Gauhati High Court
WP(C)/5467/2019 on 20 February, 2020
Author: N. Kotiswar Singh
Bench: N. Kotiswar Singh
GAHC010180322019
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IN THE GAUHATI HIGH COURT
(THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM & ARUNACHAL PRADESH)
W.P.(C) No. 6087 of 2019
DINESH CHANDRA BARMAN
S/O LT. MADHAB CHANDRA BARMAN
R/O NAMGARH PATH, RUKMINI NAGAR
GUWAHATI-781006.
......Petitioner
-versus-
1. THE STATE OF ASSAM
REPRESENTED THROUGH THE SECRETARY TO
THE GOVERNMENT OF ASSAM,
EDUCATION (HIGHER) DEPARTMENT,
SACHIBALAYA, DISPUR, GUWAHATI-781006.
2. THE DIRECTOR OF HIGHER EDUCATION
ASSAM, KAHILIPARA, GUWAHATI-19.
3. SIDDHARTHA BHATTACHARYA
S/O LT. GAURI SHANKAR BHATTACHARYA,
HON'BLE EDUCATION MINISTER,
GOVT. OF ASSAM BLOCK D 3RD FLOOR,
ASSAM SECRETARIAT, DISPUR-781006.
4. MALABIKA TALUKDAR
SANTIPUR, WARD NO. 5,
BHUTAN ROAD, P.O. RANGIA,
PIN-781354, DIST. KAMRUP.
5. HEMANTA KUMAR SARMA
PROFESSOR, DEPARTMENT OF MATHEMATICS,
GAUHATI UNIVERSITY,
GOPINATH BORDOLOI NAGAR,
GUWAHATI-781014.
......Respondents
WP(C) 6087 of 2019 Page 1 of 115
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6. THE GAUHATI UNIVERSITY
REPRESENTED BY THE REGISTRAR,
GAUHATI UNIVERSITY,
GOPINATH BORDOLOI NAGAR,
GUWAHATI-14, ASSAM.
...... Proforma Respondent
For the Petitioner : Mr. P. K. Goswami, Senior Advocate
: Mr. B.D. Goswami
: Ms. P. Borah
: Ms. H. Deka
For the respondents Nos. 1-3 : Dr. R.C. Borpatra Gohain,
Advocate General, Assam
: Mr. R. Mazumder, Standing Counsel,
Higher Education Department.
For the respondent No. 4 : Mr. D. K. Das
For the respondent No. 5 : Mr. C. Chowdhury, Senior Advocate
: Ms. A. Gayan
For the respondent No. 6 : Ms. P. Barman, Standing Counsel,
Gauhati University
For the Caveator : Mr. H. Rahman
Amicus Curiae : Mr. N. Dutta, Senior Advocate,
Chairman, Bar Council of Assam,
Nagaland, Mizoram, Arunachal Pradesh
and Sikkim
With
W.P.(C) No. 5467 of 2019
1. TARAKESWAR CHOUDHURY
S/O LT. RATNESWAR CHOUDHURY,
R/O SANTIPUR,
P.O. AND P.S. BHARALUMUKH,
DISTRICT KAMRUP (M), ASSAM.
2. SANGRAM KESHARI DAS
S/O LT. BANSHIDHAR DAS
R/O NO. 2 MATHGHARIA,
HOUSE NO. 25
P.O. NOONMATI, GUWAHATI-20
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DISTRICT KAMRUP (M) ASSAM.
3. JARNA KALITA
W/O SRI PRANAB BARMAN,
R/O SILPUKHURI, P.S SILPUKHURI,
P.S. CHANDMARI, DISTRICT KAMRUP (M)
ASSAM.
4. UJJWAL DAS
S/O LT. HARESWAR DAS,
R/O BIRUBARI,
P.O. GOPINATH NAGAR,
P.S. PALTAN BAZAR, DIST. KAMRUP (M) ASSAM.
......Petitioners
-versus-
1. THE STATE OF ASSAM
REPRESENTED THROUGH THE SECRETARY TO THE GOVT.
OF ASSAM,
EDUCATION (HIGHER) DEPARTMENT,
SACHIBALAYA, DISPUR,
GUWAHATI-781006.
2. THE DIRECTOR OF HIGHER EDUCATION
ASSAM, KAHILIPARA GUWAHATI-19,
3. THE MINISTER, EDUCATION, GOVT. OF ASSAM,
JANATA BHAWAN, DISPUR,
GUWAHATI-6.
4. HEMANTA KUMAR SARMA,
PROFESSOR DEPARTMENT OF MATHAMATICS,
GAUHATI UNIVERSITY,
GOPINATH NAGAR, GUWAHATI-14.
5. M.K. CHOUDHURY,
CHAIRMAN,
THREE MEMBER ENQUIRY COMMITTEE CONSTITUTED
BY DIRECTOR OF HIGHER EDUCATION, ASSAM.
6. PRINCIPAL
J.B. LAW COLLEGE,
REPRESENTED BY PRINCIPAL DR. MALABIKA
TALUKDAR.
......Respondents
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For the Petitioners : Mr. D. Das, Senior Advocate
: Mr. B.D. Goswami
: Ms. P. Borah
: Mr. S. Borthakur
For the respondents Nos. 1 to 3 : Dr. R.C. Borpatragohain,
Advocate General, Assam
: Mr. R. Mazumder,
Standing counsel, Higher Education.
For the respondent No. 4 : Mr. C. Chowdhury, Senior Advocate
: Ms. A. Gayan
For the respondent No. 6 : Mr. D. K. Das
Amicus Curiae : Mr. N. Dutta, Senior Advocate,
Chairman, Bar Council of Assam,
Nagaland, Mizoram, Arunachal Pradesh
and Sikkim.
Date of hearing : 21.11.2019
Date of judgement and order : 20.02.2020
BEFORE
HON'BLE MR. JUSTICE N. KOTISWAR SINGH
JUDGMENT & ORDER
(CAV)
‗All is not well' in Jnanadabhiram Borooah Law College it seems. Unlike
Shakespearean Hamlet who doubted ‗some foul play', there seems to be
something really amiss in the affairs of Jnanadibhiram Barooah Law College
and the manner in which the State Government has acted, as would be
revealed in this petition.
2. The present writ petitions dealing with the State intervention in the
affairs of a law college which would have been passed off as a routine
dispute before this Court, however, have spawned certain issues of seminal
importance.
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3. The important question which arises for consideration in these
petitions is the scope and extent of the power of the State Government to
interfere with the management of a private law college which does not
receive substantial financial assistance from the State Government and thus,
is not financially dependent upon the State Government for its proper
functioning.
The college in question is Jnanadabhiram Barooah Law College. The
alleged mismanagement by its Governing Body was under an interventionist
scrutiny of the State Government, which State action is under examination of
this Court in turn.
4. This perhaps is also the first instance where the governing body of a
private law college has been placed under suspension by the State
Government on the ground of alleged mismanagement, and as such there
seems to be no precedence of the issue raised.
5. The controversy, however, has assumed significance for the reason
that it relates to the functioning of a law college. The importance of proper
functioning of a law college does not require any elaborate explanation. It
can be gauged from the fact that the law colleges/institutes in this country
ultimately form the foundation of an efficacious judicial system. The Bar and
Bench which form the bedrock of the Indian legal system are almost entirely
dependent on the products of these law colleges. It is only those who
successfully graduate from these law colleges recognised by the Bar Council
of India that they are entitled to practice law in this country and also to join
the judicial services. It, therefore, goes without saying that only a properly
managed law college can produce future quality lawyers and judges. Seen
from this perspective, the question raised in these petitions assumes
enormous importance and can be meaningfully examined by considering the
role of the Bar Council of India, which unfortunately was conspicuously
absent during the run up leading to the impugned State action.
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6. Jnanadabhiram Borooah Law College (hereinafter referred to as J.B.
Law College) was established by the Jnanadabhiram Barooah Law College
Society in the year 1969. The Society was registered in the year 1983 under
the Societies Registration Act with the Registrar of Societies, Assam, vide
Registration no.739 of 1983-1984. The College initially imparted law
education only in the three years LL.B. course and at present also offers five
years integrated LL.B. and LL.M courses. The College is affiliated to Gauhati
University and is recognised by the Bar Council of India. ―No-objection
certificate‖ for opening the five years integrated LL.B course was granted by
the State Government in 2006 on an application made by the College.
7. In these writ petitions, the Petitioners have challenged the Order
dated 29th July/2019 bearing No. PC/HE/Misc.118/2017/46, issued by the
Director of Higher Education, Assam (Respondent No. 2), inter alia, placing
the Governing Body of the College under suspension with immediate effect.
The impugned order reads as follows:
―GOVERNMENT OF ASSAM
OFFICE OF THE DIRECTOR OF HIGHER EDUCATION, ASSAM
KAHILIPARA **** GUWAHATI -19
PC/HE/Misc./118/2017/46 Dated Kahilipara the 29th July/2019
ORDER
In pursuance of the Govt. decision dated 23/07/2019 to constitute a High-Level Committee to inquire into the various allegations levelled against the Governing Body of J.B. Law College, Guwahati and on the basis of complaint received from the Principal of the College vide letter dated 17/7/2019 and 14/6/2019 and in exercise of power conferred by provision under Rule 4 of ―Non-Government College Management Rules 2001‖, the present Governing Body of J.B. Law College is placed under suspension with immediate effect and until further order.
This order is issued in public interest and for a free and fair enquiry on allegations raised against the governing body of J.B. Law College, Guwahati, Assam.
During the period of suspension of the Governing Body, Dr Hemanta Kumar Sharma, Professor, Department of Mathematics, Gauhati University will remain as Administrator.
WP(C) 6087 of 2019 Page 6 of 115with WP(C) 5467 of 2019 ~7~ Sd/- (Smt. G. Phukan, ACS) Director of Higher Education, Assam Kahilipara, Guwahati - 19.‖
8. WP(C) 6087/2019, has been filed by Dinesh Chandra Barman, one of the members of the Governing Body of the College who was nominated as a member by the Gauhati University.
The other petition, WP(C) 5467/2019, has been filed by 4 (four) persons, two of whom claim to be members of the Governing Body of the College, one being a University nominee and the other claiming to be a Guardians' representative, while other remaining two petitioners are Assistant Professors of the College.
These two petitions are clubbed and heard together considering the commonality of the issues involved and are disposed of by this common judgement.
However, for convenience sake, the writ petition, W.P. (C) No. 6087 of 2019 is being mainly referred to as regards the nomenclature of the impleaded parties since the writ petitioner as well as the official respondents therein have filed their respective affidavits and written submissions as well.
CONTENTIONS OF THE PETITIONERS :
9. The petitioner in W.P.(C) No. 6087 of 2019 as well as the other petitioners in the other writ petition contend that the impugned order is ex facie illegal and without jurisdiction, vitiated with malice, arbitrariness and portrays the highhanded action of the Respondent Nos. 2 and 3, who had acted in collusion with Respondent No. 4 in furthering their ulterior motive of intermeddling with the internal affairs of the College. [Reference made to the respondents is in terms of WP(C) No. 6087 of 2019].
WP(C) 6087 of 2019 Page 7 of 115with WP(C) 5467 of 2019 ~8~
10. The petitioners contend that a reading of the impugned order dated 29th July, 2019 would indicate that the order was issued by the Director of Higher Education, Assam purportedly in exercise of the power conferred by the proviso to Rule 4 of the ―Assam Provincialised Colleges and Assam Non- Government College Management Rules, 2001‖ (hereinafter, referred to as the ―2001 Rules‖).
The Petitioners submit that perusal of the 2001 Rules would clearly show that the said Rules apply only to provincialised colleges and non- Government colleges in Assam which are in receipt of ―deficit Grants-in-Aid‖ or ―ad hoc Grants-in-Aid‖ from the State Government.
The petitioners contend that the said Rules have no applicability to a law college, which is a private college and receives no ―deficit Grants-in-Aid‖ nor ―ad hoc Grants-in-Aid‖ from the State Government. Accordingly, the Director of Higher Education, Assam, has no jurisdiction to pass the impugned order by invoking the aforesaid provision of the 2001 Rules.
11. It has been also alleged that the entire action was orchestrated by the Respondent Nos. 2 and 3 in complicity with the Respondent Nos. 4 & 5, to enable the Respondent No. 2, to unduly interfere with the affairs of the College and to stall the process for appointment of a regular Principal of the College and to allow the Respondent No. 4 to continue to act as the Principal of the College, despite the fact that, her contractual tenure of one (1) year as the Principal of the College had already lapsed on 29.07.2019.
12. This, according to the petitioners is apparent from the fact that the initial advertisement for filling up the post of Principal was issued on 10.02.2019 and at the instance of the Respondent No. 2, the same was again re-advertised on 07.06.2019. It is also alleged that the Respondent No. 4 who herself is an applicant for the post of Principal of the College exerted her influence on the Respondent No. 3 to postpone the date for appointment of a regular Principal of the College, first on 24.06.2019, and then again on WP(C) 6087 of 2019 Page 8 of 115 with WP(C) 5467 of 2019 ~9~ 12.07.2019 and in the process, continued to serve as the Principal of the College, despite her tenure having ended on 29.7.2019. The complaints submitted by the Principal were motivated to derive benefits from the suspension of the Governing Body and thus, was complicit with the Respondent Nos. 3 and 5 in preventing appointment of a regular Principal of the College.
13. It has been also alleged that the impugned order has been issued purportedly on the basis of frivolous, baseless and undisclosed complaints of the Respondent No. 4.
14. The petitioners have also alleged violation of principles of natural justice contending that no notice was issued to the Governing Body or the College authority prior to passing of the impugned order. Neither, any copy of the alleged Government decision taken on 23.07.2019 to constitute a High Level Committee had been communicated to the Governing Body nor the College authority. Even the impugned order was not served on the College and/or the members of the Governing Body. Thus, the impugned action is arbitrary and illegal.
15. It has been also alleged that the impugned action of the State has brought the College into disrepute by casting slur on the reputation of the College which is managed by many persons of repute and eminence.
16. It has been contended that the purported reasons assigned for placing the Governing Body of the College under suspension as mentioned in the impugned order were:
(i) the Government decision dated 23.07.2019 to constitute a High Level Committee to enquire into the various allegations levelled against the Governing Body of the College and on the basis of;
(ii) the complaints received from the Principal of the College vide her letters dated 17.07.2019 and 14.06.2019.WP(C) 6087 of 2019 Page 9 of 115
with WP(C) 5467 of 2019 ~ 10 ~ According to the petitioners, the decision of the Government to constitute the High Level Committee had not been communicated, nor, the basis of such a decision to the Governing Body. Neither the contents of complaint of the Principal had been disclosed to the Governing Body.
17. It has been, accordingly, submitted that appointing an Administrator (i.e. the Respondent No. 5) to take over the reins of the administration of the College, to administer and manage the College in purported exercise of power under Rule 4 of the Assam Non-Government College Management Rules, 2001, which does not apply to the College, is illegal. It has been contended that the impugned actions are unreasonable and unwarranted inroad on the autonomy of a private college as the Government can have no say whatsoever, much less interfere with the running of a private college.
18. It has been contended that J. B. Law College is governed by the Gauhati University Act, 1947 and Advocates Act, 1961 read with the Bar Council of India Rules framed under the Advocates Act.
According to the petitioners, there are three statutory enactments which are relevant for the purpose of affiliation of J. B. Law College, which are as follows:
I. The Gauhati University Act, 1947. II. The Ordinance on Permission and Affiliation of Degree
Colleges to the Gauhati University, 1947, framed by the Gauhati University.
III. Ordinance on Permission & Affiliation of Law Colleges, 1998, also framed by the Gauhati University.
19. It has been submitted that to meet the requirements of a law college and for a recognized Law Degree, there is an exclusive Ordinance namely the ―Ordinance on Permission and Affiliation of Law Colleges, 1998‖ framed by the Gauhati University. In that Ordinance, Clause 4 (4) has defined the term WP(C) 6087 of 2019 Page 10 of 115 with WP(C) 5467 of 2019 ~ 11 ~ ―Governing Body‖ to mean the Governing Body constituted under relevant Rules, Ordinances and Statutes as the case may be. Similarly, the term ―Law College‖ is defined in Clause 4 (7) to mean a college imparting instructions up to LL.B. standard.
The said Ordinance also deals with various aspects of legal education including affiliation, temporary or regular. The composition of a regularly constituted governing body as prescribed under Sec. 3 of the Gauhati University Statute on ―Management of the College other than Govt. Aided Colleges of Assam‖ has been also provided.
20. According to the petitioners, the composition of the Governing Body of the College is as per the aforesaid 1998 Ordinance as also stated by the Gauhati University in their affidavit at paragraph 2 which reads as follows:
―2. That your deponent states that the J. B. Law College is affiliated to the Gauhati University. The J. B. Law College started in the year 1969 and is registered under the Societies Registration Act. The J. B. Law College has its Governing Body to manage its internal matters. The Gauhati University nominates four numbers of members to the Governing Body of Private Law College.‖
21. It has been also submitted that though the concurrence of the State Government was obtained for establishing the College, it was, in effect, not necessary. It has been submitted that the University Ordinance concerning Law Colleges does not provide for any concurrence by the State Government. It has been submitted that under the circumstances, it can be stated that the State Government has no role in running of a private law college like Jnanadabhiram Barooah Law College.
It has been submitted since its inception several distinguished legal luminaries had been closely associated with the Institution and the College has rendered a yeoman service and the President of the Governing Body of WP(C) 6087 of 2019 Page 11 of 115 with WP(C) 5467 of 2019 ~ 12 ~ the College is rendering services without taking any remuneration from the College whatsoever, and the College is at present one of the premier and reputed law colleges in the North-eastern part of India.
22. It has been also submitted that law colleges are covered under a Central statute, namely the Advocates Act, 1961 and the Bar Council of India Rules framed under the Advocates Act, and any such interpretation of a State statute if repugnant to the Central statute, namely the Advocates Act, 1961 and rules framed thereunder, the Bar Council of India Rules, to that extent, would be void.
It has been submitted that the Degree colleges require the concurrence of the State Government as provided under the Ordinance on Permission and Affiliation of Degree College to the Gauhati University, 1997, more particularly, Para 9 of the said 1997 Ordinance, unlike in case of a law college.
On the other hand, jurisdiction has been conferred upon the Bar Council of India and the University to deal with the affairs of law colleges. It has been submitted that the ―Ordinance on Permission and Affiliation of Law Colleges, 1998‖ made by the Gauhati University also provides for penal provisions in the event the law colleges are not properly functioning, i.e. Clause 17 of the aforesaid Ordinance which provides that the Executive Council of the University shall have power to withdraw any permission or affiliation granted to a law college and may do so at any time whenever,
(i) In the opinion of the Executive Council the college has failed to comply with the rules, regulations, statues or ordinances or any other directives of the University.
(ii) There is any adverse report from the Inspector or a Board of Inspectors.
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(iii) The Bar Council of India after inspection of the college as envisaged by the Advocates Act, 1961 submits an unsatisfactory report.
Similarly, under the Bar Council of India Rules, Bar Council of India has supervisory and regulatory power over law colleges and could penalize the college if found deficient in any mandatory field of legal education as provided under Rule 22 which relates to inspection report, Rule 24 which relates to adverse report, Rule 26 which relates to approval and Rule 27 which relates to revocation of approval. Thus, if a law college is not being managed properly as alleged by the State Government, approval for imparting law education could even be revoked by the Bar Council of India, as well as by Gauhati University. But the State Government cannot assume a power that is not there and if so done, it would be violative of the Constitutional provisions.
23. It has been accordingly, submitted on behalf of the petitioners that the 2001 Rules by no stretch of imagination can be made applicable to a private law college like J.B. Law College.
24. It has been also submitted that mala fide is also writ large in the instant case, as it is the Respondent No. 5, a Professor, Department of Mathematics, Gauhati University, who is a member of the same Governing Body, which has been placed under suspension, has been appointed as the Administrator.
25. It has been submitted that the allegations of mala fide against the Respondent No. 3 find mention in paragraphs 2 iii), xii), xv), xvii), xviii), xix), xxii), xxv), 3, Paragraph 4 Grounds C, D, F, G, H, N, O, P, R, S and Paragraph 5 of the Writ Petition. It has been contended that said Respondent No. 5 despite having been served with the notice from this Court, has chosen not to appear before this Court in the present proceedings and therefore, the WP(C) 6087 of 2019 Page 13 of 115 with WP(C) 5467 of 2019 ~ 14 ~ allegations of mala fide against the said Respondent No. 5 stands unrebutted and shall be deemed to be admitted.
26. In this regard, reliance has been placed on the decision of the Hon'ble Supreme Court in Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133, wherein the Supreme Court with regard to allegation of mala fides had held thus :
"116. It is somewhat strange that although definite allegations of mala fides on the part of the respondents particularly the Government for the day at the Centre were made with sufficient particulars and though the respondents had ample time to file their affidavits in reply, none of the respondents except Respondent 2, the Lt. Governor of Delhi and Respondent 5, Land & Development Officer has chosen to deny the allegations. ... Where mala fides are alleged, it is necessary that the person against whom such allegations are made should come forward with an answer refuting or denying such allegations. For otherwise such allegations remain unrebutted and the Court would in such a case be constrained to accept the allegations so remaining unrebutted and unanswered on the test of probability. That precisely is the position in the present case, in the absence of any counter-affidavit by any of the respondents. One should have thought that the Minister for Works & Housing should have sworn an affidavit accepting or denying the allegations made by the petitioners. ... Mala Fides on the part of the Government in power or its functionaries would be sufficient to invalidate the impugned notices. Fraud on power vitiates the impugned orders if they were not exercised bona fide for the purpose for which the power was conferred."
CONTENTIONS OF THE STATE RESPONDENTS :
27. The State respondents naturally have vehemently opposed the petitions and filed their affidavits-in-opposition. In doing so, the Ld. Counsel for the State has sought to place the factual backdrop under which the impugned order was issued.
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28. It has been claimed that the College has been in receipt of grants from the Government of Assam at various times, and records would show that while applying for permission to start the five year integrated course in the year 2006, the College had sought for and was granted ―No Objection Certificate" by the Government of Assam in the Department of Higher Education for the said course. Thus, the State Government would have jurisdiction to intervene to prevent any mismanagement of the College.
29. It has been submitted that the Government in the Department of Higher Education had, by letter dated 24.5.2109 sought certain information from the College for maintaining records. The same, however, was refused by the Principal of the College vide letter dated 3.7.2019 questioning the power of the Government to seek such information.
In the meantime, complaints were received from several quarters, including the Principal, the Students' Union of the College and one of the nominees of the Gauhati University to the Governing Body with regard to the functioning of the Governing Body of the College. The complaints related to fiscal and administrative mismanagement of the College by the Governing Body of the College and therefore, a conscious decision was taken to suspend the Governing Body in contemplation of an enquiry to be conducted. It was also noticed that the Government did not have any records of the constitution of the Governing Body of the College, save and except of the four members who had been nominated by the Gauhati University. It has been claimed that the Principal of the College, under directions of the Governing Body had refused to divulge any information which were sought for.
It has been stated that considering the allegations made against the functioning of the Governing Body, the Director of Higher Education in exercise of the powers conferred under proviso to Rule 4 of the Assam Non- Government College Management Rules, 2001, by an order dated 29.07.2019 WP(C) 6087 of 2019 Page 15 of 115 with WP(C) 5467 of 2019 ~ 16 ~ placed the Governing Body of the College under suspension and one out of the four nominees of the Gauhati University was directed to act as the Administrator of the College.
30. Learned Counsel for the State submits that prior to filing of these two petitions, a writ petition, being, WP(C) No. 5963 of 2019 was filed by the Governing Body of the College along with one of the members nominated by the Gauhati University on 16.08.2019. When the said writ petition came up for motion before this Court on 19.08.2019, the petition was withdrawn under instructions of the petitioner without seeking any liberty to approach this Court again.
31. Thus the State Respondents have raised objection on the maintainability of these petitions on the ground that the petitioners do not have locus standi to espouse the cause of the Governing Body. It has been contended that two of the petitioners in W.P.(C) No. 5467/2019 are teaching faculty members of the College with no tangible nexus with the cause of the Governing Body, and ironically, one of them, namely, Sri Sangram Keshari Das is facing charges of impersonation and forgery, inasmuch as, the then Principal of the College had lodged an FIR (registered as Chandmari PS Case No. 821/2019) that the said petitioner had impersonated as the Principal in the meetings of the Governing Body. Further, two of the petitioners were members nominated by the Gauhati University, who do not claim to be authorised by any mode recognised in law by the Governing Body to espouse its cause. The fourth petitioner also failed to establish his locus standi when he claimed to be a "Guardian" member without annexing any document bestowing upon him such status. As such, the present two petitions filed are not maintainable.
32. It has been alleged by the State Respondents that the petitioners have desisted from providing any document which could throw light on the mode of formation of the Governing Body or which could identify them as WP(C) 6087 of 2019 Page 16 of 115 with WP(C) 5467 of 2019 ~ 17 ~ members of the Governing Body, which shows a deliberate attempt to conceal the illegal mode and unconstitutional manner in which the Governing Body was constituted.
33. As regards the contention of the petitioners regarding the non-receipt of either ―deficit Grants-in-aid‖ or ―ad hoc Grants-in-aid‖, the State Respondents have annexed documents to show that the College had indeed been receiving grants-in-aid.
It has been contended that as the petitioners, on production of records could not dispute the same. On the contrary, an argument was advanced on their behalf that the grants received by the College from the State Government were merely maintenance grants and did not qualify as ―deficit grants-in-aid‖ or ―ad hoc Grants-in-aid‖.
The respondents have relied upon several case laws as will be adverted to later, in which it has been categorically held that grant in any form received by a college would qualify as ―ad hoc Grants-in-aid‖ and thus bring the College within the ambit of the Assam Non-Government College Management Rules, 2001.
34. As regards the contention of the petitioners that the College did not receive "concurrence" of the Government, it has been denied by the State Respondents by referring to Section 21(g) of the Gauhati University Act, 1947, which specifically provides that all colleges prior to being affiliated must receive the concurrence of the Government.
35. As regards the assertion of the petitioners that the Governing Body was formed as per the provision of Clause 10 of the Ordinance on ―Permission and Affiliation of Law Colleges, 1998‖ framed by the Gauhati University, it has been submitted on behalf of the State Respondents that this Ordinance is irrelevant. The reasons assigned are as follows:
WP(C) 6087 of 2019 Page 17 of 115with WP(C) 5467 of 2019 ~ 18 ~ ―Firstly, the said Ordinance provides for granting permission and affiliation of law colleges established after the Ordinance came into force in the year 1998 and it is the specific stand of the petitioners that the College was established in the year 1969.Thus, the question of adhering to such Ordinance cannot and did not arise.
Additionally, the said provisions refer to the constitution of a governing body prior to grant of permission and affiliation to 2nd year LL.B Classes in a newly established college. It is the admitted position that J.B. Law College has been affiliated for all classes including the five years course and thus there can be no reason to form or to continue with a Governing Body in accordance with the 1998 Ordinance.
Secondly, it was the stand of the Governing Body in Crl. Petition No. 500/2019 that the Governing Body was formed in accordance with the provisions of ―Ordinance on Permission and Affiliation of Teachers' Training College, 1997‖. The Governing Body of the College had asserted the applicability of the 1997 Ordinance in the said Crl. Petition No. 500/2019, and now in the present writ petition on the 1998 Ordinance, which they cannot do.
Thirdly, it was asserted that the Government had brought into force Statues in 1954 in exercise of powers under Section 21(g) of the Gauhati University Act, 1947. Section 21(g) of the University Act specifically provides that 'no statute relating to management of colleges and halls shall apply to Government Colleges and Government Aided Colleges in respect of which the respective Government of Assam shall make necessary rules".
Thus while there are statutes for management of colleges maintained by the University and of Government colleges, the Assam Non-Government College Management Rules, 2001 were framed to cater to the Non-WP(C) 6087 of 2019 Page 18 of 115
with WP(C) 5467 of 2019 ~ 19 ~ Government colleges like J.B. Law College. According to the State Respondents, there is only one Government law college, two University law colleges, three private law colleges and twenty one non-government law colleges including J.B. Law College in Assam.
36. It has been contended on the part of the State Government that in absence of records regarding formation of the Governing Body by the petitioners, it is obvious that the Governing Body was not formed in accordance with the provisions of law relied upon by the petitioners. It has been contended that while the petitioners were able to account for only four of the members who were nominated by the University, the mode of induction of the other alleged members remained unanswered throughout the litigation. Thus it was asserted by the State that pending an enquiry into the matter, suspension of the Governing Body was necessary for a fair inquiry.
37. It was contended that the Governing Body had been merely suspended and further action would depend upon the outcome of the enquiry and the petitioners are apparently not keen to have their functioning enquired into by the State and the present litigation is an attempt to thwart the inquiry.
38. It has been accordingly, contended by the State respondents that since J.B. Law College was a Non-Government College falling within the ambit of the provisions of the Assam Non-Government College Management Rules 2001 and since the Government had acted bona fide in exercise of powers under the Rules of 2001, the writ petitions deserve to be dismissed.
CONTENTIONS OF THE AMICUS CURIAE :
39. At this stage it may apposite to refer to the submissions made by Mr. Nilay Dutta, learned Senior Counsel and the then Chairman of the Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh and Sikkim, who at WP(C) 6087 of 2019 Page 19 of 115 with WP(C) 5467 of 2019 ~ 20 ~ the invitation of the Court had appeared as an Amicus Curiae, as this Court felt that since the College in issue is imparting legal education, it would be appropriate to hear the Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh and Sikkim which has a vital stake in the proper functioning of law colleges in this part of the country.
40. Learned Amicus Curiae had elaborately advanced the argument that legal education is almost exclusively under the purview of the Bar Council of India having mandated to do so under the Advocates Act, 1961 enacted by the Parliament. learned Amicus Curiae, in fact, for the first time introduced arguments with regard to the applicability of the Bar Council Rules in the instant case and had submitted that in so far as law colleges are concerned, statutes made by the Parliament and rules framed thereunder would hold the field and rules framed by the State to that extent would be unenforceable. The role of the State Government in interfering with the management of J.B. Law College was deprecated and it was asserted that the Government should not interfere in the functioning of the private law colleges.
41. Mr. Nilay Dutta, learned Senior Counsel submits that if recognition of the Bar Council of India is required for establishment of a law college, certainly, the Bar Council would have some say about the management of the law college also.
It has been submitted that the Assam Non-Government College Management Rules, 2001, provisions of which have been invoked, are merely executive instructions and are not creature of any Statute. It has been contended that the said 2001 Rules were framed in supersession of the Assam Aided College Management Rules, 1976 and these 1976 Rules were framed under the Gauhati University Act, 1976.
Learned Amicus Curiae has accordingly raised the question that if the said 2001 Rules are deemed to have been framed under the Gauhati University Act, how these are to be reconciled with other rules and WP(C) 6087 of 2019 Page 20 of 115 with WP(C) 5467 of 2019 ~ 21 ~ Ordinances framed by the Gauhati University? Learned Amicus Curiae, accordingly, suggested that the 2001 Rules are without any legal basis.
REPLY OF THE STATE RESPONDENTS :
42. The Government in its reply asserts that no Rules have been made by the Union Government or by the Bar Council of India or by any of the concerned Universities with regard to functioning of the governing body of a law college and its control and management. Thus, there can be no repugnancy if the State Government frames rules to ensure proper functioning of and for proper control over the governing body of a law college, even if there are rules framed by the Bar Council of India relating to legal education.
43. It was stated that the fact that Ld. Amicus Curiae was also the engaged counsel for the Governing Body of J.B. Law College in Crl. Petn No. 500/2019 was not brought to the notice of the Hon'ble Court by any of the petitioners or the intervenor, who were well conversant with the facts of the said petition, which would, otherwise, demonstrate conflict of interest.
44. Learned counsel for the State submits that taking a cue from the above submission advanced by the learned Amicus Curiae, the petitioners thereafter, deviated from their pleaded case and in the final arguments, referred to certain provisions of the Bar Council of India Rules to emphasise that since the Bar Council of India was empowered to frame policies regarding education in law, law framed by the State, more specifically, the Assam Non-Government College Management Rules 2001, would not apply to such law colleges which are affiliated to a University and which are imparting education in law with permission from the Bar Council of India. The thrust of the argument thus turned later on towards applicability of the Bar Council of India Rules to law colleges while initially, the pleaded case of the petitioners was that since the college in issue did not receive grants-in-
WP(C) 6087 of 2019 Page 21 of 115with WP(C) 5467 of 2019 ~ 22 ~ aid and was not in receipt of concurrence from the State Government, the Rules of 2001 would not apply.
45. It was thus submitted on behalf of the State that the Bar Council of India is no doubt empowered to determine the standard of education in law. However, the management of law colleges imparting such education is not within the realm of powers of the Bar Council of India. It has been submitted that the standard of education and the management of institutions are two different aspects and governed by two different sets of laws.
It has been submitted that the Rules framed by the Bar Council of India as referred to by the petitioners and the learned Amicus Curiae do not in any manner deal with the management of a law college or the manner in which any alleged mismanagement, be it fiscal or administrative etc. are to be tackled. Rather, the said Bar Council of India Rules, viz., Rule 16(vi) requires the concerned educational institution to obtain a no-objection certificate from the State Government where permission from the State Government is necessary, before applying for affiliation. In the present case, the 'No-Objection Certificate" was issued by the State Government on an application of the College for starting the five year integrated LL.B Course. According to the learned counsel for the State, this itself nullifies the argument of the petitioners that the State Government has no role to play in the functioning of the governing body of a law college.
46. It was accordingly, submitted that while the Central law or the Rules framed by the Bar Council of India are with regard to maintenance of standards of education in law, the State Rules deal with the management of colleges and these State Rules do not infringe upon the field occupied by law made by the Union or the Bar Council of India and as such, there is no question of any repugnancy arising in the present case.
47. It was accordingly, submitted that when the authority vested on the Director of Higher Education by a valid statute has been exercised bona fide, WP(C) 6087 of 2019 Page 22 of 115 with WP(C) 5467 of 2019 ~ 23 ~ and when the allegations of malice have been abandoned by the petitioners, the present writ petitions deserve to be dismissed.
It has been submitted that, moreover, after WP(C) 5963/2019, which was filed by the Governing Body of J.B. Law College challenging the order dated 29-7-2019, was withdrawn by the Governing Body, the grievance of the Governing Body itself came to a closure. Thus, allowing the present petitioners to continue a challenge which had been abandoned by the affected party itself would result in a mere academic exercise.
48. In support of the submission of the State, the State has placed reliance, inter alia, upon these orders/documents:
1. Order dated 19-8-2019 passed in WP(C) 5963/2019 whereby the writ petition filed by Governing Body was withdrawn.
2. Records of financial grants to the college for several years, annexed as Annexure 1 to the affidavit-in-opposition filed by the Director of Higher Education in WP(C) 5467/2019.
3. Copy of order granting no objection to the College on 8th November 2006 to introduce the five year integrated LL.B Course.
4. Copy of complaints received by the authorities relating to mismanagement by the Governing Body of the College, annexed as Annexures 3 and 4 to the affidavit-in-opposition filed in WP(C) 6087/2019.
5. Original records of the proceedings prior to passing of the impugned order as available in File no PC/HE/Misc-118/2017.
49. The respondents have also relied on the following case laws:
1. Anamika Acharya vs. State of Assam and others: WA 235/2008, disposed of on 31/03/2015.WP(C) 6087 of 2019 Page 23 of 115
with WP(C) 5467 of 2019 ~ 24 ~ It deals directly with the applicability of the Assam Non- Government College Rules 2001 to a private college.
2. Afzalur Rahman vs. State of Assam and others: WP(C) 1008/2010 disposed of on 29/04/2010.
It deals directly with the issue regarding applicability of the 2001 Rules.
3. Afzalur Rahman vs. State of Assam and others : WA 181/2010 disposed of on 21/06/2010.
It upheld the decision in WP(C) 1008/2010 in Afzalur Rahman vs. State of Assam and Ors.
4. Shahadot Ali vs. State of Assam, 2012 (1) GLT 561.
It followed Afzalur Rahman and upheld the applicability of the Rules of 2001 on private colleges.
50. In Anamika Acharya (supra), the Division Bench of this Court reversed the decision of the learned Single Judge which had held that as the college in issue was a non-government college and not receiving ―deficit Grants-in-aid‖ or ―ad hoc Grants-in-aid‖ and was purely a private institution, the writ petition would not lie. The Division Bench on observing the affidavit filed by the college which disclosed that the college had been receiving ad hoc recurring grants from the Karbi Anglong Autonomous Council, and that the college had been using the same for overall development of the college and for providing infrastructure facilities to the students and the college, and also taking the view that the Government had substantial control over the management of the college, held that the 2001 Rules would be applicable to the college in issue and as such, termination of the service of a lecture of the college without obtaining the prior permission of the Director was held illegal.
The Division Bench held that the 2001 Rules would apply to the facts of the case. Relevant paragraph of the aforesaid judgement (paragraph no.
15) may be reproduced herein-below:
WP(C) 6087 of 2019 Page 24 of 115with WP(C) 5467 of 2019 ~ 25 ~ "15. Upon thorough consideration of the facts and submissions we find that the affidavit filed by the fourth respondent in the writ petition and the order for payment of ad hoc recurring grant by the Karbi Anglong Autonomous Council clearly disclose that the ad hoc grant-in-
aid has been given to the college in question. Therefore, by virtue of Rule 1(3) the provisions of the Assam Non-Government College Management Rules, 2001 would apply to the facts of the case. The provisions of Rule 1(3), 3 and 18 disclose the nature of Government control in constitution of body and control over the functioning and management of the College by the governing body." From the above, what is evident is that the college in the said case had been receiving recurring grant and also there was a specific finding by the Court that the provisions of 2001 Rules would apply to the facts of the case.
51. In Afzalur Rahman (supra), the learned Single Judge negating the contention of the petitioner that the college was in receipt of only financial assistance from the Government and not deficit grant-in-aid, held that that records had revealed otherwise.
The learned Single Judge noted that records revealed that various orders passed towards providing financial assistance to the college were in the form of ―ad hoc Grants-in-aid‖ and merely because in one of the years, i.e. in 2007, ―ad hoc Grants-in-aid‖ had not been mentioned, but was provided by way of financial assistance, that itself would not mean that the college was not in receipt of ―ad hoc Grants-in-aid‖. The Court accordingly, held that if the college was in receipt of ad hoc Grants-in-aid, then it definitely came within the purview of the 2001 Rules.
It was also noted by the learned Single Judge that the President of the Governing Body of the college was appointed by the Director of Higher Education.
WP(C) 6087 of 2019 Page 25 of 115with WP(C) 5467 of 2019 ~ 26 ~
52. The aforesaid decision of the learned Single Judge in Afzalur Rahman (supra) was upheld by the Division Bench in the appeal preferred by the petitioner therein, Afzalur Rahman, by holding that receipt of financial assistance by the college from the State Government would amount to receipt of ad hoc grants by the college so as to make the provisions of the 2001 Rules applicable to the college in question. The Division Bench also took into consideration the fact that the petitioner in the said writ petition was appointed as the President of the governing body by the Director of Higher Education.
53. In Shahadot Ali (supra), this Court also found that the governing body of the college in question was constituted under the 2001 Rules by an order issued by the Director of Higher Education. By following the decision in Afzalur Rahman (supra), this Court held that the provisions of 2001 Rules would be applicable to the college in question.
54. Raid Laban College Society vs. State of Meghalaya, reported in 2008(2) GLT 794 was relied upon by the petitioners. It was contended by the petitioners that the scope of the expression ―deficit Grants-in-aid‖ and ―Grants-in-aid‖ had been clearly explained in the said case, and in no case, J B Law College can be said to have been receiving either ―deficit Grants-in- aid‖ or ―ad hoc Grants-in-aid‖. As regards the aforesaid contention, it has been submitted on behalf of the State Government that this case dealt with the applicability of the Assam Aided College Management Rules 1965 but this case has no applicability to the present case which is now governed by a new set of Rules of 2001. It has been accordingly, submitted that the said decision cannot be made applicable to the present case.
REPLY BY THE PETITIONERS:
55. In response, the learned senior counsel for the petitioners submits that the cases cited by the State Respondents, namely Smt. Anamika WP(C) 6087 of 2019 Page 26 of 115 with WP(C) 5467 of 2019 ~ 27 ~ Acharjyya v. State of Assam and others1; Shahadot Ali (Md.) v State of Assam & Ors.2, and Afzalur Rahman v The State of Assam & Ors3, all concern Degree colleges and the 2001 Rules are applicable to the said cases and not to a law college. It was, accordingly, submitted that the said cases cited at the Bar are distinguishable on facts, from the instant case which deals with a law college and are thus not applicable.
56. It has been submitted that as far as the instant case is concerned, the only case that is of relevance is, Madan Hazarika -vs- Gauhati University and Ors., wherein the Division Bench of this Court, was considering the case of alleged mismanagement and anomalies in the running of Dispur Law College another private law college like J.B. Law college. In Paragraphs 15 to 18 of the said decision, it was observed as under:
"15. The 1998 Ordinance of the Gauhati University lays down the detailed procedure and the conditions for submission of an application seeking permission to start a law college, as well as the conditions to be fulfilled for the purpose of granting temporary affiliation. Clauses 9,10 and 11 of the said ordinance stipulates conditions to be fulfilled by a law college for granting permission for first year, second year and third year classes of LLB course respectively. Clause 12 deals with renewal of temporary affiliation and Clause 13 deals with grant of permanent affiliation. The Executive Council of the University is also empowered to withdraw the affiliation, under clause 17, on the grounds set forth therein. Clause 18 lays down the minimum staffing requirement, which requires that up to LLB first year class; there must be two whole-time lecturer, up to LLB second year class, three whole time lectures and up to LLB third year class, four whole time lecturers, apart from a whole 1 WA 235/2008 decided on 31.03.2015 2 (2012)1 GLT 561 3 WP(C) 1008/2010 dated 01.06.2010 WP(C) 6087 of 2019 Page 27 of 115 with WP(C) 5467 of 2019 ~ 28 ~ time Principal. It is also stipulated that a section shall not ordinarily consist of more than 80 students. Cause 19 lays down minimum accommodation, which the law college must have. Clause 20 provides for having an adequate library, which must consist of law journals mentioned therein.
16. From the provisions contained in the said 1998 ordinances relating to the permission and affiliation of the law college, it is therefore apparent that certain stipulations have been made, for the purpose of granting the permission to open a law college, as well as, for getting such law colleges affiliated to the university. The present law college having admittedly affiliated to Gauhati University, it is bound to comply with the requirement of the 1988 Ordinance, otherwise it will be exposed to withdrawal of affiliation by the Executive Council, thereby jeopardize the academic career of the students admitted therein.
The Bar Council of India being the authority to ensure that quality legal education is imparted by a law college, which it has approved for affiliation, has also a duty to inspect the law college, either by itself or through Sate Bar Council. Such law colleges are also duty bound to comply with the requirements of the Bar Council of India Rules as well as the directives issued there under, as contained in the schedule appended to such rule, as, in the event of failure to do so, the approval for affiliation granted by the Bar Council is liable to be withdrawn, „which will have the effect of jeopardizing the interest of the students who have been admitted in the said college.
*** *** ***
18. In view of the aforesaid discussion and also keeping in view the different provisions of the Bar Council of India Rules as well as the 1998 ordinance and the necessity of imparting quality legal education in law colleges, and also the stand taken, by the respondents in the WP(C) 6087 of 2019 Page 28 of 115 with WP(C) 5467 of 2019 ~ 29 ~ present proceedings, in our considered view, the interest of the students and the law colleges would be served if, the present public interest litigation is disposed of with the following directions:
(I) The Governing Body of the Dispur Law College shall be constituted by the end of November 2006 in terms of the provision contained in 1998 Ordinance, under the supervision of the Registrar of Gauhati University or any responsible officer deputed by him for that purpose.
(II) The college authority shall complete the construction of the whole RCC building, as per the undertaking, by the end of December 2006, so as to comply with the requirement of the Bar Council of India Rules as well as 1998 Ordinance. (III) The College shall strictly comply with all the requirements of Bar Council of India Rules as well as the 1998 Ordinance of the Gauhati University, regarding granting of approval for affiliation as well as the affiliation by the University, including the requirement of building, class rooms, maximum numbers of students in each section of a class rooms, maximum numbers of students in each section of a class, moot court room and also the appointment of the whole-time Principal and the lecturers, by the end of December, 20016. (IV) The Bar Council of India, for the purpose, of granting approval of affiliation, inspect the said law college, preferably in the month of January 2007, as the present approval, of affiliation is for the year 2006-07 and shall thereafter" take appropriate decision in that regard, as per Rules. The University authority shall also on receipt of such recommendation from the Bar Council, take appropriate decision relating to such affiliation.
The decision in that regard shall be taken by both the authorities, WP(C) 6087 of 2019 Page 29 of 115 with WP(C) 5467 of 2019 ~ 30 ~ namely Bar Council and the Gauhati University by 31st March, 2007.
(V) The College authority by 31st March, 2007 shall make available computers to its students with internet facility. (VI) The college shall not admit any fresh students into LLB course in violation of the Bar Council of India Rules as well as the 1998 Ordinance of the University. However, such restriction shall not apply to the students who either have already been admitted to the first year/second year/third year of LLB course of those existing students who are required to be admitted in the next year of such course.
(VII) The College authority shall appoint a competent auditor and cause its accounts for last five financial years‟ preceding the financial year 2005-06 audited by 31st March, 2007 and submit the reports thereof to the competent authority.
(VIII) The University Authority as well as the State Bar Council shall undertake regular inspections of the college in question, apart from other law colleges in Assam and submit such report before the Registry of this court, in every 6(six ) months commencing from 1st January,2007.
(IX) The Gauhati University shall henceforth, hold the law examinations in different centers so that students of any law college do not appear in such examination in their own college. Such direction shall be effective for all the law college in the State of Assam."
57. It has been submitted on behalf of the petitioners that in Paragraphs no. 15 to 16 of the aforesaid decision in Madan Hazarika (supra), it was clarified that the 1998 Ordinance of the Gauhati University has laid the detailed procedure and conditions for submission of an application seeking WP(C) 6087 of 2019 Page 30 of 115 with WP(C) 5467 of 2019 ~ 31 ~ permission to start a new law college; as well as conditions to be fulfilled for grant of temporary affiliation and the aforesaid directions passed in paragraphs no. 16 and 18 in Madan Hazarika's case (supra) are not without reason. In fact, it emphasizes the applicability of 1998 Ordinance to law colleges.
58. Accordingly, it has been submitted that in view of the law laid down in Madan Hazarika's case (supra), it is apparent that, the law colleges come under the regulatory regime of Bar Council of India and the 1998 University Ordinance and therefore, the State cannot interfere and meddle with the affairs of J B Law College.
59. It was also submitted that there is a PIL pending before this Court namely, PIL 9 of 2015, and in the affidavit filed by the Deputy Secretary to the Government of Assam, Education, (Higher) Department in the said PIL, the report of the ―Committee to Study the Legal Education System in Assam‖ was annexed, wherein the result of the last three years had been enumerated. At serial no. 23 of the list of law colleges, the name of J.B. Law College finds mention. The petitioners have reproduced the relevant particulars in the said report as below:
Results of the last Three Years Bar Council Sl Name of 2016-17 2015-16 2014-15 Requirement No. the College ..... ..... ...... ..... ...... .....
23. J.B. Law 5 years 5 years 5 years College LLB-62.37%, LLB-65.98%, LLB-87.15%, 3 years 3 years LL.B.- 3 years LLB-N/A, 40.35% LL.B-80.58% LLM-81.57% LLM-81.57% LLM-47.82% It has been also submitted that, in the said affidavit filed by the State Government, the source of revenue of the law college had been mentioned WP(C) 6087 of 2019 Page 31 of 115 with WP(C) 5467 of 2019 ~ 32 ~ and in respect of J.B. Law College, the source of revenue has been shown to be student fees and that there is no regular Government funding of the College.
Sources of Revenue Bar Council Sl No. Name of the Revenue Regular Govt.
Requirement College Source Grants
1 Dispur Law College Students NIL
Fees
23 J.B.Law College Students Do
Fees
Thus, it has been submitted that the State Government themselves have acknowledged that J.B. Law College does not receive regular Government grant and relies on students' fee for maintaining itself.
60. In the end, it was the submission of the petitioners that, since a set of rules deriving its authority from a Parliamentary enactment governs the Law College, if the power to suspend is entrusted to the State, it will disturb the Constitutional scheme.
As regards locus standi of the petitioners which was questioned by the State, it was asserted that any member of the Governing Body and teaching staff had every right to challenge the order of suspension as such an action adversely affects the functioning of the College.
61. It has been also submitted that the impugned action though was assailed by the Governing Body earlier by way of a writ petition, being WP (C) No. 5963/2019, which was represented by one of the members of the Governing Body, Professor. Dr. Kishori Mohan Pathak, however, on being instructed, the said writ petition was withdrawn at the motion stage itself on 19.08.2019. It has been also alleged that every effort was made by the Respondents more particularly the Respondent Nos. 2, 3, 4 and 5 to create obstructions as well as to pressurize the Governing Body of the College, not WP(C) 6087 of 2019 Page 32 of 115 with WP(C) 5467 of 2019 ~ 33 ~ to challenge the impugned action, thus to perpetuate the illegality, with the sole motive to keep continuing the term of Respondent No. 4 whose tenure of service was long over.
It was also alleged that, the Respondent Nos. 3 and 5, were taking help of other persons, who are not members of the Governing Body, and were putting pressure, intimidation and seeking to influence members of the Governing Body, to thwart any legal challenge to the illegal action of the State Respondents. It was accordingly, submitted that it was under the aforesaid circumstances that the said Writ Petition, being WP (C) No. 5963/ 2019 was withdrawn.
ANALYSIS AND FINDINGS :
62. As evident from the rival contentions, the core dispute revolves round the applicability of the ―Assam Non-Government College Management Rules, 2001‖ on the J.B. Law College.
63. Before we embark upon this exercise, it may be profitable to examine the source of the 2001 Rules, as it may have relevance to the decision on the validity of the impugned action taken based on the said Rules.
64. The said 2001 Rules were published in the Assam Gazette Extraordinary No. 118 dated 16.6.2001 vide order number No. B(2)H.294/2001/4, dated 15.6.2001. The preamble to the Rules states that these Rules were issued in supersession of the Assam Aided Colleges Management Rules, 1976 without indicating the source of the rule making authority.
The preamble reads as follows:
―In supersession of the Assam Aided College Management Rules, 1976, except in respect of things done or omitted to be done before such supersession, the Governor of Assam is hereby pleased to make WP(C) 6087 of 2019 Page 33 of 115 with WP(C) 5467 of 2019 ~ 34 ~ the following rules regulating the management of non government colleges in Assam, namely:‖
65. If the aforesaid Rules were issued in supersession of Assam Aided College Management Rules, 1976, the following inferences can be drawn:
(i) Either, these 2001 Rules were framed under the same source of authority or power under which the Assam Aided College Management Rules 1976 were framed;
OR,
(ii) These rules were framed by invoking Article 162 of the Constitution of India, which deals with the executive power of the State to make laws, as apparently, no statute had been framed by the Legislature of the State of Assam on the basis of which the aforesaid rules were framed.
66. In passing, this Court would like to observe that Article 309 of the Constitution of India which provides for power to make rules to regulate the recruitment, and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State, perhaps may not be applicable in the present case in as much as J B Law College is admittedly not a government college and the employments are not in connection with affairs of the State of Assam.
As to whether these 2001 Rules can be said to have been framed under Article 309 of the Constitution as far as provincialised employees of the provincialised colleges are concerned, as this issue has not come in for consideration in this case, it does not call for any further examination.
67. If these 2001 Rules were framed under the same source of authority or power under which the Assam Aided College Management Rules, 1976 were framed, we may like to examine how the earlier superseded Rules of 1976 were framed.
WP(C) 6087 of 2019 Page 34 of 115with WP(C) 5467 of 2019 ~ 35 ~ The Assam Aided College Management Rules 1976, published vide Notification No. ECL 11/76/20, dated 10th November, 1976 were made by the Governor of Assam in exercise of the powers conferred by the proviso to Clause (g) of Section 21 of the Gauhati University Act, 1947 as amended, and proviso to Clause (f) of Section 32 of the Dibrugarh University Act, 1965, as amended, by superseding the old rules, framed vide Government Notification ECL. 17/62/33, dated the 1st July, 1965 and Notification No. ECL 17/62/50, dated the 26th May, 1966.
68. Since the source of the rule making power in making Assam Non- Government College Management Rules, 2001 was not mentioned, though it has been mentioned in the preamble of the aforesaid 2001 Rules that these rules were made in supersession of the Assam Aided College Management Rules 1976, there may be a presumption that the 2001 Rules were made by the Governor in exercise of the same powers under which the old Rules of 1976 were made.
Since the old Rules of 1976 were made by the Governor in exercise of the powers conferred under the Gauhati University Act, 1947 and the Dibrugarh University Act, 1965, as the case may be, there may be a presumption that the 2001 Rules were also made by invoking the powers under the Gauhati University Act, 1947 and/or the Dibrugarh University Act, 1965.
69. In this regard, it may be mentioned that the Governor has no such authority to make any rules relating to management of a college. It is only the Executive Council of the Universities through Statutes or Ordinances that rules relating to management of colleges can be made.
70. There is nothing mentioned in the 2001 Rules that these were made by the Executive Council of the Gauhati University or Dibrugarh University as the case may be. Thus, if the Governor did not make these rules on the basis of any decision made by the Executive Council of the Gauhati University or WP(C) 6087 of 2019 Page 35 of 115 with WP(C) 5467 of 2019 ~ 36 ~ Dibrugarh University as the case may be, it is doubtful whether these 2001 Rules are valid. However, since the vires of the rules have not put to challenge, we may not be detained by the same any longer.
71. On the other hand, if it is contended that the said 2001 Rules were framed in exercise of Article 162 of the Constitution of India it must be acknowledged that the State Government can certainly make rules or executive instructions under Article 162 in absence of any statute made by the State Legislature.
72. Accordingly, by treating the aforesaid 2001 Rules to have been framed by the Governor in exercise of the powers conferred under Article 162 of the Constitution of India, this Court would proceed to examine the issues raised.
While doing so, we need to further examine the scope of such rules or executive instructions that can be made by the State authorities which empowers the State to interfere with the functioning of a law college.
73. At this stage, it may be apposite to refer to the Constitutional schemes. In this regard, it may be mentioned that Article 13 of the Constitution of India has indicated the limitations of laws which may be made, vis-à-vis the fundamental rights.
Article 13 of the Constitution of India mandates that the State shall not make any law which takes away or abridges the rights conferred under Part III of the Constitution of India and any law made in contravention of sub clause (2) to Article 13 shall to the extent of the contravention, be void.
74. As we proceed further, it needs to be ascertained as to whether establishing and managing a college is a fundamental right or not. This issue however, is no more res integra. In T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 this issue, along with four other issues, were specifically raised and considered by the Hon'ble Supreme Court. The Hon'ble Supreme Court held that it is a fundamental right under Article WP(C) 6087 of 2019 Page 36 of 115 with WP(C) 5467 of 2019 ~ 37 ~ 19(1)(g), which gives the right to all the citizens to practise any profession or to carry on any occupation, trade or business.
The five issues considered by the Hon'ble Supreme Court in the said case of T.M.A. Pai Foundation (supra) were as follows:
1. Is there a fundamental right to set up educational institutions and if so, under which provision?
2. Does Unni Krishnan case* require reconsideration?
3. In case of private institutions, can there be government regulations and, if so, to what extent?
4. In order to determine the existence of a religious or linguistic minority in relation to Article 30, what is to be the unit -- the State or the country as a whole?
5. To what extent can the rights of aided private minority institutions to administer be regulated?
*Unni Krishnan, J.P. Vs. State of AP., (1993) 1 SCC 645
75. Of the aforesaid, the first and third issues are of relevance to us.
By referring to Unni Krishnan (supra) the Hon'ble Supreme Court held in T.M.A. Pai Foundation (supra) that establishing and managing of a college is a fundamental right, and recalled what was held in Unni Krishnan (supra) as follows:
"63. In each of these cases, depending upon the statute, either "occupation" or "business" has come to be defined. Certainly, it cannot be contended that establishment of an educational institution would be "business". Nor again, could that be called trade since no trading activities are carried on. Equally, it is not a profession. It is one thing to say that teaching is a profession but, it is a totally different thing to urge WP(C) 6087 of 2019 Page 37 of 115 with WP(C) 5467 of 2019 ~ 38 ~ that establishment of an educational institution would be a profession. It may perhaps fall under the category of occupation provided no recognition is sought from the State or affiliation from the University is asked on the basis that it is a fundamental right.................."
The Supreme Court accordingly, in T.M.A. Pai Foundation (supra), held as follows:
"25. The establishment and running of an educational institution where a large number of persons are employed as teachers or administrative staff, and an activity is carried on that results in the imparting of knowledge to the students, must necessarily be regarded as an occupation, even if there is no element of profit generation. It is difficult to comprehend that education, per se, will not fall under any of the four expressions in Article 19(1)(g). "Occupation" would be an activity of a person undertaken as a means of livelihood or a mission in life. The above quoted observations in Sodan Singh case correctly interpret the expression "occupation" in Article 19(1)(g)."
76. If establishment and management of a college/an educational institution, has been held to be a fundamental right as guaranteed under Article 19(1)(g), to what extent such a right can be curtailed by the State?
The answer is provided under sub-clause (6) of Article 19, under which the State can impose reasonable restrictions in the interest of the general public. Article 19 (1) (g) reads as follows:
―19. Protection of certain rights regarding freedom of speech, etc.--(1) All citizens shall have the right--
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions [co-operative societies];
(d) to move freely throughout the territory of India;WP(C) 6087 of 2019 Page 38 of 115
with WP(C) 5467 of 2019 ~ 39 ~
(e) to reside and settle in any part of the territory of India; and
(f) * * *
(g) to practise any profession, or to carry on any occupation, trade or business.
(2) Nothing in sub-clause (a) of clause (1) shall affect ..................
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,--
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.
77. Coming to the other issue as to the permissibility and extent of government regulations in case of private institutions, the Hon'ble Supreme Court in the aforesaid case of T.M.A Pai Foundation case (supra) referring to University Education Commission set up in 1948 with Dr. S. Radhakrishnan as its Chairman and nine other renowned educationists as its members, the Hon'ble Supreme Court had to say the following:
"52. There cannot be a better exposition than what has been observed by these renowned educationists with regard to autonomy in education.WP(C) 6087 of 2019 Page 39 of 115
with WP(C) 5467 of 2019 ~ 40 ~ The aforesaid passage clearly shows that the governmental domination of the educational process must be resisted. Another pithy observation of the Commission was that State aid was not to be confused with State control over academic policies and practices. The observations referred to hereinabove clearly contemplate educational institutions soaring to great heights in pursuit of intellectual excellence and being free from unnecessary governmental controls."
It was further observed as follows:
"54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions." (Emphasis added).
55. The Constitution recognizes the right of the individual or religious denomination, or a religious or linguistic minority to establish an educational institution. If aid or financial assistance is not sought, then such institution will be a private unaided institution. Although, in Unni Krishnan case4 the Court emphasized the important role played by private unaided institutions and the need for private funding, in the scheme that was framed, restrictions were placed on some of the important ingredients relating to the functioning of an educational institution. There can be no doubt that in seeking affiliation or recognition, the Board or the university or the affiliating or recognizing authority can lay down conditions consistent with the requirement to ensure the excellence of education. It can, for instance, indicate the WP(C) 6087 of 2019 Page 40 of 115 with WP(C) 5467 of 2019 ~ 41 ~ quality of the teachers by prescribing the minimum qualifications that they must possess, and the courses of study and curricula. It can, for the same reasons, also stipulate the existence of infrastructure sufficient for its growth, as a prerequisite. But the essence of a private educational institution is the autonomy that the institution must have in its management and administration. There, necessarily, has to be a difference in the administration of private unaided institutions and the government-aided institutions. Whereas in the latter case, the Government will have greater say in the administration, including admissions and fixing of fees, in the case of private unaided institutions, maximum autonomy in the day-to-day administration has to be with the private unaided institutions. Bureaucratic or governmental interference in the administration of such an institution will undermine its independence. While an educational institution is not a business, in order to examine the degree of independence that can be given to a recognized educational institution, like any private entity that does not seek aid or assistance from the Government, and that exists by virtue of the funds generated by it, including its loans or borrowings, it is important to note that the essential ingredients of the management of the private institution include the recruiting students and staff, and the quantum of fee that is to be charged.
(Emphasis added).
*** *** ***
66. In the case of private unaided educational institutions, the authority granting recognition or affiliation can certainly lay down conditions for the grant of recognition or affiliation; these conditions must pertain broadly to academic and educational matters and welfare of students and teachers - but how the private unaided institutions are to run is a WP(C) 6087 of 2019 Page 41 of 115 with WP(C) 5467 of 2019 ~ 42 ~ matter of administration to be taken care of by the management of those institutions."
(Emphasis added).
4: Unni Krishna , J.P. Vs. State of A.P. (1993) 1 SCC 645.
78. As regards private aided professional non-minority institutions, the Hon'ble Supreme Court held that if the private institution receives aid from the State, the State can certainly put certain restrictions on the freedom in the matter of administration and management of the institution but the same time such a private institution cannot be run by the government as a wholly owned or controlled government institution and interfere with the constitution of the governing bodies. It was, however, held that the autonomy of a private aided institution would be less than that of an unaided institution.
It was accordingly, held as follows:
"72. Once aid is granted to a private professional educational institution, the Government or the State agency, as a condition of the grant of aid, can put fetters on the freedom in the matter of administration and management of the institution. The State, which gives aid to an educational institution, can impose such conditions as are necessary for the proper maintenance of the high standards of education as the financial burden is shared by the State. The State would also be under an obligation to protect the interest of the teaching and non-teaching staff. In many States, there are various statutory provisions to regulate the functioning of such educational institutions where the States give, as a grant or aid, a substantial proportion of the revenue expenditure including salary, pay and allowances of teaching and non-teaching staff. It would be its responsibility to ensure that the teachers working in those institutions are governed by proper service WP(C) 6087 of 2019 Page 42 of 115 with WP(C) 5467 of 2019 ~ 43 ~ conditions. The State, in the case of such aided institutions, has ample power to regulate the method of selection and appointment of teachers after prescribing requisite qualifications for the same. Ever since In Re, Kerala Education Bill, 1957 this Court has upheld, in the case of aided institutions, those regulations that served the interests of students and teachers. Checks on the administration may be necessary in order to ensure that the administration is efficient and sound and will serve the academic needs of the institutions. In other words, rules and regulations that promote good administration and prevent maladministration can be formulated so as to promote the efficiency of teachers, discipline and fairness in administration and to preserve harmony among affiliated institutions. At the same time it has to be ensured that even an aided institution does not become a government-owned and controlled institution. Normally, the aid that is granted is relatable to the pay and allowances of the teaching staff. In addition, the management of the private aided institutions has to incur revenue and capital expenses. Such aided institutions cannot obtain that extent of autonomy in relation to management and administration as would be available to a private unaided institution, but at the same time, it cannot also be treated as an educational institution departmentally run by Government or as a wholly owned and controlled government institution and interfere with constitution of the governing bodies or thrusting the staff without reference to management."
(Emphasis added) 2: AIR 1958 SC 956: 1959 SCR 995
79. The Hon'ble Supreme Court specifically mentioned about the existence of various statutory provisions in many States to regulate the functioning of such educational institutions where the States give as a grant or aid, a substantial proportion of the revenue expenditure including salary, WP(C) 6087 of 2019 Page 43 of 115 with WP(C) 5467 of 2019 ~ 44 ~ pay and allowances of teaching and non-teaching staff. In such a situation, it was held that, it would be the responsibility of the State to ensure that there are proper service conditions of the staff and also will have power to regulate the method of appointment by prescribing necessary qualifications.
It can thus be understood that where the State grants a substantial proportion of the revenue expenditure, the State can regulate the functioning of such educational institution and checks and controls on the administration may be placed to ensure that the administration is efficient and sound and serves the academic needs of the institution. At the same time, the Hon'ble Supreme Court also had words of caution by observing that even though aided institutions cannot expect the extent of autonomy in relation to management and administration as would be available to a private unaided institution, it should also be ensured that even an aided institution does not become an government owned and controlled institution.
80. From the above, it is clear that the power of the State to regulate and control the administration as well as to put fetters on the autonomy of the private institution is relatable to the financial assistance given to such an institution. Though the Hon'ble Supreme Court has not spoken in these words, it can perhaps be said that, as a corollary, such a power of the State to regulate and control the administration and put fetters on the autonomy of the private institution should be commensurate with the quantum of financial assistance granted to the private institution. In other words, the ceding of autonomy by the private institution receiving grants or aid from the State must be proportionate to the grant or aid being extended to the private institution.
81. In view of the above observations of the Hon'ble Supreme Court, one perhaps can venture to say that the power of control of the State of such private institution should be minimal and correspond to the extent of the WP(C) 6087 of 2019 Page 44 of 115 with WP(C) 5467 of 2019 ~ 45 ~ government aid, so that the institutional autonomy is not unduly encroached upon.
Of course, the Hon'ble Supreme Court has not indicated any principle how to calibrate the control and regulation by the State on such private institutions receiving government grant or aid with respect to the management and administration. However, perhaps, one can say that more the financial assistance given by the State to a private institution, the more the Government will have leverage in managing the affairs of such a private institution. As a corollary, the less the financial assistance given by the State, the less would be its power to control or regulate the administration of such an institution.
82. Having stated the constitutional and legal position relating to the right to establish and manage educational institutions, which would obviously include a law college, which is a fundamental right, on which reasonable restrictions can be placed in the interest of the general public, and also the observation of the Apex Court that though the State can control or regulate the administration of an aided private institution, it should be also ensured that such an institution is not treated like a wholly owned and controlled government institution, we proceed to examine the issues at hand.
83. As mentioned above, it is the case of the petitioners that the aforesaid 2001 Rules are not applicable to J.B. Law College, that the said Rules are applicable only to provincialized colleges and non-government colleges in Assam affiliated to any Central or State University of Assam and in receipt of ―deficit Grants-in-Aid‖ or ―ad hoc Grants-in-Aid‖ from the State Government.
It is not in dispute that J.B. Law College is not a provincialized college but a non-Government College. It is also not in dispute that it does not receive any ―deficit Grants-in-aid‖ which is a condition precedent for the applicability of the aforesaid 2001 Rules. If it receives, ―ad hoc Grants-in- aid‖, it would come under the purview of the 2001 Rules.
WP(C) 6087 of 2019 Page 45 of 115with WP(C) 5467 of 2019 ~ 46 ~ Though the petitioners claim that J.B. Law College does not receive any ―ad hoc Grants-in-aid‖, but merely certain maintenance grants, that too of a meagre amount, respondent authorities insist that the College receives ―ad hoc Grants-in- aid‖.
Therefore, the area of dispute is thus narrowed down to whether the College is in receipt of ―ad hoc Grants-in-aid‖ or not. If it receives ―ad hoc Grants-in-aid‖ as contended by the State authorities, the aforesaid 2001 Rules may be applicable.
It is under this circumstance that this Court has to examine as to whether the College receives ―ad hoc Grants-in-aid‖ as insisted by the State Government and which has been stoutly denied by the petitioners.
84. While examining this issue, this Court has perused the 2001 Rules. It is seen that in the definition clause of the 2001 Rules, which defines various terms used in the Rules, the aforesaid expressions, ―deficit Grants-in-aid‖ and ―ad hoc Grants-in-aid‖ have not been defined.
In such an event, we are to go by what these expressions mean in ordinary parlance and also as understood in the context of educational institutions receiving financial aids and grants.
85. ―Grant-in-aid‖ has been defined in the Affiliation Bye-Laws- 2018 of the Central Board of Secondary Education under definition Clause 1.3.19 as follows:
―Grant in aid‖ means aid or grant in the form of maintenance from the central government or state government or administration of Union territories or local authority, as the case may be.‖ In Collins English Dictionary, it has been defined with reference to education as, WP(C) 6087 of 2019 Page 46 of 115 with WP(C) 5467 of 2019 ~ 47 ~ ―A grant provided by the central government or local education authority to ensure ensure consistent standards in buildings and other facilities.‖ Oxford Advanced Learner's Dictionary defines it as, ―A sum of money given to a local government or an institution, or to a particular person to allow them to study something.‖ [https://www.oxfordlearnersdictionaries.com/definition/english/grant-in-aid] Cambridge Dictionary defines it as, ―An amount of money given by the government to a government department or social organisation that is not a business‖.
[https://dictionary.cambridge.org/dictionary/english/grant-in-aid]
86. ―Grant-in-aid‖ has been also defined in*
(i) Encyclopaedia of Social Sciences as:
―Grant-in-aid is a sum of money assigned by a superior to an inferior governmental authority or agency either out of the exchequer of the former or out of the sources of revenue specifically designated.‖ [E.R.A. Seligman and A. Johnson (Ed.) (1949), Encyclopaedia of Social Sciences. New York Mc Millan and Company, p.152] *Source:http://shodhganga.infibinet.ac.in/jspui/bitstream/10603/1874 00/11/11chapter%204.pdf
(ii) Dictionary of Education:
―Grant-in-aid is a financial grant frequently in the form of periodic payments made by a Government or Agency to another Government or Agency or to an individual by way of assistance for a general or specific purpose.‖ WP(C) 6087 of 2019 Page 47 of 115 with WP(C) 5467 of 2019 ~ 48 ~ [Carter V. Good (Ed.) (1959). Dictionary of Education (2nd ed.). New York ; Me Grow Hill Book Company, INC, p. 253.]
(iii) Encyclopaedic Dictionary and Directory of Education:
―Grant-in-aid is sum of money paid by one body to another towards the cost of a service.‖ [A. Biswas and J.C. Aggarwal (1987), Encyclopaedic Dictionary and Directory of Education (Vol.I)» New Delhi The Academic Publishers* India, p.72#]
(iv) The Encyclopedia Americana:
―Grant-in-aid is a sum of money appropriated by one level of government to be spent by a lower governmental unit for a specified purpose.‖ [ Americana Corporation (1976) • The Encyclopaedia Americana (International Edition ){Vol.l3)« New York Lexington Avenue, p.179.]
87. Thus, in absence of a specific definition under the 2001 Rules, and in view of the general understanding of the meaning of ―grant-in-aid‖ it can be stated, in the context of educational institutions, that grant-in-aid is a certain financial assistance given by the state or local authority to an educational institution for helping defray the expenses incurred by the institution or by way of maintenance or for improvement of the institution. Such financial aid can be either recurring, given on regular basis or intermittently and not on regular basis but occasionally for certain specific purposes, for which the grant is given.
88. As regards the issue of ―deficit Grants-in-aid‖ as mentioned in the Rules, since, it is no one's case that J.B. Law College is receiving any ―deficit Grants-in-aid‖, we need not dwell on the same in detail, except to mention that it has been generally agreed that ―deficit Grants-in-aid‖ is given to an educational institution to make up the deficiency in the overall expenses for WP(C) 6087 of 2019 Page 48 of 115 with WP(C) 5467 of 2019 ~ 49 ~ running and maintaining the educational institution on a regular basis. Thus, by obvious implication, a college receiving ―deficit Grants-in-aid‖ would normally be dependent upon the State for its proper functioning.
89. That really leaves us to see as to whether the College is getting ―ad hoc Grants-in-aid‖ as mentioned in the 2001 Rules. The petitioners, however, have forcefully argued that J.B. Law College does not receive any ―ad hoc Grants-in-aid‖. What it receives is certain maintenance grant on a year to year basis, that too, a very meagre amount and not regularly.
90. It has been submitted that J.B. Law College does not depend upon these maintenance grants for running the College, as these are just nominal amounts which in themselves are not sufficient to meet any substantial expense of the College. Referring to the various sanction orders for maintenance grants, copies of some of which are annexed to the affidavit in opposition of the Respondent no. 2, it has been submitted that these amounts range from Rs.15,000/- to Rs.18,000/- to Rs.21,000/- in a year which is a pittance and not even sufficient to cover the salary of a Grade IV employee, though it has been admitted that occasionally the College had received in the past more substantial amounts as financial assistance.
91. Further, it has been submitted on behalf of the College that as mentioned above, there is a PIL pending before this Court (PIL No. 9 of 2015) in which the State Government had filed an affidavit wherein the State Government had clearly mentioned that the source of revenue of the College is the students fees and it does not receive any regular government grant. Accordingly, it has been submitted that merely because the College receives certain maintenance grant on a yearly basis that too, of a meagre amount, by any stretch of imagination, it cannot be said that the College receives ―ad hoc Grants-in-aid‖. In such a situation, the College cannot be brought under the purview of the aforesaid 2001 Rules.
WP(C) 6087 of 2019 Page 49 of 115with WP(C) 5467 of 2019 ~ 50 ~
92. In this case, though the respondent authorities insist that J.B. Law College receives ―ad hoc Grants-in-aid‖, there is no specific order issued by the State Government for grant of ―ad hoc Grants-in-aid‖ to the College as well.
93. The reason for which the State Government is contending that J.B. Law College gets ―ad hoc Grants-in-aid‖ is that in the orders issued by the State Government giving the annual maintenance grants, it has been specifically mentioned that the Principal/Secretary, as the case may be, of the College will draw the grants by issuing due receipt in respect of the grant-in-aid bill countersigned by the Director of Higher Education, Assam after observing all formalities. Further, there is a reference to grant in aid in the sanction orders.
In the sanction order, it has been mentioned that the expenditure for the purpose is debitable to the Head, ―227 - Edn. - I- General - II - Other State Plan and Non-Plan Schemes - E - University and other Higher Edn.- 4 - D Assistance to Non-Government Colleges (b) Grants Non-Gov. professional Colleges - 9. grants in aid/contribution (Plan)‖.
According to the State respondents, from the sanction order it is clearly evident that even though the sanction order mentions the grant as maintenance grant, it actually is a kind of ―Grant-in-aid‖. Thus, since it is not a ―deficit Grant-in-aid‖, it can be construed to be ―ad hoc Grant-in-aid.‖
94. It may, however, be noted that, matters relating to finance or fiscal management of the State invariably are governed by certain rules and regulations regulating the fiscal norms. State largesse cannot be distributed as a matter of mere discretion but is based on certain financial norms. This is true of any financial aid given to educational institutions. Funds obviously are WP(C) 6087 of 2019 Page 50 of 115 with WP(C) 5467 of 2019 ~ 51 ~ sanctioned and released on the basis of certain terms and conditions attached to such financial assistance by the State.
Unfortunately, in the present case, in spite of several opportunities given by this Court to the State authorities to furnish the terms and conditions under which such maintenance grants and other financial assistance were given to J.B. Law College in the past, the State Respondents have failed to produce before this Court such terms and conditions. If the terms and conditions under which the maintenance grant and other financial assistance were given by the State Government to J.B. Law College had clearly provided that the State Government would be entitled to intervene in the matter of management of the College and that these were specifically made known to the College, the issue raised herein could have been resolved by referring to such terms and conditions, irrespective of the provisions in the 2001 Rules. Unfortunately, in absence of such specific terms and conditions regulating the grant of maintenance fees and other financial assistance given to the College by the State Government, this Court has to embark upon a more elaborate exercise of examining the issue from the perspective of general constitutional and statutory scheme as relevant and fall back on the 2001 Rules and related statutes and materials available on record.
95. The State Respondents have contended relying on the decisions of this Court particularly, Anamika Acharya (supra), Afzalur Rahman (supra) that the nomenclature of the nature of grant is immaterial. It was contended that so long as the College gets certain grant, it has to be treated as ―ad hoc Grant-in-aid‖.
96. This Court, while examining this issue, as to whether the College is in receipt of ―ad hoc Grants-in-aid‖, is of the view that in absence of a specific definition, defining the terms ―deficit Grants-in-aid‖ or ―ad hoc Grants-in-aid‖ WP(C) 6087 of 2019 Page 51 of 115 with WP(C) 5467 of 2019 ~ 52 ~ in 2001 Rules, a restrictive meaning cannot be assigned to the aforesaid terms.
As discussed above, grant-in-aid by its very nature amounts to certain financial aid or assistance given to an institution for the benefit of the institution. It may be by way of maintenance grant or by way of any other grant or aid by way of financial support to the institution. Therefore, this Court also would respectfully agree with the opinion of this Court in the above referred cases, Afzalur Rahman (supra), Shahadot Ali (supra) etc., that if an educational institution receives certain financial assistance, the nomenclature attached to the said financial assistance, whether by way of maintenance grants, or any other grant is immaterial, and it can be treated to be ―ad hoc Grant-in-aid‖, as it partakes the attribute of a ―grant-in-aid‖. If such financial assistance given is not a regular but erratic and not fixed, as claimed by the petitioners, in such an event, such financial assistance would be in the nature of ―ad hoc Grant-in-aid‖. Ad hoc by its very definition means something done for certain specific or limited purpose or to meet certain situation. Ad hoc by nature is contingent, circumscribed by certain specific situation warranting a particular action as opposed to a regular action. Accordingly, even if such maintenance grants are not regular, these certainly partake the character of ―ad hoc Grants-in-aid‖.
97. This Court also has noted that the College had been receiving certain financial assistance during the period, 2012 and 2014, to the tune of Rs.4,58,850/- and Rs. 4,29,000/- respectively. Though the authorities have not explained the terms and conditions under which the aforesaid financial assistance were given to the College, these certainly also can be treated to be ―ad hoc Grants-in-aid‖.
98. Accordingly, this Court would hold that J.B. Law College is in receipt of ―ad hoc Grants-in-aid‖.
WP(C) 6087 of 2019 Page 52 of 115with WP(C) 5467 of 2019 ~ 53 ~
99. However, this finding of this Court that J.B. Law College receives ―ad hoc Grants-in-aid‖ need not necessarily lead inexorably to the conclusion that J.B. Law College would come within the purview of 2001 Rules or that the State Government could have issued the impugned order to suspend the Governing Body of the College by invoking proviso to Rule 4 of the aforesaid 2001 Rules.
In the opinion of this Court, as would be explained hereinbelow, before a private law college like J.B. Law College is brought within the supervisory control of the authorities as provided under the 2001 Rules, certain conditions, by implication of law and Constitution have to be fulfilled, which however, have not been fulfilled.
100. As can be seen from the perusal of the 2001 Rules, it is clearly evident that these are very general and omnibus rules, covering all kinds of colleges irrespective of the nature of education being imparted, so long as they are receiving ―deficit Grants-in-aid‖ or ―ad hoc Grants-in-aid‖.
Since the College in issue is a law college imparting legal education the power and authority of the State Government in interfering or intervening in the management of a private law college needs a deeper examination.
The question which requires to be considered further is whether the State Government on its own, without any consultative process with the other authorities, more particularly, the Bar Council of India and Gauhati University which have more direct and explicit roles to play in imparting legal education and thus, in the proper functioning and management of a law college, could have intervened in the management of the College in the manner done?
101. The answer to the aforesaid question is not simple and straightforward and would require examination of the role of these two WP(C) 6087 of 2019 Page 53 of 115 with WP(C) 5467 of 2019 ~ 54 ~ statutory bodies, the Bar Council of India and Gauhati University as also underscored by the petitioners and the learned Amicus Curiae.
102. It cannot be disputed that the governing body of a law college has to be constituted under a particular statutory provision and cannot be subject to multiple and different statutory provisions.
103. The petitioners have contended that the Governing Body of J.B. Law College had been constituted in terms of the ―Ordinance on Permission and Affiliation of Law Colleges, 1998‖ framed by the Gauhati University (hereinafter referred to as the University Ordinance). On the other hand, the State respondents have contended that the petitioners are not able to show any valid order for constituting the Governing Body under the aforesaid University Ordinance and in fact, the Governing Body is to be constituted as provided under 2001 Rules.
There cannot be any doubt that if the Governing Body of the College is constituted under the 2001 Rules, certainly provisions relating to the Governing Body as provided under the 2001 Rules will be applicable to J.B. Law College as well.
However it is to be noted as discussed earlier, these 2001 Rules are in the nature of executive instructions framed without any statutory backing and are deemed to be framed in exercise of the powers under Article 162 of the Constitution of India. It can be said that the aforesaid 2001 Rules which provide for constitution of the Governing Body of the College, is by way of general power of the State government, applicable to all the colleges, irrespective of whether such a college is a general degree college or any professional or technical college, and thus, these rules are generic in nature.
This Court would also observe that merely because the College is not able to show under which statute the existing Governing Body of the College was constituted, as contended by the State Government, it does not WP(C) 6087 of 2019 Page 54 of 115 with WP(C) 5467 of 2019 ~ 55 ~ necessarily lead to an inference or conclusion that it should be governed by the 2001 Rules.
On the failure of the College to show that its Governing Body was not constituted under the 2001 Rules, the State cannot assert that it has to be under the 2001 Rules.
104. The petitioners contend that there is a specific statutory provision specifically meant for law colleges which provides for constitution of the governing body of a law college, as mandated in the Gauhati University Ordinance.
This Court will examine the applicability of the said University Ordinance to J.B. Law College. Before we do it, we may examine the role of the Bar Council of India.
105. ―Legal education‖, solely for which J.B. Law College has been established, is concomitant to the legal profession. It is only such students who undertake formal legal education from recognised law institutions that they can join the legal profession and not otherwise, as clearly provided under the Advocates Act, 1961 and the Bar Council of India Rules.
106. The Parliament in exercise of the powers under Article 245 read with Article 246 of the Constitution of India enacted the Advocates Act, 1961 to amend and to consolidate the law relating to legal practitioners and to provide for constitution of Bar Councils and All-India Bar. It has been held by the Constitutional Bench of the Hon'ble Supreme Court in O. N. Muhindroo Vs. Bar Council of Delhi and Ors., (1968) 2 SCR 709: AIR 1968 SC 888 that in pith and substance, the Advocates Act falls under Entries 77 and 78 of List I of the Seventh Schedule.
Further, it was held in Bar Council of India Vs. Dayananda College of Law, (2007) 2 SCC 202 that as the apex professional body, the Bar Council of India is concerned with the standard of legal profession WP(C) 6087 of 2019 Page 55 of 115 with WP(C) 5467 of 2019 ~ 56 ~ and the requirements of those who seek entry into that profession. The Bar Council of India is thus primarily concerned with legal education in the country.
Under Section 4 of the Advocates Act, the Bar Council of India has been constituted with the functions described under Chapter II Section 7 of the aforesaid Act.
Sub-clauses (h) and (i) of Clause (1) of Section 7 of the Advocates Act specifically deal with legal education.
Relevant provisions of Section 7 of the Advocates Act, 1961 read as follows:
― 7. Functions of Bar Council of India.-- (1) The functions of the Bar Council of India shall be--
(a) 2[***]
(b) to lay down standards of professional conduct and etiquette for advocates;
(c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
(d) to safeguard the rights, privileges and interests of advocates;
(e) to promote and support law reform;
(f) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council;
(g) to exercise general supervision and control over State Bar Councils;
(h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Councils;WP(C) 6087 of 2019 Page 56 of 115
with WP(C) 5467 of 2019 ~ 57 ~
(i) to recognise Universities whose degree in law shall be a qualification for enrolments as an advocate and for that purpose to visit and inspect Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf;
(ia) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest;
(ib) to organise legal aid to the poor in the prescribed manner; (ic) to recognise on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission as an advocate under this Act;
(j) to manage and invest the funds of the Bar Council;
(k) to provide for the election of its members;
(l) to perform all other functions conferred on it by or under this Act;
(m) to do all other things necessary for discharging the aforesaid functions.‖ (emphasis added)
107. Section 15 (1) of the Advocates Act empowers the Bar Council to make rules to carry out the purposes of Chapter II which includes Section 7 of the Act.
It is in exercise of the powers conferred under Section 15 of the Advocates Act that the Bar Council of India Rules were framed (hereinafter referred to as the BCI Rules).
WP(C) 6087 of 2019 Page 57 of 115with WP(C) 5467 of 2019 ~ 58 ~
108. Part IV of Bar Council of India Rules deals with legal education. Part IV is an elaborate part of the BCI Rules which consists of six chapters which exhaustively cover almost all aspects of legal education in this country.
Rule 1 under Chapter 1 of Part IV of the BCI Rules states that these Rules including the Schedules may be known as Rules of Legal Education, 2008 and these rules shall come into force in whole of India and these rules shall replace all previous Rules, Directives, Notifications and Resolutions relating to matters covered under these rules.
In the definition clause, i.e., Rule 2(iv), Centres for Legal Education has been defined as follows:
―2. Definitions:
(i) ―Act‖ means The Advocates Act, 1961.
(ii) ―Approved‖ means approved by the Bar Council of India.
(iii) ―Bar Council of India or Council or BCI‖ shall mean Bar Council of India constituted under the Act.
(iv) ―Centres of Legal Education‖ means
(a) All approved Departments of Law of Universities, Colleges of Law, Constituent Colleges under recognized Universities and affiliated Colleges or Schools of law of recognized Universities so approved. Provided that a Department or College or Institution conducting correspondence courses through distance education shall not be included.
(b) National Law Universities constituted and established by statutes of the Union or States and mandated to start and run Law courses.
(v) *** *** ***
*** *** ***
(xxxii) *** *** ***‖
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109. Thus, under the aforesaid BCI Rules, J.B. Law College is a Centre of Legal Education approved under a recognised University namely, Gauhati University and thus, comes within the purview of the BCI Rules.
It has been specifically provided under Rule 14 under Chapter III of Part IV of the aforesaid BCI Rules that no Centre of Legal Education shall impart legal education without the approval of the Bar Council of India.
The aforesaid Rule 14 reads as follows:
―14. Centres for Legal Education not to impart education without approval of Bar Council of India.
(1) No Centres of Legal Education shall admit any student and impart instruction in a course of study in law for enrolment as an advocate unless the recognition of the degree of the University or the affiliation of the Centres of Legal Education, as the case may be, has been approved by the Bar Council of India after inspection of the University or Centres of Legal Education institution concerned as the case may be.
(2) An existing Centre of Legal Education shall not be competent to impart instruction in a course of study in law for enrolment as an advocate if the continuance of its affiliation is disapproved or revoked by the Bar Council of India.
(3) Bar Council of India may suspend a Centre of Legal Education for such violation for a period of not more than two academic years which shall be notified.‖
110. Rule 16 of Chapter III under Part IV of the aforesaid BCI Rules lays down the conditions in detail for the University to affiliate a Centre for Legal Education as and when an application is received for affiliation.WP(C) 6087 of 2019 Page 59 of 115
with WP(C) 5467 of 2019 ~ 60 ~ It has been also specifically provided under Sub rule (1) (viii) of Rule 16 that all conditions of affiliation under the University rules as well as the Bar Council India Rules are to be complied with. Sub-rule 2 of Rule 16 mentions that only after affiliation order is received from the University, the Centres for Legal Education may apply for inspection by the Bar Council of India.
It goes without saying that these provisions of the BCI Rules which are applicable to new Centres for Legal Education shall also be applicable to the existing centres as clarified in Rule 14(2).
Therefore, even if J.B. Law College had been established in 1969 as contended by the State Respondents, these rules which were framed in 2008 will be also equally applicable to J.B. Law College as the College would be required to maintain the same standard and fulfil those conditions regarding legal education as any other new law college seeking affiliation under the Bar Council of India. There is no provision under the aforesaid Act nor the Bar Council of India Rules providing that those law colleges established before 2008 do not have to conform to these rules framed in 2008 and that they will be continued to be governed by earlier rules.
111. The Bar Council of India also has introduced the accreditation system based on the performance which would remain valid for repair of five years as provided under Rule 28 of the aforesaid rules.
It has been mentioned in the complaint filed by the Students' Union of the College that J.B. Law College is the only NAAC accredited premier law college of North East India.
Rule 31 lays down the rules for accreditation which involves assessment of the performance of the college relating to financial as well as management. The relevant rules read as follows:
―28. Accreditation system:WP(C) 6087 of 2019 Page 60 of 115
with WP(C) 5467 of 2019 ~ 61 ~ There shall be an accreditation and performance rating system for any institution having regular approval, based on State and/or National level gradation. Such performance grade may be used in all letter head, sign board, literature and publications, including prospectus and franchise materials of the institution. The accreditation of performance once obtained shall remain valid for a period of five years.
29. Accreditation Committee:
The Legal Education Committee shall form an Accreditation Committee with at least one member, Bar Council of India and one academician who shall provide credit rating of the Universities and the law teaching institutions subjecting to this voluntary accreditation, which would also be published and put into the website of the Bar Council of India for public information. The Legal Education Committee determine the norms of accreditation from time to time. The period of Accreditation Committee will be two years.
31. Rules for accreditation:
The Legal Education Committee may determine the norms of accreditation from time to time in addition to or in supplementation of the following:
(i) The accreditation and certification shall be made either directly by the Accreditation Committee of the Bar Council of India based on the analytical tools of credit rating system as far as adaptable or the Bar Council of India may cause it done through National Assessment and Accreditation Council based on the analysis made by NAAC.WP(C) 6087 of 2019 Page 61 of 115
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(ii) Once the accreditation is done it shall remain valid for a period of five years from the date the certification is communicated to the institution concerned.
(iii) The performance analysis shall have three components, academic, administration and financial.
(iv) The study for determining performance rate shall be based on previous five years' data, current contents of the program and the future projection made on the basis of data analysis.
(v) The Accreditation Committee shall require complete disclosure of performance records, accounting and financial records and procedures of human and other asset management of the institution.
(vi) In so far as the academic part is concerned the following data would form basis of study:
(a) ..........
(b) .........
(u) any other information needed by the committee.
(vii) The financial performance data shall depend upon the previous five years annual accounts, annual reports, annual budget, fund raised, financial asset management and deployment, future plan, asset structure and any other financial information as may be required.
(viii) The administrative performance would be assessed on the basis on composition of the management body, observance of regulatory rules, administrative staff ratio, working days loss and any other information that may be required for ascertain the management QC.
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(ix) The study shall be based on (a) records, (b) visit, inspection and dialogue of the committee with the management, staff, students and the faculty.
(x) The committee may visit the institution after providing notice or without and can visit if required, more than once.
(xi) Data based analysis shall be communicated to the institution before rating begins for further observation and supplementary information, if required.‖
112. It may be also mentioned that Schedule III to the BCI Rules provides for the minimum infrastructural facilities required in a Centre of Legal Education applying for permission to run law course with affiliation from an Indian University.
The aforesaid Schedule III is indicative of the extensive power of the Bar Council of India to make inspection of the infrastructural facilities to be provided by a Centre for Legal Education in respect of various parameters, which includes management of the law college, viz.,
(i) Minimum capital fund requirement
(ii) Freehold all these property of the Centre for legal education. It has been also provided that what is the adequate space for the purposes of academic buildings, library indoor and outdoor sports facilities et cetera shall be decided by the respective authority of the University under its affiliation regulation and as guided by the UGC
(iii) Proper academic building
(iv) Timing for conduct of courses
(v) Size of a section of a class
(vi) Library building WP(C) 6087 of 2019 Page 63 of 115 with WP(C) 5467 of 2019 ~ 64 ~
(vii) Games facilities
(viii) Halls of residence
(ix) Laboratories
(x) Organisation structure of the institution, which provides that affiliated Centres of Legal Education can be run by a non-profit organisation, like Public Trust, Societies registered under Union or State law, or Non- Profit Company and all properties, assets, and the academic and academic support services shall be required to be recorded in the name of the institution.
(xi) Legal Aid Centre.
(xii) All bank accounts or accounts and funds, which are to be jointly operated by the manager/secretary designated by the trust, society, or the non-profit company, as the case may be, with the Head of the Institution.
(xiii) All records of the institution including financial, economic and other organisational records and meeting proceedings shall be kept in safe custody by the head of the institution in the office of the institution and shall remain accessible to all authorities and Inspection teams.
(xiv) Copy of the Affiliation rules are required to be forwarded the Bar Council of India before an Inspection of the university including any of its affiliated Centres of legal education.
(xv) Various parameters of academic infrastructure, viz.,
minimum library requirement, whole time
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Principal/Head/Dean, Core Faculty members, minimum weekly class program per subject, examination rule guidelines, minimum qualification needed for the Faculty, teaching load, salary scale, standard academic practice, responding to questionnaire sent by the Bar Council of India from time to time, minimum period of internship, guiding of students by senior lawyers, formal dress code during internship, etc.
113. In the proforma provided for the purpose of inspection under Schedule VI, detail particulars are required to be provided in respect of the management of the Centre of Legal Education as well as affiliation of University and permission of the State government wherever required.
114. From the above, what is very clear is that the Bar Council of India has been assigned the primary responsibility for proper legal education, not only relating to the academic standard but also infrastructural facilities to the minutest details, viz., about the buildings, size of classrooms, games facilities organisational structure of the institution, maintenance of bank accounts and funds, maintenance of records et cetera. In other words, almost all conceivable aspects including management of the Centre of Legal Education are within the purview of the Bar Council of India, which is an authority created under the Advocates Act, 1961, a Parliamentary statute.
115. As provided under Article 246 of the Constitution of India, the Parliament and Legislature of any State have power to make laws with respect to any of the matters enumerated in List III Concurrent List in the Seventh Schedule.
It has been also provided under Article 254 of the Constitution that if any provision of the law made by the Legislature of a State is repugnant to any provision of law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the WP(C) 6087 of 2019 Page 65 of 115 with WP(C) 5467 of 2019 ~ 66 ~ matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, or as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy, be void.
As mentioned above, the Bar Council of India Rules which provide for legal education have been framed under the Advocates Act, 1961, a Parliamentary enactment under Entries 77 and 78 of List I of the Seventh Schedule. On the other hand, the Assam Non-Government College Management Rules, 2001 are merely administrative rules made by the State Government and not on the basis of any statutory enactment of the State Legislature of Assam. Thus, once it is held that the BCI Rules trace their authority under an Entry (ies) in the Union List to that extent, the State acts or rules can have no applicability on the subjects covered by the BCI Rules.
Even assuming that matters relating to legal education is covered under Entry 25 of the Concurrent List, under which the State Government can also make laws, in the event of any repugnancy between the rules made by the Bar Council of India and the aforesaid 2001 Rules made by the State Government, the rules made by the Bar Council of India shall prevail over the 2001 Rules.
116. J.B. Law College is, mandated under law to fulfil all the conditions for recognition as may be prescribed by the Bar Council of India in addition to the requirements prescribed under the University Ordinance. Under the circumstances, we have to examine whether there is any conflict or repugnancy between the Assam Non-Government College Management Rules, 2001 and the BCI Rules and University Ordinance and if so, what would be the effect on J.B. Law College for non-compliance of the directions issued under the aforesaid 2001 Rules.
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117. As mentioned above, for the students to be eligible to be enrolled with the State Bar Council, so as to practice law, they have to graduate from a Centre of Legal Education/Department of a recognised University as approved by the Bar Council of India, as provided under Rule 3 of the Bar Council of India Rules. Rule 16(1)(viii) of the BCI Rules provides that all other conditions of affiliation under the University rules as well as the Bar Council of India Rules are to be complied with by the concerned Centre of Legal Education.
Rule 16(1)(viii) of the BCI Rules reads as follows:
―Rule 16. Conditions for a University to affiliate a Centre of Legal Education:
(1) When a University receives an application for affiliation of a Centre of Legal Education to provide legal education by running professional degree program in law under either or both the streams, the University may before Bar Council of India deciding whether it is fit case for seeking inspection from the Bar Council of India, shall ensure that
(i) the applicant organization proposing to run the institution is either already a non-profit organization of trust or registered society or a nonprofit company or any other such legal entity or has taken all legal formalities to be as such,
(ii) the institution has in its name either in freehold or leasehold, adequate land and buildings, to provide for Centre of Legal Education building, library, halls of residences separately for male and female and sports complex both indoor and outdoor, so that it can effectively run professional law courses provided that in case of leasehold the lease is not less than ten years, Provided that sufficient and adequate floor space area specially and completely devoted for a Centre WP(C) 6087 of 2019 Page 67 of 115 with WP(C) 5467 of 2019 ~ 68 ~ of Legal Education, based on the size of its student population, faculty requirement, adequate space required for infrastructure facilities can be considered sufficient accommodation for the purpose in a multi-faculty building on land possessed by the Management of a Society/ Trust running multi-faculty institutions.
(iii) recruited or taken steps to recruit adequate number of full time and visiting faculty members to teach each subjects of studies, each faculty having at least a Master Degree in the respective subject as required under the UGC Rules,
(iv) there is the separate Centres of Legal Education for the study of law under a separate Principal who should be qualified in Law to be a Professor of Law as stipulated under UGC and Bar Council of India rules,
(v) there is adequate space for reading in the library and there are required number of books and journals and adequate number of computers and computer terminals under a qualified librarian,
(vi) if the prior permission of the State Government is necessary, a no objection certificate is obtained to apply for affiliation,
(vii) a minimum Capital Fund as may be required under Schedule III from time to time by the Bar Council of India, and put into a Bank Account in the name of the proposed Centre of Legal Education sponsored by any private sponsor or sponsors, and
(viii) all other conditions of affiliation under the University rules as well as the Bar Council of India Rules are complied with.‖ WP(C) 6087 of 2019 Page 68 of 115 with WP(C) 5467 of 2019 ~ 69 ~
118. Thus, J.B. Law College is also mandated to fulfil all the conditions laid down by Gauhati University. As mentioned above, Gauhati University has laid down the conditions of affiliation of law colleges in the ―Ordinance on Permission and Affiliation of Law Colleges, 1998‖.
The aforesaid Gauhati University Ordinance apparently deals with three years degree course in law. As per Clause 10 (A) (v) of the aforesaid Ordinance, a regular Government Body as prescribed in Section 3 of the Gauhati University Statute on Management of a college other than Government Aided colleges of Assam has to be constituted and the composition of the Governing Body is to be as follows:
(a) Principal - Ex- Officio;
(b) Vice Principal, if any, Ex-Officio;
(c) One representative to be elected annually by the members of the teaching staff from among themselves, provided that in the college having more than 20 members in the teaching staff there shall be two members, the election being conducted by the Principal;
(d) Four members to be nominated by the University;
(e) Donor paying ₹ 10,000 or more or their nominees, not more ........
(f) Four members to be nominated by the outgoing Governing Body of the college from among the members of the committee which first sponsored the college;
(g) three members other than the members of the teaching staff to be co-opted by other members of the matter one shall be a lady, at least one guardian and at least one educationist;
(h) The President and Secretary of the Governing Body shall be elected by the members from among themselves. Where the Principal is not the Secretary, he shall be the Joint Secretary.WP(C) 6087 of 2019 Page 69 of 115
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119. In the definition Clause under Para 4(iv), the Governing Body has been defined as the Governing Body constituted under relevant Rules, Ordinance and Statutes as the case may be.
Para 15 of the aforesaid Ordinance provides for a regularly constituted Governing Body as per section 3 of the Gauhati University Statute on Management of a college other than Government Aided colleges of Assam.
Gauhati University also framed an Ordinance relating to affiliation of law colleges imparting five years LLB (Honours) Course in 2005 known as ―Ordinance on Permission and Affiliation of Law Colleges, for 5 (Five) Year LL.B. (Honours) Course‖.
120. From the above it is clear that Gauhati University Ordinances contemplate two kinds of governing bodies, one for Government Aided Colleges and another for colleges not aided by the Government.
The governing bodies mentioned in the aforesaid Ordinances, i.e., for the 3 (three) years and 5 (five) year LL.B. courses refer to those law colleges which are not Government aided. It is for that reason that in the governing bodies mentioned in the aforesaid University Ordinances, there is no role of the State government. Only the University has the authority to nominate certain members of the governing body. The President of the governing body is to be elected by the members of the governing body, unlike in the case of Government Aided Non-government Colleges as mentioned in the 2001 Rules, whereunder the President of the governing body is to be nominated by the Director of Higher Education.
Other than nomination of members in the governing body of the non- Government aided law colleges, the role of the University authority is also nominal, which is for inspection of the college from time to time for ensuring that the infrastructures relating to academic requirements are observed, of course, in matters relating to affiliation to the University.
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121. Therefore, if J.B. Law College is considered to be a ―Government aided‖ Law College of Assam, perhaps the composition of the governing body will be other than the one mentioned under the aforesaid Ordinances of the Gauhati University.
It may be also noted that as far as law colleges in the State are concerned, apparently, there are no separate rules framed by the State government dealing with the management and the governance of the non- government law colleges, whether, aided or not aided.
It is also observed that ―The Assam Provincialised Colleges and the Assam Non-Government College Management Rules, 2001‖ are the only rules to which reference has been made. No other rules or Ordinance framed by the State Government or the Gauhati University are brought on record or referred to or relied upon by any of the parties to deal with the issues raised.
122. It is in this context, it has to be examined whether the aforesaid ―Assam Provincialised Colleges and the Assam Non-Government College Management Rules, 2001‖ would be applicable to J.B. Law College which receives certain financial aid, as contended by the State and vehemently opposed by the petitioners.
123. Under normal circumstances, in absence of any other rules governing the law colleges which receive aid from the State Government, the aforesaid rules would be applicable to J.B. Law College as well.
Yet, this Court, for the reasons discussed hereinafter, finds it difficult to accept that the aforesaid Rules of 2001 would be applicable to a private law college like J.B. Law College in toto and with full vigour, in spite of arriving at the conclusion as mentioned above that J.B. Law College receives certain financial assistance in the form of maintenance grants and other grants and hence, it can be said that J.B. Law College receives ― Grants-in- aid‖ and that Gauhati University has not framed any Ordinance to deal with WP(C) 6087 of 2019 Page 71 of 115 with WP(C) 5467 of 2019 ~ 72 ~ law colleges which receive grants from the State. At the same time, it is to be noted that the State Government has not framed any rules or regulations specifically to deal with law colleges.
124. The primary reason for the reluctance of this Court, to apply the aforesaid 2001 Rules with full vigour to J.B. Law College is that the aforesaid 2001 Rules are absolutely oblivious of the role of the Bar Council of India which recognises the law colleges including J B Law College and the Gauhati University to which the College is affiliated, which are the most important stakeholders and players as far as legal education in this country is concerned as mandated under law, so pithily put by the Hon'ble Supreme Court in Dayanada College of Law (supra).
In the present case, the only reason and justification of the State Government to intervene in the management of J B Law College is that the State Government confers certain maintenance grants and financial assistance as mentioned above, and as such the Government can take such action as to suspend the Governing Body of the College under the aforesaid 2001 Rules.
125. This Court has already discussed at the outset that the right to establish and manage educational institution is a fundamental right as guaranteed under Article 19 (1) (g) of the Constitution of India and it is subject to reasonable restrictions which may be placed in the interest of the general public.
It is in this context that, the restrictions placed by the 2001 Rules in the management of the private law college like J.B. Law College have to be examined. There is no dispute to the fact that J.B. Law College is a private law college and as such it will be amenable to reasonable restrictions as may be placed in the interest of the general public. But the issue is whether the powers conferred under the 2001 Rules upon the State Government to interfere with the management of the College can be said to be reasonable WP(C) 6087 of 2019 Page 72 of 115 with WP(C) 5467 of 2019 ~ 73 ~ or not? If these restrictive powers conferred on the State Government to intervene with the management of the College which includes suspension of the Governing Body can be said to be reasonable, no further exercise need to be undertaken to examine the validity of the impugned order, as it was issued in terms of the aforesaid 2001 Rules.
126. Thus, the natural consequential exercise to be undertaken is to examine as to whether the aforesaid 2001 Rules can be said to provide reasonable restrictions qua the fundamental right to establish and manage a private law college like J.B. Law College in the light of the principles laid down in T.M.A. Pai Foundation case (supra).
As already observed above, 2001 Rules are of a very broad and general nature, applicable not only to law colleges but also to any degree or technical college. No distinction has been made in the application of the aforesaid 2001 Rules to the kind of education being imparted by the particular Institute except for the nature of financial assistance given, either by way of ―deficit Grants-in-aid‖ or ―ad hoc Grants-in-aid.‖ If either of these two kinds of grants is not granted, obviously, there is no question of the State having any power to interfere in the management of the College by invoking the 2001 Rules.
127. In this regard, one may also note that Gauhati University itself has provided different affiliation Ordinances for educational institutions or colleges imparting different kinds of education, keeping into consideration specific needs of the different nature of education sought to be imparted. Obviously, the requirements of a law college would be different from an ordinary degree college or for that matter a technical institute. These different ordinances are as follows:
1. Ordinance on Permission and Affiliation of Degree Colleges.
2. Ordinance on Permission and Affiliation of Law Colleges.WP(C) 6087 of 2019 Page 73 of 115
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3. Ordinance on Permission and Affiliation of Law Colleges for 5- Year LLB (Honours) Course
4. Ordinance on Permission and Affiliation of Colleges for MA / MSc / M.Com Courses.
5. Ordinance on Permission and Affiliation of Teachers' Training Colleges.
128. Keeping the aforesaid differential requirements of the different academic institutions in mind, the scope of the aforesaid 2001 Rules has to be examined. This obviously would require a threadbare discussion of the various aspects of the 2001 Rules.
129. As mentioned in the aforesaid 2001 Rules, these are applicable not only to provincialised colleges but also to non-government colleges receiving grants in aid, either deficit or . As far as provincialised colleges is concerned, there may not be any issue about the applicability of these Rules for the simple reason that the State Government has enormous stakes in the proper functioning of the provincialised college as the State Government bears the entire expenses for payment of salaries to the teaching and non teaching staff who have been appointed (provincialised) against sanctioned posts and these sanctioned posts have been created by the State Government on the basis of various parameters for smooth functioning of the college. Most of the important functionaries of the provincialised college, namely the Principal, Vice Principal and other teachers are on the payroll of the State Government, whose appointments are governed by service rules framed in that regard by the State Government viz., the Assam College Employees (Provincialisation) Act, 2005. It may be also mentioned that under the aforesaid Provincialisation Act of 2005, it has been specifically mentioned under Section 2(d) that ―Governing Body‖ means the body constituted by the Government in accordance with the provision of the Assam Non Government College Management Rules, 2001.
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130. Thus, the governing body of such provincialised college, to be constituted, in terms of Rule 3 of the aforesaid 2001 Rules, invariably is dominated by the members whose appointments are determined and made by the State Government. The role and function of the State Government is thus quite pervasive in the administration of a provincialised college and quite justifiably so. As such, if the President of the governing body of a provincialised college is to be appointed by the Director of Higher Education as mentioned in the 2001 Rules, such an arrangement cannot be considered to be an undue interference by the State Government. The Principal of the provincialised college whose appointment is ultimately made/approved by the State Government is the Secretary of the governing body. The Vice Principal of a provincialised college, who is similarly appointed as the Principal of the college by the State Government, is an ex-officio member of the governing body. Two teachers and one member of the non-teaching staff who are members of the governing body are also government appointees. After the State Government has provincialised a private college, it would certainly be concerned about the well-being of such provincialised college. Hence, the State Government is conferred with the power and authority over the governing body of such provincialised college as provided under the 2001 Rules.
131. For similar reasons, it was deemed appropriate to include the local MLA as a permanent special invitee of the governing body of the provincialised college who could play a very important role in providing financial and other assistance to the college authority from other available and untapped sources is clearly indicated in the letter no. AHE.331/2008/51 dated 30.08 2013, from the Deputy Secretary to the Government of Assam, Higher Education addressed to the Director of Higher Education, Assam.
[Source:http://assamcollegecode.info/ASSAMCOLLEGECODE_files/pdf/ ACTS%20AND%20RULES/1%20Assam%20Non%20Government%20C WP(C) 6087 of 2019 Page 75 of 115 with WP(C) 5467 of 2019 ~ 76 ~ ollege%20Management%20Rules%20up-to-
date%20Complete%20Set.pdf]
132. Apart from laying down the composition of the governing body of such provincialised college, the 2001 Rules have fixed the tenure of the governing body also and conferred authority on the State Government to suspend the governing body and appoint an Administrator, if the Director of Higher Education is satisfied any time that a particular governing body is not functioning in the best public interest. [Vide Rule 4 of the 2001 Rules].
Similarly, in the event of mismanagement of the affairs of a provincialised college, the State Government may take over the control and management of the college for a period of six months. [Vide Rule 5 of the 2001 Rules].
The governing body also has been made accountable for proper financial management, including upkeepment of the assets of the college and management of its academic affairs. It has been further provided that the governing body shall see that the teachers perform their duties in classes and examination and attend the colleges as per norms of the UGC and submit a report regarding performance from every teacher which shall be obtained annually by the governing body and forward the same to the Director, Higher Education for perusal. [Vide Rule 6 of the 2001 Rules].
Under Rule 7, the Secretary of the governing body is responsible to report to the Director about any deviation of financial norms and procedures or any loss of assets of the college.
The governing body is to obtain prior approval of the Director on certain matters as mentioned under Rule 17 and State Governments shall be the appellate authority in case of grievances.
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133. Thus, in case of provincialised colleges, the State Government will certainly have a prominent and dominant role in the management of such colleges as provided under the 2001 Rules.
134. For similar reasons, applicability of these 2001 Rules may not be much of an issue in respect of a non-government college which are in receipt of ―deficit Grants-in-aid‖. As already discussed above and also been generally agreed by the contesting parties ―deficit Grants-in-aid‖ are given to such non-government college to meet the deficit or to make good the shortfall in the revenue of the private college for smooth functioning of the college. In other words, without the financial assistance extended by the State Government by way of ―deficit Grants-in-aid‖, these colleges would not be in a position to run and manage the college smoothly. By the very nature of the grant, such ―deficit Grants-in-aid‖ would be of a regular feature and of substantial amount, and such college would be dependent upon the financial assistance given by the State Government. Because of such dependency on the State government, which extends financial assistance to the college, a beneficiary college would have an obligation towards the benefactor State Government and hence, it would be within the authority of the State Government to legitimately impose such conditions as it may deem appropriate for extending such regular financial assistance in the form of ―deficit Grants-in-aid‖. In that context, various provisions made in the 2001 Rules regarding composition of the governing body as well as the power of the State Government to intervene in the affairs and management of the college cannot be said to be unreasonable.
In this regard, observation of the Hon'ble Supreme Court in T.M.A. Pai Foundation (supra) that Government will have a greater say in the administration of a private aided educational institution is of relevance.
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135. The duties of the governing bodyof a college have been laid down in detail under Rules 18 and 20 of the 2001 Rules. These are reproduced herein below:
―18. Duties of the Governing Body.--
In general the following are earmarked as duties of a Governing Body in respect of Colleges:-
(i) to undertake financial management of the College, to utilise the Grants-in-Aid received from the State Government, University Grants Commission and any fund collected as authorised subscriptions and fund received as fees from the students for the academic purpose of the Colleges, including payment of salary etc. to the Teaching and non-teaching staff of the College;
(ii) to arrange for the maintenance of the College building, furniture and equipment as required, including playground, auditorium, libraries etc.;
(iii) to grant leave to the teaching and non-teaching staff subject to the existing leave rules to grant leave, other than casual leave and arrangement made to fill up the vacancies, should be reported to Director and to concerned affiliating University;
(iv) to appoint persons in connection with the affairs of the College against the post or posts so sanctioned by the State Govt, with scrupulous compliance of the University Grants Commission guidelines and State Government instructions and policies;38
(v) to arrange for half-yearly internal audit for all College funds and verification of stocks, furniture and other assets;WP(C) 6087 of 2019 Page 78 of 115
with WP(C) 5467 of 2019 ~ 79 ~
(vi) to submit annual audited accounts preferably audited by a Chartered Accountant latest by thirtieth June of every year, in respect of the proceeding financial year;
(vii) to reply to audit objections or inspection notes on the Accounts of the College audited or inspected by the Inspector / Auditor of the Education Department / Director of Local Audit, Assam and the Accountant General, Assam;
(viii) to submit annual report with statistics in respect of the enrolment of students stream-wise, subject-wise, result, teaching days held, performance of Lecturers in an academic session, to the Director and to the affiliating University concerned;
(ix) to oversee the functioning of the disbursing officer in disbursing the stipend / scholarship sanctioned to the students in time, as well as to strive for preservation of an excellent academic standard of the College;
(x) except scholarship money and students union fund all other funds of the College shall be jointly operated by the Secretary and the President, where the President is not willing to operate the funds jointly, the Governing Body may appoint one Treasurer from amongst the members for the purpose of joint operation of the College funds.
(xi) with the approval of the Governing Body, the Secretary shall utilise the grants for the purpose for which it is sanctioned and submit the Utilisation Certificate to the concerned sanctioning authority in time, with intimation to the Director;
(xii) the Secretary shall disburse the deficit Grants-in-Aid sanctioned by the Director towards the salary of teaching WP(C) 6087 of 2019 Page 79 of 115 with WP(C) 5467 of 2019 ~ 80 ~ and non-teaching sanctioned staff of the College within a week from the date of the receipt of the grants;
(xiii) if any excess amount of Grants-in-Aid sanctioned towards the salary the excess amount shall be refunded to the Director by the Secretary immediately.
(xiv) To decide on the quantum of tuition fee and any other fund to be charged from the students.‖ ―20. Other functions of the Governing Body.--
The Governing Body is authorised:-
(i) to determine the general scheme of the studies of the College, subject to approval of the affiliating University concerned provided that there is no financial liability for Government; 41
(ii) to consider and initiate projects for improvement of the College, including prohibitions of taking private tuition by the teaching staff;
(iii) to deal with the discipline and conduct of the teaching and non-teaching staff of the College;
(iv) to grant fee remission under rules;
(v) to deal with the academic calendar within the
norms of University Grants Commission and to
compel scrupulous compliance of the guidelines in respect of working days and holding of Classes, Examination 43 etc. and
(vi) to ensure that all the duties regarding teaching and examination, co-curricular and extra -
curricular activities are duly performed by the teachers of the college.‖ WP(C) 6087 of 2019 Page 80 of 115 with WP(C) 5467 of 2019 ~ 81 ~
136. However, it is also to be noted that some of these duties and functions assigned to the governing body by the aforesaid 2001 Rules are already covered under the Rules framed by the Bar Council of India.
For example, matters relating to financial management of the college, maintenance of college building, furniture and equipment including playground, auditorium, libraries, auditing of the college funds, enrolment of students stream wise, subject-wise, result, teaching, performance of lecturers, determining general scheme of the studies of a law college etc. are within the domain of the Bar Council of India.
These functions assigned to the governing body of the college come within the purview of the Bar Council of India, and to that extent, there is duplication of the role of the Bar Council of India by the State Government, which, in the opinion of this Court, will not be permissible. There would be conflict of roles of the State Government and the Bar Council of India as far as the aforesaid parameters in the functioning of a law college is concerned.
It may so happen that, while the State Government may take a stringent view of certain alleged irregularities or lapses on the part of the functioning of the governing body as regards some of these parameters, thus warranting interference by the State Government in the functioning of the law college, it is possible that the Bar Council of India may take a different view or less critical view of the same and thus may not take any interventionist action. Thus certain anomalous situation may arise as regards the role of these two authorities and about their perceptions of the alleged lapses of the law college.
137. Further, as mentioned above, as far as academic and infrastructural requirements of the law colleges are concerned, these are specifically within the purview of the Bar Council of India and to that extent, the role of the State Government would be ousted. The Bar Council of India Rules would hold the field as far as academic and the infrastructural issues relating to the WP(C) 6087 of 2019 Page 81 of 115 with WP(C) 5467 of 2019 ~ 82 ~ law college are concerned. Therefore, a piquant may arise, while some of the provisions of the 2001 Rules may appear to be applicable to a law college like J.B. Law College, some of the provisions of these 2001 Rules may not be applicable, for the reason that these are fields already occupied by the BCI Rules and thus not within the purview of the State Government.
138. However, the situation may turn out to be much more acute when it comes to a non-government law college which receives very little financial assistance from the State Government and is not dependent on the State Government for its proper functioning and management. In other words, when the financial assistance rendered by the State Government is not substantial but meagre as in the case of J.B. Law College, though such financial assistance may come within the meaning of the expression ―ad hoc Grants-in-aid‖ used in the 2001 Rules, the question may arise as to whether the interventionist and intrusive role of the State Government as contemplated under the 2001 Rules can be made applicable with the same vigour to such private law college like J.B. Law College, as in the case of provincialised colleges, without any reference to Bar Council of India and Gauhati University which have higher stakes and more direct roles to play?
139. It has been the persistent stand of the petitioners that the financial assistance made available to J B Law College by the State Government is too meagre and hardly of any substance as far as functioning of the College is concerned. J.B. Law College has not denied receiving annual maintenance grants from the State Government but insists that such grants are not substantial and does not play any significant role in the financial management of the College and in fact the financial burden of the College is met by fees levied on the students and the College is not depended upon the State Government for its financial requirements.
As mentioned above, it has been contended by petitioners that the State Government themselves have admitted as stated in their affidavit filed WP(C) 6087 of 2019 Page 82 of 115 with WP(C) 5467 of 2019 ~ 83 ~ in the PIL No. 9 of 2015 pending before this Court that the source of revenue of J.B. Law College is the students fees and the College does not receive any regular government grant.
It is under the aforesaid factual position and the meagre financial assistance received by J.B. Law College that this Court has to examine as to whether the various restrictive, supervisory and interventionist power conferred upon the State Government under the 2001 Rules can amount to ―reasonable restrictions‖ or not, as contemplated under Article 19(1)(g) of the Constitution.
140. As we proceed further, it is important to understand what is ―reasonable restriction‖ with reference to Fundamental Rights under the Indian Constitution.
This expression ―reasonable restriction‖ has been the subject matter of consideration by the Hon'ble Supreme Court in an umpteen number of cases. In explaining the meaning and scope of this expression, it has been observed that it is intrinsically linked to the principle of proportionality.
In this regard, one may refer to a recent decision of the Hon'ble Supreme Court in Modern Dental College & Research Centre v. State of M.P., (2016) 7 SCC 353 rendered in the context of the Article 19(1)(g) with which we are directly concerned with.
In the aforesaid decision, the Hon'ble Supreme Court explained the scope of reasonable restrictions that may be placed on the exercise of Fundamental Rights under Article 19(1)(g). It was emphasised that such reasonable restrictions must be proportionate to the purpose sought to be achieved. In other words, if such restriction fails the test of proportionality, such restriction may not pass the test of ―reasonableness‖.
It was observed by the Hon'ble Supreme Court in the aforesaid case of Modern Dental College (supra) as follows:
WP(C) 6087 of 2019 Page 83 of 115with WP(C) 5467 of 2019 ~ 84 ~ "59. Undoubtedly, the right to establish and manage the educational institutions is a fundamental right recognised under Article 19(1)(g) of the Act. It also cannot be denied that this right is not "absolute" and is subject to limitations i.e. "reasonable restrictions" that can be imposed by law on the exercise of the rights that are conferred under clause (1) of Article 19. Those restrictions, however, have to be reasonable.
Further, such restrictions should be "in the interest of general public", which conditions are stipulated in clause (6) of Article 19, as under:
"19. (6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law insofar as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular, nothing in the said sub-clause shall affect the operation of any existing law insofar as it relates to, or prevent the State from making any law relating to--
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise."
60. Another significant feature which can be noticed from the reading of the aforesaid clause is that the State is empowered to make any law relating to the professional or technical qualifications necessary for practising any profession or carrying on any occupation or trade or business. Thus, while examining as to whether the impugned provisions of the statute and rules amount to reasonable restrictions and are brought out in the interest of the general public, the exercise that is required to be undertaken is the balancing of fundamental right to carry on occupation on the one hand and the restrictions imposed on the other hand. This is what is known as "doctrine of proportionality". Jurisprudentially, "proportionality" can be defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law WP(C) 6087 of 2019 Page 84 of 115 with WP(C) 5467 of 2019 ~ 85 ~ to be constitutionally permissible. According to Aharon Barak (former Chief Justice, Supreme Court of Israel), there are four sub- components of proportionality which need to be satisfied15, a limitation of a constitutional right will be constitutionally permissible if:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation ("proportionality strictosensu" or "balancing") between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.
*** *** ***
63. In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. Here comes the concept of "proportionality", which is a proper criterion. To put it pithily, when a law limits a constitutional right, such a limitation is constitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary. This essence of doctrine of proportionality is beautifully captured by Dickson, C.J. of Canada in R. v. Oakes17, in the following words (at p. 138):
"To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be "of" sufficient importance to WP(C) 6087 of 2019 Page 85 of 115 with WP(C) 5467 of 2019 ~ 86 ~ warrant overriding a constitutional protected right or freedom ... Second ... the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves "a form of proportionality test..." Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be ... rationally connected to the objective. Second, the means ... should impair "as little as possible" the right or freedom in question ... Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance". The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society."
64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.
65. We may unhesitatingly remark that this doctrine of proportionality, explained hereinabove in brief, is enshrined in Article 19 itself when we read clause (1) along with clause (6) thereof. While defining as to what constitutes a reasonable restriction, this Court in a plethora of judgments has held that the expression "reasonable restriction" seeks to strike a balance between the freedom guaranteed by any of the sub-clauses of clause (1) of Article 19 and the social control permitted by any of the clauses (2) to (6). It is held that the expression "reasonable" connotes that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interests of public. Further, in order to be reasonable, the restriction must have a reasonable relation to the object which the legislation seeks to WP(C) 6087 of 2019 Page 86 of 115 with WP(C) 5467 of 2019 ~ 87 ~ achieve, and must not go in excess of that object (see P.P. Enterprises v. Union of India4). At the same time, reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations (see Mohd. Hanif Quareshi v. State of Bihar5). In M.R.F. Ltd. v. State of Kerala6, this Court held that in examining the reasonableness of a statutory provision one has to keep in mind the following factors:
(1) The directive principles of State policy.
(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.
(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.
(4) A just balance has to be struck between the restrictions imposed and the social control envisaged by Article 19(6).
(5) Prevailing social values as also social needs which are intended to be satisfied by the restrictions.
(6) There must be a direct and proximate nexus or reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions, and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise."4
(1982)2 SCC 33 5 AIR 1958 SC: 1959 SCR 629 6 (1998)8 SCC 227 WP(C) 6087 of 2019 Page 87 of 115 with WP(C) 5467 of 2019 ~ 88 ~
141. The doctrine of proportionality which was invoked to evaluate reasonableness of restrictions as explained in Modern Dental College & Research Centre (supra), was applied in K. S. Puttaswami Vs. Union of India (2017) 10 SCC 1 and was reiterated in K.S. Puttaswamy (Aadhaar-5 J.) v. Union of India, (2019) 1 SCC 1, where it was held [in Para 134] that, "Thus, if an enactment puts limitation on a constitutional right and such limitation is disproportionate, such a statute can be held to be unconstitutional by applying the doctrine of proportionality."
142. This doctrine of proportionality was further explained in K. S. Puttaswami (Aadhaar-5J) (supra) in the following terms:
"149. We may note at this stage that there is a growing awareness of the practical importance of the principle of proportionality for rights adjudication and it has sparked a wave of academic scholarship as well. The first integrates the doctrine of proportionality into a broader theoretical framework. It is propounded by Robert Alexy, premised on the theory of rights as principles and optimisation requirements158. For Alexy, all norms are either rules or principles. Constitutional rights are principles, which means that they must be realised to the greatest extent factually and legally possible. For Alexy, the principle of proportionality follows logically from the nature of constitutional rights as principles. On the other hand, Mattias Kumm presented his theory of rights adjudication as Socratic contestation, with proportionality principle at its centre. As per Kumm, proportionality is the doctrinal tool which allows Judges to assess the reasonableness or plausibility, of a policy and thus to determine whether it survives Socratic contestation159.
151. One thing is clear from the above i.e. jurisprudential explanations of proportionality principle. There may be some differences about the approach on the application of proportionality doctrine, it is certain that proportionality has become the lingua franca of judicial systems across borders, concerning the circumstances under which it is appropriate to limit fundamental rights.
152. The proportionality test which is stated in the aforesaid judgment, accepting Justice Barak‟s conceptualisation, essentially takes the version which is used by the German Federal Constitutional Court and WP(C) 6087 of 2019 Page 88 of 115 with WP(C) 5467 of 2019 ~ 89 ~ is also accepted by most theorists of proportionality. According to this test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage).
158. This has been approved in K.S. Puttaswamy5 as well. Therefore, the aforesaid stages of proportionality can be looked into and discussed. Of course, while undertaking this exercise it has also to be seen that the legitimate goal must be of sufficient importance to warrant overriding a constitutionally protected right or freedom and also that such a right impairs freedom as little as possible. This Court, in its earlier judgments, applied German approach while applying proportionality test to the case at hand. We would like to proceed on that very basis which, however, is tempered with more nuanced approach as suggested by Bilchitz. This, in fact, is the amalgam of German and Canadian approach. We feel that the stages, as mentioned in Modern Dental College & Research Centre151 and recapitulated above, would be the safe method in undertaking this exercise, with focus on the parameters as suggested by Bilchitz, as this projects an ideal approach that need to be adopted."
5: (2017) 10 SCC 1 158: Robert Alexy, A Theory of Constitutional Rights (Oxford, Oxford University Press, 2002) 159: Mattias Kumm, "The Idea of Socratic Contestation and Right to Justification: The Point and Purpose of Rights- Based Proportionality Review" (2010) 4 Law & Ethics of Human rights 141; Mattias Kumm, " Institutionalising Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and Point of Judicial Review" (2007) 1- European Journal of Legal Situation. 151: (2016) 7 SCC 353
143. From the above, what one can observe is that while considering the issue of ―reasonable restrictions‖ qua exercise of the fundamental rights, in this case, Article 19(1)(g), the doctrine of proportionality can be applied as well.
As noted above, one of the aspects to be kept in mind while applying the doctrine of proportionality is to ensure that the means adopted should WP(C) 6087 of 2019 Page 89 of 115 with WP(C) 5467 of 2019 ~ 90 ~ impair ―as little as possible‖ the right or freedom in question and there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of ―sufficient importance‖. The more severe and deleterious effects of a measure, the more important the objective must be, if the measure is to be reasonable and demonstrably justified in a free and democratic society.
Apart from ensuring that the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose, it must be also ensured that the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation.
144. While elaborating on the principles of proportionality in the aforesaid case, the Hon'ble Supreme Court, quoting the words of Aharon Barak, former Chief Justice of the Supreme Court of Israel highlighted the following aspects of proportionality:
(i) it is designated for a proper purpose;
(ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfilment of that purpose;
(iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally
(iv) there needs to be a proper relation (―proportionality strictosensu‖ or ―balancing‖) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.
145. If we keep the aforesaid aspects in mind in the present facts of the case, one may need to examine the immediate background facts which led to the passing of the impugned order.
WP(C) 6087 of 2019 Page 90 of 115with WP(C) 5467 of 2019 ~ 91 ~ The following were the immediate and proximate reasons for taking the impugned action under order dated 29.07.2019 challenged in these petitions.
(a) the State Government took a decision on 23.07.2019 to constitute a High Level Committee to enquire into various allegations levelled against the Governing Body of the College on the basis of,
(b) complaints received from the Principal of the College dated 17.07.2019 and 14.06.2019.
146. As far as the Government decision dated 23.07.2019 to constitute a Committee is concerned, on examination of the file/records made available before this Court, it is seen that the decision of the State Government was primarily based on complaints received about the functioning of the Governing Body of the College.
147. As far as complaints received from the Principal of the College vide letters dated 17.07.2019 and 14.06.2019 mentioned in the impugned order are concerned, these are also annexed as ―Annexure H‖ and ―Annexure P‖ to the affidavit in opposition filed by the Principal of the College herself.
Perusal of the aforesaid letter dated 14.06.2019 shows that it is a complaint addressed to the Director of Higher Education about the non- providing of documents as required by the office of the Director, by the President of the Governing Body.
In the complaint dated 17.07.2019, allegations were made by the Principal of the College to the effect that some false and fabricated information had been incorporated in the minutes of the proceedings of the Emergent Governing Body meeting held on 03.07.2019 and despite the presence of the Principal of the College in the meeting as a special invitee, the office of the Principal had been impersonated by one Asst. Prof. namely, WP(C) 6087 of 2019 Page 91 of 115 with WP(C) 5467 of 2019 ~ 92 ~ Dr. Sangram Keshari Das, a member of the Governing Body (Petitioner no. 2 in WP(C) No. 5467 of 2019).
Further allegation has been made that contents of the proceedings of the meeting were false and fabricated.
It has been also alleged that on communication of the minutes of the meeting to the Principal, it was found that Dr. Sangram Keshari Das had impersonated himself as the Principal of J.B. Law College and had put his signature showing him as the Principal though she had never authorised him to sign on behalf of the Principal. Moreover, in that minute one Dr. D.R. Bhuyan who is the Member Secretary of the Governing Body had also put his signature and he had full knowledge of such impersonation and forgery and that thereafter, the Principal had lodged an FIR with Chandmari Police Station apprehending such impersonation of the office of the Principal of which she was not aware of.
148. Thus, it is quite apparent from the above two letters written by the Principal of the College that the issues raised by the Principal are primarily related to the alleged manipulations and other irregularities in the conduct of the meeting of the Governing Body but no specific allegation relating to financial mismanagement has been highlighted. It may here be noted that, the power of the State Government to intervene with the functioning of the Governing Body flows from the financial assistance given to the College and as a natural corollary and under normal course, such interventionist power conferred to the State Government ought to be related to the financial mismanagement of the College. However, as mentioned above, the irregularities pointed out by the Principal do not specifically refer to any financial irregularity, more particularly with reference to the annual maintenance grant or any other financial assistance given by the State Government to the College.
WP(C) 6087 of 2019 Page 92 of 115with WP(C) 5467 of 2019 ~ 93 ~
149. As noted above, in fact, the only reason why the State Government could invoke the 2001 Rules is that the State Government had given certain maintenance grants and financial assistance to the College. If the aforesaid maintenance grants and financial assistance has not been given to the College, in that event, the State Government would have no authority to intervene in the affairs of the College even if there were financial mismanagement and maladministration of the College.
Thus, the power of the Government to intervene by invoking the provisions of 2001 Rules must directly co-relate with financial irregularity pertaining to the maintenance grants or financial assistance given to the College, which in the present case has not been demonstrated to be so.
150. This Court also has noted that the State Government in their affidavit- in- opposition filed, has also relied on two complaints made before the State authorities regarding mismanagement of the Governing Body. One is a complaint addressed to the Hon'ble Minister (Education & Law and Justice), Government of Assam by the General Secretary of J.B. Law College Students Union (Annexure 3 to the affidavit-in-opposition filed by the Respondent No.2.).
Perusal of the aforesaid compliant would show that allegations of various irregularities including financial and administrative, allegedly committed by the Governing Body under the present Presidentship have been made generally, however, without any specific reference to any particular financial irregularity.
151. It may be claimed by the State authorities that the impugned action to suspend the Governing Body of the College was taken for a proper purpose, i.e., to make an enquiry into allegations of maladministration. It may also be claimed that the measure undertaken to effectuate such a limitation i.e., to place the Governing Body under suspension is rationally connected to the fulfilment of that purpose, that is, to enquire into the affairs of the Governing WP(C) 6087 of 2019 Page 93 of 115 with WP(C) 5467 of 2019 ~ 94 ~ body. But while doing so, it must be also ensured that the measures undertaken is necessary in that there is no other alternative measure that may similarly achieve that same purpose with a lesser degree of limitation.
In the present case, assuming that the 2001 Rules are applicable, it may be noted that there is a specific provision under Rule 19 of the aforesaid Rules which provides that failure of submission of any accounts, report duly signed by the President and the Secretary of the Governing Body in respect of preceding financial year, may attract stoppage of Grants-in-aid by the Director suo moto, after the expiry of 30th June every year.
This provision, in the opinion of this Court, perhaps could have provided an alternative measure which is less stringent, to deal with the situation, which the State Government sought to deal with. Thus, it is not that there are no alternative measures available with lesser degree of limitation under the 2001 Rules to deal with such situations as arising herein. But instead of invoking this less harsher action, the State Government opted for a more stringent action.
152. In further scrutinising the impugned action of the State, this Court has noted that there is one dimension of the issue of proportionality of the reasonable restrictions, which did not come up for consideration in the aforesaid decision in Modern Dental College (supra).
As discussed above, the 2001 Rules are generic in nature which are also applicable to ―Provincialized Colleges‖ wherein the State Government for obvious reasons has a very high stake as it is responsible for the proper management and administration of the provincialised college. It is for the reason that the State Government bears substantial portion of the expenses of such provincialized colleges. Similarly, for colleges which receive ―deficit grants-in-aid‖, as the proper functioning of the colleges would depend upon regular release of ―deficit grants-in-aid‖ and thus dependent upon the State WP(C) 6087 of 2019 Page 94 of 115 with WP(C) 5467 of 2019 ~ 95 ~ Government, the State Government can be reasonably expected to claim a substantial role in the management and administration of such college.
153. However, can it be said to be true of a private college which merely receives a paltry and meagre financial assistance as in the case of J.B. Law College and which does not depend upon the State Government for its financial stability? The State Government, while asserting that J.B. College is given certain financial assistance in the form of maintenance grants regularly, has also admitted that the College does not depend on the State Government for its proper functioning and the source of revenue is the students' fee as stated in the PIL pending before this Court. In such a factual background where J.B. Law College merely receives a paltry sum and merely because, even such a paltry financial assistance also amounts to ―ad hoc grants-in-aid‖, can the State Government by virtue of such limited and meagre financial contribution, claim a substantial right to interfere with the management of the College? In the opinion of this Court, the State Government cannot.
154. By taking a cue from the decision in T.M.A Pai Foundation case (supra) also, as discussed above, one can say that this power to intervene in the functioning and management of a college has to be proportionate to the financial assistance given to such a college. The more the financial assistance given to an educational institution, the higher stake the State Government can claim to intervene in the affairs of the college. Correspondingly, the less the financial contribution of the State, the less would be the scope of the State to intervene, unless, the terms and conditions of such financial assistance specifically provide for. As mentioned above, the State Government has not been able to spell out the terms and conditions of the maintenance grants given to J.B. Law College. In the opinion of this Court, while such State largesse is being doled out, it should have been made specifically clear to the beneficiary concerned that the State Government WP(C) 6087 of 2019 Page 95 of 115 with WP(C) 5467 of 2019 ~ 96 ~ could interfere in the functioning of the governing body and that the governing body may have to cede autonomy to certain extent, in lieu of the financial assistance so received from the State.
Otherwise, it could lead to incongruous situations. According to the petitioners, it will amount to travesty of justice, if the State by contributing a meagre amount of Rs. 18,000/- to Rs.21,000/- a year, which amounts to less than Rs.1,000/- a month, which is not even sufficient to meet the honorarium of a Grade - IV employee, much less any teacher, is empowered to suspend the management as sought to be done by the impugned order or to take over the management even if it is for a very brief period. The aforesaid amount cannot be said to be substantial as to warrant giving such an authority to the State to regulate the functioning of the management of the College.
155. The protestation of J.B. Law College, in the opinion of this Court seems reasonable and justified. It would have been a totally different matter, if J.B. Law College had been receiving substantial amounts regularly and thus depended upon the State Government on its grants for its smooth functioning. Of course, the State Government may say that it had given about Rs.4/5 lacs in 2012 and 2014, which are substantial amounts. This Court, however, is not in the know under what terms and conditions the said amounts were released by the State Government. Further, these are not given regularly and annually. In any event, no question been raised about misuse of the aforesaid amounts given to the College at any point of time. Could the State Government, at this stage, suspend the Governing Body relating to the aforesaid grants given in 2012 or 2014, though no specific allegations have been also made in respect of these grants against the management of the College? In the opinion of this Court, perhaps not.
156. This Court is of the view that, by applying the principle of proportionality, the meagre amount of financial assistance extended to J.B. WP(C) 6087 of 2019 Page 96 of 115 with WP(C) 5467 of 2019 ~ 97 ~ Law College cannot justify the impugned action taken by the State. It is disproportionate to financial contribution made by the State Government in managing the administration of the College. In the opinion of this Court as discussed above, in order to endow the State Government with the power to intervene, the financial contribution to the College must be substantial.
It may be noted that except for the maintenance grant given to the College, and the power of concurrence required to be given for opening the College, the State Government has hardly any role to play in the affairs of the Law College, apart from the general role it plays in respect of all educational institutions, irrespective of the nature of the education imparted or the nature of management.
157. In this context, it may be also mentioned that application of doctrine of proportionality is well known in service jurisprudence also. It is now well settled that if a penalty imposed on a delinquent is disproportionate to the proven misconduct, such penalty can be interfered with by applying the doctrine of proportionality.
In the opinion of this Court, the yardstick of proportionality applied in service jurisprudence in assessing the quantum of punishment can be made applicable in the present case also.
158. By applying the principle of proportionality as in the service jurisprudence, it is observed that the action taken to suspend the Governing Body of the College is not commensurate with the allegations made. This Court has already discussed the allegations, based on certain complaints, which were the foundation of the action taken. It is in the governing body of a college where the ultimate authority as regards the functioning and management of the college resides. It wields the most fundamental authority to run and manage the institution. It is in fact the repository of all power of the college. It is the heart and soul of the college authority. As observed by the Hon'ble Supreme Court in T.M.A. Pai Foundation case (supra), J.B. WP(C) 6087 of 2019 Page 97 of 115 with WP(C) 5467 of 2019 ~ 98 ~ Law College even if receives certain aid from the State cannot be treated as an institution departmentally run by the Government or as wholly owned and controlled government institution and interfere with the constitution of the governing body.
In the opinion of this Court, under the circumstances, a much less harsher and less stringent step could have been taken to deal with the situation arising in J.B. Law College, without disturbing the functioning of the Governing Body to achieve the purpose for which the impugned action was taken.
159. Having applied the doctrine of proportionality from multifarious perspectives, one may still test the impugned action on another dimension of Article 14.
Article 14 guarantees equality before law and prohibits treatment of unequals as equals. It was held in Prem Chand Somchand Shah v. Union of India, (1991) 2 SCC 48, as follows:
"8. As regards the right to equality guaranteed under Article 14 the position is well settled that the said right ensures equality amongst equals and its aim is to protect persons similarly placed against discriminatory treatment. It means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Conversely discrimination may result if persons dissimilarly situate are treated equally. Even amongst persons similarly situate differential treatment would be permissible between one class and the other. In that event it is necessary that the differential treatment should be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute in question."
(Emphasis added)
160. Examined from the aforesaid perspective, it has to be seen whether J.B. Law College, a private law college and not a provincialized law college, and which does not receive ―deficit Grants-in-aid‖, can be placed at par with WP(C) 6087 of 2019 Page 98 of 115 with WP(C) 5467 of 2019 ~ 99 ~ a provincialized college or with a private college which receives ―deficit Grants-in-aid‖ or substantial ―ad hoc Grants-in-aid‖ and thus dependent upon the State for its smooth functioning, and be subjected to the same punitive administrative regime?
As already discussed above, after all, this intrusive and coercive administrative action can be understandable in respect of provincialized colleges and those which receive ―deficit Grants-in-aid‖ or substantial ―ad hoc Grants-in-aid‖, as such beneficiaries can be legitimately expect to adhere to certain minimum standard of managerial responsibilities, lapses of which may attract punitive actions as provided under the 2001 Rules. To the extent of substantial financial assistance rendered by the State, there will be a corresponding obligation to be discharged on the part of the beneficiaries. Yet, these corresponding obligations cannot be same for the beneficiaries receiving substantially less benefits. As mentioned above, because of doctrine of proportionality, the obligations and commitments of the beneficiaries will be proportionate to the financial assistance received from the State.
Thus, if a particular college receives a very meagre or negligible amount of financial assistance, correspondingly, the scope and extent of power of the State Government to intervene in the affairs of the college will be much less or negligible. Certainly, the power of the State Government to suspend the governing body of a college which receives lakhs of rupees in a year regularly to maintain the college could not be invoked against a college which merely receives Rs.21,000/- a year. It, otherwise, would certainly amount to treating unequals as equals.
Applying the same measure of punitive actions to the colleges irrespective of the amount of financial benefits granted by the State, would certainly amount to treating unequals as equals and also be an unreasonable WP(C) 6087 of 2019 Page 99 of 115 with WP(C) 5467 of 2019 ~ 100 ~ action, which will offend Article 14 of the Constitution. Thus, tested on the anvil of Article 14 from this perspective, this impugned action fails the test.
161. The above observation may be put differently. The Newtonian Law that every action has an equal and opposite reaction is based on the principle of proportionality. Applying the aforesaid Newtonian Law, it may be also stated that the more financial contribution is made by the State Government to a law college, the State Government can react more potently to intervene with the management of the college. As a corollary, the less the financial contribution by the State Government, the less authority it will have to interfere with the management of the law college, and certainly not with the same power and authority the State government yields over provincialised colleges or those colleges which receives ―deficit grants-in-aid‖ or substantial ―ad hoc grants-in- aid‖. The State Government cannot certainly apply the same yardstick to differently situated colleges receiving different quantum of financial assistance. Thus, less the financial contribution of the State, the less will be the reactive power of the State.
162. We may also take the analogy of the criteria applied in defining ―State‖ within the meaning of Article 12 of the Constitution of India. It is now well settled that merely because the State or the Government has certain role to play in the functioning of an ―authority‖ does not render such an authority to be a ―State‖ within the meaning of Article 12 of the Constitution of India. The presence and influence and role of the State in such an authority must be pervasive and not merely incidental so as to render such an authority to be a ―State‖ within the meaning of Article 12 of the Constitution. [See Pradeep Kumar Biswas Vs. India Institute of Chemical Biology, (2002) 5 SCC 111, et al.].
In fact, that was an aspect which was also taken into consideration by this Court while deciding the case in Anamika Acharyya (supra) where there was a specific finding by this Court that the State Government had WP(C) 6087 of 2019 Page 100 of 115 with WP(C) 5467 of 2019 ~ 101 ~ substantial control on the functioning of the college and they had given an ad hoc grants-in- aid to the college.
Of course, as to whether the State Government has substantial control on the functioning of a college would also largely depend on the composition of the Governing Body.
However, as mentioned above, in this case, the State Government at no point of time has asserted that the President of the Governing Body of the J.B. Law College had ever been appointed by the State Government and in fact, it is also not one of the reasons the State Government decided to suspend the Governing Body that the Governing Body of the College was not constituted in terms of the 2001 Rules.
163. In the present case, even if the 2001 Rules are held to be applicable to a non-Government College receiving ―ad hoc Grants-in-aid‖, for the reasons discussed above, the impugned action in suspending the governing body of J.B. Law College cannot be said to be valid.
164. The impugned action in suspending the Governing Body of the College cannot be approved also for the reason that it was a unilateral action taken by the State Government without consulting other significant stakeholders, namely, the Bar Council of India and Gauhati University which had been mandated under the Constitutional scheme to oversee proper functioning of colleges engaged in imparting legal education. As already discussed above, the Bar Council of India and Gauhati University play a vital role in the running of the law colleges. It is only after these bodies are satisfied with the various parameters that a law college can be granted permission by the Bar Council of India and affiliation by the University to run the law college. In these areas of legal education, the State Government has hardly any role to play, except for giving their concurrence, if required. Interestingly, it has not been shown as to what are the aspects of the legal education which have to be taken into account by the State Government for WP(C) 6087 of 2019 Page 101 of 115 with WP(C) 5467 of 2019 ~ 102 ~ giving concurrence for establishment of a law college. Nothing has been brought to the notice of this Court, that as because the State Government has authority to grant concurrence, it has the power to intervene in the functioning of the governing body of such private law colleges like J.B. Law College.
Under such circumstances, the only source of the power of the State Government to intervene in the functioning of the Governing Body is by dint of giving certain financial assistance, which is covered by the expression ―ad hoc Grants-in-aid‖ as mentioned in the 2001 Rules, the scope of which has been already elaborately discussed above.
165. It may be noted that the State Government had sought to distinguish between maintaining the standard of legal education and management of a college. The State Government has already acknowledged that maintenance of standard of legal education is within the domain of Bar Council of India/UGC etc. According, to the State Government, management of a law college, however, is separable and can be subject to regulations made by the State Government.
It may however, be noted that such fine differentiation between maintaining the standard of the legal education and management may not be appropriate. These two, in the opinion of the Court, are intrinsically linked and cannot be compartmentalised neatly as sought to be done. Imparting of quality legal education is directly linked with the efficiency of management.
Management is incidental to the main function of imparting legal education by a law college and are not separable. It is for this reason that the Bar Council of India has been given the responsibility to inspect the financial management, administrative management also, as already discussed above. If the Bar Council of India does not find the financial condition and administration of the college conducive to proper legal education, it can even withdraw recognition of the law college. The WP(C) 6087 of 2019 Page 102 of 115 with WP(C) 5467 of 2019 ~ 103 ~ University for similar reasons, can withdraw the affiliation. Accordingly, this Court is of the view that the State Government could not have taken any unilateral action against J.B. Law College without taking into confidence the Bar Council of India and the Gauhati University. Hence, this Court would hold that this unilateral impugned action is improper, unreasonable and cannot be sustained.
166. Even assuming that the 2001 Rules are applicable to J.B. Law College, it may be noted that before the impugned order was issued suspending the Governing Body, no notice was ever given to the Governing Body of the College. Perhaps, it may be sought to be justified on the ground that under service jurisprudence, no notice is required to be given before a delinquent employee is placed under suspension, pending certain departmental enquiry. Under service jurisprudence, suspension is ordinarily not considered to be punitive. It may be contended that in the present case the State Government has not yet dissolved the Governing Body. It may be also contended that the State Government is merely seeking to make an enquiry to find out the truth relating to certain complaints received against the Governing Body before contemplating taking any punitive action against the Governing Body and thus it is merely a prelude to a possible punitive action.
167. This assumption, however, is fallacious. First of all, the governing body of a private college is endowed with the sole authority to manage the affairs of the institution, and unlike a Government employee, there is no master-servant relationship between the governing body and the State Government. The relationship between the governing body of a private college and the State Government is very tenuous only being bound by the regulations relating to grant of concurrence and release of certain financial assistance, etc. as discussed above and at best, there is only a client patron relationship. In a client patron relationship, the entities are independent and autonomous though may be highly unequal only bound by the contractual WP(C) 6087 of 2019 Page 103 of 115 with WP(C) 5467 of 2019 ~ 104 ~ relationship. As in any contract, the mutual obligations are based on the agreed terms and liabilities. Hence, the principles governing suspension of a government employee in service jurisprudence cannot be imported and applied in the matter of management of a private college and its relationship with the State Government.
168. Under the present circumstances, suspending the Governing Body of J.B. Law College, even for a brief or temporary period by disabling it, amounts to a coercive act. Suspension of the governing body cannot be equated to suspension of an employee pending an enquiry in service jurisprudence. Suspension of the governing body of a private College, howsoever, brief it may be, and by appointing an Administrator by the State Government, would amount to taking over the administration of a private institution, which in the opinion of this Court, in the light of the decision in T.M.A. Pai Foundation case (supra) as discussed above will not be permissible.
169. This Court is of the view that in the facts of the case before us, the principles of natural justice would be applicable. Even if assuming that the 2001 Rules are applicable and even if these Rules do not specifically provide for giving an opportunity of being heard and thus, are silent, by implication, principles of natural justice have to be read into the Rules, as the impugned action adversely affects the right of the Governing Body of the College and such action could not have been taken without giving the Governing Body or the College authority an opportunity of being heard.
170. Having held that the impugned order dated 29.07.2019 is invalid under the facts and circumstances narrated above, the question may still arise as to whether, it will be totally impermissible for the State Government to intervene in the affairs of private law college like J.B. Law College which receive certain financial assistance from the State government.
WP(C) 6087 of 2019 Page 104 of 115with WP(C) 5467 of 2019 ~ 105 ~ As held by the Hon'ble Supreme Court in T.M.A. Pai Foundation (supra), the State can certainly intervene. But to what extent and degree it can, the answer to question will lie depending on the facts and circumstances of each case as in the present case.
However, it can be emphatically stated that if any such private law college like J.B. Law College does not receive substantial financial assistance from the State government and hence, is not dependent upon the State Government financially for smooth running of the College unlike provincialised colleges or colleges receiving ―deficit Grants-in-aid‖, and where the action is taken unilaterally without any consultative process with the Bar Council of India and the affiliating University, and without affording a proper opportunity of hearing to such law college, any such action taken to suspend the governing body or take over the management of such a law college as provided under the 2001 Rules, will not be permissible.
171. From the above discussion, what clearly transpires also is that the 2001 Rules as these stand at present, are not eminently suited to deal with private law colleges getting minimal and not substantial financial assistance from the State Government like J.B. Law College even in the matters relating to alleged mismanagement of the affairs of the law college.
Many of the powers conferred on the State Government under the 2001 Rules, viz., Rules 4, 5, 6, 7, 17 perhaps do not fit with the constitutional scheme as discussed above as the role of the Bar Council of India which is the main stakeholder in the field of legal education is conspicuously absent in the aforesaid 2001 Rules. These rules displace the role of the Bar Council of India for proper supervision of the law colleges in maintaining standards of legal education, which would not be permissible.
The duties of the Governing Bodies as mentioned under Rules 18 and 20 of the 2001 Rules as reproduced above are for the Bar Council of India to WP(C) 6087 of 2019 Page 105 of 115 with WP(C) 5467 of 2019 ~ 106 ~ assign as also mentioned in the Bar Council of India Rules, keeping in mind the various parameters the law colleges are expected to adhere to.
In any event, this Court is of the firm opinion that rules or regulations framed by the State Government relating to private law colleges must be made in consultation with the Bar Council of India and the State Government must refrain from operating in areas which are within the exclusive domain of the Bar Council of India so that there is no duplication of roles of these authorities.
Management as already discussed above, though is a distinct area of activity vis-à-vis maintenance of quality of education being imparted by a law college, nevertheless, these two are so intertwined that it would not be possible to delineate these two as separate areas of concern. The quality of legal education is certainly dependent on the quality of management and correspondingly, an efficient and proper management of the college would engender quality legal education.
From this point of view, the perception of the State Government that management of the college can be easily distinguished from the quality of legal education which is primarily the concern of the Bar Council of India and in the area of management of a law college, the State Government would have jurisdiction to interfere with as in the present case, in the opinion of this Court, is misconceived.
However, it is for the rule making authorities how to frame the rules or regulations to deal with the management of a private law college. But definitely, the present 2001 Rules as these exist today do not fulfil the legal requirements to endow the State Government without any consultative process with the Bar Council of India to interfere with private law college like J.B. Law College, which does not receive substantial financial assistance from the State and is not financially dependent upon the State Government as discussed above.
WP(C) 6087 of 2019 Page 106 of 115with WP(C) 5467 of 2019 ~ 107 ~
172. At this juncture it may not be out of context to refer to a decision rendered by the Hon'ble Supreme Court in State of Maharashtra v. Manubhai Pragaji Vashi, (1995) 5 SCC 730 wherein the Hon'ble Supreme Court while dealing with the issue of extending grants-in-aid to all the government recognised private law colleges, observed the important role played by the law colleges in the context of Article 21 and Article 39-A of the Constitution. Juxtaposing these two Articles, one, a fundamental right and another, a Directive Principles of State Policy, the Hon'ble Supreme Court observed that in a democratic polity, governed by rule of law, it should be the main concern of the State to have a proper legal system for which the State Government must encourage private law colleges by extending grants in aid.
The Hon'ble Supreme Court observed in the aforesaid case as follows:
"17. ...........................The need for a continuing and well- organised legal education is absolutely essential reckoning the new trends in the world order, to meet the ever-growing challenges. The legal education should be able to meet the ever-growing demands of the society and should be thoroughly equipped to cater to the complexities of the different situations. Specialisation in different branches of the law is necessary. The requirement is of such a great dimension, that sizeable or vast number of dedicated persons should be properly trained in different branches of law, every year by providing or rendering competent and proper legal education. This is possible only if adequate number of law colleges with proper infrastructure including expertise law teachers and staff are established to deal with the situation in an appropriate manner. It cannot admit of doubt that, of late there is a fall in the standard of legal education. The area of „deficiency‟ should be located and correctives should be effected with the cooperation of competent persons before the matter gets beyond control. Needless to say that reputed and competent academics should be taken into confidence and their services availed of, to set right matters. As in this case, a sole government law college cannot cater to the needs of legal education or requirement in a city like Bombay. Lack of sufficient colleges called for the establishment of private law colleges. If the State WP(C) 6087 of 2019 Page 107 of 115 with WP(C) 5467 of 2019 ~ 108 ~ is unable to start colleges of its own, it is only appropriate that private law colleges, which are duly recognised by the University concerned and/or the Bar Council of India and/or other appropriate authorities, as the case may be, should be afforded reasonable facilities to function effectively and in a meaningful manner. That requires substantial funds. Under the label of self-financing institutions, the colleges should not be permitted to hike the fees to any extent in order to meet the expenses to provide the infrastructure and for appointing competent teachers and staff. The private law colleges, on their own, may not afford to incur the huge cost required in that behalf. The „standard‟ of legal education and discipline is bound to suffer. It should not so happen for want of funds. The „quality‟ should on no account suffer in providing free legal aid and if it is not so, "the free legal aid" will only be a farce or make believe or illusory or a meaningless ritual. That should not be. It is in that direction the grants-in-aid by the State will facilitate and ensure the recognised private law colleges to function effectively and in a meaningful manner and turn out sufficient number of well-trained or properly equipped law graduates in all branches year after year. That will in turn enable the State and other authorities to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability. These aspects necessarily flowing from Articles 21 and 39-A of the Constitution were totally lost sight of by the Government when it denied the grants-in-aid to the recognised private law colleges as was afforded to other faculties. We would add that the State has abdicated the duty enjoined on it by the relevant provisions of the Constitution aforesaid. In this perspective, we hold that Article 21 read with Article 39-A of the Constitution mandates or casts a duty on the State to afford grants-in-aid to recognised private law colleges, similar to other faculties, which qualify for the receipt of the grant. The aforesaid duty cast on the State cannot be whittled down in any manner, either by pleading paucity of funds or otherwise. We make this position clear."
173. Thereafter, the Hon'ble Supreme Court proceeded to issue the following directions to the State of Maharashtra, as quoted below:
"21. We direct the State of Maharashtra to the following effect:WP(C) 6087 of 2019 Page 108 of 115
with WP(C) 5467 of 2019 ~ 109 ~ A. Government is directed to extend the grants-in-aid scheme to all government recognised private law colleges, on the same criteria as such grants are given to other faculties viz. Arts, Science, Commerce, Engineering and Medicine from the Academic Year 1995;
B. The scheme shall be implemented within three months from today;
C. Regarding non-government law colleges which have closed down or are about to close down, the data will be collected by the Government of Maharashtra forthwith and sincere attempt must be made to restart the colleges as they existed in the Academic Year 1985-86 for the purpose of extending grants-in-aid from the Academic Year 1995-96;
D. As stated by the High Court, Government shall implement the pension-cum-gratuity scheme in favour of the staff of non-government law colleges with effect from 1-4-1995 on such staff exercising their option, on notice being served on them individually or by public notice, within three months from the Government‟s declaration to implement grants-in-aid scheme to non-government law colleges;
E. Government shall ensure, by taking appropriate steps, that those private law colleges duly and properly recognised by Government and/or other competent authorities, including the Bar Council of India, and conforming to standards laid down by appropriate authorities and affiliated to an established University alone are afforded the grants-in- aid. Steps shall be taken to ensure that the aided institutions, abide by all the rules and regulations of the aforesaid authorities for recognition and affiliation including such of those rules and regulations in the matter of recruitment of teachers, staff, their conditions of service, syllabus, standard of teaching and discipline. In this context, the Bar Council of India Rules, Part IV, standards of legal education and WP(C) 6087 of 2019 Page 109 of 115 with WP(C) 5467 of 2019 ~ 110 ~ recognition of degrees in law or admission as Advocates, should be the guiding factor;
F. Government should further ensure that a high standard is maintained in legal education and in that behalf, Government of Maharashtra shall, with the concurrence of the University concerned, the Bar Council of India, the Bar Council of Maharashtra and other competent bodies or persons, as the case may be, take all necessary steps, so that excellence in legal education is achieved. This shall be done expeditiously; and G. There shall be no order as to costs in these appeals."
174. Of particular relevance to the present case are the directions contained in ―E‖ and ―F‖ of Para 21 quoted above. The Supreme Court in the aforesaid case highlighted the importance of the Bar Council of India/ Bar Council of Maharashtra and affiliating universities. Directions were issued to the State of Maharashtra to take necessary steps to ensure that the quality of education is maintained, apart from extending grants-in-aid to the private law colleges and take the steps with the concurrence with the Bar Council of India/ Bar Council of Maharashtra, the concerned universities and other relevant authorities as the case may be. These directions underscore the importance of these bodies, which have been totally ignored in the 2001 Rules, as well as while taking the impugned actions.
175. If the directions of the Hon'ble Supreme Court in aforesaid case of State of Maharashtra (supra) can be of any relevance, it can be stated that the Government of Assam also would be under obligation to extend grants-in-aid to the private law colleges and make appropriate regulations with the concurrence of the Bar Council of India/Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh and Sikkim, and the concerned universities to which the law colleges are affiliated, and other bodies.
WP(C) 6087 of 2019 Page 110 of 115with WP(C) 5467 of 2019 ~ 111 ~ Unfortunately, in the present case, the State Government has not been able to show existence of any such regulations framed in consultation/ concurrence with the aforesaid statutory bodies. The 2001 Rules were made by the State Government, in which there is no reference to the role of the Bar Council of India/Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh and Sikkim, the concerned universities to which the law colleges are affiliated, and other bodies.
It would, thus, be open to the State Government to frame such appropriate rules and regulations which may cover the management of the private law colleges which are receiving grants in the aid, which may be framed in consultation/concurrence with the aforesaid statutory bodies and also as regards regulations to such law colleges which may not receive substantial financial assistance.
176. However, a question may still arise as to what would be the legal basis for constitution of the Governing Body of J.B. Law College in the present. Since, this Court has already arrived at the conclusion that the 2001 Rules, as these stand today, are not eminently suited to deal with a private law college like J.B. Law College and as it does not receive substantial financial assistance, perhaps the 1998 Ordinance framed by the Gauhati University as referred to above and which was made applicable to Dispur Law College which also appears to be similarly situated and receives certain maintenance grants, by this Court in Madan Hazarika (supra), may be made applicable to J.B. Law College also till such appropriate regulations are framed by the State Government in consultation/concurrence with the Bar Council of India/Bar Council of Assam, Nagaland, Mizoram, Arunachal Pradesh and Sikkim and the concerned universities to which the law colleges are affiliated, and other bodies.
The State Government may of course, contend that, in such an event, the State Government, in spite of giving financial assistance to J.B. Law WP(C) 6087 of 2019 Page 111 of 115 with WP(C) 5467 of 2019 ~ 112 ~ College would be divested of any role to play in the matters relating to J.B. Law College and the State Government having invested certain public fund to the College by way of maintenance grant ought not be divested of any power over the College so that the Government can seek accountability for the public fund received by the College. As regards this, it may be noted that, the State Government would be at liberty to withhold any disbursement of any financial assistance to J.B. Law College, till the College satisfactorily accounts for the financial assistance given to it, which power is also provided under Rule 19 of the 2001 Rules. In any event, irrespective of the applicability of the 2001 Rules, the power of the State Government to withhold any financial assistance to J.B. Law College inheres in it, which it can invoke independently at any point of time as the dispenser of the State largesse. The State Government can certainly seek an account of the grants already released to J.B. Law College. As regards, other maladministration of the College, the State Government can certainly draw the attention of the Bar Council of India and the Gauhati University which may take appropriate action against J.B. Law College in accordance with the relevant rules and regulations and Ordinances.
177. Before parting with the case, this Court like to refer to the decisions of this Court cited by the learned counsel for the State respondents. It may be observed that this Court in Anamika Acharyya (supra) had come to the conclusion that the 2001 Rules would apply to the private non-government college in issue on the facts of the case, even if it did not receive ―deficit grants-in-aid‖ and ―ad hoc grants-in-aid‖. In the said case, there was a specific finding by this Court that the State Government had substantial control on the functioning of the college and had been giving ad hoc grants- in-aid to the College in issue.
In the opinion of this Court, the finding arrived at by this Court in Anamika Acharyya (supra) was based on the peculiar facts obtaining in WP(C) 6087 of 2019 Page 112 of 115 with WP(C) 5467 of 2019 ~ 113 ~ the said case and would be confined to the facts of the said case, as the respondent authorities have not been able to demonstrate that similar fact situations arise in the present case as well.
Further, it may be also mentioned that in the aforesaid cases of Anamika Acharyya (supra) as well in Afzalur Rahman (supra) and Shahadot Ali (supra), this Court was dealing with degree colleges and not with any law college as in the present case.
Moreover, in Afzalur Rahman (supra) there was a specific finding by the Court that the Director of Higher Education had appointed the President of the governing body of the college.
In Shahadot Ali (supra) also there was a specific finding by the Court that the Governing Body of the College was constituted under the 2001 Rules by an order issued by the Director of Higher Education.
In the present case, no such instance has been brought to the notice of this Court that the President of the Governing Body of J.B. Law College was ever appointed by the Director of Higher Education or for that matter, the Governing Body of the College was ever constituted by the State Government under the 2001 Rules.
Thus, the factual positions obtaining in the present case are different from the aforesaid cases.
Further, no occasion arose in aforesaid cases to discuss the relevance of the Bar Council of India in managing the affairs of a law college.
Hence, this Court would hold that the aforesaid decisions relied on by the State respondents are distinguishable on facts and would not be applicable to the present case.
178. As regards Madan Hazarika (supra) relied on by the petitioners, this Court held that since Dispur Law College had been affiliated to Gauhati WP(C) 6087 of 2019 Page 113 of 115 with WP(C) 5467 of 2019 ~ 114 ~ University, it was bound to comply with the requirements of the 1998 Ordinance, as otherwise, it would be exposed to possibility of withdrawal of affiliation by the Executive Council of the University. This Court in the aforesaid case in Madan Hazarika (supra) proceeded by holding that 1998 Ordinance of the Gauhati University would be applicable to Dispur Law College. This Court for the reasons discussed above, would also hold that till such appropriate rules or regulations are framed by the State Government in extending grants in aid to private law colleges in consultation with/with the concurrence of the Bar Council of India, this 1998 Ordinance would also be applicable to J.B. Law College as well.
179. As regards the issue of locus standi raised by the State Respondents, this Court would hold that the petitioners cannot be said to be total strangers in the affairs of the College and can be said to have certain interest in the wellbeing of the College. Moreover, in the light of the critical questions of law raised, this Court is of the view that the technicality of locus standi ought not to come in the way of the consideration of these seminal issues raised. Hence, this Court is not inclined to reject these petitions on the ground of lack of locus standi of the petitioners.
180. As regards the issue of mala fide raised by the petitioners, since this Court has already arrived at the conclusion that the impugned order dated 29.07.2019 is not sustainable in law for the reasons discussed above, this issue of mala fide is not considered and hence, not decided.
181. For the reasons discussed above, this Court would unhesitatingly hold that the impugned order dated 29.07.2019 challenged in both the writ petitions suspending the Governing Body of J.B. Law College and appointing Mr. Hemanta Kumar Sarma as the Administrator cannot be sustained in law and, is accordingly, set aside.
It is left to the State authorities to deal with the issues of maladministration and other irregularities allegedly committed by the WP(C) 6087 of 2019 Page 114 of 115 with WP(C) 5467 of 2019 ~ 115 ~ Governing Body of the College or the College authorities arising in J.B. Law College in consultation with the Bar Council of India and the Gauhati University in the light of observations and conclusions arrived at as discussed above.
Consequently, it is also held that the State Government cannot take any unilateral decision against the J.B. Law College without the concurrence of and/or consultation with the Bar Council of India and Gauhati University and, to that extent, other impugned letters/orders dated 24.05.2019, 19.06.2019 and 12.07.2019 challenged in WP(C) 5467/2019 also cannot be given effect to without concurrence of/consultation with the Bar Council of India and the Gauhati University.
182. Both the petitions are, accordingly, allowed.
Parties are to bear their own costs.
JUDGE Comparing Assistant WP(C) 6087 of 2019 Page 115 of 115 with WP(C) 5467 of 2019