Allowed

Md.Shamim v. the State of Bihar and Ors.

Patna HC19 Sept 2013CWJC/9799/2012

Case brief

AI extract

What is this about?

Single Judge allowed the petition and quashed an order by the Special Director (Secondary Education) for lack of jurisdiction to hear appeals under the Bihar Madrasa Education Board Act, citing a binding Division Bench precedent. The court directed the State to ensure appeal powers are delegated to a competent authority immediately.

What did the court decide?

Quashing of the order dated 20.9.2011 passed by the Special Director and direction to the Secretary to ensure proper delegation of appellate powers.

Md.Shamim Vs the State of Bihar and Ors. — Pension and Retirement Benefits | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9799 of 2012

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====================================================== Md.Shamim son of Late Sk. Babu Jaan resident of Village Thangpur Bahadinpur, P.S. Paroo, District - Muzaffarpur (Madarsa No. 778) Secretary, Managing Committee, Madarsa Sharful Uloom, Thangpur, Bahadinpur, Muzaffarpur .... .... Petitioner Versus 1. The State of Bihar 2. The Special Director (Secondary Education), Human Resources Development Department (Incharge-Madrasa) Govt. of Bihar, Patna 3. District Education Officer, Muzaffarpur 4. Sami Ahmad son of Late Md. Zubair resident of Village - Thengpur (P.O). P.S. Paroo, District - Muzaffarpur 5. The Head Maulvi, Sharful Uloom, Thengpur, P.O. Bahadinpur, District - Muzaffarpur 6. Bihar State Madrasa Education Board, Patna, through its Secretary 7. The Chairman, Bihar State Madrasa Education Board, Patna 8. The Secretary, Bihar State Madrasa Education Board, Patna 9. The Block Education Extension Officer, Muzaffarpur .... .... Respondents ====================================================== Appearance : For the Petitioner/s : Mr. Farooque Moozzam, Advocate For the State : Mr. Bibhakar Tiwary, AC to SC 21 For Madarsa Board : M/S Rashid Alam & Mahtab Alam, Advocates ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH KUMAR DATTA ORAL ORDER

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6 19-09-2013 Heard learned counsel for the petitioner and learned counsels for the State and for the Bihar State Madarsa Education Board.

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The petitioner seeks quashing of the order dated 20.9.2011 passed by the Special Director (Secondary Education), Bihar in Appeal No. 20 of 2007 by which he has allowed the appeal filed by the private respondents and set aside the order dated 15.6.2007 issued by the Bihar State Madarsa Education Board.

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Patna High Court CWJC No.9799 of 2012 (6) dt.19-09-2013

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Learned counsel for the petitioner submits that although the order of the Special Director is fit to be quashed on merit also but in view of the fact that it has been held by this Court that he has no jurisdiction to hear an appeal under Section 28 of the Bihar Madarsa Education Board Act, 1981 as he could not be delegated power to hear such appeal by the State Government, he being the ex-officio Member of the Board and hence the order can be quashed on that sole ground. In support of the same learned counsel relies upon a decision of this Court in the case of Md.Shamir Jung Khan vs. The State of Bihar & Ors. :2010(1) PLJR 149, in paragraphs 4 to 6 of which it has been held as follows:

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“4. On behalf of the petitioner, it was next submitted that recently through another Notification, the State Government has delegated the power of hearing appeals to the Special Director of the concerned department ignoring the fact that Special Director is also an Ex-Officio Member of the Board. It has been submitted that the Special Director should not have been delegated with the power of hearing and deciding appellants (sic-appeals?) against decisions of the Madarsa Board of which he himself is an Ex-Officio Member. It was further submitted that a similar issue was raised before this Court in the case of Md.Saleem vs. State of Bihar in CWJC No.1290 of 2000 which was decided by judgment and order dated 28.7.2005 contained in Annexure-11 to the supplementary affidavit in the case. That judgment has held that Special Director being Ex-Officio Member of Madarsa Board could not have sat over an appeal over his own decision.

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5. There is no dispute with the aforesaid issue in view of the judgment contained in Annexure-11 but on facts,

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Patna High Court CWJC No.9799 of 2012 (6) dt.19-09-2013

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there is no material on record to show that presently the power of hearing appeals stands delegated to the Special Director of the concerned department.

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6. Since the issue of law are already settled and need no discussion, the writ petition is disposed of with a direction to the petitioner to file representation in the matter before the Secretary, Human Resources Department, Government of Bihar, who shall examine the factual situation and ensure that power to hear appeals on behalf of the State Government under the Act, is delegated to a proper authority competent to hear such appeals and not to a person who as per earlier judgment of this Court may not be competent to hear the appeals. If, necessary, a fresh Notification may be issued by the State Government without any delay, preferably within one month from the filing of the representation. In any event, the concerned authorities of the State Government will ensure that appeals preferred by the petitioner which are said to be pending, are disposed of by a competent appellate authority at the earliest, preferably within three months from today.”

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Learned counsel further submits that the said decision

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has been followed by this Court in several other decisions and the same view has been taken. Learned counsel also refers to several other judgments of learned Single Judges of this Court to buttress his stand.

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Learned counsel for the State, on the other hand, refers to an order dated 25.10.2011 passed in CWJC No.12775 of 2008 (Md.Imteyaz Ahmad vs. The State of Bihar & Ors.) in which in a conflict of decision of two Division Bench decisions of this Court a learned Single Judge of this Court had observed that the matter be placed before Hon’ble the Chief Justice for consideration for

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Patna High Court CWJC No.9799 of 2012 (6) dt.19-09-2013

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placing the matter before a larger Bench for an authoritative pronouncement.

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However, learned counsel for the petitioner submits that the said aspect of reference has been considered by another learned Single Judge of this Court in CWJC No.5595 of 1995 [The Managing Committee, Madarsa Faizul Uloom (Kabai Banghara) and another vs. The State of Bihar & Ors.] in which it has been pointed out that the subsequent Division Bench in the case of Abdul Azim Haidri vs. The State of Bihar & Ors. in LPA No. 347 of 2008 in its decision dated 23.3.2009 has not decided the said issue as the said issue was not before the said Division Bench and it was clearly stated in the said order that a contrary view has been taken by a Division Bench by stating that “although it is not necessary to decide the contention raised on behalf of the appellant in the present case, prima facie, we find no merit in the contention …………” For the said reason the learned Single Judge by his order dated 6.11.2012 has held that there is no conflict of decision.

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In my view also the observations made in Abdul Azim Haidri’s case (supra) by the other Division Bench can be considered obiter in view of what has been quoted above since the Division Bench itself was of the view that the said contention was not necessary to be decided.

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Patna High Court CWJC No.9799 of 2012 (6) dt.19-09-2013

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In the aforesaid circumstances, the Division Bench decision in Md.Shamir Jung Khan’s case (supra) is a binding authority on the point.

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The writ application is, accordingly, allowed and the impugned order dated 20.9.2011 passed by the Special Director (Secondary Education), Bihar in Appeal No.20 of 2007 is quashed.

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This Court is, however, surprised to know that despite clear direction given by a Division Bench in Md. Shamir Jung Khan’s case no action has been taken by the Secretary, Human Resources Development Department, Government of Bihar to ensure that the power of hearing appeals vested in the State Government is conferred upon a competent authority despite the passage of more than four years since the said order was passed. Let the same be done forthwith.

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(Ramesh Kumar Datta, J)

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spal/-

Md.Shamim v. the State of Bihar and Ors.

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Md.Shamim v. the State of Bihar and Ors.

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