Md. Shahnawaz Zia vs The State Of Bihar
2022 Latest Caselaw 128 Patna

          IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.19336 of 2021
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Md. Shahnawaz Zia, Son of Md. Zia Uddin, Resident of Ward No. 02, Machhaila, P.S.- Mahalgaon, District- Araria.

... ... Petitioner/s Versus

1. The State of Bihar.

2. The Principal Secretary, Education Department, Govt. of Bihar, Patna.

3. The District Magistrate, Araria.

4. The District Education Officer, Araria.

5. The Chairman, Bihar Madarsa Shiksha Board, Patna.

6. The Secretary, Bihar Madarsa Shiksha Board, Patna.

7. The Head Maulvi, Madarsa Noorul Hoda (Madarsa No. 374), Machhaila Kela Bari, District- Araria.

8. The Secretary, Madarsa Noorul Hoda (Madarsa No. 374), Machhaila Kela Bari, District- Araria.

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr. Prashant Sinha, Advocate For the Respondent/s : Smt. Shilpa Singh ( G.A.12 ) ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE S. KUMAR) (The proceedings of the Court are being conducted through Video Conferencing and the Advocates joined the proceedings through Video Conferencing from their residence.)

Date : 05-01-2022

Heard learned counsel for the parties.

Petitioner has prayed for the following relief(s):-

(i) For issuance of writ in the nature of certiorari for quashing of letter no. 2155 dated 29.09.2021 issued by the Bihar State Madarsa Education Board whereby the Board has granted approval to appointment of seven teachers and one Clerk in Madarsa Noorul Hoda, Machhaila Patna High Court CWJC No.19336 of 2021 dt.05-01-2022

Kela Bari, Araria (Madarsa No. 374) despite the fact that the appointment was made without following the procedure and the relatives of the members of the Managing Committee have been appointed in an illegal manner and even the Head Maulvi of the Madarsa was not aware about the selection procedure.

(ii) For necessary direction upon the District Magistrate, Araria to inquire into the selection process adopted by the Managing Committee of Madarsa Noorul Hoda and further for a direction to take necessary corrective measure for ensuring proper functioning of the Madarsa Noorul Hoda.

(iii) For necessary direction upon the respondent State to take appropriate corrective steps in connection with the Madarsa education so that the level of education may be upgraded and in the Madarsas may not go in the hands of some vested interest groups.

(iv) For staying the operation of letter no. 2155 dated 21.09.2021 issued by the Bihar State Madarsa Education Board.

(v) For any other direction, which your Lordships may deem fit and proper in the facts and circumstances of the case."

The Hon'ble Supreme Court in D. N. Jeevaraj Vs.

Chief Secretary, Government of Karnataka & Ors, (2016) 2

SCC 653, paragraphs 34 to 38 observed as under:-

"34. The learned counsel for the parties addressed us on the question of the bona fides of Nagalaxmi Bai in filing a public interest litigation. We leave this question open and do not express any opinion on the correctness or otherwise of the decision of the High Court in this regard.

35. However, we note that generally speaking, Patna High Court CWJC No.19336 of 2021 dt.05-01-2022

procedural technicalities ought to take a back seat in public interest litigation. This Court held in Rural Litigation and Entitlement Kendra v. State of U.P. [Rural Litigation and Entitlement Kendra v. State of U.P., 1989 Supp (1) SCC 504] to this effect as follows: (SCC p. 515, para 16) "16. The writ petitions before us are not inter parties disputes and have been raised by way of public interest litigation and the controversy before the court is as to whether for social safety and for creating a hazardless environment for the people to live in, mining in the area should be permitted or stopped. We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the court."

36. A considerable amount has been said about public interest litigation in R&M Trust [R&M Trust v. Koramangala Residents Vigilance Group, (2005) 3 SCC 91] and it is not necessary for us to dwell any further on this except to say that in issues pertaining to good governance, the courts ought to be somewhat more liberal in entertaining public interest litigation. However, in matters that may not be of moment or a litigation essentially directed against one organisation or individual (such as the present litigation which was directed only against Sadananda Gowda and later Jeevaraj was impleaded) ought not to be entertained or should be rarely entertained. Other remedies are also available to public spirited litigants and they should be encouraged to avail of such remedies.

37. In such cases, that might not strictly fall in the category of public interest litigation and for which other remedies are available, insofar as the issuance of a writ of mandamus is concerned, this Court held in Union of India v. S.B. Vohra [Union of India v. S.B. Vohra, (2004) 2 SCC 150: 2004 SCC (L&S) 363] that: (SCC p. 160, paras 12-13) "12. Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty.

13. A writ of mandamus is issued in favour of a person who establishes a legal right in Patna High Court CWJC No.19336 of 2021 dt.05-01-2022

himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted."

38. A salutary principle or a well-recognised rule that needs to be kept in mind before issuing a writ of mandamus was stated in Saraswati Industrial Syndicate Ltd. v. Union of India [Saraswati Industrial Syndicate Ltd. v. Union of India, (1974) 2 SCC 630] in the following words: (SCC pp. 641-42, paras 24-25) "24. ... The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd Edn.), Vol. 11, p. 106:

'198. Demand for performance must precede application.--As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal.'

25. In the cases before us there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Patna High Court CWJC No.19336 of 2021 dt.05-01-2022

Constitution."

After the matter was heard for some time, learned

counsel for the petitioner, under instructions, states that

petitioner shall be content if a direction is issued to the

authority concerned i.e. (Respondent No. 6, the Secretary,

Bihar Madarsa Shiksha Board, Patna) to consider and decide

the representation which the petitioner shall be filing within a

period of four weeks from today for redressal of the

grievance(s).

Learned counsel for the respondents states that if such

a representation is filed by the petitioner, the authority

concerned shall consider and dispose it of expeditiously and

preferably within a period of four months from the date of its

filing along with a copy of this order.

Statement accepted and taken on record.

As such, petition stands disposed of in the following

terms:-

(a) Petitioner shall approach the authority concerned

within a period of four weeks from today by filing a

representation for redressal of the grievance(s);

(b) The authority concerned shall consider and dispose

it of expeditiously by a reasoned and speaking order preferably Patna High Court CWJC No.19336 of 2021 dt.05-01-2022

within a period of four months from the date of its filing along

with a copy of this order;

(c) Needless to add, while considering such

representation, principles of natural justice shall be followed

and due opportunity of hearing afforded to the parties;

(d) Equally, liberty is reserved to the petitioner to take

recourse to such alternative remedies as are otherwise available

in accordance with law;

(e) We are hopeful that as and when petitioner takes

recourse to such remedies, as are otherwise available in law,

before the appropriate forum, the same shall be dealt with, in

accordance with law and with reasonable dispatch;

(f) Liberty reserved to the petitioner to approach the

Court, if the need so arises subsequently on the same and

subsequent cause of action;

(g) We have not expressed any opinion on merits. All

issues are left open;

(h) The proceedings, during the time of current

Pandemic- Covid-19 shall be conducted through digital mode,

unless the parties otherwise mutually agree to meet in person

i.e. physical mode;

The petition stands disposed of in the aforesaid terms. Patna High Court CWJC No.19336 of 2021 dt.05-01-2022

Interlocutory Application(s), if any, stands disposed

of.

(Sanjay Karol, CJ)

( S. Kumar, J) veena/rajiv-

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