====================================================== 1. Rishidev Pd. Yadav S/O Late Chandra Kishore Prasad Yadav Resident Of Village v. 1. Bihar School Examination Board
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14926 of 2012 ====================================================== 1. Rishidev Pd. Yadav S/O Late Chandra Kishore Prasad Yadav Resident Of Village Shankarpur, P.O. & P.S. Mufasil, District & Town Munger. 2. Manoj Kumar S/O Sri Kapildeo Prasad Yadav Resident Of Mohalla Indrapuri, Mithila Colony, P.S. Rajiv Nagar, District & Town Patna. .... .... Petitioner/s Versus 1. Bihar School Examination Board (Higher Education) Through Its Chairman, Budh Marg, Patna. 2. Secretary, Bihar School Examination Board (Higher Education), Budh Marg, Patna. 3. Managing Committee Of The Ramdeo Singh Yadav Science College, Munger through Its Secretary, C/O Premises Of Ramdev Singh Yadav Science College, Khoja Bazar, Munger. 4. Ramdev Singh Yadav S/O Late Govind Yadav Presently Residing At Mohalla Khoja Bazar, District & Town Munger. 5. Renu Das W/O Late K.N. Kapil Resident Of Mohalla Khoja Bazar, P.S. Kotwali, District Munger. .... .... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Rajeev Ranjan Prasad, Advocate Mr. Prakash Chandra Jha, Advocate For the Respondent/s : Mr. Piyush Lall, Advocate Mr. Naresh Dixit, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 4 18-02-2013 Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows :- “ That the petitioners are filing this writ application for issuance of a writ of certiorari to quash and cancel the order as contained in the letter vide Memo No. BSEB/SS/COLL- ESTAB/3821/D-12 Patna dated 23.07.2012 issued by the Secretary, Bihar School Examination Board (Higher Education) whereby and whereunder the Secretary BSEB has declared that upon perusal of the papers he found the claim of Sri Ramdev Singh Yadav and Smt. Renu Das (Respondent nos. 4 & 5) Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 2 the constitution of valid for being declared a doner member and, as such, the Secretary, BSEB declared that the name of respondent nos. 4 and 5 are included in the governing body on the unfilled post and the notification governing the governing body of the College is modified/amended to that extent; upon setting aside the order as contained in memo dated 23.7.2012 (Annexure-11) this Hon’ble Court may be pleased to restore the status of the petitioners as donor members in the governing body of the College as existing prior to passing of the impugned order.” 3. Mr. Rajeev Ranjan Prasad, learned counsel appearing for the petitioners, in support of the aforementioned prayer has made an elaborate submission but then his main thrust of argument is that the impugned order passed by the Bihar School Examination Board (here-in-after referred to as the Board) is wholly without jurisdiction inasmuch as the Board after framing of Regulation as notified on 08.07.2011 has got no authority to nominate respondent nos. 4 and 5 as members of the governing body of Ramdev Singh Yadav Science College, Munger (hereinafter referred to as the College). 4. Learned counsel for the Bihar School Examination Board does not dispute the aforementioned position in law that the Board as on 23.07.2012 was not vested with any power to nominate donor member in a governing body of the College, but then he has tried to justify the issuance of the order
Legal Reasoning
Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 3 by taking a plea that this clarification had become necessary on account of issuance of the earlier order passed by the Board on 19.05.2008 constituting a governing body wherein two slots for the donors in the capacity of the members of the Governing Body was kept pending.
Legal Reasoning
5. On the other hand, learned counsel appearing for respondent nos. 4 and 5, has submitted that there would be no difficulty in accepting the position in law that the Board had no power to declare the donor members as on 23.07.2012 but then the Board equally had no power to constitute a governing body on 19.05.2008 inasmuch as after the Bihar Intermediate Education Council Act was repealed in 2007, there was nothing left in the hands of the Board to constitute a governing body for the College. 6. In the considered opinion of this Court, the issue which boils down relating to constitution of a governing body or filling up of slots of the members of the governing body has to be understood in the context that the College in question is a private college and earlier it was affiliated to the Bihar Intermediate Education Council. The Bihar Intermediate Education Council established Bihar Intermediate Education Council Act 1992, however, was abolished by way of Repeal Act, namely, the Bihar Intermediate Education Council (Repeal) Act, Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 4 2007 which on being published in the Bihar Gazette came into force on 19.04.2007. It is very significant to note here that while the 1992 Act as a whole was repealed, and nothing was saved with regard to a future action inasmuch as the saving clause under section 7 of the Repeal Act reads as follows :- “7. Saving – Notwithstanding such repeal, anything done or any action taken in exercise of any powers conferred by or under the said Act shall be deemed to have been done or taken in exercise of the powers conferred by or under this Act as if this Act were in force on the day on which such thing or action was done or taken.” 7. Thus, learned counsel for the respondents are therefore correct that after 19.04.2007 the Board had no authority or jurisdiction to constitute a fresh governing body for the College vide its notification dated 19.05.2008 which for the sake of convenience and clarity is quoted here-in-below:- fcgkj fo|ky; ijh{kk lfefr ¼mPp ek/;fed½ cq) ekxZ] iVuk vf/klwpuk fcgkj bUVjehfM,V f”k{kk ifj’kn~ fujlu vf/kfu;e & 2007 ,oa fcgkj fo|ky; ijh{kk lfefr la”kks/ku vf/kfu;e&2007 ds vkyksd esa fcgkj bUVjehfM,V f”k{kk ifj’kn~ vf/kfu;e] 1992 dh /kkjk&44¼1½ esa fofgr izko/kku ds vuqlkj v/;{k }kjk fcgkj bUVjehfM,V f”k{kk ifj’kn~ vf/kfu;e 1992 dh /kkjk & 22¼5½ ds }kjk iznÙk “kfDr;ksa dk iz;ksx djrs gq, jkenso flag ;kno lkbUl dkWyst eqaxsj esa “kklh fudk; dk xBu fuEukafdr :i ls fd;k tkrk gS & Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 5 (i) laLFkk ds & izHkkjh iz/kkukpk;Z & insu lnL; iz/kku (ii) ifj’kn~ izfrfuf/k & MkW0 eqdqy dqekj & lnL; flUgk bfrgkl foHkkx] vkj0 Mh0 ,.M Mh0 ts0 dkWyst eqaxsjA (iii) {ks=h; fo/kk;d & {ks=h; fo/kk;d & lnL; (iv) ljdkjh & vuqeaMy ink0] & lnL; inkf/kdkjh eqaxsjA (v) nkunkrk & fjDr (vi) nkunkrk (vii) nkunkrk funs”kd ¼”kS{kf.kd½ Kkikad % BSEB (SS)/Co-Estb./413/D/08 iVuk] fnukad 19-5-08 izfrfyfi % lacaf/kr “kklh fudk; ds lHkh lnL;ksa dks lwpukFkZ ,oa vko”;d dk;kZFkZA vf/klwpuk dh frfFk ls iUnzg fnuksa ds vUnj ifj’kn~ izfrfuf/k izFke cSBd cqyk;saxsA blh cSBd esa f”k{kkfon~ lnL; dk laokpu djk;saxsA rnUrj nwljh cSBd esa “kklh fudk; ds v/;{k ,oa lfpo dk pquko djk;saxsA pquko gksus rd ifj’kn~ izfrfuf/k funs”kd gksaxsA “kklh fudk; dh cSBd dh dk;Zokgh fuf”pr :i ls iUnzg fnuksa ds vUnj ifj’kn~ dk;kZy; esa vfuok;Z :i ls Hkst nh tk;A g0@& vLi’V funs”kd ¼”kS{kf.kd½ 8. In view of the statutory provision made in the Repeal Act leaving nothing for the Bihar School Examination Board to exercise its power for constitution of the governing body, the recourse taken under the guise of provisions of section 44 of Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 6 the Repeal Act was itself wholly without jurisdiction because neither section 44 was not saved nor the Board was authorized to take any action for constitution of the Governing body by any separate enactment. In this regard it has also to be kept in mind that the day the Repeal Act had come into force i.e. 19.04.2007, the Bihar Legislature had also made an amendment in the Bihar School Examination Board Act, 1952. By making such amendment wherein a new Chapter IIA was inserted with the provision of section 10-B and 10-C vesting the Board with power of grant or withdrawal of an affiliation to the Intermediate level Institution which were re-named as Senior Secondary School Institution and reads as follows:- 10B: Committee of Affiliation-(1) A Committee of Affiliation shall be constituted by the Board for granting and withdrawing affiliation of Secondary and Senior Secondary Schools established by non- governmental organisations. (2) The Committee of affiliation shall consist of the following: (i) Chairman of the Board; (ii) Secretary, Human Resources Development Department or his nominee; (iii) A person to be nominated by the Board; (3) The Chairman of the Board shall function as the Chairman of the Committee and the Secretary of the Board shall function as Secretary of teh Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 7 affiliation Committee. 10C: Power to Grant and Withdraw Affiliation- The Board shall have power to grant and withdraw affiliation of Secondary and Senior Secondary School established or to be established by the non-governmental organisations on the basis of recommendation of Committee of affiliation, constituted under section 10B above and it shall have power to make regulations in this regard with the approval of the State Government. Provided that the Institutions imparting education of Intermediate (+2) Education shall reorganize and rename themselves as senior secondary schools with facilities and teachers for imparting education at secondary stage and senior secondary stage as prescribed by the Regulations to be made by the Board in this regard, and within the time frame indicated in it. Provided also that before withdrawing affiliation the Board shall give to the school or the institutions concerned a reasonable opportunity of being heard, and the students admitted into such schools or institutions shall be allowed to complete their academic sessions and appear at the next examination conducted by the Board." 9. Neither under section 10-B nor under section 10-C Board had been vested with any power to constitute the governing body and as such even under the scope of Bihar School Examination Board (Amendment) Act, 2007 the Board could not Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 8 have issued the aforementioned notification dated 19.05.2008. 10. It has to be, however, kept in mind that by the subsequent amendment in Section 10C in the Bihar School Examination Board Act in the year 2011 (Bihar Act 6 of 2011), the Board was given power to frame regulations laying down criteria for constitution of the governing body/management committee and, in fact, the said Regulation, compact as a whole, not only made provision for constitution of the governing body but also for grant of affiliation under name and style of Bihar School Examination Board (Senior Secondary ) Affiliation Bye-laws which after being approved by the State Government has been notified by Human Resources Department by its notification no. 375 dated 8.7.2011. Clause-17 of the aforesaid Bye-law lays down the manner of constitution and power and functioning of the School Managing Committee and the same being relevant for the purpose of this case is quoted here-in-below :- “17. School Managing Committee, Its Constitution, Power and Functions: than Government Schools affiliated with the Board shall have a school Managing Committee. Schools other 1. 2. School Managing The Committee should consist of the following as per Board’s norms :- a) the managing committee of a recognized aided school shall consist of not more than fifteen members; the managing committee of a private unaided school shall and Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 9 the than twenty one consist of not more members; b) subject to the total number of members specified in clause (a), every managing committee shall following include namely :- i) the Head of the school. He will be a Member Secretary of the School Managing Committee. ii) two parents of students in the school; iii) two teachers of the schools; iv) two other persons (of whom one shall be women); who are, or have been, teachers of any other school or of any college, to be nominated by the Trust/Society/Board. v) two members, from out of a panel recommended by the Trust/Society to be nominated by the Board. If the Panel is not accepted fresh panel may be asked. The names recommended should not below the rank of a Principal of a Sr. Sec. School; vi) the remaining members to be nominated or elected as the case may be, in accordance with the rules and regulations of the Society or trust by which the school is run, vii) *No Head Master/Principal shall be appointed in the school who is related to any School Managing member Committee. the of relation For the purpose of this rule, following – the Brothers, Sisters, Husband, Wife, Son, Daughter, Son-in-law/daughter-in-law. includes the Provided further that the above provisions shall be implemented with immediate effect and those affiliated earlier and not complying with above provisions shall be required to take remedial measures with suitable qualified substitutes within a year positively. Provided further that any violation of the rules will disaffiliation of the school. lead to 3. The terms of the members of Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 10 the Managing Committee shall be three years. A member can be re-nominated for another term but a member cannot remain in office for more than two consecutive terms except ex-officio members and the members of the Trust/Society of the School. The duties, power and responsibilities of the School Managing Committee shall be as follows and it shall function subject to the control and the Society/Trust.” in accordance with the policy of (underlining for emphasis) 11. After the said Bye-law in form of a Regulation was notified, the Board had, in fact, been left with no authority exercise its power in respect of constitution of a Governing Body of a private institution, recognized or affiliated to the Board only for the purpose of conducting of examination. The detachment of such institution being complete, the Board, at best, could have asked for a panel from the Trust/Society of such college for selecting the members for their names to be included in the Governing Body in terms of clause 17 (2) (b) (iv) and (v) of the aforesaid Regulation. 12. Thus in the backdrop of this provision under Clause- 17 of the Affiliation Bye-laws, the impugned order passed after almost one year on 23.07.2012, reading as follows :- [kaM lafpdk la0 BIEC/339/LS/2011 i=kad-------------------------- fcgkj fo|ky; ijh{kk lfefr ¼mPp ek/;fed½] cq) ekxZ] iVuk izs’kd Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 11 yyu >k Lfpo lsok esa] lfpo “kklh fudk; jkenso flag ;kno lkbal dkWyst eqaxsjA iVuk] fnukad---------------------- - fo’k;& ifj’kn~ ¼fujflr½ }kjk xfBr “kklh fudk; esa nku&nkrkvksa dk uke “kkfey djus ds laca/k esaA egk”k;] mi;qZDr fo’k; ds lanHkZ esa funs”kkuqlkj vafdr djuk gS fd izklafxd egkfo|ky; esa ifj’kn~ fujflr ds i=kad &BSEB (SS)/Coll- Estb/413/D-08 fnukad 19-05-2008 ds }kjk “kklh fudk; xBu ls lacaf/kr vf/klwpuk fuxZr dh x;h Fkh] ftlesa nku&nkrkvksa dk in fjDr j[kk x;k FkkA b/kj bl laca/k esa izkIr f”kdk;r i= ds vkyksd esa] lafpdk esa layXu lHkh vfHkys[kksa dh leh{kk dh x;hA leh{kksijkUr nku&nkrk ds :i esa Jh jkenso flag ;kno ,oa Jherh js.kq nkl dk nkok lgh ik;k x;k gSA ;g Hkh ns[kk x;k gS fd o’kZ 1994 ,oa o’kZ 2001 esa xfBr “kklh fudk; esa Hkh bu nksuksa nkunkrkvksa dk uke “kkfey djrs gq, “kklh fudk; xfBr dh x;h FkhA vr,o of.kZr fLFkfr esa orZeku esa tks “kklh fudk; egkfo|ky; esa xfBr gS mlesa nkunkrkvksa ds fjDr in ij Jh jkenso flag ;kno ,oa Jherh js.kq nkl dks ukfer djrs gq, xfBr “kklh fudk; dh vf/klwpuk esa la”kks/ku dh tkrh gS] tks rRdky izHkko ls ykxw ekuk tk,xkA fo”oklHkktu g0@& lfpo Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 12 Kkikad BSEB/SS/Coll-Estab/3821/D-12 iVuk] fnukad 23-07-2012 izfrfyfi %& 1- izHkkjh izkpk;Z@izkpk;Z] jkenso flag ;kno lkbUl dkWyst] eqaxsj dks lwpukFkZ ,oa vko”;d dk;kZFkZA 2- vuqeaMy inkf/kdkjh lnj] eqaxsj dks lwpukFkZ ,oa vko”;d dk;kZFkZA 3- xfBr “kklh fudk; jkenso flag ;kno lk;al dkWyst] eqaxsj ds lHkh lnL;ksa dks lwpukFkZ ,oa vko”;d dk;kZFkZA 4- Jh jkenso flag ;kno] [kktk cktkj] Fkkuk& dksrokyh] ftyk& eqaxsj dks lwpukFkZ A 5- Jherh js.kq nkl] [kktk cktkj] Fkkuk& dksrokyh] ftyk& eqaxsj dks lwpukFkZ izsf’krA g0@& vLi’V lfpo by itself would go to show that the Board virtually was whipping a dead horse. The Board having been left with no power to constitute the Governing body or the Managing Committee of an Intermediate level institution could not have intermeddled with the affair of constitution of the Governing Body/Managing Committee of the College in question including nominating Respondents 4 and 5 as donor members. To that extent the impugned order dated 23.7.2012 is also bad and infact without jurisdiction. The submission of Mr. Prasad that the impugned order may give certain benefits or privileges to respondent nos. 4 and 5 on account of their being declared as a donor members of the College by the Board is also however a far fetched conclusion because when it is Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 13 not within the power and jurisdiction of the Board to now constitute the Governing Body or even declare a donor which is essentially a private right any dispute relating to it has to be essentially decided by the competent civil court. Whether any person in a private institution is a donor member or not, in fact, cannot be adjudicated even in a writ petition. Infact it is only because the Board being a stale under Article 12 of the Constitution of India and hence amenable under Article 226 has exceeded its jurisdiction by declaring Respondent no. 4 and 5 as a donor members of the Governing Body of the College that it has to be held that the Board while passing the impugned order has acted wholly without jurisdiction. This Court essentially would therefore not approve the impugned order as contained in annexure-11 which is not only illegal but also without jurisdiction. 13. As noted above, life of the governing body constituted on 19.05.2008 even as per section 44 of the Repealed Act i.e. Intermediate Education Council Act 1992 had already come to an end on 19.05.2011 and, therefore, the order issued on 23.07.2012 giving these two respondents 4 and 5 the status of donor members in that governing body whose life has already come to an end was definitely not an act of sound exercise of discretion by the authorities of the Board. The Board being a Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 14 statutory authority is supposed to provide congenial atmosphere for running of the institutions and should not become instrumental in giving rise to unnecessary dispute and consequential litigation in its affiliated institutions/colleges/Senior Secondary schools. In fact, when the Board has been given a very limited power in the matter of constitution of Governing Body or Managing Committee for the senior secondary school as is evident from perusal of Clause- 17 of the Affiliation Bye-laws as quoted above, it would be advisable for the authorities and/or officers of the Board to refrain from indulging in such activities because when the power has ultimately been vested in the Board to dis-affiliate or cancel the recognition or affiliation on account of violation of any terms and conditions including the aforesaid provision of Clause- 17, the Board should not intermediate with the internal matter of the private colleges or senior secondary schools affiliated to it basically for the purpose of conducting of examination. The Board’s role in terms of Clause-17 of Bye-laws, in fact, has to be only limited to nominating the members as per Clause 17(2)(b)(iv) and(v) of the Bye-laws and nothing more. 14. In the light of the aforementioned discussion, this Court would find that both the orders dated 19.05.2008 (Annexure-7) and 23.07.2012 (Annexure-11) were/are wholly Patna High Court CWJC No.14926 of 2012 (4) dt.18-02-2013 15 without jurisdiction and both of them are quashed. Though quashing of annexure-7 will have now no meaning but then keeping in view that quashing of annexure-11 alone could have amounted to revival of equally an illegal order as contained in annexure-7, this Court by following the principles laid down in the case of Bhagwat Azad Vs. Lalit Narayan Mithila University reported in 1990(2) P.L.J.R., 160 would quash both the notification in order to remove the possibility of any further litigation on this issue. 15. This Court however would not like to make any further pronouncement on this aspect as the issue relating to as to whether the petitioner or respondent nos. 4 and 5 are donors of the College or not has to be essentially decided before a civil court in light of the evidence led by them and if they want to draw any advantage out of such declaration, they will have to move competent civil court. 16. With the aforementioned observation, this
Decision
writ application is disposed of. Amin/- (Mihir Kumar Jha, J)