Patna High Court
The Managing Committee, Madarsa Faizul Uloom and AnrversusThe State Of Bihar and Ors
- Decided
- Disposal
- DISPOSED
- Bench
- ALOK KUMAR SINHA
Holding
The order dated 9 June 2016 passed by Dr. Vijay Kumar Pandey is quashed as he lacked statutory authority to act as an appellate authority under Section 28 of the Bihar State Madarsa Education Board Act, 1981.
Summary
The Managing Committee of Madarsa Faizul Uloom filed a writ petition challenging an order dated 9 June 2016 issued by the Joint Director of Secondary Education, Dr. Vijay Kumar Pandey, which set aside earlier orders of the Bihar State Madarsa Education Board concerning the shifting and reinstatement of the madarsa. The petitioners contended that the Joint Director lacked statutory authority under Section 28 of the Bihar State Madarsa Education Board Act, 1981 read with Rule 3 of the 1983 Appeal Rules, and that the order was passed without hearing and violated principles of res judicata and constitutional safeguards. The Court examined the earlier judgment in CWJC No. 19290 of 2016, which had similarly set aside an order for lack of jurisdiction, and noted the State’s affidavit admitting the same defect. Consequently, the Court quashed the impugned order, remanded the matter to the Special Secretary, Education Department, to decide afresh, and directed that salary arrears of the madarsa’s staff be considered. The writ application was disposed of accordingly.
Issues considered
- The Joint Director of Secondary Education had jurisdiction under Section 28 of the Bihar State Madarsa Education Board Act, 1981 and Rule 3 of the 1983 Appeal Rules to act as appellate authority.
- Whether the order dated 9 June 2016 is void for lack of jurisdiction and procedural infirmities.
- Whether the earlier orders of the Madarsa Board and the claim for payment of salary arrears should be restored.
Subjects
- jurisdiction
- appellate authority
- BME Act
- Madarsa education
- salary arrears
- writ of certiorari
- res judicata
- constitutional rights
- Article 29
- Article 30
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.19255 of 2016
======================================================
1. The Managing Committee, Madarsa Faizul Uloom (Kabai Banghara), at
present Mohalla Chandchaur, Rahimtola, P.S. Ujiarpur, District-Samastipur
through its president Sri Mohmmad Quaisar Son of Azizul Haque,
2. Mohmmad Jalil Ahmad, Son of Farmood Hussain Khan, teacher and
Member of Madarsa Faizul Uloom, Chandchaur, Rahimtola, P.S. Ujiarpur,
District-Samastipur
... ... Petitioner/s
Versus
1. The State Of Bihar through its Chief Secretary, Government of Bihar, Patna.
2. The Principal Secretary, Education Department, Government of Bihar,
Patna.
3. The Director, Higher Education, Government of Bihar, Patna.
4. The Director, Secondary Education, Government of Bihar, Patna.
5. The Joint Director, Secondary Education, Government of Bihar, Patna.
6. The Bihar State Madarsa Education Board, Patna through its Chairman.
7. The District Education Officer, Samastipur, P.S. and District Samastipur.
8. The District Programme Officer Establishment Samastipur.
9. Iftekhar Alam, Son of late Mahfuz Alam, Resident of Village- Daudpur, P.O.
Shekhopur, P.S. Methrapur (O.P.), Warisnagar, District-Samastipur, Pin
848101, at Present Principal cum-Head Maulvi Madarsa Faizul loom Kabai
Banghara Block-Vidyapati Nagar Via-Dalsingsarai, District-Samastipur Pin-
848114.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr.Pratik Kumar Sinha, Adv.
For the State : Mr. Umesh Narayan Dubey, AC to GP-27
For the Madarsa Board : Md. Aslam Ansari, Adv.
For Respondent No.9 : Mr. Basant Kumar Chaudhary, Sr. Adv.
Mr. Arvind Kumar, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE ALOK KUMAR SINHA
ORAL ORDER
10 30-04-2026 Heard learned counsel for the petitioners, learned
Senior Counsel for respondent no.9, learned counsel for the
Bihar State Education Madrasa Board and learned counsel for
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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respondents-State.
2. In the present writ application, the petitioners have
prayed for the grant of following reliefs:
“i. To issue a writ of
certiorari quashing and annulling the
order dated 9/6/2016 of the Joint
Secretary, Secondary Education as
contained in memo no. 331 by which
the same in exercise of its appellate
jurisdiction and at the instance of
private respondent nos. 9 & 10 has set
aside the order dated 30/9/2014 and
30/12/1989 as contained in memo nos.
6200-6206 & 4633 respectively of the
Chairman, Madarsa Education Board,
Patna holding that the Chairman
Madarsa Education Board. Patna
does not have the jurisdiction to shift
the Madarsa in question as also such
shifting was against the decision of
cabinet.
ii. To issue a further writ of
Certiorari quashing and setting aside
the order dated 17/8/1995 of the
Chairman, Madarsa Education Board,
Patna by which he has virtually
passed the order of reinstatement of
respondent no. 10 and he being the
Head Moulvi of the Madarsa in
question directed him to make prepare
the bills of teaching and non-teaching
staffs of the Madarsa Faizul Uloom.
Kaba Banghara which is completely
erroneous in view of the admitted fact
that such order has been passed on
the basis of the order dated 15/7/1995
of the Special Director which has been
quashed by the Hon'ble Court passed
in C.W.J.C. No 5595/1995.
iii. To issue a further writ of
certiorari quashing the order dated
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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7/11/2007 of the Director, Secondary
Education, Bihar, Patna by which the
same in exercise of its appellate power
has set aside the earlier interim orders
dated 28/9/1995 and 31/7/1996 of the
then special director, Secondary
Education and affirmed the order
dated of the 17/8/1995 of the
Chairman, Madarsa Education Board,
Patra and further directed the
respondent no. 7 herein to follow the
order dated 17/8/1995 of the
Chairman, Madarsa Education Board,
Patna and make payment of salaries
of the working employees of the
Madarsa Faizul Uloom. Kabai
Banghara.
iv. To issue a writ of
mandamus directing the respondents
authorities particularly to the
respondent nos.7 & 8 to make
payment arrears of salaries as also
correm salaries of the employees of
the Madarsa in question, Chand
Chaur Raluns Tola.
v. To issue further
order/orders or writ/writs or
direction/directions directing the
respondents authorities to grant him
further relief as he may be entitled
under the law or as this Hon'ble court
may deem fit and proper in doing
substantial justice against them
(petitioners).”
3. While advancing argument on 02.04.2026, learned
counsel for the petitioners had confined his prayer to relief
sought for in paragraph-1(i) and 1(iv). He had expressly given
up the relief claimed in paragraph-1(ii), 1(iii) and 1(v). This writ
application is, therefore, being disposed of only with respect to
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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relief claimed by the petitioners in paragraph-1(i) and 1(iv) as
the other reliefs have already been given up by the petitioners.
4. While assailing the order dated 09.06.2016
(Annexure-21) passed by Dr. Vijay Kumar Pandey, Joint
Director of Secondary Education as contained in Memo No.331,
learned counsel while advancing argument on 02.04.2026 had
stated that the grounds for challenging the impugned order is
elaborately pleaded in paragraph nos. 37 to 44 of the writ
application. For ready reference and convenience, paragraph
nos. 37 to 44 of the writ application are once again reproduced
hereinbelow for needful:
“37. That it is this decision
of the petitioner (founding managing
committee) herein dated 15/12/1988
which has been set aside by the
respondent no. 5, Joint Director.
Secondary Education, Patna
erroneously and without application
of mind because i has been passed
without giving opportunity of being
heard. Even the teaching and non-
teaching employees of the Madarsa
(Chandchaur Rahim Tola) were not
given opportunity of hearing. Order
under challenge having been passed
behind their back and having caused
serious prejudice to them is fit to be
interfered with by the Hon'ble Court
on this singular ground itself..
38. That it is humbly
submitted urged here that the
respondent no.5, joint director.
secondary education is not legally
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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empowered under the law to decide or
examine the orders and decision taken
by the Managing Committee because
it is only by a departmental letter he
has been authorized to hear appeal
under section 28 of B.M.E Act, 1981.
In other words before giving him
appellate power under section 28 of
the Act there must have been either an
order of governor to this effect or an
approval to such effect, however no
such mandate of the law was complied
with by the respondents.
39. That it is worth to
mention here that the joint director,
secondary education adjudicating the
matter as an appellate authority failed
to take cognizance of the fac that the
period of limitation was running. He
without condoning the delay examined
the legality of the orders of the
Madarsa Board and the Founding
Managing Committee.
40. That the appellate
authority totally failed to take into
consideration the fact that the issue of
shifting of Madarsa in question was
decided and ended more than a
decade back and hence review of such
issue could not have been gone into as
it was barred by the principles of res-
judicata.
41. That it is pertinent to
state here that the issue of shifting of
madarsa in question was already
decided by the board and a seal of
approval to such effect was given by
the Hon'ble High Court which has
been re-opened again or legality of
such order has again been gone into
by the respondent no.5 which is totally
contrary to settled proposition of law
that a quasi-judicial authority cannot
sit over the orders of the judicial
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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authority.
42. That the appellate
authority exercising power as an
appellate authority under section 28
of the Act has failed to take
cognizance of the fact that the private
respondent no 10 who was head
moulvi of the madarsa has in fact no
locus standi to question the decision
or orders of Madarsa Board as he was
terminated from service two decades
back itself.
43. That the order under
challenge has failed to consider the
fact as well law that the state
government has very negligible power
to examine the decision taken by the
Managing Committee as it is in teeth
of Article 29 and 30 of the
Constitution of India.
44. That the respondent
no.5, joint director, secondary
education totally failed to take into
consideration the fact that the orders
of the authorities which form the basis
of order impugned herein has already
been quashed and annulled by the
Hon'ble High Court in C.W.J.C No.
5595/1995.”
5. One of the grounds on which the learned counsel
for the petitioners has challenged the impugned order dated
09.06.2016 passed by Dr. Vijay Kumar Pandey, Joint Director,
Secondary Education as contained in Memo No. 331
(Annexure-21) is that Dr. Vijay Kumar Pandey was not legally
authorized and empowered to pass such an order in the capacity
of being the Appellate Authority under Section 28 read with
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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Rule-3 of the Act. In other words, as per learned counsel for the
petitioners, Dr. Vijay Kumar Pandey, at that point of time did
not have the appellate power under Section 28 of Bihar State
Madarsa Education Board Act, 1981 (for brevity ‘BME Act,
1981’) read with Rule-3 of the Bihar Rajay Madarsa Siksha
Board Niyatran (Appeal) Niyamawali, 1983, and therefore, as
per learned counsel for the petitioners, the impugned order
passed by the said person was/is completely illegal and wholly
without jurisdiction.
6. For ready reference, Section 28 of ‘BME Act, 1981’
and Rule-3 of the Bihar Rajay Madarsa Siksha Board Niyatran
(Appeal) Niyamawali, 1983 are once again quoted hereinbelow
for needful:
“28. Appeal against the orders of
the Board.-Any person or managing
committee aggrieved with the decision of the
Board or Chairman may file an appeal for
final hearing within 60 days of the passing
of the orders, to the State Government.”
“3- vihy-& ¼1½ cksMZ vFkok cksMZ ds v/;{k }kjk fn;s
x;s vkns”k ls vlUrq’V O;fDr ;k izcU/k lfefr vkns”k
fuxZr gksus dh frfFk ls 60 fnuksa ds vUnj ml vf/kdkjh
ds le{k vihy dj ldrk gS ftls ml gsrq jkT;
ljdkj vf/klwpuk }kjk izkf/kd`r djsxhA
uksV& ¼1½ ,sls ekeys ftlesa cksMZ vFkok cksMZ ds v/;{k
}kjk bl vf/klwpuk ds fuxZr gksus dh frfFk ls iwoZ
vkns”k fn;k x;k gS] oSls vkns”k ls vlarq’V dksbZ
O;fDr ;k izca/k lfefr bl vf/klwpuk ds fuxZr gksus dh
frfFk ls 60 fnuksa ds vUnj mDr inkf/kdkjh ds le{k
vihy dj ldrk gSA
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
8/15
¼2½ ;g vihy lys[k ds :i esa gksxh] ftlesa vihy ds
lHkh vk/kkj mfYyf[kr jgsaxsA
¼3½ vihy ds lkFk ,d dks’kkxkj pkyku Hkh layXu gksxk]
ftlesa ;g n”kkZ;k tk;sxk fd vkosnu ds “kqYd ds :i
esa 250 ¼nks lkS ipkl½ :i;s “kh’kZ Þ077&x&fo”ks’k
f”k{kk&f”k{kk “kqYd rFkk vU; “kqYd&vU; izkfIr;k¡ esa tek
fd;k gSA vihy Lohd`r gksus ij bl izdkj tek dh xbZ
jkf”k ykSVk nh tk;sxhA
¼4½ lEcfU/kr vfHkys[k dh vfHkizekf.kr izfr;k¡ lfpo]
fcgkj enjlk f”k{kk cksMZ }kjk vlUrq’V O;fDr] izcU/k
lfefr dks vkosnu nsus vkSj 5 :0 ¼ik¡p :i;s½ tek
djus ds 5 fnuksa vUnj nh tk;sxhA
¼5½ oknh vkSj izfroknh dks O;fDrxr vFkok fdlh
izkf/kd`r ,tsUV ds ek/;e ls lquokbZ dk vf/kdkj gksxk
vkSj cksMZ dk vkns”k tks fdlh i{k ds foijhr gks rcrd
ikfjr ugha fd;k tk;sxk tc rd fd mUgsa lquokbZ dk
leqfpr volj iznku ugha fd;k x;k gksA”
7. Learned counsel for the petitioners on 02.04.2026
had also drawn attention of this Court to notification dated
11.08.2005, by which the State Government at that point of time
had authorized one Shri Hasan Waris, Joint Director, Secondary
Education, Bihar, Patna as the Appellate Authority in terms of
Rule-3 read with Section 28 of the ‘BME Act’. The said
notification dated 11.08.2005 is also quoted hereinbelow for
needful:
“fcgkj ljdkj] ekuo lalk/ku fodkl foHkkx]
vf/klwpuk la[;k& 10@o 1&054@2005 ek0@515 iVuk]
fnukad 11-08-2005-& fcgkj jkT; enjlk f”k{kk cksMZ] fu;a=.k
¼vihy½ fu;ekoyh] 1983 ds vuqlkj fcgkj jkT; enjlk f”k{kk
cksMZ] iVuk vFkok cksMZ ds v/;{k }kjk fn;s x;s vkns”k ls
vlaarq’V O;fDr ;k izca/k lfefr }kjk dh x;h vihy dh lquokbZ
djus dh fy, Jh glu okfjl] mi&funs”kd ¼ek- f”k-½ fcgkj]
iVuk dks izkf/kd`r fd;k tkrk gSA
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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bl laca/k esa iwoZ esa fuxZr vf/klwpuk dks fujLr
fd;k tkrk gSA”
[Emphasis Supplied]
8. Further while advancing argument, learned counsel
for the petitioners had also brought attention of this Court to an
an earlier judgment of this Court dated 21.08.2017 passed by a
co-ordinate Bench of this Court in CWJC No.19290 of 2016
wherein the impugned order of the said case was set aside
because the same person i.e. Dr. Vijay Kumar Pandey who had
acted as an Appellate Authority in the said case was held not to
be having the authority in law to act as the Appellate Authority
in terms of Rule-3 read with Section 28 of the ‘BME Act’ and
thereafter, this Court was pleased to direct the Principal
Secretary, Education Department, Government of Bihar to
notify an Appellate Authority. It is considered appropriate to
quote paragraphs-12 to 16 of the said judgment dated
21.08.2017 passed in CWJC No. 19290 of 2016, reported in
2017 (4) PLJR 592. Paragraphs 12 to 16 of the said judgment
are reproduced hereinbelow for needful:
“12. Coming to the next question,
that is, the manner in which the officer, who
has passed the impugned order, has been
authorized to function as an appellate
authority, I find some force in the submission
so made on behalf of the petitioner. Mr. P.K.
Shahi, learned Senior Counsel, submits,
while relying on Section 28 of the Act, that
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appeal can be entertained by the State
Government by operation of provisions of
Rules of Executive Business by the Secretary
of the Department. The State Government
has framed Rules under Section 27 of the
Act, laying down procedure for disposal of
appeal under Section 28 of the Act. Rule 3 of
the said Rules contemplates that a person,
aggrieved with an order of the Board, can
prefer appeal within sixty (60) days before
such officer, who has been authorized by the
State Government By notification. Mr. Shahi
is correct in his contention that the
notification, as contemplated under Rule 3 of
the Rules, means notification published in
official gazette, within the meaning of
Section 4(37) of the Bihar & Orissa General
Clauses Act, 1917.
13. The State-respondents have
brought on record the authorization in
favour of the officer, who has passed the
impugned order, which is by way. of
departmental order, dated 20.4.2015, passed
by the Director (Administration)-cum-
Additional Secretary (Annexure-A to the
counter affidavit filed on behalf of
respondent No. 3). It appears from
Annexure-A that there is no order of the
State Government, authorizing Mr. Vijay
Kumar Pandey as the Joint Director,
Secondary Education, to hear appeals under
Section 28 of the Act. Absence of notification
in official gazette is not at all in dispute.
14. In such circumstance, I am of
the view that the appointment of Mr. Vijay
Kumar Pandey, as Joint Director, Secondary
Education, has not been notified in the
official gazette, the officer, who authorized
him to function as an appellate authority, did
not have the jurisdiction to pass such order.
Mr. Shahi, learned Senior Counsel, is
correct in his submission that if any
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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statutory provision requires something to be
done in a particular manner, it should be
done in that manner alone or not at all. The
decision of the Supreme Court in case of
M/s. Beopar Sahayak (supra), upon which
reliance has been placed by Mr. Y.V. Giri,
learned Senior Counsel, representing private
respondent No. 10, is apparently
distinguishable on facts. In said decision of
M/s. Beopar Sahayak (supra), the Supreme
Court, while sustaining the plea of de facto
doctrine, was considering a case where the
officer was found to be discharging his
duties by virtue of his holding a particular
post, which post was earlier held by another
officer, who was appointed as prescribed
officer by a competent authority. This is not
the case here, An officer, namely, Director
(Administration)-cum-Additional Secretary,
who did not have the power to authorize a
person to function as an appellate authority,
authorized Mr. Vijay Kumar Pandey to act as
such. Even the officer, who authorized Mr.
Vijay Kumar Pandey, himself could not have
exercised the power of an appellate
authority in the absence of statutory
authorization by the State Government, by
publication in official gazette. The impugned
order, therefore, in my view, cannot be
sustained, having been passed by a person
not legally authorized to pass the order.
15. The impugned order is,
accordingly, set aside.
16. I direct the Principal
Secretary, Education Department, Govt. of
Bihar, to notify an appellate authority, under
Rule 3 of the Rules, for exercising power
under Section 28 of the Act, within a period
of two (2) weeks from the date of
receipt/production of a copy of this order, by
publication of notification in an official
gazette. Once an officer is authorized to
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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discharge functions of appellate authority,
under Section 28 of the Act read with Rule 3
of the Rules, the said appellate authority will
be required to consider afresh Appeal No. 14
of 2017 and Appeal No. 1 of 2013. The
appeal, aforementioned, must be disposed of
within a period of three (3) months from the
date of first appearance of the parties before
the appellate authority. This application is,
accordingly, allowed to the extent as
indicated above.”
9. While responding to the argument of learned
counsel appearing for the petitioners, on 02.04.2026, learned
counsel for the respondent-State was not in a position to submit
on that day as to whether pursuant to the aforesaid direction
passed in the above case reported in 2017 (4) PLJR 592 whether
any Appellate Authority had been notified under Rule-3 of the
Rules for exercising power under Section 28 of the ‘BME Act’
and had taken time to seek instruction on this aspect of the
matter.
10. In view of the lego factual position which has
emerged on 02.04.2026 on the basis of argument advanced by
all the parties which has been discussed in detail in previous
order dated 02.04.2026, this Court had granted two weeks’ time
to the respondent-State to take necessary instruction and to
inform this Court by filing of an affidavit as to whether after the
notification dated 11.08.2005 and also after the aforesaid
Patna High Court CWJC No.19255 of 2016(10) dt.30-04-2026
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judgment reported in 2017 (4) PLJR 592, any Appellate
Authority had been notified in terms of Rule-3 read with Section
28 of the ‘BME Act’ or not. The affidavit was directed to be
sworn by the Additional Chief Secretary of the Education
Department, Government of Bihar, Patna.
11. In compliance of the direction given vide order
dated 02.04.2026, the respondent-State has filed an affidavit in
which it has been categorically stated that as on the date i.e.
09.06.2016, Dr. Vijay Kumar Pandey was not having authority
in law to act as Appellate Authority in terms of Section 28 of
Bihar State Madarsa Education Board Act, 1981 read with Rule-
3 of the Bihar Rajay Madarsa Siksha Board Niyatran (Appeal)
Niyamawali, 1983. The respondent-State has, therefore, fairly
admitted that the impugned order dated 09.06.2016 of the Joint
Director, Secondary Education as contained in Memo No. 331
(Annexure-21) is illegal and wholly without jurisdiction for the
reasons as stated above, and therefore, the proper course would
be to set aside the order and remand the matter back to the
current Appellate Authority, who happens to be the Special
Secretary, Education Department, Government of Bihar, Patna.
12. Considering the submissions made by the parties
and taking due notice of the acceptance of the respondent-State
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that Dr. Vijay Kumar Pandey who had passed the impugned
order was not having the authority in law to act as an Appellate
Authority on 09.06.2016, the impugned order dated 09.06.2016
(Annexure-21) passed by Dr. Vijay Kumar Pandey, the then
Joint Secretary, Secondary Education is hereby quashed/set
aside and the matter is remanded back to be decided afresh by
the current Appellate Authority i.e. the Special Secretary,
Education Department, Government of Bihar, Patna.
13. It is expected that the Special Secretary, Education
Department, Government of Bihar, Patna shall decide the entire
matter within a period of six months from the date of
receipt/production of a copy of this order, after hearing all the
parties concerned.
14. The prayer of the petitioners with regard to
payment of arrears of salary as also current salary of the
employees of the Madarsa shall also be agitated by the
petitioners before the Appellate Authority along with all other
relevant issues and it is expected that the Appellate Authority
i.e. the Special Secretary, Education Department, Government
of Bihar, Patna shall expeditiously decide the matter within the
time fixed by this Court.
15. The writ application is accordingly disposed of in
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the aforesaid terms.
16. Pending interlocutory application(s), if any, shall
also be deemed to have been disposed of.
(Alok Kumar Sinha, J)
kiran/-
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