=================================================== 1.SRI BAIDYA NATH SANSKRIT PRATHAMIK SAH MADHYA VIDYALAYA BHELAHI EAST CHAMPARAN THROUGH ITS v. 1
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE NO.8346 OF 2012 =================================================== 1.SRI BAIDYA NATH SANSKRIT PRATHAMIK SAH MADHYA VIDYALAYA BHELAHI EAST CHAMPARAN THROUGH ITS HEADMASTER UMA SHANKAR PANDEY S/O SRI AWADH PANDEY R/O P.S.-PALANWA, DISTRICT-EAST CHAMPARAN. 2.UMA SHANKAR PANDEY, HEADMASTER, SRI BAIDYA NATH SANSKRIT PRATHAMIK SAH MADHYA VIDYALAYA BHELAHI EAST CHAMPARAN,S/O SRI AWADH PANDEY, R/O VILLAGE + DISTRICT-EAST P.S.-PALANWA, P.O.-KURANDRA, CHAMPARAN. P.O.-KURANDRA, VILLAGE + .... .... PETITIONER/S HUMAN PRINCIPAL VERSUS 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 2.THE SECRETARY, DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3.THE DEPUTY SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4.THE SPECIAL DIRECTOR SANSKRIT, PRIMARY AND ADULT EDUCATION DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 5.BIHAR SANSKRIT SHIKSHA BOARD, PATNA THROUGH ITS SECRETARY. 6.THE CHAIRMAN, BIHAR SANSKRIT SHIKSHA BOARD, PATNA. 7.THE SECRETARY, BIHAR SANSKRIT SHIKSHA BOARD, PATNA. RESOURCES .... .... RESPONDENT/S =================================================== WITH CIVIL WRIT JURISDICTION CASE NO.11378 OF 2012 =================================================== GUNJESHWARI BABUAJEE SANSKRIT PRATHMIK VIDYALAYA, KOTHA TOL, RAHIKA THROUGH ITS HEADMASTER INDRA KANT JHA SON OF LATE RAM JHA RESIDENT OF VILLAGE - RAHIKA, P.S. RAHIKA, DISTRICT - MADHUBANI. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 2.THE PRINCIPAL SECRETARY, EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE JOINT SECRETARY TO THE GOVERNMENT, EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 4.THE SPECIAL DIRECTOR (SANSKRIT) SECONDARY, PRIMARY AND ADULT EDUCATION DEPARTMENT, GOVT. OF Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 2 BIHAR, PATNA. 5.THE DEPUTY SECRETARY TO THE GOVERNMENT , EDUCATION DEPARTMENT, GOVT. OF BIHAR. 6.THE CHAIRMAN, BIHAR SANSKRIT SHIKSHA BOARD, PATNA. 7.THE SECRETARY, BIHAR SANSKRIT SHIKSHA BOARD, PATNA. .... .... RESPONDENT/S =================================================== WITH CIVIL WRIT JURISDICTION CASE NO.11417 OF 2012 =================================================== KAMLA SANSKRIT PRATHMIK SAH MADHYA VIDYALAYA, PAHI TOLA (SARISAB PAHI) P.S.- PANDAUL, DISTRICT- MADHUBANI THROUGH AMAR NATH JHA, S/O LATE VISHWANATH JHA, R/O VILLAGE- PAHI TOLA, P.S.- PANDAUL, DISTRICT- MADHUBANI .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 2.THE PRINCIPAL SECRETARY EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE JOINT SECRETARY TO THE GOVERNMENT EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 4.THE SPECIAL DIRECTOR (SANSKRIT) SECONDARY, PRIMARY AND ADULT EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 5.THE DEPUTY SECRETARY TO THE GOVERNMENT EDUCATION DEPARTMENT, GOVT. OF BIHAR. 6.THE CHAIRMAN, BIHAR SANSKRIT SHIKSHA BOARD, PATNA. 7.THE SECRETARY, BIHAR SANSKRIT SHIKSHA BOARD, PATNA. .... .... RESPONDENT/S =================================================== WITH CIVIL WRIT JURISDICTION CASE NO.11535 OF 2012 =================================================== SHANKER DARSHAN SANSKRIT VIDYALAYA, SARISAB THROUGH THE HEAD-MASTER SITA RAM JHA SON OF LATE RAGHURAM JHA RESIDENT OF VILLAGE- PAHI TOLA, POLICE STATION- PANDAUL, DISTRICT- MADHUBANI. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA.
Legal Reasoning
Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 3 2.THE PRINCIPAL SECRETARY, EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 3.THE JOINT SECRETARY TO THE GOVERNMENT, EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 4.THE SPECIAL DIRECTOR (SANSKRIT) SECONDARY, PRIMARY AND ADULT EDUCATION DEPARTMENT, GOVT. OF BIHAR, PATNA. 5.THE DEPUTY SECRETARY TO THE GOVERNMENT, EDUCATION DEPARTMENT, GOVT. OF BIHAR. 6.THE CHAIRMAN, BIHAR SANSKRIT SHIKSHA BOARD, PATNA. 7.THE SECRETARY, BIHAR SANSKRIT SHIKSHA BOARD, PATNA.
Legal Reasoning
.... .... RESPONDENT/S =================================================== WITH CIVIL WRIT JURISDICTION CASE NO.15928 OF 2012 =================================================== SMT. RAJKUMARI SANSKRIT PRATHMIK SAH MADHYA VIDYALAYA MAUR , BARBIGHA, SHIEKHPURA THROUGH ITS HEADMASTER SURESH CHANDRA JHA, S/O LATE SRI KANT JHA, R/O VILL-SARAIYA, P.S.-JAIRAMPUR, DISTT- SHEIKHPURA. .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, EDUCATION DEPARTMENT GOVT. OF BIHAR, PATNA. 2.THE PRINCIPAL SECRETARY EDUCATION DEPARTMENT GOVT. OF BIHAR, PATNA. 3.THE JOINT SECRETARY TO THE GOVERNMENT , EDUCATION DEPARTMENT GOVT. OF BIHAR, PATNA. 4.THE SPECIAL DIRECTOR (SANSKRIT) SECONDARY , PRIMARY AND ADULT EDUCATION DEPARTMENT GOVT. OF BIHAR, PATNA. 5.THE DEPUTY SECRETARY TO THE GOVERNMENT , EDUCATION DEPARTMENT GOVT. OF BIHAR, PATNA. 6.THE CHAIRMAN, BIHAR SANSKRIT SHIKSHA BOARD, PATNA. 7.THE SECRETARY, BIHAR SANSKRIT SHIKSHA BOARD, PATNA. .... .... RESPONDENT/S =================================================== WITH CIVIL WRIT JURISDICTION CASE NO.8824 OF 2012 ================================================== SARASWATI SANSKRIT PRATHAMIK SAH MADHYA VIDYALAYA, MUBARAKPUR, SARAN THROUGH ITS HEADMASTER SHYAM SUNDER PANDEY S/O LATE RAM JANAM PANDEY RESIDENT OF VILLAGE - MUBARAKPUR, P.S.- MARAURA, DIST- SARAN. Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 4 .... .... PETITIONER/S VERSUS 1.THE STATE OF BIHAR THROUGH ITS PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, BIHAR, PATNA. 2.THE COMMISSIONER-CUM-SECRETARY, HUMAN RESOURCES DEPARTMENT, BIHAR, PATNA. 3.THE SPECIAL DIRECTOR (IN-CHARGE SANSKRIT) BIHAR, NEW SECRETARIAT, PATNA. 4.THE CHAIRMAN, BIHAR SANSKRIT SIKSHA BOARD, EAST BORING CANAL ROAD, PATNA. 5.THE SECRETARY BIHAR SANSKRIT SIKSHA BOARD, EAST BORING CANAL ROAD, PATNA. .... .... RESPONDENT/S =================================================== Appearance : (In CWJC No.8346 of 2012) For the Petitioner/s:Mr. Ashutosh Ranjan Pandey For the Respondent/s:Mr. Jaishankar Barnwal SC1 For B.S.S.B :Mr. Shashank Shekhar Jha. (In CWJC No.11378 of 2012) For the Petitioner/s:Mr. Hemant Kumar Jha For the Respondent/s:Mr. Kumar Sachin,GA-24 (In CWJC No.11417 of 2012) For the Petitioner/s:Mr. Hemant Kumar Jha For the Respondent/s:Mr. Ravindra Ray, AC to GP 22. For B.S.S.B :Mr. Niranjan Kumar. (In CWJC No.11535 of 2012) For the Petitioner/s:Mr. Hemant Kumar Jha For the Respondent/s:Mr.Rakesh Kumar Sharma, AC to GP. 23. For B.S.S.B :Mr. R. Raman GA-23 & Mr. Awadhesh Prasad Singh. (In CWJC No.15928 of 2012) For the Petitioner/s:Mr. Hemant Kumar Jha For the Respondent/s:Mr. Anurag Saurav, AC to SC 20 (In CWJC No.8824 of 2012) For the Petitioner/s:Mr. Rajani Kant Pathak For the Respondent/s:Mr. Girija Shankar Pd. GP1 =================================================== CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHA ORAL ORDER 10 17-04-2013 Heard learned counsel for the parties. Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 5 2. The main prayer of the petitioner- schools in this writ application is to quash the order dated 15.06.2002, 21.07.2008 and 05.03.2012, whereby and whereunder, the recognition of the petitioner-schools were cancelled along with other recognized school. 3. Learned counsel for the petitioners in all these cases have submitted that the issue in question relating to recognition of the petitioner-schools forming part of 86 sanskrit schools all of whom were subjected to de-recognition by the same aforementioned impugned orders has been considered and decided by this Court in the judgment dated 10.4.2012 passed in C.W.J.C No. 1727 of 2009 (Saraswati Bhavan Jaikant Madhyamik Sanskrit Vidyalaya Vs. State of Bihar and others) and in its analogous cases and therefore, the same order of de-recognition in respect of individual cases of the petitioner schools should also be quashed with consequential benefit of restoration of benefit of payment of salary to its teaching and non-teaching staffs. 4. Learned Counsel for the Respondents have submitted that in view of the judgment of Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 6 this Court dated 10.4.2012 in the case of Saraswati Bhavan (supra) there is no need to pass any fresh order in these cases. 5. In view of the fact that this Court while considering the de-recognition matter of all the 86 Sanskrit Schools had categorized the petitioners and non-petitioner schools and had held that the same impugned orders were bad in all the cases there would be no need to quash them again in these writ petitions. The aforesaid orders in fact has been made ineffective in respect of all the 86 Sanskrit Schools as has been held in paragraph no. 63 of the judgment passed in C.W.J.C No. 1727 of 2009 which reads as follows:- Thus, in view of aforesaid discussions as also the law laid down by the Division Bench in the case of Kalika Pd. Singh (supra), there would be no difficulty in holding that the impugned orders dated 15.6.2002 and 21.7.2008 passed by the Chairman of the Bihar Sanskrit Shiksha Board and the State Government respectively are on fact and in law and as such cannot be sustained, inasmuch as:- The (i)
Decision
order because dated 15.6.2002 is wholly without jurisdiction the Chairman of the Board in person has no power to either grant recognition or to cancel the recognition of any Sanskrit school which was already deemed to be a recognized Sanskrit Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 7 school in terms of Section 25(4) of the Bihar Sanskrit Shiksha Board Act, 1981. (ii) The ratification of such illegal order by the State Government by the impugned order is equally bad and unsustainable, inasmuch as, an order which is void ab initio cannot be cured by applying the principle of ratification. 21.7.2008 dated on of in view Government (iii) Both of the impugned orders even otherwise factually the incorrect subsequent orders passed by the State 5.3.2012 wherein the reasons given by the Chairman of the Board in the impugned order dated 15.6.2002 have not weighed upon the State Government either while taking a of decision recognition of 69 of such 84 schools restoring recognition of 15 of the rest of 84 schools, specially when the Board the recognition of all 84 schools. cancellation cancelled while for had 6. As a matter of fact the subsequent impugned order dated 05.03.2012 passed by the State Government was also dealt separately in paragraph no. 64 to paragraph no. 70 before holding that the order of de-recognition of 69 out of 84 Schools, which obviously include the petitioner-schools of this case, was also bad. Thus, in view of the observations made in paragraph no. 63 to 71 there would be no difficulty in allowing these writ petitions to the extent that the impugned orders passed Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 8 in the case of the petitioner-schools can also not be given effect. 7. That, however, will not be the end of the matter because in the same judgment from paragraph no. 72 onwards the future course of action has been considered at length and a direction had also been issued. Paragraph no. 72 and 73 of the judgment being relevant is quoted hereinbelow:- 72. Having held that the impugned order of derecognition of all the 86 of the lot of 429 old recognized non-governmental schools is bad both on fact and in law, it automatically follows that the same impugned order cannot be allowed to operate even for rest of the non-petitioner schools, and their cases would also require re- consideration in the light of the observations and findings given above. As would be evidenced from the foregoing discussions that out of 86 schools, the cases of two of the schools have already been decided earlier in CWJC No. 5133 of 2003 and LPA No. 366 of 2009 eighty-four and fifteen including ten petitioner schools have already been restored their recognition in the order of dated the 5.3.2012 and only 69 schools were left derecognised and out of them 29 are already petitioners in different writ petitioner and are covered by this order. Rest of the 40 schools are also aggrieved by the same impugned orders of their de-recognition of their schools, as clearly shown in Paragraph no. 56 of this judgment. It would, therefore, be necessary for both the Bihar Sanskrit Shiksha Board Government remaining State of Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 9 and the State Government to re- consider their cases afresh by strictly applying the provisions of Rule 6 of 1993 Rules wherein each of the schools if necessary must be given a show-cause notice by the Secretary of the Board for disclosing cancellation of their recognition on any one or more of the four grounds mentioned in Rule 6 of 1993 Rules. materials the 73. As a logical outcome of the aforementioned direction, the two main impugned orders dated 15.6.2002 and 5.3.2012 cancelling the recognition in respect of those 40 non-petitioners schools shall no longer operate but then the teaching and non-teaching staffs of those non-petitioners schools shall also not become entitled for payment of their salary on the ground of this order unless a fresh proceeding a decision in respect of them is taken and a fresh proceeding if necessary by way of a show cause notice in terms of Rule 6 of 1993 is initiated and completed against them. As these non petitioners schools complete uncertainty not only in the matter of teaching but also in sending its students for appearance in the Board examination, such exercise in respect of 40 non-petitioners schools of the lot of 69 schools covered dated the 5.3.2012, must be completed by the Board and the State Government within a period of four months from of receipt/production of a copy of this order. facing order date are the by 8. As a matter of fact when these cases were heard earlier, this Court had called upon the respondents to explain as to why the Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 10 aforesaid directions given in the judgment dated 10.04.2012 passed in C.W.J.C No. 1727 of 2009 were not applied in respect of non petitioner-schools including the schools of the petitioner. 9. Today, a supplementary counter affidavit has been filed by respondent nos. 5, 6 and 7, wherein, it has been stated as follows:- of by way "That this supplementary counter affidavit it is stated that by earlier order dated 10.04.2012 passed in C.W.J.C No. 1727/2009 with analogous cases this Hon’ble Court, directed the answering respondent to give show cause with regard to the non petitioner of the 86 Pratikool School. It is stated that after Hon’ble Courts order 41 schools who were not petitioner in CWJC NO. 1727 OF 2009, have been given show cause by the Bihar Sanskrit Shiksha the concerned District Magistrate to enquire the matter in terms of recognition Rule 1993 and submit the report. A list containing the name of institution has been prepared by the Board vide Memo No. 16.04.2013, dated indicating issuance of letters to the concerned D.M. requesting Board 2763 That it is respectfully stated that answering respondent has complied the order passed in this case dated 20.03.2013 with his true letter & spirit and letter has been given to concerned District Magistrate to enquire the matter in accordance with Re- recognition rule 1993. That in the light of above facts and circumstances after Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 11 getting enquiry report of the concerned authority according to Rule 1993, the B.S.S.B will consider the same and on the basis of said enquiry report the B.S.S.B has to send recommendation for recognition of the school before the state Government." 10. From the reading of aforementioned affidavit of the Bihar Sanskrit Shiksha Board, the authority in terms of Section (2)(ka and (kh) of Bihar Sanskrit Shiksha Board Act 1981, it would be clear that fresh exercise has already commenced for all the 41 non- petitioner Schools including the petitioner schools by way of entrusting inquiry to the District Magistrate of the respective districts. 11. In that view of the matter, this Court would not be required to pass any further order. Keeping however in view that the matter has remained under controversy for a period of more than 11 years as of now and in fact for a period of nearly 24 years if ordinance no. 32 of 1989 promulgated on 18.12.1989 is made the bench-mark, this Court would direct not only Bihar Sanskrit Shiksha Board and the State Government but also the respective District Magistrates to do all the Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 12 needful in order to ensure that a final decision for restoration of recognition of the petitioner-Schools and in fact all the 41 non- petitioner schools of C.W.J.C No. 1727 of 2009 must be decided within a period of six months from the date of receipt of this order. 12. Though, it would not require repetition but in order to avoid any further litigation on the subject, this Court must make it clear that the judgment passed in C.W.J.C No. 1727 of 2009 also deals with as to how the issue of de-recognition of these old schools have to be dealt. The respondent State Government and the Bihar Sanskrit Shiksha Board therefore, must treat the directions given in respect of reconsideration for restoration of recognition of the 41 non- petitioner schools including one of the petitioner schools, to have been also issued in these cases. 13. In other words for these old petitioner Sanskrit Schools which were having recognition for a very long period of time their derecognition can be made only in terms of Section-6 of Arajakiya Sanskrit Vidyalaya (Praswikriti or Sart) Niyamawali 1993 which Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 13 reads as follows:- …6‰ izLohd‘fr dk izR;kgj.k-& fdlh Hkh izLohd‘r fo|ky; dh izLohd‘fr ,d ;k vf/kd fuEukafdr dkj.kksa ls fo|ky; dks leqfpr dkj.k fn[kkus dk volj iznku djus ds i’pkr~ ljdkj dh iwokZuqefr ls v/;{k }kjk izR;kg‘r dh tk ldsxh%& …1‰ ;fn fo|ky; esa f’k{kd@f’k{kds(cid:217)kj deZpkjh dh fu;qfDr;ksa esa jkT; esa izo‘(cid:217)k vkj{k.k fof/k dk bl fu;ekoyh ds izo‘(cid:217)k gksus ds ckn mYya?ku gqvk gks] …2‰ ;fn dqy Nk=ksa dh fu/kkZfjr U;wure lhek ls de Nk= la[;k gks vFkok U;wure lhek ls vR;f/kd Nk= la[;k gks tks fo|ky; Hkou ds Lo:Ik rFkk f’k{k.kdfeZ;ksa dh la[;k ds loZFkk izR;kuqikfrd gks] …3‰ ;fn izca/k lfefr cksMZ ds funsZ’kksa rFkk vkns’kksa dh voKk djrh gks] …4‰ ;fn dksbZ vU; ,slk dkj.k nh[k iM+s ;k izekf.kr gks fd fo|ky; esa dqO;oLFkk O;kIr gS ftldk f’k{k.k dk;Z ij dqizHkko iM+ jgk gksA 14. In view of the aforesaid clear provisions under Rule-6 of 1993 Rules it is hereby directed that after the report of the District Magistrate in the cases of the petitioner-Schools is received, the Sanskrit Shiksha Board shall consider as to whether any of the four grounds enumerated in Rule-6 can be made applicable for denying continuation of recognition to the petitioner-schools. If the Board finds existence of anyone or more circumstance as enumerated in Rule-6, it shall issue show cause notice to the petitioner- Schools and after eliciting their response by way of show cause reply take a final decision as with regard to restoration of their Patna High Court CWJC No.8346 of 2012 (10) dt.17-04-2013 14 recognition, subject to prior approval of the State Government as is the spirit of Section-6 (2)(kh) of the Bihar Sanskrit Shiksha Board Act 1981 within the time frame of six months from the date of receipt/production of a copy of this order. On the other hand if none of the four circumstances enumerated in Rule 6 of 1993 Rules can be made applicable, the Board as well as the State Government must restore the recognition of the petitioner schools with all consequential benefits within the same period of six months. 15. With the aforementioned observations and directions, these applications are disposed of. Ranjan (Mihir Kumar Jha, J)