Managing Committe Of Madarsa ... vs The State Of Bihar
2023 Latest Caselaw 2907 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                   Civil Writ Jurisdiction Case No.5754 of 2023
     ======================================================

Managing Committe of Madarsa Bustanul Uloom at Tektar, P.O.- Madhpur, P.S.- Kamtaul, District- Darbhanga (Madarsa No. 899) through president Johar Ali @ Jauhar Ali, aged about 42 years (Male), Son of Jamil Ahmad, resident of Village- Tektar, P.O.- Madhpur, P.S.- Kamtaul, District- Darbhanga.

... ... Petitioner Versus

1. The State of Bihar through Additional Chief Secretary, Education Department, Bihar, Patna.

2. The Special Secretary, Education Department, Bihar, Patna.

3. The Bihar State Madarsa Education Board, Patna 5, Vidyapati Marg, Patna-

1.

4. The Chairman, Bihar State Madarsa Education Board, Patna 5, Vidyapati Marg, Patna-1.

5. The Secretary, Bihar State Madarsa Education Board, Patna 5, Vidyapati Marg, Patna-1.

6. The District Education Officer, Darbhanga.

7. The So Called Managing Committee of Madarsa Bustanul Ulom at Tektar, P.O.- Madhpur, P.S.- Kamtaul, District- Darbhanga (Madarsa No. 899) through its Secretary Md. Mumtaz Ansari aged about 40 years (Male) son of Late Md. Asfaque Ansari, resident of village- Tektar, P.O.- Madhpur, P.S.- Kamtaul, District- Darbhanga.

8. Mohammad Imran, Son of Mohammad Nasim Akhtar, Resident of Village-

Tektar, P.O. Madhpur, P.S. Kamtaul, District- Darbhanga.

9. Md. Nausad Alam, Son of Md. Phool Hasan, Resident of Village- Bhatni, P.O.- Pathraho, P.S. Kamtaul, District- Darbhanga.

10. Md. Altaf Hussain, Son of Md. Arshad Hussain, Resident of Village- Tektar, P.O.- Madhpur, P.S. Kamtaul, District- Darbhanga.

11. Md. Yasir Arfat, Son of Md. Ejaj Ahmad, Resident of Village- Tektar, P.O.-

Madhpur, P.S. Kamtaul, District- Darbhanga.

... ... Respondents ====================================================== Appearance :

For the Petitioner/s : Mr. Raj Nandan Prasad, Advocate For the Respondent/s : Mr. Prabhakar Jha, GP- 27 Mr. Umesh Narayan Dubey, AC to GP-27 For the Madarsa Boad : Mr. Shahzad Hassan Khan, Advocate Mr. Md. Aslam Ansari, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD ORAL JUDGMENT Date : 11-07-2023 Patna High Court CWJC No.5754 of 2023 dt.11-07-2023

Heard learned counsel for the petitioner and learned

counsel for the Madarsa Education Board (hereinafter referred to

as the 'Board') as also learned counsel for the State.

2. This writ application questions the appointment of

Respondent Nos. 8 to 11 on the post of Fazil, Alim, Maulvi and

Matric trained respectively made by the Managing Committee

(Respondent No. 7).

Submissions on behalf of the petitioner

3. Learned counsel for the petitioner submits that it is

the petitioner Managing Committee which is a validly constituted

committee, the Managing Committee (Respondent No. 7) was

unlawfully constituted and indulged in making appointments of

Respondent Nos. 8 to 11. It is submitted that the Chairman of the

Board vide his order dated 19.05.2020 approved the alleged illegal

appointments of Respondent Nos. 8 to 11. To complete the record,

it is worth mentioning that the Managing Committee (Respondent

No. 7) was constituted and the same was approved by the

Chairman of the Board vide his letter dated 11.07.2019.

4. Learned counsel submits that the approval given by

the Chairman of the Board vide his letter dated 11.07.2019 was

under challenge before the Appellate Authority-cum-Special

Secretary, Department of Education, Government of Bihar in Patna High Court CWJC No.5754 of 2023 dt.11-07-2023

Appeal No. 87 of 2019. It is, thus, his submission that during

pendency of the appeal, the Respondent No. 7 Managing

Committee proceeded to make appointments which were approved

by the Chairman of the Board which is illegal, arbitrary and bad in

law.

5. Learned counsel submits that later on, the appellant

also challenged the order dated 19.05.2020 passed by the

Chairman of the Board by which the appointment of Respondent

Nos. 8 to 11 were approved. During pendency of the said

challenge in Appeal No. 36 of 2020, the Appellate Authority

decided Appeal No. 87 of 2019 vide order dated 26.02.2021.

6. It is stated that the Appeal No. 87 of 2019 was

allowed and the order dated 11.07.2019 was set aside with a

direction to the Board that within a period of three months from

the date of receipt of the order, the report of the Regional Deputy

Director, Education, Darbhanga as contained in Letter No. 40

dated 27.02.2016 shall be considered and appropriate order shall

be passed. By way of an interim measure, the Appellate Authority

further directed that the Appellant Managing Committee shall

conduct the affairs of the Madarsa so that the children who are

admitted in the Madarsa should continue to get their mid day meal

and clothes as also other monetary benefits from the Government. Patna High Court CWJC No.5754 of 2023 dt.11-07-2023

7. Learned counsel submits that in its order dated

26.02.2021 (Annexure '8'), the Appellate Authority has recognized

the existence of the Appellant Managing Committee, therefore,

when this order was brought to the notice of the Appellate

Authority in course of hearing of Appeal No. 36 of 2020, the

Appellate Authority was obliged to declare that the appointments

of Respondent Nos. 8 to 11 by the Respondent No. 7 Managing

Committee was illegal and such appointments were required to be

canceled.

8. The grievance of the petitioner is that instead of

interfering with the order dated 19.05.2020 passed by the

Chairman of the Board, the Appellate Authority refused to

interfere with the same on the ground that on the date the

appointments of Respondent Nos. 8 to 11 were made, the

Respondent No. 7 Managing Committee was in existence and it

was having approval of the Chairman of the Board.

9. Learned counsel for the petitioner has relied upon a

judgment of learned Writ Court in the case of Md. Daud Hassan

Vs. State of Bihar and Ors. reported in (1995) 1 PLJR 492.

Paragraph '6' of the judgment has been relied upon to submit that

the Chairman of the Board had no authority of law to grant

approval to the Managing Committee.

Patna High Court CWJC No.5754 of 2023 dt.11-07-2023

10.At this stage, a further submission has been made that

this Court while hearing CWJC No. 18427 of 2019 (Madarsa

Anisul Ghurba Vs. The Bihar State Madarsa Education Board

and Ors.) had vide its order dated 05.09.2019 restrained the

Chairman from functioning and exercising the power of the

Madarsa Board.

11. For all these reasons, the submission of learned

counsel for the petitioner would be to set aside the order as

contained in Memo No. 286 dated 04.11.2022 passed in Appeal

No. 36 of 2020 (Johar Ali Vs. The Bihar State Madarsa

Education Board and Ors.).

Submissions on behalf of the Respondents

12. On the other hand, Mr. Shahzad Hassan Khan,

learned counsel representing the Board submits that so far as the

order of restrain passed by this Court in CWJC No. 18427 of 2019

is concerned, the same was passed on 05.09.2019, therefore, on

11.07.2019 when the Chairman approved the Respondent No. 7

Managing Committee, there was no order of restraint against his

functioning.

13. Learned counsel has further informed this Court that

the order dated 05.09.2019 was subject matter of a letters patent

appeal being LPA No. 1279 of 2019 (The Chairman, Bihar State Patna High Court CWJC No.5754 of 2023 dt.11-07-2023

Madarsa Education Board and Another Vs. Madrasa Anisul

Ghurba and Others). In the said letters patent appeal, opportunity

was given to the Board to convene and hold a meeting of the

Board which was accordingly done and conveyed to the Court.

14. Learned counsel further submits that in the operative

part of the impugned order dated 04.11.2022, the Appellate

Authority has rightly concluded that the Respondent No. 7

Managing Committee made appointments of Respondent No. 8 to

11 (Respondent No. 6 to 9 in Appeal) prior to passing of the order

dated 26.02.2021 (Annexure '8') and the same had been approved

during pendency of the Appeal No. 87 of 2019.

15. Learned counsel for the Board has placed before this

Court a judgment of learned Writ Court in case of Abdul Azeem

Haidri Vs. The State of Bihar & Ors. reported in 2001 (3) BLJ

83 to submit that the Md. Daud Hassan (Supra) case was cited

before the learned Writ Court in Abdul Azeem Haidri (Supra)

but for the reasons stated therein, the said judgment was not

followed and the view taken by the learned Court in Abdul Azeem

Haidri (Supra) has in fact been now the view of the Hon'ble

Division Bench of this Court in LPA No. 346 of 2016. Patna High Court CWJC No.5754 of 2023 dt.11-07-2023

Consideration

16. Having heard learned counsel for the petitioner and

learned counsel for the Board as also learned counsel for the State

and upon perusal of the records, this Court finds that the Appellate

Authority while passing the impugned order dated 04.11.2022

(Annexure '7') has rightly concluded that an approved Managing

Committee works for a period of three years and in this case the

appellant Managing Committee was approved vide Memo No.

4133-41 dated 02.07.2015, therefore, its tenure of three years came

to an end in July, 2018. In fact, there is no quarrel with this legal

position and it has not been otherwise argued before this Court.

17. This Court further agrees with the view taken by the

Appellate Authority that the appointment of Respondent Nos. 8 to

11 were made prior to issuance of the order contained in Memo

No. 115 dated 26.02.2021 (Annexure '8'). During this period,

Appeal No. 87 of 2019 preferred by the appellant Managing

Committee was pending but no prayer was made before the

Appellate Authority to restrain the Respondent No. 7 Managing

Committee from proceeding with the appointments.

18. This Court further finds from Annexure '8' to the

writ application which is the order dated 26.02.2021 that in its Patna High Court CWJC No.5754 of 2023 dt.11-07-2023

order, the Appellate Authority has not made any declaration that

the appellant Managing Committee was still in existence on

11.07.2019, therefore, it is not possible for this Court sitting in its

writ jurisdiction to record a finding or to agree with the submission

of learned counsel for the appellant that it was the appellant

Managing Committee which was the existing Managing

Committee on the date the appointments were made.

19. For the reasons stated hereinabove, this Court finds

no reason to interfere with the impugned order as contained in

Annexure '7' to the writ application.

20. This writ application is accordingly dismissed.

(Rajeev Ranjan Prasad, J) lekhi/-

AFR/NAFR
CAV DATE
Uploading Date          12.07.2023
Transmission Date