P.S. Mishra, J.
1. The Governing Body of a college, affiliated to the Magadh University, and its secretary are the petitioners who together have questioned the validity of the appointment of an ad hoc committee in place of the regular Governing Body of the college.
2. To go to the core of the problem, it is not necessary to travel through the history of the establishment of the college and its affiliation to the University.
3. According to the petitioners, a regular Governing Body of the college had been functioning with petitioner No. 2 as the Secretary thereof and there had been full representation thereon of the representatives of the various categories of persons who may constitute the Governing Body of an affiliated college, petitioner No. 2 being a donor. The respondents, however, have assigned no reason whatsoever for exercising powers under Section 60(4) of the Bihar State Universities Act, 1976 read with Article 2(1) of Chapter XIII of the Magadh University Statutes, but have appointed an ad hoc committee for the college of the petitioners.
4. The petitioners have claimed that Subsection (4) of Section 60 of the Act and the Statutes framed under the Act cannot clothe the University with arbitrary power and such provisions shall be ultra vires Article 14 of the Constitution, unless they are circumscribed by such guidelines which can be the exercise of power by the University within bounds.
5. The Bihar Universities Act, 1976 has established and incorporated five affiliated-cum-teaching Universities, Universities of Muzaffarpur, Bhagalpur, Ranchi, Gaya and Darbhanga. It has in Section 2(c) defined 'affiliated college' to mean 'educational institution' having received privileges of the University according to the provisions of the Act and the University Statutes relating thereto, Section 60 of the Act is the provision for the Governing Body which states that there shall be a Governing Body for the management and administration of each affiliated college other than a college owned and maintained by the State Government or a college established 'and administered by a minority community on grounds of religion or language or an affiliated technical or medical college. Sub-section (1) has, besides the above, a specific provision that the Governing Body shall consist of Principal of the college (ex-officio); a member elected by and from amongst the teachers of the college; a representative of the University nominated by the Syndicate; an officer of the State Government posted in the district, being not below the rank of Sub-Divisional Magistrate, nominated by the syndicate; a member elected by such donors from amongst themselves as have donated at least twenty five thousand rupees to the college; one member to be nominated by the syndicate, who is a member of the Parliament on the State Legislature and mainly resides in the district of the area in which the college is situated; and one member co-opted by the governing body from amongst such educationists or persons residing in the district where the college is situated as are reputed for their academic interest, as members. Subsection (2) of Section 60 says that the term of office of the members of the Governing Body, their powers and functions shall be such as are prescribed by the Statutes. Sub-section (3) of Section 60 is the provision to save any act or proceedings of the Governing Body of affiliated colleges from being invalidated merely because of any vacancy or vacancies in its membership; and Sub-section (5) thereof speaks of the Governing Body for the management and administration of a college owned and maintained by the State Government or established by a minority community on the ground of religion or language. Subsection (4) of Section 60 states,--
"The Syndicate shall constitute an ad hoc committee for the management of the College so long as a Governing Body is not constituted in accordance with the provisions contained in Sub-section (1)."
Section 34 of the Act provides for the Statutes stating that subject to the provisions of the Act, the Statutes may provide for all or any of the following matters, namely-
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(c) the constitution, powers, functions and duties of the authorities of the University;
(d) the admission of education at institutions as colleges and the withdrawal of privileges from Colleges so admitted. The Magadh University has, accordingly, framed statutes relating to formation of different bodies etc. of the University including for the Governing Body to be constituted for management and administration of every admitted college.
6. Article 2 in Chapter XXII states -
"(i) If for any reason the Governing Body of an admitted college is not constituted, the Syndicate shall constitute an ad hoc committee of not more than five members until the Governing Body is constituted. The President and the Secretary of the Ad hoc committee shall be nominated by the Vice-Chancellor.
(ii) If any difficulty arises in the formation or the filling up of any seat in the Governing Body of any admitted College for any reason whatsoever, the Syndicate shall on its own initiative or on reference to it shall decide the issue. If anybody, however, is dissatisfied with the decision of the Syndicate, he shall have the right of appeal to the Chancellor within thirty days of the decision whose decision thereon shall be final and binding on the persons concerned."
7. I shall come to the contentions raised before us and discuss them in some details a bit later, as a Division Bench of this Court has considered a similar application in C.W.J.C. No. 2723 of 1987 disposed of on 20th Febr., 1988 : (reported in 1988 Pat LJR (HC) 546). N. P. Singh, J., who has delivered the judgment for the Court, has recorded his views 'with respect to Sub-section (5) of Section 60 of the Act read with Chapter XIII of the Statutes of the Bihar University, which has got a provision similar to the provisions in the Magadh University Statutes. The difference, however, ' lies in the fact that the college in question in CW.J.C. No. 2723/87 (reported in 1988 Pat LJR (HC) 546) was also governed by the ' Bihar Development of Homoeopathic system of Medicine Act, 1953 as amended by the Bihar Development of Homoeopathic system of Medicine (Amendment) Act, 1975. Commenting upon the provisions of the Act and the statutes similar to the statute quoted above, N.P. singh, J. has said -
"Onaplain reading of Clause 1 the Governing Body in accordance with said clause 1 has to be constituted in respect of affiliated Colleges. For Colleges covered by Section 60(l), Clause 1 will be applicable but in respect of Colleges covered by Section 60(5) including Medical Colleges the second proviso to clause 1 of Chapter XIII shall be applicable, i.e., a Governing Body consisting of seven members shall be constituted by the Syndicate in, consultation with the sponsors/authorities of the college concerned. Clause 1(2), however, vests power in the Syndicate to constitute an ad hoc committee in respect of all types of colleges covered by clause 1. If for any reason, the Governing Body in accordance with clause 1 is not constituted, such ad hoc body shall have five members and shall function till a Governing Body in accordance with clause 1 of Chapter XIII of the Statute is constituted."
N. P. Singh, J. has further said -
".....In view of Section 60(5) the Governing Body for Homoeopathic Colleges had to be constituted in accordance with the provisions prescribed in the Statutes. Chapter XIII(l), on its plain reading, does not recognise any existing Governing Body which might be functioning before the college in question was granted affiliation by the University. It describes any body which was functioning before the college was admitted to the University as "the spnsors" (see second proviso to clause 1 of chapter XIII). There is no provision under the new Statutes for recognising the old Governing Body which was functioning before the said college was admitted to the University or for dissolution thereof. The mandate of the framers of the Act and the Statutes is that any such body should be treated only as sponsors and a new Governing Body has to be constituted no sooner the College is admitted to the University. That is why clause l(2)(i) says that if for any reason the Governing Body of an admitted college is not constituted, the Syndicate shall constitute an ad hoc committee...,."
N.P. Singh, J. has also said -
"..., .The expression "if for any reason" shall mean due to any cause whatsoever because of which a regular Managing Committee according to that Statute could not be constituted. In other words, if there is delay in the constitution of a regular Governing Body, according to clause 1 of Chapter XIII, then an ad hoc committee has to be constituted....."
8. This Court's view in C.W.J.C. No. 2123/87 is of some help to understand the words used in the Statutes, "if for any reason the Governing Body of an admitted college is not constituted", and whether the committee appointed by the sponsors which was not in consonance with the provisions in Subsection (1) of Section 60 or Article 1 of Chapter XIII of the Statutes can be acknowledged as a regular Governing Body or not. Subsection (4) of Section 60 is somewhat deficient in the sense that in the words, like - "if for any reason the Governing Body of an admitted college is not constituted" are not incorporated in it. Syndicate's power to constitute an ad hoc committee is, thus, circumscribed by the words -- "if for any other reason Governing Body of an admitted college is no; constituted". A syndicate can appoint an ad hoc committee only when there is no regular Governing Body, "so long as a Governing Body is not constituted in accordance with the provisions contained in Sub-section (1)". In Sub-section (4) of Section 60 the Syndicate is vested with the power to appoint ad hoc committee only until the regular Governing Body is not constituted. A Governing Body, thus, has to be constituted as provided in Sub-section (i) of Section 60 and the process may start no sooner the college is granted affiliation.
9. Regular constitution of the Governing Body depends on the acts of the University in nominating its representative, an officer of the State Government posted in the district, being not below the rank of a Sub-Divisional Magistrate and one member who is either a member of the Parliament or the State Legislature, mainly residing in the district of the area in which the college is situated. The Principal of the college ex officio, any person holding office of the members has to be in the regular membership of the Governing Body. How can then the Syndicate not proceed to nominate as above and, thus, fulfil its part in the constitution of the regular Governing Body and take recourse to bringing to administer the college persons who arc either strangers or do not conform to these categories? it has to confine to a number of five or less, three who are nominated by the University to constitute the Governing Body and the ex officio members will be four and the teachers can easily bring the representative upon the Governing Body making the maximum of five for the ad hoc committee. Such ad hoc committee in lieu of a regular committee will, for all practical purposes, be the regular Governing Body, as the only other categories left out are the donors' and the co-opted members. University by nominating its representative, representatives of the State Government and the Legislature and inviting the teachers to elect their representative shall not only shorten the period of the life of the ad hoc committee but enthuse by this creation of a regular Governing Body at the earliest.
10. The learned Advocate General has conceded that the Syndicate's power is not unbriddled and it has to adhere to the guidelines in the Act and the Statutes in constituting the ad hoc committee. Such guidelines are in Sub-section (1) of Section 60 and read with Chapter XIII of the Statutes control the discretion of the Syndicate. There are good reasons to think that the Governing Body of a college is a perpetual body, whether called an ad hoc committee or a regular committee, it has to have as members persons falling in the seven categories enumerated in Section 60(1) of the Act. It is ad hoc until the constitution is complete, by the teachers' representative, the donors and co-opted members brought as members and office bearers elected in accordance with the prove of the Statutes. So long the office bearers, are not elected, the President and the Secretary are to be the nominee of the Vice Chancellor. That is the only difference in the 'ad had and the 'regular committee'.
11. Coming to the facts of this' case; we hold that the ad hoc committee is not in consonance with the aforementioned guidelines, except the Sub-Divisional Officer (Civil) and perhaps one member of the Syndicate, no other member of the ad hoc committee appointed by annexure '1' is qualified to be on the regular Governing Body of the college. Appointment of the Sub-Divisional Officer (Civil) and the member of the Syndicate also does not appear to have been made with a view to keeping him on the regular Governing Body.
12. Both, learned counsel for the petitioner and learned Advocate General who has appeared for the University have taken us through a large number of judgments of this Court and quite a few authorities of the Supreme Court to lead us to the view that without guidelines Sub-section (4) of Section 60 of the Act shall be ultra vires and that guidelines need not be expressly introduced whenever and wherever discretion is created, but can be gathered from the scheme of the law as a whole and the nature of the exercise of the discretion in particular. Since both of them have addressed us with these limitations in mind and I have taken notice of the existence of the guidelines, I have not found it necessary to discuss those principles in any detail.
13. To conclude, I hold that the notification, as contained in annexure '1' is illegal, arbitrary and without jurisdiction. It is, accordingly, quashed. The respondents are directed to forthwith constitute either a regular governing body or to appoint ad hoc committee in the light of the observations made above, clearly stipulating that its life is limited to the period of the constitution of the regular governing body.
L.P.N. Shahdeo, J.
14. I agree.