D.N. Chowdhury, J.
1. The issue for adjudication in this proceeding relates to Constitution of Governing/Special Body of a Government Aided College, which arises out of the following circumstances.
2. By a notification dated 20-1-1999, issued under the signature of the Joint Secy, to the Govt. of Assam, Education (H) Department bearing No. B(2)H, 380/96/12, in exercise of the powers conferred under Rules 2 and 3 of the Assam Aided College Management Rules, 1976, hereinafter referred to as the Rules 1976, the Governor of Assam was pleased to constitute a Special Body for Dibru College, district Dibrugarh, with the following members :
'1. Dr. Nagen Saikia, President, Assam Sahltya Sabha, Professor, Deptt.
of Assamese, D. U. .. President Member
2. Sri BN Jamuar, Retd. Principal, Advocate .. Member
3. Sri Badan Saikia, Social Worker, Naliapul, Dibru -garh. .. --do--
4. Mrs Hasna Baruah, Retd. Principal, Dibrugarh Govt. Girls II. S. School --do--
5. Sri S. I. Ekka, Advocate, Dibrugarh --do--
6. Sri Tankeswar Borah, President, Dibrugarh Sa-hitya Sabha --do
7. Principal of the College Member Secy.'
By the said notification dated 20-1-1999, the Governor of Assam was further pleased to dissolve the existing Governing Body/ Special Body of the College constituted vide letter No. B(2)H.615/95/pt-l/25 dated 6-11-1997. On constitution of the Special Body of Dibru College, the Principal-in-Charge and Secretary of the Body, convened a meeting of the Special Body on 9th of Feb. 1999 vide his notice dated 2nd Feb. 1999 to discuss and to transact the business cited in the Agenda. In the meantime, the State Government through the Deputy Secretary to the Govt. of Assam, Education (H) Department, by Notification bearingNo. B2(H).380/ 96/Pt/3 dated 2-2-1999, conveyed the decision of the Governor of Assam to reconstitu-tion the Special Body in respect of Dibru College with the follwing members :--
1. Shri Bhaebn Baruah, Minister
of State for Health and Family Welfare, Assam President
2. Sri Badan Saikia, Social Worker, Member
3. Sri Phanin Mout, Sr. Lecturer, Member
4. Dr. Narendra Nath Das, Prof. Deptt. of Chemistry,
D.U., Member
5. Sri Nlrmal Tamuli, Sr.Lecturer, Member
6. Sri Durga Barthakur, Social Worker, Member
7. Smti Satya Prava Das, Retd. Teacher, Member
8. Principal of the College Member Secretary.
By the said Notification dated 2- 2-1999, the Governor of Assam was pleased to cancel the earlier notification dated 20-1-1999 and was further pleased to dissolve the existing Special Body constituted by the Department on 6-11-1997. By the Notification bearing No. B(2)H.615/95/pt-I/25 dated 6th Nov. 1997, the Deputy Secy, to the Govt. of Assam, Education Department, conveyed the constitution of the Special Body for Dibru College by the Governor in exercise of the powers conferred under Rules 2 and 3 of the Rules, 1976 and further conveyed about the dissolution of the then existing Special Body of the College constituted vide notification No. B(2)H.239/96/89 dated21-l 1-1996. By the Notification dated 6th Nov. 1997, the Governor was pleased to constitute the Special Body with the following members :
1. Shri Bhaebn Baruah, Minister, Assam as President.
2. Principal of the College, Secretary.
3. Sri Badan Saikia, Dibrugarh, Member.
4. Sri Durga Barthakur, Dibrugarh, Member.
5. Smti Satya Prabha Das, Retd. Head Mistress, Dibrugarh, Member.
6. Dr. Sisir Kr. Dutta, Dibrugarh, Member
7. SriNirmalTamuli, Dibrugarh, Member.
8. Sri Mahadeo Prasad Jalan, Tea Planter, Dibrugarh, Member.
Petitioner No. 1. Shri Sabinas Ignatius Ekka and petitioner No. 2, Smti HasnaBarua, who were members oi' the Special Body constifutcd by the Notification dated 20th January, 1999, have assailed the legality and validity of supersession of the Special Body in which they, were members and re-constitution of the Special Body by dissolving the Special Body in which these two persons were members alongwith others, as arbitrary and discriminatory. The petitioners contend that there was no valid reason for reconstitution of the Special Body vide Notification dated 2-2-1999, after constitution of a Special Body on 20-1-1999. That the term of the Governing Special Body under the Statute is prescribed for three years which was unlawfully terminated in a most unjust and unfair manner with improper motive, that too without giving any opportunity to the existing Governing/Special Body. One of the members of the Government/Special Body constituted vide notification dated 2-2-1999, impleaded as as respondent No. 9 in the writ petition, had filed a Caveat dated 5-2-1999 in the High Court. The Court issued notice of motion on 15-2-1999 and upon hearing the learned counsel for the petitioners as well as the Cavealor, stayed operation of the Notification dated 2-2-1999 (Anneuxre 3).
3. Respondent No. 9 denied and disputed the contentions of the petitioners by filing an affidavit. The other respondents including the State of Assam as well as the Secretary to the Govt. of Assam, Education (H) Department, respondents Nos. 1 and 2, did not file affidavits.
The respondents in its affidavit stated that as per the Notification dated 6-11-1997, the Government constituted a Special Body in which the respondent No. 9 was also a member. On assuming the responsibility, the Special Body constituted vide Notification dated 6-11-1997, started the process of rejuvenating the academic atmosphere of the Dibru College and took numerous steps for smooth functioning and welfare of the institution. When the authorities were initiating positive steps in the administration of the institution, the Special Body was arbitrarily dissolveld by the Government on 20-1-1999, by reconstituting another Special Body comprising of members which included the two petitioners. The respondent disputed the contention of the petitioners that the life of the Special Body prescribed for three years by the Statute. The respondent No. 9 supported the Governmental action in constituting the Special Body vide Notification dated 2-2-1999 (Annexure 3) as lawful.
4. The College-in-question is under the Dibrugarh University, established and constituted under the Dibrugarh University Act, 1965. Under the Scheme of the Act, 1965, subject to the provisions of the Act, 1965 and with the approval of the Court, the Executive Council of the University is authoritised to make Statute for the purpose of carrying out the provisions of the Act, 1965 in respect of matter which are required to be or might be provided by the Statute. By the first proviso to Sub-section (2) of Section 22 of the Dibrugarh University Act, 1965, the management of the Degree Colleges and Halls and the service conditions of its employees pertaining to the Government Colleges and the Government Aided Colleges are excluded from the areas mentioned in Sub-sections (1) and (2) of Section 32 of the Act. 1965 and thereby empowering the State Government to make necessary Rules in consultation with the University relating to the management of Degree Colleges and Halls and the conditions of service of the employees pertaining to Government Colleges and the Govt. Aided Colleges. A similar provision is also discernible in proviso one to Clause (g) of Section 21 of the Gauhati Univeristy Act, 1947. In exercise of the powers mentioned above by the aforesaid two Statutes, the Govt, of Assam made a set of Rules known as the Assam Aided College Management Rules, 1976 after superseding the old Rules. Rule 2 of the Rules, 1976 provides that every Govt. Aided Colleges shall be governed by a Governing Body the constitution of which has been approved by the Director of Public Instruction, Assam (presently the Director of Higher Education), save in cases where the Secretary to the Govt. of Assam in the Education Department allow as an exception under special circumstances, Rule 3 of the Rules, 1976 indicates that save in cases where the Secretary to the Govt. of Assam in Education Department sanetions a Special Body under special circumstances, each Governing Body shall consist of the members mentioned clause (a) to the Rule. The President of the Governing Body is nominated by the Government from the members nominated under Clause a)(vi). Rule 8 of the Rules, 1976 clothed the Direetor of Public Instruction (presently known as tbe Director of Higher Education) to dissolve and reconstitute a Governing Body at any time, if the circumstances so demand. Rule 9 of the Rules envisages that subject to Rule 8, the term of a Governning Body will ordinarily expire after a period of three years from the date, the President and other nominated members are appointed by the Government. The power of management and control of the institution is vested on the Governing Body. A Governing Body of a College is the pivot of the institution -- it possesses the power of governance and regulation. The word 'Govern' as per the Webster' Encyclopedic Unabridged Dictionary of the English Language, when used as verb transitive, means --
' 1. to rule by right of authority; .....
2. to exercise a directing or restraining influence over, guide, the motives governing a decision.
3. to hold in check, control ; .....'
And when used as verb intransitive, it means --
'7. to exercise the functions of Government.
8. to have predominating influence.'
In Black's Law Dictionary, the word 'Governing body' signifies :-- 'Governing body of institution, organisation or territory means that body which has ultimate power to determine its policies and control its activities.'
The Governing Body has its own rules. The Rules only clothed the authority to constitute a Governing Body to enable it to govern the institution. Governance or regulation is a serious matter which is to be allowed to be undertaken with the deliberation. From the narration of the facts, it appears that from 21-11-1996 to 2-2-1999, within a span of two years two months and eleven days, the authority constituted four Governing/Special Bodies. The first Governing/Special Body was allotted to function for about one year; the second one functioned for about one year two months and the third one in which the petitioners-were also members, was allowed to function only for thirteen days and thereafter the impugned Notification dated 2-2-1999, was issued. The Rules, 1976, as mentioned earlier, provides for constitution of a Governing Body and in exceptional cases that too under special circumstances, Special Bodies are to be constituted. The Government did not come forward to cite the special circumstances for resorting to the exception. Constitution of a Special Body is an exception and that too only under special circumstances, Constitution of a Special Body is an exception rather than a rule only under proven special circumstances sufficient to resort to the exception. Only in the rare and limited circumstances, a Special Body is to be constituted. Normally, the rule is to constitute a Governing Body that too by the Director and not by the Government through the Secretary.
5. Mr. A.B. Choudhury, the learned counsel for the petitioners, referred to the decisions in Sushil Kumar Sen v. The State of Assam, reported in (1983) 2 Gauhati LR 353 : (AIR 1984 Gauhati 69); Dhiresh Barman v. District Elementary Education Officer, Kokrajhar , reported in (1988) Gauhati LR 474 and a decision of the Supreme Court in S.L. Kapoor v. Jagmohan, reported in AIR 1981 SC 136, in support of his contentions.
6. Mr. N. Dutta, learned counsel appearing on behalf of the Special Body and more particularly respondent No. 9, submitted that the power of constituting Governing Body is conferred on the authorities specified by the Statute. The discretion to constitute a Special Body is vested on the Government. The Government is the authority who is best equipped to judge as to the existence of special circumstances and to constitute a Special Body as and when occasion arises. An administrative decision of the authority can no doubt be flawed but only when it acts illegally or without jurisdiction. Referring to the affidavit, Mr.N Dutta, the learned counsel for respondent No. 9, submitted that the earlier Special Body in which the respondent was a member took initiatives and the right approach to restore a vitiality of the institution, therefore, there is nothing wrong on the part of the Government to reconstitute the Governing/Special Body and to give a new lease to the old Governing/Special Body by restoring the same. The other rer spondents chose to maintain their grim silence on the subject. No reason was forthcoming as to under what circumstances and why the Special Body constituted only thirteen days back on 20-1-1999, had to be dissolved and as to what impelled the respondents/authorities to constitute a Special Body indicating the special circumstances for falling back on the exceptions. The impugned Notification dated 2-2-1999 (Annexure 3) on the other hand referred to the Notification bearing No. B(2)H.615/95/ Pt-I/25 dated 6th Nov. 1997, which was already dissolved by the Notification No. B (2)11.380/96/12 dated 20-1-1999.
7. Mr. N. Dutta, the learned counsel for the respondent No. 9, was right in pointing out that the power to constitute and dissolve a Governing Body was vested on the authorities in the fact situations. The special circumstances calling upon to resort to exceptions was conferred on the discretion of the authority. Within the area of discretion, the authority must be allowed to have a free play. The power is meant to be exercised without any contraint. Nonetheless, it is expected that the powers those are to be exercised for the purposes those are entrusted on the authority. A decision is unlawful when it infringes or goes beyond the extent of the power conferred on the authority or otherwise when it uses the power for purposes other than the purposes for which those were conferred on the authority. The Court in Judicial review under Article 226 of the Constitution of India is competent to look to the content and scope of the power conferred by the Statute and tojudge whether the decision making process falls within the categories specified by the Statute. The Courts in exercise of judicial review cannot substitute its discretion on the authority on which the discretion is conferred and there are numerous areas in which the Courts are illequipped to decide, but in the end it is the Court which is clothed with the power to judge as to whether the decision making process is lawful or not. It may, however, be pointed out that howsoever unconstrained the wording of the Statute may be, it must be remembered that there is no unfettered discretion. The discretion exercised is to be just, fair, reasonable and unprejudiced free from caprice, bias and arbitrariness. The discretion exercised must not be 'arbitrary, vague and fanciful, but fair and regular'. In the Constitutional scheme, there is no unreviewable discretionary power. It will always depend on the facts situations.
8. The Governing Body of a College is a meaningful institution and has a definite role to play under the scheme of the Statute. It cannot be vised as a pawn. It is required to be allowed to function with dignity and not to be used as a puppet in the hands of the maker. Constitution of a Governing Body is a solemn task and it is to be done with the avowed object of attaining the public policy devoid of private interest. The discretion conferred on the authority is to be exercised to serve the public interest. Whether in the scheme of Constitution of Governing/Special Body, which is normally constituted and dissolved by the Director, a member of the council of ministers can be a member, is obviously not gone into since the matterwas not directly challenged leaving it to the wisdom of the authority keeping in mind the public interest as well as the onerous responsibility of the member of the council of ministers. However, no discernible reason for dissolution of the Special Body which was constituted only on 20-1-99, exist on the face of the materials on record. The impugned notification dated 2-2-99, which is devoid of reason is seemingly arbitrary and discriminatory.
The decisions referred to by Mr. A. B. Choudhury, the learned counsel for the petitioners, in Sushil Kumar Sen (AIR 1984 Gauhati 69) and Dhiresh Barman (1988 (1) Gauhati LR 474) (supra) relates to the dissolution of the Managing Committee of School and the decision in S. L. Kapoor (AIR 1981 SC 136) (supra) pertains to dissolution of Municipal Committee of New Delhi, yet those decisions are aptly applicable in judging the fairness-in-action that has to be adhered to by the authorities in all its decisions,
In view of the foregoing discussions, the Impugned notification dated 2-2-99, is liable to be set aside and accordingly the same is set aside.
The writ petition is accordingly allowed and the Rule is made absolute. However, on the facts and circumstances of the case, there shall be no order as to costs.