WP(C) 5420/2010 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. I.H. Saikia, learned counsel for the petitioner as well as Mr. M.R. Pathak, learned Standing counsel, Education Department. I have also heard Mr. N. Choudhury, learned counsel representing the Governing Body of the college as well as Mr. P. Pathak, learned Sr. counsel for the respondent No. 4. Both the writ petitions involving the same issue by and between the same parties have been heard together and are being disposed of by this common order. While the petitioner filed W.P.(C) No. 5018/2010 apprehending the adverse order pursuant to the particular ex-parte hearing conducted by the Commissioner and Se cretary to the Govt. of Assam in the Education Department, the second writ petit ion being W.P.(C) No. 5420/2010 has been filed assailing the order passed by the said authority pursuant to the said ex-parte hearing. The matter relates to the question as to whether it is the petitioner or the res pondent No. 4 should be allowed to continue as the Principal-in-Charge of the Co llege called Hamidabad College, Satsia, Dist. Dhubri. Both the parties had occasion to approach this Court invoking the writ jurisdict ion of this court by way of filing W.P.(C) No. 211/2010 (Anowar Hussain vs. Stat e of Assam and ors) and W.P.(C) No. 4497/2010 (Md. Shahadot Ali vs. State of Ass am and ors.). The writ petitions were filed challenging the action of the Govern ing Body of the college. In W.P.(C) No. 211/2010 the case of the respondent No. 4 was that the Governing Body of the college vide its resolution dated 29.11.09 had illegally withdrawn the power and function of the petitioner as In-Charge Pr incipal of the college. The writ petition was disposed of directing the authorit y to dispose of the appeal filed by the respondent No. 4. Pursuant to the said order, the Director of Higher Education, Assam passed Annex ure-7 order dated 23.07.2010 allowing the respondent No. 4 to continue temporari ly as the Principal In-Charge of the college. Being aggrieved, the present petit ioner approached this Court by filing W.P.(C) No. 4497/2010. The writ petition w as disposed of by order dated 13.08.2010 setting aside the aforesaid order dated 23.07.2010 passed by the Director of Higher Education, Assam with the direction to both the parties, i.e. the petitioner and the respondent No. 4, to approach the Secretary, Higher Education, Assam to pursue the particular appeal referred to in the order. It was provided that the said authority on receipt of the copy of the order would consider and dispose of the appeal by affording opportunity o f hearing to both the parties. Pursuant to the aforesaid order passed by this Court, the authority has disposed of the appeal by the impugned order dated 09.09.2010 which is quoted below: GOVERNMENT OF ASSAM EDUCATION DEPARTMENT ORDER BY THE GOVERNOR OF ASSAM NOTIFICATION Dated Dispur the 9th September, 2010 No. AHE. 297/2010/65: The Hon’ble High Court vide their order dated 13.08.2010 had directed the undersigned to dispose of the appeal Petition of Shri Anwar Hu ssain, Lecturer, Department of Mathematics of Hamidabad College, Satsia dated 12 .01.2010. Accordingly, Shri Anwar Hussain and Md. Shahadat Ali, i/c. Principal o f Hamidabad College had been called for hearing and the records pertaining to th e case in the Office of the D.H.E. have been examined. Both had appeared, Shri Anwar Hussain has been heard. Md. Shahadat Ali a ppeared but submitted a petition seeking adjournment of the hearing as he was no t allowed, to appear through an Advocate. He also stated that the had not receiv ed a copy of the appeal petition. He was told that this is an Administrative hea ring in which Advocates are not allowed. Accordingly adjournment of the hearing was not allowed. The requirement of giving a copy of the appeal petition is also not there, because the two sides are being heard for their individual cases. Ac cordingly, Md. Shahadat Ali was asked to present his case, but he did not do so. It is seen that Shri Anwar Hussain, respondent No. 4, had joined as Lect urer in the College on 16.08.1996. He was made Principal i/c on 05.03.1998. The present Principal i/c as well as Governing Body had been asked by the Director, Higher Education to produce the proceedings book of the Governing Body to see ho w the Resolutions had been passed in respect of the removal of Shri Anwar Hussai n. The proceedings book has not been produced by either of them and it was state d to be not available. The Director, Higher Education has filed an FIR with the local police station against the loss of the proceedings book of the Governing B ody. In the absence of the proceedings book, the same could not be examined to s ee how the decisions were taken. It appears from the letters received, that the Governing Body met under the Chairmanship of the former President Shri Aftabudd in Mollah on 29.11.2009 in which by Resolution No. 3 the Governing Body withdre w the charge of the Principal from Shri Anwar Hussain and Md. Shahadat Ali was m ade the i/c Principal. The Government had amended the Non-Government Colleges Management Rules in which the constitution of the Governing Body had been changed. With this chan ge the then existing Governing Bodies had been dissolved vide Office Memorandum No. AHE. 331/2008/33 dated 09.07.2009, but were allowed to discharge their funct ions till a new President of the Governing Body was appointed or for 3 months wh ich ever was earlier. Further, vide Notification No. AHE. 331/2008/37 dated 08.1 0.09 the Government did not extend the term of the existing President of the Gov erning Bodies wherever a fresh appointment had not been made, but had ordered th at the senior most nominated Member of the University in the Governing Body woul d function as President till a regular appointment is made. In terms of the this , the earlier President of the Governing Body held on 29.11.2009 is reported to have been held under the Chairmanship of the former President. This meeting, is therefore, without any legal sanctity and all resolutions passed therein are inv alid as Shri Aftabuddin Mollah was not the President of the Governing Body on th at date. The Resolution passed in that meeting removing Shri Anwar Hussain from the charge of Principal of the college is not therefore valid. In view of the above, the appeal filed by Shri Anwar Hussain, respondent No. 4, is allowed. The Resolutions passed by the Governing Body in its meeting dated 29.11.2009 be treated as invalid and may not be given effect. Sd/- Addl. Chief Secretary to the Govt. of Assam, Education Department Mr. I.H. Saikia, learned counsel for the petitioner upon reference to th e aforesaid impugned order submits that the appeal was disposed of without givin g an opportunity of being heard to the petitioner and thus on that count alone, the impugned order dated 09.09.2008 is liable to be set aside and quashed. Suppo rting the said contention, Mr. N. Choudhury, learned counsel representing the Go verning Body of the college submits that the authority ought to have heard the G overning Body as well, as it is the interest of the Governing Body which is invo lved in this case as the matter relates to the question as to who shall be allow ed to continue as Principal In-Charge of the college. Raising the question of maintainability of the writ petition, both Mr. M.R. Pathak, learned Standing counsel, Education Department and Mr. P. Pathak, l earned Sr. counsel representing the respondent No. 4, submits that the college b eing a privately managed one, the writ petition is not maintainable. Mr. P. Path ak further submits that the authority having passed the impugned order dated 09. 09.2010 strictly in terms of the direction of this Court, the petitioner cannot raise any grievance against the same. Countering the above argument regarding maintainability of the writ peti tion, Mr. Saikia, learned counsel for the petitioner submits that both the parti es including the respondent No. 4 having earlier invoked the writ jurisdiction o f this Court and consequential action including the impugned order dated 09.09.2 010 having been passed by the said authority and there being no objection from a ny side including the authority of the Education Department, the question of mai ntainability of the writ petition is not at all tenable. He further submits that since the petitioner is aggrieved by the order dated 09.09.2010 passed by the G ovt. of Assam in the Education Department, the writ petition is very much mainta inable. In this connection, he has placed reliance on the decision of the Apex C ourt reported in 1989 Suppl. (2) SCC 598 (Francis John vs. Director of Education and ors.) . In this decision determining the question of maintainability of the writ petition, the Apex Court noticing the fact that termination of service of the employee in question was pursuant to the approval given by the Director of Education, held that the writ petition was maintainable. In the instant case, as per the direction of this court passed in the af oresaid writ petitions, the authority in the Education Department has passed the order dated 09.09.2010. Now it does not lie on the mouth of the said authority to say that the writ petition is not maintainable. All the parties submitted to the jurisdiction of this court towards obtaining various orders and eventually t he impugned order dated 09.09.2010 has been passed pursuant to the order passed by this Court to which the parties involved in this proceeding were also parties . Considering all these aspects of the matter and more particularly the impugned order dated 09.09.2010 passed by the authority, I am of the considered opinion that the plea of non-maintainability of the writ petition is wholly misconceived . The impugned order dated 09.09.2010 has been quoted above on perusal of which it is abundantly clear that the petitioner was not afforded with the oppor tunity of being heard. This aspect of the matter was taken note by this Court wh en the writ petition being W.P.(C) No. 5018/2010 was entertained by order dated 17.09.2010. Having noticed the fact that the petitioner was not afforded with th e opportunity of being heard, this Court was inclined to pass the interim order directing the parties to maintain status quo with regard to the office of the Pr incipal of the college as was obtaining on the date of passing the order dated 1 7.09.2010. As reflected in the impugned order itself, the petitioner was not furnis hed with the copy of the appeal petition on which hearing took place. The reques t of the petitioner to be represented by an engaged counsel was also rejected. F urther, the prayer of the petitioner for adjournment of hearing was also rejecte d. That apart, the appeal was disposed of without hearing the Governing Body of the college. Although it was observed that the proceeding book was not produced by the parties, but the authority lost sight of the fact that the proceeding boo ks werre available only with the Governing Body of the college. For all the aforesaid reasons, I am not constrained to hold that the imp ugned order dated 09.09.2010 (Annexure-15) is per se illegal and cannot be susta ined. There was all round violation of the principles involving transparency, fa ir play and natural justice towards passing an administrative order. Situated th us, the said order dated 09.09.2010 stands set aside and quashed. Mr. N. Choudhury, learned counsel for the Governing Body of the college submits that the respondent No. 4 being absent from his duties w.e.f. 29.11.09, he has been placed under suspension by resolution dated 24.08.2010 adopted by th e Governing Body of the college. According to him in spite of such resolution th e respondent No. 4 has entered into the office of the Principal of the College on 17.09.2010 at 3:00 p.m. when there was an interim order dated 17.09.2010 pass ed in W.P.(C) No. 5018/2010 to maintain status quo with regard to the office of the Principal of Hamidabad College. On being asked as to how in spite of placin g the respondent No. 4 under suspension on 24.08.2010, he could continue as the Principal of the College by breaking open the lock of the office of the Principa l. Mr. N. Choudhury, learned counsel for the Governing Body submits that althoug h an FIR was lodged with Phakirganj P.S. registered as Phakirganj P.S. Case No. 140/2010, but for the reasons best known, the police has not taken any action. It will be upto the authority concerned including the authority who has passed the impugned order dated 09.09.2010, to see that the lawful order passed by the authority is implemented in its true spirit. Since the aforesaid impugned order dated 09.09.2010 has been set aside a nd quashed, the appeal is required to be heard afresh providing reasonable oppor tunity of being heard to the parties including the Governing Body of the college . Mr. M.R. Pathak, learned Standing counsel, Education Department submits that a lthough in terms of the earlier order passed by this Court the appeal was requir ed to be heard by the Commissioner and Secretary, Higher Education, but since th e said office was vacant, the appeal was heard by the Addl. Chief Secretary to t he Government, Assam in the Education Department. He submits that now the Commis sioner and Secretary is available. In view of the above, the appeal in question shall be heard by the Commi ssioner and Secretary, Higher Education providing reasonable opportunity of bein g heard to all the parties, i.e. the petitioner, the respondent No. 4 and the Go verning Body of the college. The Governing Body of the college shall produce all the relevant records to the said authority enabling him to properly adjudicate the matter. The parties may also be allowed to be represented by their engaged c ounsel. In terms of this order, now the Commissioner and Secretary shall hear th e appeal and pass a speaking order as expeditiously as possible, but at any rate not later than 31.12.2010. With the above direction, both the writ petitions stand disposed of.