The Memorandum of Association of an institution defines the roles and powers of its governing bodies. Any amendment to the MOA must be in accordance with the prescribed procedure and should not disrupt the basic structure and checks and balances intended by the founders.

JUDGMENT :

1. The present writ petition has been preferred against the decision taken on May 30, 2017 in a meeting of the Board of Governors (BOG) of the Indian Institute of Social Welfare and Business Management (hereinafter referred to as, “the Institute”) whereby the President opined that the Board of Trustees (BOT) should be dissolved and the BOG would continue. It is argued that the said proposal was accepted by the BOG and confirmed subsequently in the meeting of the BOG dated December 10, 2018.

2. Learned senior counsel appearing for the petitioner argues that the said resolution is patently contradictory to the Memorandum of Association of the Institute and, if accepted, would render the functioning of the Institute lop-sided by concentrating the entire power in the BOG, which was never the intention of the founders.

3. It is shown from the Memorandum that eminent members of the society were Members of the Institute with the founder member being the then Chief Minister Dr. B.C. Roy. The father of the present petitioner was one of the founder members. Learned senior counsel places reliance on the Memorandum to show that the BOG may from time to time elect such person or persons as they think fit to be Life Members. Also, Clause 2(c) indicates that several of the ex-officio members are persons appointed by the State and/or executives of the State.

4. As such, it is sought to be argued that a shifting of the pivot of the power to the BOG would virtually mean that the entire control of the Institute, which was sought to be formed as an independent and autonomous body, would go to the State functionaries. Learned counsel also indicates that the ex-minister of Higher Education of the State of West Bengal, being respondent no.2, was the former President of the BOG. It is argued and pleaded by the petitioner that due to the unwarranted influence of the said ex-minister, who was allegedly calling the shots in the Institute, the present challenge could not be preferred earlier.

5. Learned senior counsel lies stress on several Clauses of the Memorandum of Association to show that the estate of the Institute and the basic administration was vested in the Trustees, who are supposed to be people of academic excellence and expertise and were originally intended to conduct the essential functions of the Institute. The alteration sought to be incorporated by the impugned decision would change the basic structure of the Institute and its Memorandum and would render the checks and balances incorporated therein nugatory.

6. Learned counsel appearing for the respondent nos.3 and 4 argues that the said functionaries of the State have been unnecessarily embroiled in the present litigation, despite them having no effective role to play, and/or without any relief having been sought against them. There is no involvement or approval of the State, it is argued, and a member is admitted to the Institute only with his consent.

7. As such, even the ex-officio appointments in the BOT are not the lookout of the State at all. It is argued that, as such, the perception of the State seeking to assert control over the Institute has no basis whatsoever.

8. Learned senior counsel appearing for the respondent no.1 argues that the resolution impugned in the present writ petition was taken on May 30, 2017, that is about six years back. No explanation has been given as to what prompted the extreme delay in preferring the present challenge. That apart, there is no cause of action for filing the present writ petition since the Institute has never accepted the suggestion made in the impugned resolution. It is argued that although initially the resolution was placed and confirmed by the BOG, the same did not assume the colour of a decision and has never been implemented. Learned senior counsel also places reliance on Annexure P-8 at page 92 of the writ petition, which is a letter dated November 29, 2022 issued by the office of the Registrar of Forms, Societies and Non- Tra