Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17268 of 2010 ====================================================== Managing Committee of Madrasa Gharib-Nawaz-Faiz-E-Aam, Pachkonia, Nemoul Hat, Distt.- Katihar (Madrasa No.-1191) through its Secretary Md. Ashraful Alam, S/o Late SK. Nasiruddin, R/o Vill.- Balipara, P.O.- Nemoul, P.S.- Azamnagar, Distt.- Katihar. .... .... Petitioner Versus 1. The State of Bihar through Principal Secretary, Human Resources Development Department, Government of Bihar, Patna, Vikas Bhawan, Patna. 2. Director Administration, Human Resources Development Department, Govt. of Bihar, Patna. 3. Special Director, Secondary Education, Human Resources Development Department, Government of Bihar, Patna. 4. District Magistrate, Katihar. 5. District Education Officer, Katihar. 6. Bihar State Madrasa Education Board through its Chairman, 5 Vidyapati Marg, Patna. 7. Secretary, Bihar State Madrasa Education Board, 5, Vidyapati Marg, Patna. 8. Abdul Rahim, S/o Late Abdul Qadir, R/o Vill.- Pachkonia, P.O.- Nemoul, P.S.- Azamnagar, Via- Salmari, P.S.- Azamnagar, Distt.- Katihar, Secretary of Dissolved Managing Committee of Madrasa Gharib Nawaz-Faiz-E-Aam, Pachkonia, P.O.- Nemoul Via Salmari, Distt.- Katihar.
Decision
.... .... Respondents ====================================================== For the Petitioner : M/s Sanjay Kr. Verma and S.M.Ehtesham, Advocates. For the Madrasa Board : Mr. Md. Rashid Alam, Advocate. For respondent no.8 : Mr. Raghib Ahsan, Sr. Advocate with Mr. Najeeb Ahmad, Advocate. For the State : Mr. P.K. Verma (AAG-5) Ms. Jahan Ara, AC to AAG-5 ====================================================== P R E S E N T : HONOURABLE MR. JUSTICE S.N. HUSSAIN ORDER 3 11-01-2013 Heard learned counsel for the petitioner and learned counsel for the respondents. 2. This writ petition has been filed by the petitioner for Patna High Court CWJC No.17268 of 2010 (3) dt.11-01-2013 2 the following reliefs:- (i) dated 17.08.2010, whereby Issuance of writ in the nature of certiorari for quashing the impugned order contained in Memo No.135 and whereunder the appellate authority in Madrasa Appeal No.10 of 2009 (Abdul Rahim Vrs. Bihar State Madrasa Education Board & others) filed under section 28 of Bihar State Madrasa Education Board Act, 1981 respondent no.3 Special Director, Secondary Education, Bihar Patna, without taking into account, the material facts brought on record of the case as well as without properly appreciating the provisions of law and the points raised by the petitioner has been pleased to pass an order which is out & out arbitrary, non est, totally illegal, misconceived and the same is colorful exercise of power with some ulterior motive. (ii) For a direction to stop the operation of the impugned order forthwith. (iii) For any other relief/reliefs as this court may deem fit and proper under the circumstances of the case. 3. It is not in dispute that the matter in issue is with respect to Madrasa Gharib-Nawaz-Faiz-E-Aam (hereinafter referred to as ‘the Madrasa’ for the sake of brevity) situated at Pachkonia in the district of Katihar registered as Madrasa No.1191 in the Bihar State Madrasa Education Board (hereinafter referred to as ‘the Board’ for the sake of brevity). It is also not in dispute that the said institution being a religious and linguistic minority institution has been managed by the people of area who have been constituting the Managing Committee from Patna High Court CWJC No.17268 of 2010 (3) dt.11-01-2013 3 time to time with office bearers and members for administration of the affairs and management of the Madrasa and such Committee constituted by the people were being duly approved by the Board as per the provision of Bihar State Madrasa Education Board Act (hereinafter referred to as ‘the Act’ for the sake of brevity). 4. The claim of petitioner is that before 2004 the Madrasa was managed by its Founder Committee in which the petitioner was Deputy Secretary and after the death of Founder Secretary, namely Abdul Quadir (father of respondent no.8) on 01.08.2004, the members of Madrasa unanimously adopted Resolution dated 15.05.2005 appointing the petitioner as Secretary of the Managing Committee which was forwarded to the Board for approval, whereafter the said Resolution was approved by the Board vide letter dated 08.03.2006. 5. It transpires that a dispute had arisen when in the year 2006 some people sought to constitute a fresh Managing Committee under the secretaryship of respondent no.8, namely Abdul Rahim and the same was submitted before the Board for approval but since it did not show the date of meeting of the people of locality as well as the date of constitution of Managing Committee, the Board vide letter dated 19.01.2007 entrusted the Patna High Court CWJC No.17268 of 2010 (3) dt.11-01-2013 4 enquiry in respect of constitution of the Managing Committee to the S.D.E.O, Barsoi (Katihar), who assembled the people on 08.04.2007 and submitted its report dated 10.04.2007, whereafter the Board vide letter dated 04.01.2008 granted provisional approval to the said new Committee. Thereafter further enquiries were made and wishes of people were obtained, according to which Resolution of the Board dated 04.01.2009 was passed appointing a fresh Managing Committee for the said Madrasa with nine members including the petitioner as its Secretary and information thereof was sent vide office order dated 12.02.2009. 6. Against the said order respondent no.8 on behalf the earlier Managing Committee of the Madrasa filed Appeal No.10 of 2009 before the Special Director, Secondary Education, Government of Bihar and the said appellate authority after considering the matter allowed the appeal on 17.08.2010 setting aside the decision of the Board dated 12.02.2009 and directed to maintain the earlier approval in favour of the Committee of respondent no.8. This order has been challenged by the petitioner in the instant case. 7. The aforesaid facts are not disputed. The question specifically raised herein is as to whether the Special Director, Secondary Education himself being a member of the Bihar Patna High Court CWJC No.17268 of 2010 (3) dt.11-01-2013 5 Madrasa Education Board, which had taken its decision, can sit in appeal over the decision of the Board and as to whether the decision of the Board dated 04.01.2009 was legal and proper as from the enquiry reports on the basis of which the said order was passed did not disclose as to whether all the parties concerned were heard before submission of the said reports. 8. The law has already been settled in this regard that the Special Director cannot sit in appeal over the decision of the Board as he is himself a member of the Board. The said decisions have been followed subsequently also. In the said circumstances, the appellate order cannot be held to be legal and proper. So far Resolution of the Board dated 04.01.2009 is concerned, there is nothing to show that the enquiry report, on the basis of which said order was passed, was submitted after hearing all the parties concerned, namely the members of the present as well as the erstwhile Managing Committee. 9. In the aforesaid facts and circumstances the appellate order of the Special Director, Secondary Education dated 17.08.2010 and Resolution of the Board dated 04.01.2009 communicated vide office order dated 12.02.2009 are hereby quashed and the Board is directed to get a fresh enquiry done by District Education Officer, Katihar in presence of both sets of Patna High Court CWJC No.17268 of 2010 (3) dt.11-01-2013 6 parties as well as the people of locality after giving notice to all concerned and the said enquiry must be completed and report submitted before the Board within two months from the date of receipt/production of a copy of this order. Thereafter the Board shall take a final decision and approve the proper Committee, which has confidence of the people of the area. This must be done within one month from the date of receipt of the report of D.E.O., Katihar, even if a special meeting of the Board has to be held in this regard. Till then the Committee of the petitioner as Secretary and Mr. Nek Mohammad as President shall continue. 10. With the aforesaid observations/directions, this writ petition is disposed of. Harish/- (S.N. Hussain, J)