Parvez Alam Md. Quaiyum Michaal Colony, Besuria, District West v. The Bihar School Examination Board( Higher Secondary) Board

given by this Court in the order dated 07.01.2010 passed in Patna High Court CWJC No.21695 of 2012 (2) dt.17-12-2013 3 C.W.J.C No. 16150 of 2009 and his role was limited only to see as to who could have been recognized by the Board as Professor Incharge of the College limited for the purposes of accepting the fees and forms of the institution which is out and out a private institution. He has accordingly submitted that once the Chairman of the Board had found from the documents that there was a valid order of appointment of Professor Ijhar Hussain as Professor-in- charge, he had nothing more to do but to hold that he would be the person from whom the Board had to accept the fees and forms of the students of the College for permitting them to appear in the Intermediate Examination conducted by the Board. He has also explained that otherwise the institution i.e. the College being out and out a private institution, the Board having no power of being appointing authority of the teaching and non-teaching employees of a Private College had also nothing to do with regard to making any arrangement on the post of Principal/Incharge Principal of the College and in this regard he has also referred to the bye laws framed by the Board which according to him does not vest any power in the Board to take a decision as with regard to appointment Patna High Court CWJC No.21695 of 2012 (2) dt.17-12-2013 4 and service conditions of recognized private institution whose students are being only allowed to appear in the Intermediate examination conducted by the Board. In the considered opinion of this Court, a dispute of the present nature is incapable of being agitated or adjudicated under writ jurisdiction. First of all the Institution where the petitioner is working is not a state within the meaning of Article-12 of the Constitution of India and in fact it is out and out a private institution recognized by the Board limited for the purposes of allowing its students to appear in the Board examination. Who, how and when will be appointed in this private institution as its employee whether teaching or non- teaching is not the concern of the Board and the Board has to only allow its genuine students to appear in the examination by making a scrutiny when the fees and forms of the students of this institution are placed for acceptance through the head of the College. The Board therefore has to only permit the genuine students and for examining such genuineness it has to go to the issue of recognizing one of the person as certified by the management to be the Principal or Professor-in-charge of the College. Thus, such Patna High Court CWJC No.21695 of 2012 (2) dt.17-12-2013 5 recognition by the Board of a Principal/Professor Incharge of a private institution is also for very limited purpose i.e., for acceptance of fees and forms and therefore acceptance of fees and forms from a particular person of such institution will not amount to declaration by the Board of his being actually the Principal or Professor-in-charge of the College. Such declaration invariably in the case of private institution has to be decided by the competent Civil Court . From the ambit of the order of this Court dated

07.01.2010 passed in C.W.JC No. 16150 of 2009, it would also stand affirmed that when the matter was remitted to the Chariman of the Board on the basis of earlier writ petition filed by the petitioner its concern was only to examine as to under whose signature and capacity, the fees and forms of the College should be accepted. This would become clear from the following observation made in the order dated 07.01.2010 passed in C.W.J.C No. 16150 of 2009:- "The controversy relates to the acceptance of results and issuance of OMR forms to those genuine students of the Gulab Memorial Inter College Bettiah, West Champaran who have cleared Class XI to appear at the Class XII Intermediate Examination for the Sessions 2008- Patna High Court CWJC No.21695 of 2012 (2) dt.17-12-2013 6 2010 to be held in March 2010. The petitioner and the private respondent no. 7 appear to be at logger heads in their capacity as consequent authority to submit results, receive and submit OMR forms of the genuine students of the institution to the respondent Board. Incharge Principal and to be the genuine students of In this unsavory controversy the pawn appear institution in question who may be affected adversely in absence of expeditious decision and action. It appears that a similar matter has been considered by this Court in CWJC No. 13544 of 2009 disposed on 28.10.2009 with directions to the Chairman and Secretary of the respondent Board to satisfy themselves from the relevant records of the institution in question with regard to the genuine students fully eligible to appear at the ensuing examination and to accept results, issue forms and accept fees and forms of such genuine students irrespective of the question whether the result of Class XI were submitted by either of the rival claimant of the post of Incharge Principal. The writ application is disposed with similar direction as contained in CWJC No. 13544 of 2009 for the Chairman to pass a reasoned and speaking order after hearing all concerned and examination of records within a maximum period of four weeks from the date of receipt and/or production of a copy of this order before him." It is in this background that the content of the impugned order has to be now understood which reads as follows:- fcgkj fo|ky; ijh{kk lfefr …mPp ek/;fed‰ cqn~/k ekxZ] iVuk vkns’k Patna High Court CWJC No.21695 of 2012 (2) dt.17-12-2013 7 ekuuh; mPp U;k;ky; }kjk C.W.J.C. No. 16150 of 2009 esa fnukad 07-01-2010 dks fn;s x;s U;k;kns’k ds vkyksd esa bl ekeys ds oknh iwoZ izHkkjh izkpk;Z izks0 ijost vkye] izfroknh&egk0 ’kklh fudk; ds v/;{k lfpo rFkk oRrZeku izHkkjh izkpk;Z izks0 btgkj gqlSu dks lquokbZ dh fu/kkZfjr frfFk 16-01-2012 dks 3-00 cts vijkg~u esa mifLFkr gksdj viuk&viuk i{k j[kus gsrq lfefr ds i=kad BSEB(SS)/Co-Estb/3113/D/12 fnukad 10-01- 2012 ls fuxZr i= ds ek/;e ls lwpuk nh x;hA mDr lquokbZ esa oknh …izks0 vkye‰ ,oa izfroknh&’kklh fudk; lfpo izks0 Qd:y vkye rFkk orZeku izHkkjh izpk;Z&izks0 btgkj gqlSu mifLFkr gq,A lquokbZ esa oknh …izks0 vkye‰ }kjk crk;k x;k fd izklkafxd egkfo|ky; o"kZ 1984 esa fucaf/kr ^^’ks[k xqykc eseksfj;y VzLV** ds vUrxZr pyrk gSA VzLV ds lnL;ksa ds vfrfjDr ckgj ds O;fDr;kas dks cSBd esa ’kkfey djds Voting djkdj cgqer ds vk/kkj ij mudks …oknh&izks0 vkye dks‰ izHkkjh izpk;Z ds in ls gVk;k x;k gSa oknh }kjk viuk i{k j[kus ds i’pkr~ izfroknh ’kklh fudk; ds lfpo …izks0 Qd:y vkye‰ }kjk crk;k x;k fd ^oknh dk dFku cqcqfu;kn gSa eks0 lykm|hu oRrZeku esa Hkh President gS vkSj mudks vodk’k esa jgus dh fLFkfr esa ldyh vgen dks dk;Zdkjh v/;{k ds :i esa dk;Z djus gsrq fu;qDr fd;k x;k gSa eks0 lykm|hu meeting attend ugha dj jgs gSA fnukad 07-10-2007 dks muds }kjk cSBd dh v/;{krk esa VzLV ds rhu u;s lnL;ksa …1‰ Mk0 ds0 ogko ds LFkku ij vCnqy dyke dks …2‰ tuko vCnqy jgeku ds LFkku ij eks0 vyh rFkk …3‰ tuko vykm|hu ds LFkku ij Mk0 de:Ttek dk pquko gqvk gSa ;g pquko VzLVh MhM ds dzekad 10 esa fofgr izko/kku ds vuqlkj gqvk gSA vc tks oRrZeku VzLV QSlyk djuk gS] og Lohdk;Z gSa u;k VzLV lHkh dk;ksZa ds fy, l{ke gSa izfroknh lfpo izks0 Qd:y vkye }kjk crk;k x;k fd Patna High Court CWJC No.21695 of 2012 (2) dt.17-12-2013 8 iwoZ ls izHkkjh izkpk;Z ds in ij djrs vk jgs izks0 btgkj gqlSu dks vLoLFk gks tkus dh fLFkfr esa rRdky dk;Z laHkkyus gsrq izks0 ijost vkye dks izHkkjh izkpk;Z in ij dk;Z laiknu djus gsrq fu;qDr fd;k x;k FkkA Jh gtgkj gqlSu dks LoLFk gks tkus ij oknh …izks0 ijost vkye‰ dks izHkkjh izkpk;Z ds in ls fnukad 05- 10-2009 dh cSBd esa izLrko la[;k&02 ds }kjk lkr lnL;ksa dh mifLFkfr esa fopkj&foe’kksZijkUr fu.kZ; ysdj gVk;k x;k gSa izks0 btgkj gqlSu oRrZeku esa lsgrean gS rFkk izHkkjh izkpk;Z dk dk;ZHkkj laHkkyus esa l{ke gSa** VzLVh MhM ds dze la[;k&18 esa vafdr dh x;h gS fd "The Board of trustees shall have the power to suspend dismiss, remove the employees of the institutions established by it administration of the trust." blfy, VzLV lHkh dk;ksZa ds fy, l{ke gS vkSj izks0 btgkj gqlSu dk lsgrean gksus ds ckn izHkkjh izkpk;Z cuk;k tkuk lgh gSA oknh ,oa izfrokfn;ksa }kjk izLrqr vfHkys[kksa dks v/;;u djus ,oa muds nyhyksa dks lquus ds i’pkr bl fu.kZ; ij igqWpk x;k fd vkt dh frfFk esa ihNs dk bfrgkl pkgs tks Hkh jgk gks fofHkUu le;ksa esa pkgs tks Hkh izHkkjh izkpk;Z jgs gksa] ’ks[k btgkj gqlSu gh VzLV ds }kjk fu;qDr izHkkjh izkpk;Z gSA g0@& v/;{k Kkikad BSEB(SS)/Co-Estb/3178/D-12 iVuk fnukad 23@02@12 Thus it would become clear that whatever was decided by the Chairman of the Board was primarily on account of direction given by this Court and such direction was only for a very limited purpose. Patna High Court CWJC No.21695 of 2012 (2) dt.17-12-2013 9 Thus, if the petitioner has any personal right to be enforced as in fact he wants by way of quashing the order of the Chairman for himself being declared as Professor-in- charge of the College, he will have to file a civil suit, inasmuch as, in such case a writ petition will not lie as was held by a division bench of this Court in the case of Santosh Kumar vs the State of Bihar & Ors reported in 2013(1) PLJR 269(C.W.J.C No. 10530 of 2009), wherein, it was held as follows:- “15. In view of discussions made above and after noticing the various authorities citied by both the parties, we are of the considered view that earlier view of this court as reflected by Division Bench judgments in the case of Smt. Radha Kumari Singh (1977 PLJR 110) and Chandra Nath Thakur [1999(1) PLJR 529] as well as a Full Bench judgment in the case of Smt. Manju Devi (1987 PLJR 962) does not require any reconsideration. We would, however, like to point that earlier judgments indicated above, particularly in the case of Smt. Radha Kumari Singh (1977 PLJR 110), it was clearly indicated that writ petition against a non-statutory body such as Governing Body of a private college was not maintainable as there was no allegation of infraction of any statutory provision. In a given case where in exercise of statutory powers the University granting affiliation to a private college imposes reasonable conditions governing teachers or employees of an affiliated college, then in case of violation of Statutes Patna High Court CWJC No.21695 of 2012 (2) dt.17-12-2013 10 or Rules of the University by an affiliated college a person having corresponding right may be entitled to seek mandamus. It cannot be said in absolute terms that a writ petition is not maintainable against a private aided college even if it is a minority institution but the duty sought to be imposed upon a private body through mandamus must be of a public nature otherwise the affected employee will be denied relief in writ jurisdiction. The law laid down by the Apex Court in the case Shri Anadi Mukta Sadguru Shree Muktajee Vandasji-Swami Suvarna Jayanti Mahotsav Smarak Trust and Others (AIR 1989 SC 1607) is based upon distinction between private rights and duties on the one side and rights and duties of public nature on the other side. It has been established by a long line of precedents that writ jurisdiction provides remedy in matters relating to public domain and for enforcement of rights flowing from Constitution or Statutes. In our view the term – “writ petition is not maintainable” is not fully apt rather proper expression should be – “writ shall not lie” when a writ petition is filed for seeking enforcement of duties other than public duties against a person or authority which is not “State” within Article 12 of Constitution.” Thus for all the reasons indicated above, this Court does not find any merit in the application and the same is, accordingly, dismissed. The dismissal of this writ application however will not come in the way of the petitioner if the petitioner Patna High Court CWJC No.21695 of 2012 (2) dt.17-12-2013 11 would file the civil suit for getting his declaration before the competent Civil Court as with regard to his being appointed and continued as teacher and/or Professor-in- Charge of the Gulab Memorial Inter College, Bettiah, West Champaran. Ranjan/- (Mihir Kumar Jha, J)