High Court · 2012

[2] I have heard Mr. BC Das, learned senior counsel assisted by Mr. KM Haloi, learned counsel for the petitioner, Mr. UK Goswami, learned standing c ounsel, Education Department appearing for the respondent Nos.1 and 2, Mr. UK Na ir, learned counsel appearing for the respondent No.3 and Mr. B Talukdar, learne d counsel appearing for the respondent No.4. [3] The ground on which the aforesaid orders, both dated 21st Februa ry, 2011, are put to challenge is that no notice before passing the said order o f removal of the petitioner as President has been served though the ground on wh ich the petitioner has been removed as President is that despite receipt of the show cause notice dated 5th February, 2011, the petitioner did not reply. It ha s also been pleaded by the petitioner in the writ petition that since the order of removal is not an order simpliciter but stigmatic, the petitioner is entitled to a notice before passing such order, which having not been served on the peti tioner the order of removal dated 21st February, 2011 and the subsequent appoint ment of the respondent No.3 as the President of the Governing Body in the said c ollege in place of the petitioner need interference in exercise of the writ juri sdiction. The contention of the Director of Higher Education in the affida [4] vit-in-opposition filed is that since there were a number of allegations against the petitioner, a show cause notice dated 5th February, 2011 was issued and as the petitioner did not reply to the allegations levelled in the said show cause notice, the Director has passed the order dated 21st February, 2011 removing the petitioner as the President of the Governing Body, keeping in mind the interest of the college. It has further been contended that thereafter, the respondent No.3 has been appointed vide order dated 21st February, 2011 as the President of the Governing Body of the said college. [5] The President of the Governing Body, who has been appointed vide order dated 21st February, 2011, in the affidavit-in-opposition filed has conte nded that the writ petitioner had notice relating to the show cause notice issue d on 5th February, 2011 and despite that no show cause was submitted and hence t he Director having regard to the nature of allegation made and also the interest of the college removed the petitioner vide order dated 21st February, 2011 and in his place appointed the respondent No.3 as the President of the Governing Bod y. [6] In the affidavit-in-opposition filed by the respondent No.4, nam ely the Principal of Dimoria College, Khetri, the contention of the petitioner i n the writ petition that the show cause notice dated 5th February, 2011 has not been served on him has been denied contending inter alia that as per the practic e followed, one Grade-IV staff, namely Shri Bhuban Ch. Tamung, has handed over t he said show cause notice to the petitioner, who despite receipt of the same did not file the show cause reply. The further contention in the affidavit is that since there were number of serious allegations against the petitioner, the Dire ctor taking into account the same, apart from the fact of non submission of the reply to the show cause notice dated 5th February, 2011 has removed the petition er as President vide order dated 21st February, 2011. Mr. Das, learned senior counsel for the petitioner referring to [7] Rule 4 of 2001 Rule, as amended by 2009 Amendment Rules, has submitted that the President of the Governing Body of the college is appointed by the Director for a term of 5(five) years, who, however, though can be removed by the Director bef ore 5(five) years for the reasons to be recorded in writing, in the instant case , as it appears from the records produced by Mr. Goswami, learned standing couns el, Education Department, the Director has taken a decision on 21st February, 20 11 to remove the petitioner from the President-ship only on the ground that the petitioner did not submit the reply to the show cause notice dated 5th February, 2011. Mr. Das, learned senior counsel also submits that the order, which has s ubsequently been issued on the basis of such decision, as recorded in the office file, is nothing but an improvement by which the Director has stated the ground s for removal of the petitioner, apart from non submission of the show cause rep ly, tempering of records, violation of the provisions of the rules in subordinat ion etc. though the same has not been recorded in the file. The learned senior counsel for the petitioner further submits that since the said order is stigmati c, the petitioner is entitled to a notice, which though was stated to be issued on 5th February, 2011, the same, however, was never served on the petitioner. Th e learned counsel, therefore, submits that the order dated 21st February, 2011 r emoving the petitioner needs interference so also the consequential order appoin ting the respondent No.3 in place of the petitioner. [8] Mr. Goswami, learned standing counsel, Education Department, on the other hand, supporting both the orders dated 21st February, 2011 has submitt ed that the Director has the power to remove the President for the reasons to be recorded in writing and as the appointment of the President of the Governing Bo dy is the pleasure appointment, the President before removal is not entitled to a notice. It has, however, been submitted that though the petitioner was not en titled to the notice, the same in fact was issued on 5th February, 2011 and the petitioner despite receipt of the notice did not reply and hence the Director in exercise of the power conferred on him by Rule 4 has removed the petitioner on the ground stated in the order dated 21st February, 2011. [9] Mr. Nair, learned counsel for the respondent No.3 also supports the submission advanced by the learned standing counsel, Education Department. I t has also been submitted that it being the practice followed by the college tha t the notice issued to the President of the Governing Body or for that matter an y of the authority, is received by a Grade-IV staff of the college, who subseque ntly hands over to the person concerned, the notice issued to the petitioner on 5th February, 2011 was accordingly handed over by Shri Bhuban Ch. Tamung to the petitioner, despite which the petitioner did not submit any show cause reply, fo r which the Director had to pass the order removing the petitioner, keeping in m ind the interest of the college. Mr. Nair further submits that the appointment of the petitioner as President being the pleasure appointment, he in fact is not entitled to a notice and the Director has, for the reasons recorded in writing, removed the President of the Governing Body. [10] Mr. Talukdar, learned counsel appearing for the respondent No.4 also concurring the submissions advanced by Mr. Goswami, learned standing counse l, Education Department as well as Mr. Nair, learned counsel for the respondent No.3, submits that it is evident from the Peon Book of the college that the show cause notice dated 5th February, 2011 issued to the petitioner was received by Shri Bhuban Ch. Tamung, a Grade-IV staff of the college as per the prevailing pr actice, which was subsequently handed over to the petitioner and hence, it is no t that the petitioner did not have the notice about the show cause notice dated 5th February, 2011. It has also been submitted that the Director having regard to the interest of the college has passed the order dated 21st February, 2011. [11] received my due consideration. The submissions advanced by the learned counsel for the parties [12] It is not in dispute that the petitioner was appointed as the Pr esident of the Governing Body by the Director vide order dated 19th December, 20 09, whose tenure is for a period of 5(five) years, in view of Rule 4 of 2001 Rul es, as amended by 2009 Amendment Rules. Under the said Rules, a person who is a ppointed as the President is to continue even beyond his term, i.e. till his suc cessor is appointed. The Director, however, is empowered to remove the Presiden t appointed by him before 5(five) years for the reasons to be recorded in writin g. [13] The appointment of the President of the Governing Body cannot be equated with the appointment to the civil posts. This is nothing but the nomin ation. The President of the Governing Body is a nominated person by the Directo r. The President holds the office during the pleasure of the Director. In such circumstances, where no specific tenure of appointment of the President of the Governing Body is stipulated in the Rules, he can be removed even without issuin g any notice. The said position, however, would depend on the Rules under which the President of the Governing Body is appointed. [14] Under the 2001 Rules, as amended by 2009 Amendment Rules, as dis cussed above, a person who is an eminent person from the field of education is a ppointed as the President of the Governing Body of the college by the Director o f Higher Education for a term of 5(five) years. The Director, however, can remo ve the President before 5(five) years, for which he has to record the reasons in writing. Hence, in the case in hand, the Director though has the power to remo ve, he can do so for the reasons to be recorded. In this case, the record produ ced by Mr. Goswami, learned standing counsel, Education Department reveals that in the note sheet, the Director has cited the reason for removing of the petitio ner as non submission of the reply to the show cause notice dated 5th February, 2011. The Director has not recorded any opinion that the petitioner’s continuan ce as the President of the Governing Body would harm the interest of the college . No opinion has also been recorded in the file that the petitioner tempered wi th the record or violated any provisions of Rules. The Director, however, in th e order dated 21st February, 2011 issued thereafter, has tried to improve and gi ve the ground for removal of the petitioner from President ship by stating that he has been removed for tempering the records, insubordination and violation of the provisions of the Rules etc. The same itself is stigmatic. It is not an or der of removal simpliciter. Hence the petitioner is entitled to a notice before passing the said order, which in fact, according to the respondent itself was i ssued on 5th February, 2011. [15] The question, therefore, is whether the said notice dated 5th Fe bruary, 2011 was ever served on the petitioner. The Peon Book as produced by Mr. Talukdar, learned counsel appearing for the respondent No.4, reveals issuance o f the said notice and receipt of the same by a person whose name, according to t he respondent No.4, is Shri Bhuban Ch. Tamung, who is a Grade-IV staff of the co llege. Nothing could be placed before this Court to demonstrate that the said n otice issued to the petitioner has ever been served on him. No affidavit of Shr i Bhuban Ch. Tamung, who is an employee of the aforesaid college, has also been filed to the effect that he himself handed over the same to the petitioner and d espite that the petitioner did not put his signature in token of receipt of the said notice. [16] That being the position, the impugned orders cannot stand the sc rutiny of law. Hence the order dated 21st February, 2011 issued by the Director removing the petitioner as President as well as the subsequent order also dated 21st February, 2011 appointing the respondent No.3 as the President of the Gove rning Body of the said college are set aside. Since certain allegations are lev elled against the petitioner vide show cause notice dated 5th February, 2011, wh ich is annexed as Annexure-R/2 to the affidavit filed by the Director, copy of w hich has also been served on the petitioner in the present writ proceeding, the petitioner is directed to file his reply to the allegations levelled in the said notice within 15(fifteen) days from today and the Director shall, thereafter, p ass necessary order as required under Rule 4 of the 2001 Rules, as amended by 20 09 Amendment Rules. It is, however, made clear that for passing an order by the Director under the aforesaid provisions of law, no regular proceeding is requir ed to be conducted, meaning thereby there is no requirement of recording the evi dence of any of the parties and the Director shall pass the order keeping in min d the reply to be submitted by the petitioner. In case, no reply is submitted, within the aforesaid period, the Director shall then also pass necessary order. [17] costs. The writ petition is accordingly allowed as indicated above. No