Sacchidanand Jha, J.@mdashThese two writ petitions have been, heard together and are disposed of by this common judgment as the subject matter of dispute is the same in both of them.
2. C.W.J.C. No. 803 of 1995 (R) has been filed by Sambhu Nath Roy, professedly, in public interest complaining of mismanagement of the affairs of Chotanagpur Law College (hereinafter referred to as ''the college'') and misappropriation of its funds by respondent No. 7. Basant Kumar Lal as its Secretary during the period 1986-92. He has sought direction to the State of Bihar and the Ranchi University to take steps for take over of the college, as a constituent unit of the University, and in the meantime, grant permanent affiliation to it. He also wants that steps should be taken to improve the financial condition of the college and its management and administration be carried on by a Committee, in the meantime.
C.W.J.C. No. 1139 of 1995 (R) has been filed by the said Basant Kumar Lal (hereinafter referred to as ''the petitioner'') for quashing a letter of the Registrar, Ranchi University dated 27.4.1994, Annexure-19 to the writ petition, communicating the formation of governing body for the college.
3. There is dispute as to whether by reason of the aforesaid letter dated 27.4.1994 the formation of the governing body is complete or not and whether the University was at all competent to do so. But so far as C.W.J.C. No. 803 of 1995 (R) is concerned, that part of the grievance stands redressed. As regards taking over the college as a constituent unit of the University, it must be said in fairness to Mr. A. Allam, learned Counsel for the petitioner of that writ petition that in view of the constraints on the exercise of the power in issuing any mandamus of that nature in writ jurisdiction as also the stand taken by the University that it has already recommended taking over of the college to the State Government, he did not press the aforesaid reliefs. He did mention about the financial irregularities but I do not want to go into that question in this writ petition. It appears, after its accounts were audited an F.I.R. has been lodged on the basis of the audit report which is pending investigation. Although a good deal of argument has been made as to the background in which the audit was made and also the competency of the Auditor and the correctness of his report I do not think it would be proper to go into that aspect of the matter on account of pendency of the police investigation.
4. In fairness to Mr. Anil Kumar Sinha who has appeared for respondent No. 7 Basant Kumar Lal, however, I would briefly refer to his submission in regard to the competency of the Auditor who has audited the accounts of the college, namely, P.N. Sahu, on whose report the F.I.R. has been lodged. It has been submitted that Section 53 of the Bihar State Universities Act, 1976 (in short, ''the Universities Act'') provides for audit of the accounts of the college by a qualified accountant appointed as an auditor by the Syndicate. By referring to the provisions of the Chartered Accountants Act, 1949, it was urged that the term ''qualified accountant'' must be understood to me an a person who has done chartered accountancy. Attention was also drawn to the provisions of Section 52(1)(b) of the Act which provides for audit of the annual budget of the University by the auditors appointed by Auditor General, Bihar. According to the counsel, reading the two provisions together, it becomes clear, that while the accounts of the University can be audited by any auditor appointed by the Auditor General, Bihar, the accounts of the college can be audited only by a qualified accountant, that is to say, a Chartered Accountant, as may be appointed by the Syndicate.
5. The only relevance of the aforesaid argument relating to audit by P.N. Sahu is that he is said to be a trusted man of the Vice-Chancellor who is alleged to be on inimical terms with the petitioner and it is suggested that Sri Sahu submitted a wrong and motivated report to falsely implicate him at the instance of the Vice-Chancellor.
6. As indicated above, an F.I.R. has been lodged against B.K. Lal and others on the basis of the said audit report and the case is in the stage of investigation. In my opinion. on account of pendency of the police investigation it would not be proper to go into the validity of the report or the correctness of the findings of the Auditor as the same may affect the course of investigation and the case itself.
7. Although a good deal of argument has been made on the point of bias against the Vice-Chancellor of Ranchi University, Dr. K.K. Nag, it significant that he has not been made party by name. Of course the Vice-Chancellor figures as respondent No. 2 by designation. Mr. M.S. Anwar has also appeared for the University including its Vice-Chancellor but as he (Vice Chancellor) has not been made party by name it would not be correct to go into the question of bias.
8. The question which I propose to deal with, and which has emerged as the bone of contention in this case, is the validity of the order regarding the formation of the Covering Body. The argument of Mr. Anil Kumar Sinha on this point is two-fold. He has firstly contended that the University has no power to constitute governing body; the only power which lies with it is to constitute an Ad hoc Committee "if for any reason the Governing Body of an admitted college is not constituted." Secondly, it is said that after the grant of affiliation the old governing body which was managing the affairs of the college when the previous affiliation lapsed in May, 1992 would be deemed to have automatically revived and, therefore, no Ad hoc Committee could be constituted either, without giving opportunity of hearing to the former Governing body.
9. At this stage it would be appropriate to refer to provisions of Section 60 of the Universities Act, dealing with the constitution of the governing body, as hereunder:
60. The Governing body.-(1) There shall be a governing body for the management and administration of each affiliated College other than a College owned and maintained by the State Government or a College established and administered by a minority community on the grounds of religion or language or an affiliated technical or medical college.
It shall consist of following members:
(i) Principal of the College-Ex-officio.
(ii) a member elected by and from amongst the teachers of the College.
(iii) a representative of the University maintained by the Vice-Chancellor,
(iv) an officer of the State Government posted in the district, being not below the rank of a Sub-Divisional Magistrate, nominated by the Vice-Chancellor,
(v) a member elected by such donors from amongst themselves as have donated at least twenty five thousand rupees to the College,
(vi) one member to the nominated by the Vice-Chancellor who is a member of the Parliament or the State Legislature and mainly resides in the district of the area in which the college is situated; and
(vii) one member co-opted by the Governing body from amongst such educationists or persons residing in the district where the College is situated as are reputed for their academic interest.
(2) This term of office of the members of the Governing body, their powers and functions shall be such as are prescribed by the Statutes.
(3) Any act or proceedings of the Governing body of affiliated Colleges shall not be invalid merely because of any vacancy or vacancies in its membership,
(4) The Vice-Chancellor shall constitute an Ad-hoc Committee for the management of the College so long as a Governing body is not constituted in accordance with the provisions contained in Sub-section (1).
(5) The Governing body/Managing Committee for the management and administration of a College owned and maintained by the Government, or established and administered by a minority community, on the ground of religion or language and declared, from time to time, as such by the State Government according to yardsticks laid down by it, or of any affiliated technical or medical college, shall be constituted in accordance with the provisions prescribed in the Statutes.
Mr. Sinha, however, made his submission with reference to the provisions as contained in the Statute framed by the Chancellor and it would, therefore, be in the fitness of things to refer to the relevant part of the said Statute also as hereunder:
1. There shall be a Governing body constituted for management and administration of every admitted college other than colleges owned and maintained by the State Government or College established and administered by religious linguistic minorities or admitted as Technical or Medical Colleges which shall consist of the following members:
(i) Principal of the College Ex-Officio.
(ii) One teacher elected from and by the teachers of the College.
(iii) One representative of the University nominated by the Syndicate.
(iv) One Government Officer of the State Government not below in the rank of the Sub-Divisional Magistrate posted in the district nominated by the Syndicate.
(v) One member elected from amongst themselves by Donors who have donated not less than Rs. 25,000/- to the College.
(vi) One member either of Parliament or the State Legislature residing in the district preferably of the locality where the college is situated nominated by the Syndicate.
(vii) One member co-opted by the Governing body from amongst the educationist or persons noted for their academic interest residing in the district where the college is situated:
Provided that in the case of colleges owned and maintained by the Government, the Governing body consisting of seven members shall be constituted by the Syndicate in consultation with the State Government:
Provided further that in the case of colleges established and administered by minorities based on religion or language or Medical/Engineering Colleges other than those maintained by the Government, the Governing body shall be constituted by the Syndicate after considering the advice of the sponsors authorities of the college concerned. But where however the Syndicate is not able to satisfy himself about the bonafides of sponsors authorities of any such college or for any other reason it may constitute an Ad hoc Committee consisting of not more than five members.
(2)(i) If for any reason the Governing body of an admitted college is not constituted, the Syndicate shall constitute an Ad hoc Committee of not more than five members until the Government body is constituted. The President and the Secretary of the Ad hoc Committee shall be nominated by the Vice-Chancellor.
(ii) If any difficulty arises in the formation or the filling up of any seat in the Governing body of any admitted college for any reason whatsoever, the Syndicate shall on its own initiative or on reference to it shall decide the issue. If anybody, however, is dissatisfied with the decision of the Syndicate, he shall have the right of appeal to the Chancellor within thirty days of the decision whose decision thereon shall be final and binding on the persons concerned.
10. The provisions as contained in the Act as well the-Statute, in terms, do not provide that the Governing body shall be constituted by the University. But that is because the Statute Act provides for different modes of induction of the members. Some come by election, some by nomination and some by co-option. The Principal is an ex-officio member. But it would appear that in the constitution of the Governing body which consists of seven members who can be prescribed as representing seven categories or constituencies, the Vice-Chancellor or the University has a major say. He is competent to nominate University representative, Government representative and Legislator representative under category Nos. (iii) (iv) and (vi). Although the Donor representative under category No. (v) is to be elected from amongst the donors it appears from the scheme contemplated in Article 2 of the aforequoted Statute that not only the list of donors, which is to form basis for election is required to be approved by the Syndicate (in its absence, the Vice-Chancellor) but every dispute relating to the inclusion or non-inclusion of the name is also to be resolved by the Syndicate/Vice-Chancellor of the University itself. It is only in the matter or election of teacher representative under category
(ii) and co-option of the educationist member under category (vii) or the Principal/Professor-in-charge, who is an ex-officio member, that the University has no say.
11. It would thus appear that out of seven categories, three are to be filled up by nomination by the Vice-Chancellor himself while in the Donor''s category also the approval of the Syndicate/Vice-Chancellor is required. It is thus not wholly correct to say that the Governing body is not to be constituted by the University. The Act read with the Statute has prescribed the mode and manner of constitution of the Governing body and the University has definitely a role to perform in the matter.
12. The question for consideration is whether, after induction of the Principal/Professor-in charge of the college, who is Ex-Officio member, the University representative, Government representative and Legislator representative under category Nos. (i), (iii), (iv) and (vi) of Section 60, the Governing body can be said to have been constituted. In other words, whether the Governing body can be said to have been constituted only when all the seven categories/constituencies have been filled up. Before answering the question it may be stated that in the instant case the process of election of the teacher-representative donor member and co-option which was directed to be completed by taking necessary steps, by the University under its impugned communication dated 27.4.1995, has been stalled by the interim order of this Court dated 16.5.1995 in C.W.J.C. No. 1139 of 1995 (R). It may also be stated that after the aforementioned interim order in C.W.J.C. No. 1139 of 1995 (R), another Bench of this Court by order dated 24.5.1995 in C.W.J.C. No. 803 of 1995 (R) directed the University to constitute an Ad hoc Committee which, however, was also later kept in abeyance by order dated 28.7.1995. Had those order not been passed, perhaps, the process of constitution might have been completed.
13. As noticed above, the mode of induction of the members of the governing body is different. While three of the members are to be nominated by the Vice-Chancellor the other three (except, of course, the Principal/Professor-in-charge who is the Ex-Officio member) become members by virtue of election and co-option. The process of election/co-option may itself give rise to dispute which may take time to be resolved. Can it be said that merely because the election of the teacher-member or donor-member is held up on account of some dispute or any processual delay, the governing body will not be deemed to be constituted? In my opinion, the answer to the question has to be in the negative. It is pertinent to note that Article 3(X) of the Statutes of the University regarding Governing body (supra) itself provides,
No act or proceeding of the governing body of a college (shall) be invalidated merely by reason of the existence of a vacancy or vacancies among its members.
The above provision leaves no room for doubt that even the Statutes contemplates constitution of a Governing body sans members. Of course, in view of the provision of Article 3(VI) of the same Statutes which provide for quorum the Governing body cannot consist of less than four members,
14. It has been argued on behalf of the petitioner that the impugned letter of the University has to be read as merely constituting an Ad hoc Committee, in terms of the Statutes which provide that "if for any reason governing body of an admitted college is not constituted, the Syndicate shall constitute an Ad hoc Committee of not more than five members until the governing body is constituted." The language of the letter of the University, no doubt, is such as to give an impression that the University merely intended to constitute an Ad hoc Committee. Para-4 of the letter which lays down the mode of transaction of business mentions the words "till the formation of full-fledged/regular governing body". But according to me, it would not be correct to go by mere language of the letter. It has to he read in the context as also keeping in view the provisions of the Act and the Statute. It would not be out of place to mention here again that the process of election of the teacher-representative, donor-member and co-optioin of educationist-member, which was directed to be completed by taking necessary steps under its impugned letter dated 27.4.1995, has been stalled by the interim order of this Court, referred to above. If the process had been completed tax as stipulated in the letter, the constitution of the governing body might have been completed by now. The words "till the formation of full-fledged/regular governing body" in the letter merely refer to the stage of completion and do not mean that no governing body at all was constituted.
15. The question as to whether by reason of any vacancy in some categories/constituencies the Managing Committee would be deemed to have been constituted or not came up for consideration in the context of the provisions of Bihar Cooperative Societies Act, 1935 and the rules framed thereunder in the case of Harendra Singh Choudhary v. State of Bihar, C.W.J.C. No. 2297 of 1993 (R) disposed of on 28.9.1993. Sections 14(9) and (10) of that Act provides for a term of three co-operative years and where elections are not held within the said period or within the extended period of nine months thereafter, for the deemed suppression of the Managing Committee after the expiry of the said period of three years plus nine months. The term of the members and office bearers of the Managing Committee is deemed to commence from beginning of the co-operative year in which elections are held. Rule 22(2) of the Bihar Co-operative Societies Rules, 1959 however provides for nomination of some members by the State Government in order to complete the constitution of the Committee. Question arose as to whether by reason of failure of the State Government to make nomination against its quota of nominees, the constitution of the Managing Committee will be deemed to have been completed so as to avoid the rigours of the provisions of Sections 14(9) and (10). A Division Bench of this Court rejected the argument that the constitution of the Committee will be complete only when nominations are made by the State Government and held that the term of the members and office-bearers will be deemed to commence from the beginning of the co-operative year in which election had been held notwithstanding the fact that nomination was not made by the State Government within time and the Managing Committee will stand superseded on expiry of the stipulated period by efflux of time. Another Division Bench of this Court has followed the aforesaid Judgment in the case of
16. It has been argued on behalf of the petitioner that although on expiry of the period of affiliation on 21.5.1992, the Governing body then in existence, come to an end, grant of fresh affiliation would amount to its automatic revival. Therefore, the impugned order constituting an other body for the governance of the college will amount to its ouster which cannot be done without opportunity of hearing.
17. There is no dispute at the bar that the affiliation granted to the college on 25.4.1995 is valid for a period of five years and effective from 22.5.1992. It is on the basis of retrospective effect of the affiliation that it has been argued that the governing body in existence as on 21.5.1992 will be deemed to have revived. However, there are two fallacies in such a supposition. Firstly, the affiliation has been made retrospective so as to validate or regularise all sections taken by the college and the University in relation to the college, including the holding of examinations etc. If the affiliation is not made retrospective, the actions taken by the college and the University during the intervening period may be called invalid which may affect the students also who have appeared and passed the examination held during the period. In order, therefore, to protect the interest of the students and others, it was necessary to grant affiliation with retrospectives effect which is not said to be impermissible.
18. The second fallacy is the argument is that the term of office of the members of the Governing body itself has been fixed by Statute, three years in the case of donor-member, legislator-member and educationist-member and one year in the case of teacher-member and the University representative. It is an admitted position that the last nomination, election and co-option of the nominated, elected and co-opted members had taken place in 1''989 and therefore term of their offices had either already expired before the expiry of the period of affiliation or was to expire soon thereafter in 1992 itself. Thus, even if the argument of the counsel for the petitioner be assumed to be correct, without holding it to be so, it would follow that the unexpired terms of office of different members (except the Principal/Professor-in-charge who is ex-Officio member and has no fixed term of office as member) had expired a long time back and as on the date of constitution of the new governing body, i.e. on 27.4.1995, they did not hold the respective offices. I, therefore, do not find any substance in the contention regarding either the same Governing body continuing in officer or the members (including the petitioner) continuing in the office.
19. Counsel for the petitioner in support of his contention that the old Governing body continued even after 1992 referred to Annexure-5, 6, 7 and 13. They are letters written to the Secretary of the college (or copies sent to him) by the University in the matter of grant of affiliation. The submission was that if the Governing body was not in existence, the letters or their copies would not have been sent to the Secretary. The submission according to me is wholly misconceived. By the said letters either some information was conveyed or queries were made in the matter of granting affiliation and they can not be read as the recognition of the existence of Governing body of status of the Secretary. After all if some query was to be made or information passed on, the letters had to be addressed to some functionary of the college. There is certainly no dispute that the college has remained in existence all along.
Another document Annexure-11 referred to in this regard is the appointment letter dated 22.3.1995 issued by B.K. Lal describing himself as the Secretary of the college and making reference to the case of one B.M.P. Mehta for appointment to the post of Principal by the Governing body since the document has been issued under own signature of the petitioner and the appointment of B.M.P. Mehta as Principal is itself subject matter of dispute in another writ petition which has been heard together and is being disposed of by separate judgment, I do not think the same calls for any detailed consideration for the purpose of holding that the Governing body was functioning.
20. Mr. M.S. Anwar, learned Counsel for the University in the above view of the matter, challenged the locus standi of the petitioner. He pointed out that from Annexure-1 to the writ petition C.W.J.C. No. 1139 of 1995 (R)/filed by the petitioner, it shall appear that he was co-opted as a member of the Governing body on 23.8.1989 ''for another term'', on which date itself he was also co-opted as the Secretary of the Governing body. He also referred to the proceedings of meeting of the so-called Governing body held on 20.10.1994, Annexure-3 from which it appears that the petitioner was declared as a donor of the college with effect from 12.7.1994. Intimation regarding the election is said to have been sent to the University only on 1.3.1995. On the basis of the aforesaid documents it was contended on behalf of the University that the petitioner had no authority to continue as the Secretary of the college after expiry of the term of this office as co-opted member on 22.8.1992. The affiliation had in-fact expired-on 21.5.1992 itself.
21. A private institution including an education institution is entitled to manage its affairs in the manner it likes. But where it seeks certain advantage or privileges from a statutory body, it has to adhere to the provisions of the relevant statute. In the case of college seeking affiliation under the University, its affairs have to be managed by regular Governing body as contemplated by the Act and the Statutes. Both the Act and the Statute provide for formation of a Governing body for the college. It also contemplates constitution of an Ad hoc Committee but only if "for any reason Governing body is not constituted." In other words, Ad hoc Committee is an exception, Governing body is the rule. The former indicates some kind of ad hocism. Therefore, Courts have always issued direction to the authorities for taking steps for constitution of regular Governing body/Managing Committee/Board of Management, by whatever name it is called. Reference may be made to the case of
22. It is true that in the instant case ground of malafide also has been taken against the Vice-Chancellor. However, for the reasons that the Vice-Chancellor has not been made party by name, as I have already indicated above, I have refrained from going into that question. I do not think, in the facts and circumstances of the case, that the petitioner has been able to make out any case of arbitrariness or violation of the statutory provisions. The College admittedly remained without a regular Governing body for more than three years and, therefore, after affiliation was granted to it on 25.4.1995 it was but proper on the part of the University to take steps and do its part in the matter of constitution of a regular Governing body. In fact, in my opinion, if it had riot done so, that would have amounted to abdication of its authority and failure to perform its statutory obligation. In the circumstances of the case and for the reasons stated above, I do not think any case for interference has been made out.
23. In the result, C.W.J.C. No. 1139 of 1995 (R) is dismissed as being devoid of merit. C.W.J.C. No. 803 of 1995 (R) is disposed of as being infructuous. There will be no order as to cost.
P.K. Sarin, J.
24. I agree.
