WP(C) 4738/2008 BEFORE THE HON’BLE MR. JUSTICE RANJAN GOGOI IN THE GAUHATI HIGH COURT (The High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Aru nachal Pradesh ) WRIT PETITION (C) NO. 4738 OF 2008 1. Shri Wazed Ali Choudhury, Son of Late Kashem Ali Bepari, Resident of Ward No.6, P.O. Dhubri, Dist. Dhubri, Assam. 2. Shri Samsul Huda, Son of Late Haji Taleb Ali Zoddar, of Village - Hatipota Part-II, P.O. & P.S. Bilasipara, District - Dhubri, Assam. 3. Smti Mazeda Khatun, Wife of Sadek Ali of Ward No.14, P.O. & P.S. Bilasipara District Dhubri, Assam. (All the above persons have common Cause of action and common interest) & & & &.PETITIONERS -VERSUS- 1. The State of Assam (Represented by the Principal Secretary to the Govt. of Assam, Education (Higher ) Department, Dispur, Guwahati-06). 2. The Director of Higher Education, Assam, Kahilipara, Guwahati - 19. 3. The Bilasipara College, P.O. Bilasipara, Dist. Dhubri, Assam. (Represented by the Secretary/Principal of the above College). 4. Shri Anowar Hussain President of the Governing Body, Bilasipara College, Bilasipara, P.O. Bilasipara, Dist. Dhubri, Assam. &..RESPONDENTS P R E S E N T THE HON’BLE MR. JUSTICE RANJAN GOGOI For the petitioner : Shri A.M. Mazumdar, Advocate. For the respondents : Mr. MR Pathak , Standing Counsel, Education Department. Mr. A.K. Goswami, Advocate. Date of hearing : 2.12.2008 Date of Judgment and : 5.12.2008 Order JUDGMENT AND ORDER (CAV) The challenge in the present writ petition is against an order d ated 11.11.2008 passed by the Director of Higher Education, Assam, reconstitutin g the Governing Body of the Bilasipara College in Dhubri District with the Respo ndent No.4 as the President. 2. The brief facts, which will be necessary to be noticed for the p resent adjudication, may be set out hereunder. According to the petitioners, on completion of the tenure of the earlier Governing Body of the College on 18.4.2008, acting on the basis of a pr oposal submitted by the Secretary/Principal of the College, the Director of High er Education, by order dated 21.7.2008 had reconstituted the Governing Body of t he College for a period of three years with the petitioner No.1 as the President . The petitioners have stated that, for reasons extraneous, by a subsequent orde r dated 24.7.2008, the order dated 21.7.2008 constituting the Governing Body was kept in abeyance. However, the said order was vacated on 23.10.2008. Consequent ly, the Governing Body constituted by the order dated 21.7.2008 became entitled to function. However, in order to preempt the Governing Body from so functioning , the Respondent No.4, who is a Member of Loka Sabha, had approached the Hon’ble Chief Minister of the State for necessary intervention. The petitioner has furt her stated that on such intervention, by impugned order dated 11.11.2008, the Go verning Body was reconstituted once again with the Respondent No.4 as the Presid ent of the said Body. Contending that the said constitution made by the order da ted 11.11.2008 is grossly illegal and is purely guided by extraneous and irrelev ant considerations, this writ petition has been filed. 3. The writ petition having been entertained and interim order havi ng been passed, the Respondent No.4 appeared and filed a Miscellaneous Applicati on being MC No.3199 of 2008 for vacation of the interim order of this Court date d 12.11.2008. The Court, upon due consideration of the aforesaid interim prayer, was inclined to take the view that, instead, the writ petition itself should be heard. Accordingly, the learned Standing Counsel, Education was directed to pla ce before the Court the records in original, which has been so done. As the coun sels for the contesting parties have consented to the disposal of the writ petit ion at the admission stage, the Court is proceeding to pass final orders in the writ petition. 4. Shri AM Mazumdar, learned senior counsel for the petitioners and Shri AK Goswami, learned senior counsel appearing for the Respondent No.4 have been heard. Shri MR Pathak, learned Departmental Counsel has also been heard. Th e records in original placed before the Court by Shri Pathak have been duly cons idered. 5. From the records placed before the Court it has become clear tha t in the matter of constitution of the Governing Body of the College for the fre sh term, the Principal of the College had submitted two proposals to the Directo r of Higher Education. The first recommendation was made to the effect that the Governing Body should be constituted with one Shri Abdul Hamid, ex-MP as its Pre sident. The second recommendation was to the effect that it is the petitioner No .1, Shri Wazed Ali Choudhury, who should be allowed to be the President of the G overning Body. Around the same time, the teachers of the College submitted two p roposals before the Director of Higher Education for constitution of the Governi ng Body with the Respondent No.4 as the President. The aforesaid two proposals o f the teachers’ Association were submitted through the Minister of Food and Civi l Supplies and the Minister of Agriculture, respectively. 6. The records perused by the Court further reveal that on 28.5.200 8, the Departmental Minister i.e. Minister of Education approved the constitutio n of the Governing Body of the Bilasipara College with the Respondent No.4 as th e President. At this stage, the petitioner No.1 submitted a proposal before Parl iamentary Secretary of the Education Department for constitution of the Governin g Body by nominating him i.e. the Petitioner No.1, as the President. However, Pa rliamentary Secretary passed orders in the file that necessary notification shou ld be issued constituting the Governing Body as approved by the Departmental Min ister on 28.5.2008 i.e. by nominating the Respondent No.4 as the President. This was on 26.6.2008. While a draft notification was being prepared, the file was c alled back by the Parliamentary Secretary on 2.7.2008 and, once again, the Parli amentary Secretary directed the Director of Higher Education to issue the necess ary notification as earlier ordered. At this stage, the petitioner made an appro ach to the Minister of Higher Education, through the Minister of Revenue, wherea fter the notification dated 21.7.2008 was issued constituting the Governing Body with the petitioner No.1 as the President. However, on 24.7.2008, the file was once again called back by the Minister, Education, who directed that the order d ated 21.7.2008 should be kept in abeyance. Accordingly, the order of the Directo r dated 24.7.2008 was issued. Thereafter, on 22.10.2008, the Minister Education directed that the order dated 24.7.2008 keeping the earlier order dated 21.7.200 8 in abeyance should be vacated by the Director. Accordingly, the Director by th e order dated 23.10.2008 vacated his earlier order dated 24.7.2008. 7. The records in original also reveal that on 24.10.2008, a note/s lip was written by the Education Minister to the effect that that the Hon’ble Ch ief Minister of the State desired that the Respondent No.4 should be the Preside nt of the Governing Body. On the basis of the aforesaid note/slip of the Departm ental Minister, the file was once again placed before him and orders were passed on 5.11.2008 for reconstitution of the Governing Body with the Respondent No.4 as the President. Thereafter, on 11.11.2008, the impugned order/notification has been issued. 8. The constitution of the Governing Body of Bilasipara College, a provincialised College, admittedly, is governed by the provisions of the Assam N on-Government College Management Rules, 2001. Rule 3 makes it clear that the Dir ector of Higher Education is the competent authority under the Rules to constitu te the Governing Body. Rule 4(iii) of the Rules further provide that at the time of constitution of the Governing Body of the College, the Director of Higher Ed ucation shall nominate one member to be the President of the Governing Body. The Rules in question admittedly are not statutory in character, even though the sa me govern the provincialised Colleges in addition to the Non-Government College. Even proceeding on the basis that the Rules do not have a statutory character, what cannot be ignored is the fact that certain norms and guidelines have been l aid down in the Rules by the Government itself to guide all matters pertaining t o provincialised and non-Government Colleges including matters pertaining to the constitution of the Governing Body. If norms have been laid down by the Governm ent itself, surely, there cannot be any dispute that the same should be followed and departure therefrom, if any, has to satisfy the test of being necessary in public interest and for the good administration of the College. 9. In the present case, as the records have revealed, interference of political functionaries in the matter of constitution of the Governing Body o f the College has been rampant, right from the stage of submission of proposals to the final decision taken. At every stage of the decision making process, inte rference with the discretion of the Director, who is the only recognized authori ty under the Rules, has been forthcoming in an abundant measure. The decision ma king process, therefore, has been inconsistent and contradictory. The initial de cision to constitute the Governing Body with the Respondent No.4 as the Presiden t stood superceded by the subsequent decision leading to the notification dated 21.7.2008 by which the petitioner No.1 was nominated as the President. The said decision was kept in abeyance whereafter, the matter was reviewed and the notifi cation dated 21.7.2008 was allowed to come into operation. Soon thereafter, at t he intervention of the Respondent No.4, the position was altered and the impugne d notification date 11.11.2008 has been issued with the Respondent No.4 as the P resident of the Governing Body. None of the aforesaid decisions, which kept on c hanging from time to time, indicate the reasons therefor. In the absence of any such reason all such decisions including the one leading to the impugned order dated 11.11.2008 have to be understood by the Court to be for extraneous and col lateral reasons. The authority contemplated by the Rules to be responsible for t he constitution of the Governing Body is the Director. Strangely, the records in dicate that the Director has been reduced to a cipher and it is other authoritie s, at different levels, that had taken the decision and had compelled the Direct or to issue the different notifications from time to time, including the impugne d notification dated 11.11.2008. 10. All the aforesaid facts can point to only one conclusion. The im pugned notification dated 11.11.2008 which is presently holding the field has be en issued by the Director at the dictates of his political superiors. The decisi on in question is not a well formed decision of the Director acting in his best judgment, which is what has been contemplated under the Rules. The Court, theref ore, is of the view that the impugned order/ notification dated 11.11.2008 shoul d be set aside leaving it open for the Director to reconstitute the Governing Bo dy of the College in his best judgment and being uninfluenced by any dictate(s) from any source, how high the same may be. It is, therefore, ordered accordingly . The Director will act forthwith in the matter. 11. The writ petition shall stand disposed in the above terms.