impugned orde r. The deponent ratified the Resolutions involved and maintained that the requir ed number of members of the Governing Body were present in the concerned proceed ings. Referring inter alia to the Resolution dated 17.1.2010 of the Governing Bo dy, the answering respondent held the respondent No.4 liable for an amount of Rs . 16, 48, 219/-which he was asked to refund but to no avail. The deponent referr ed to G.R. Case No. 67/2010 under Section 406/408/420/468/506 IPC stemming from the FIR that was lodged with the Fakirganj Police Station in connection therewit h. The Resolution dated 24.8.2010, according to this respondent, was also validl y passed in a meeting having the required quorum after taking serious note of th e acts of insubordination, indiscipline and unauthorized absence of the responde nt No.4 for a long period. The Resolution dated 18.11.2010 terminating the servi ces of the respondent No.4 was also insisted to be valid and warranted in the fa cts and circumstances. The respondent has maintained as well that the respondent No.2, Commissioner & Secretary to the Govt. of Assam, Education (Higher) Depart ment had acted without jurisdiction in entertaining the appeals of the responden t No.4 against the Resolutions dated 24.8.2010 and 18.11.2010 on the basis of wh ich the order of termination dated 19.11.2010 had been passed/ issued. 12. Mr. Choudhury has insistently argued that the College being unmi stakably a private institution, the Rules are not applicable to it and, therefor e, as the departmental authorities have no jurisdiction over its internal affair s, the impugned order is liable to be interfered with on that count alone. Accor ding to him, the College is neither provincialised nor are the posts therein san ctioned by the Government and that, therefore, receipt of financial assistance b y it per se does not render it to be a Non-Government institution within the con templation of the Rules. Apart from contending that the impugned order is not in conformity with the directions of this Court and that it deals with the appeals / representations of the respondent No.4 beyond the one dated 12.1.2010, the lea rned senior counsel has urged that the respondent No.4 following the withdrawal of the in-charge arrangement in his favour vide the Resolution dated 29.11.2009 had not only abandoned the College, but was also implicated in serious allegatio n of misappropriation of institutional funds. The tenability of the impugned ord er dated 6.4.2011 has also been questioned on the ground of non-consideration of the relevant records produced on behalf of the Governing Body at the hearing. A ccording to Mr Choudhury, the findings are, thus, perverse. He has further urged that as the Resolution dated 24.8.2010 dealt with by the impugned order is inde pendent of the one dated 29.11.2009, the purported ground of interference therew ith (Resolution dated 24.8.2010) is non-existent. In support of his contentions, the learned senior counsel has placed reliance on the decisions of this Court i n Saleha Begum -vs- State of Assam & Ors., 2006 (1) GLT 86, Moinul Hoque -vs- St ate of Assam & Ors., 2008 (3)GLT 481; Mubarak Hussain -vs- State of Assam & Ors. , 2008 (1) GLT 615 and W.A. No. 227/2010 (Ali Hydar -vs- State of Assam & Ors. ). 13. The learned senior Standing Counsel, Education Department, Govt. of Assam per contra has urged that as admittedly the College is in receipt of f inancial assistance from the Government and is affiliated to the Gauhati Univers ity, it is a Non-Government College within the meaning of the Rules which are, t hus, applicable to it. Mr Choudhury has sought to draw sustenance to this plea f rom the determination made by a Division Bench of this Court in W.A. No. 181/201 0 (Afzalur Rahman -vs- State of Assam & Ors.). According to him, as all relevant aspects of the controversy have been duly considered by the concerned departmen tal authorities in conformity with the directions of this Court, the impugned or der dated 6.4.2011 is unassailable. 14. Mr. Roy Choudhury appearing for the respondent No.4 while endors ing the stand taken on behalf of the official respondents has urged that in view of the decision of this Court bearing on the plea of applicability of the Rules as contained in the order dated 9.11.2010 in WP(C) Nos. 5018/2010 and 5420/2010 , the petitioner’s cavil on this count is clearly misconceived. Affirming that the relevant Proceedings Book had not been produced by the Governing Body and th at its Resolution dated 29.11.2009 is clearly without jurisdiction for want of q uorum, the learned counsel has maintained that the impugned order is valid in al l respects and does not warrant any interference. 15. The learned counsel for the Governing Body, respondent No.5, how ever, has denounced the impugned order contending that the same had been passed in utter disregard to the relevant records and the Proceedings Book laid before the concerned departmental authority. According to Mr Choudhury, not only the Go verning Body at all relevant times had been a validly constituted one, the meeti ngs were held with the quorum as prescribed by Rule-16 of the Rules. As the impu gned order has been passed on a total non-consideration of these vital factual a spects, it is per se void, he pleaded. Mr Choudhury also laid before this Court the Proceedings Book of the Governing Body containing the minutes of its meeting s held during the period 9.1.2010 to 30.1.2011. 16. The pleadings available and the arguments advanced have been dul y considered. That the College is affiliated to Gauhati University and that it i s in receipt of financial assistance from the Government since 2007 are matters of records. The assertion made on solemn affirmation that the Governing Body of the College had been constituted by the Director of Higher Education, Assam in t erms of the Rules has not been successfully overturned by the petitioner. Though Mr Roy Choudhury had referred to the order dated 9.11.2010 in WP(C) 5018/2010 a nd WP(C) 5420/2010 as above in this regard, a perusal thereof reveals that the a spect of applicability of the Rules as such had not been examined therein. The o rder dated 28.7.2010 passed by a Division Bench of this Court in Md. Ali Hydar ( supra) is of no avail to the petitioner vis-à-vis this aspect of the lis. The is sue therein was whether a venture school in the nature of a private institution receiving financial assistance could be construed to be a State or an authority within the meaning of Article 12 or Article 226 of the Constitution of India and , thus, amenable to writ jurisdiction. While answering in the negative, their Lo rdships noticed the submission that the school had been recognized by the State Government and was discharging a public function by imparting education. The wri t petition filed against the school was held to be not maintainable. 17. In contradistinction, in Afzalur Rahman (supra), the writ appell ant had challenged an order passed by the Director of Higher Education, Assam re constituting the Governing Body of Jaleshwar College under the provisions of the Rules. While rejecting his contention that the financial assistance received by the College from the Government was not same as ad-hoc grant so as to make the provisions of the Rules applicable thereto, their Lordships sustained the view t aken by the learned Single Judge that the nomenclature of the grant would not be decisive and that having regard to the duration of the receipt of such assistan ce, the same ought to be construed as ad-hoc grants from the Government. The pro visions of the Rules were held to be applicable thereto. Though the fact that th e appellant therein was himself a beneficiary of an order of the Director of Hig her Education, Assam being appointed as the President of the Governing Body earl ier was also taken note of, the view taken on the applicability of the Rules on the consideration of receipt of financial assistance is apparently not condition al thereon. 18. The documents on record further reveals that by letter No. B(2)H .22/2001/61 dated 25.1.2001 of the Deputy Secretary to the Govt. of Assam, Educa tion (Higher) Department the concurrence of the Government to the permission/ af filiation to the College was conveyed. Not only the uninterrupted receipt of fin ancial assistance by the College has also been recorded in the impugned order da ted 6.4.2011, the Cabinet Memorandum (Annexure-8 to the affidavit-in-opposition of the respondent No.4) on the issue, amongst others, reflects the view of the F inance Department of the State that the same is in the nature of ad-hoc Grants-i n-Aid signifying that the institutions therefor were contemplated to be treated as deficit Grants-in-Aid institutions. That the Governing Body of the College wa s constituted under the Rules is inter alia evident from the letter No. PC/HE/Co l.26/2005/144 dated 18.5.2007 of the Director of Higher Education, Assam (Annexu re-9 to the affidavit-in-opposition of the respondent No.4) whereby the institut ion was required to submit necessary proposal in that regard. The Governing Body of the College in fact was thereafter constituted under the Rules vide order No . G(B)GB dated 31.5.2007 of the Director of Higher Education, Assam with Aftab U ddin Mollah as the President thereof for a period of three years. 19. Whereas Rule 1(3) makes the provisions thereof applicable to Non -Government Colleges of Assam affiliated by any Central or State University of A ssam and in receipt of deficit Grants-in-Aid or ad-hoc Grants-in-Aid from the St ate Government, Non-Government College has been defined thus:- 2.(g) Non-Government College means the Colleges for imparting Higher educatio n in the Post-secondary courses, established and situated in Assam, affiliated b y any Central or State University of Assam and receiving the concurrence of the State Government 20. Rule-3 enjoins that every Non-Government College affiliated to a ny Central or State University of Assam and duly concurred by the State Governme nt shall be governed by a Governing Body to be constituted by the Director of Hi gher Education, Assam. While Rule-6 permits the State Government to take over th e control and management of a Non-Government College in the event of mismanageme nt of its affairs, the Secretary of the Governing Body thereof is made responsib le under Rule-8 to report to the Director about any deviation of financial norms and procedures or any loss of assets of the College immediately whenever it com es to his notice. In terms of Rule-14, the minutes of the proceedings of the mee ting of the Governing Body have to be recorded in the ’Proceedings Book’ by the Secretary and signed by all the members present. Rule-16 prescribes the quorum t o be of seven members of the Governing Body for its meetings. 21. Having regard to the framework of the Rules as above, the pleadi ngs of the parties and the decision rendered in W.A. No. 181/2010 (Afzalur Rahma n -vs- State of Assam), this Court is of the unhesitant opinion that the provisi ons of the Rules are applicable to the College. 22. Before adverting to the facet of the validity or otherwise of th e Resolutions, it would be apt to take note of the amendment to the Rules introd uced in 2009. Thereby, with the amendment of Rule-18 appeal against any action o f the College concerned was preferable before the appropriate authority of the G overnment. In that view of the matter, the respondent No.4 was within his right under the Rules to prefer appeal also against the Resolutions dated 24.8.2010 an d 19.11.2010 of the Governing Body of the College with the Government. No infirm ity with the impugned order dated 6.4.2011 can be ascribed on this count, such a venue being permissible under the Rules as amended. 23. That by the Office Memorandum No. AHE.331/2008/33 dated 9.7.2009 the then existing Governing Bodies of the Colleges within the purview of the Ru les had been dissolved but were permitted to discharge their functions till a ne w President thereof was appointed or for three months, whichever was earlier is a matter of record and not disputed. As noticed