Patna High Court - Orders
The Man.Comm.Of Azad Uchcha Vi vs The State Of Bihar &Amp; Ors on 26 August, 2010
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CWJC No.9764 of 1993
MD.SHABBIR AHMAD
Versus
STATE & ORS
with
CWJC No.9727 of 2000
MD. AHMAD MUKHTAR
Versus
THE STATE OF BIHAR & ORS
with
CWJC No.2302 of 1997
THE MAN.COMM.OF AZAD UCHCHA VIDYALAYA & ORS.
Versus
THE STATE OF BIHAR & ORS
with
CWJC No.11506 of 2004
MD.SHABBIR AHMAD
Versus
THE STATE OF BIHAR & ORS
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10 26/8/2010These four writ applications hinge around one nodal question , the solution to which would primarily decide all the four writ applications. It is not in dispute that at Bishanpur in erstwhile Banka sub-division of District-Bhagalpur there existed a school known as Azad High School. It is a Muslim minority school, which was recognized as such by the State Government in the year 1965. This is not in dispute. The school is a general school conducting courses up to matriculation under Bihar School Examination Board. In 1980, the State Government decided to take over most of private managed secondary schools and enacted an ordinance in that regard which is ultimately culminated as Bihar Non Government Secondary School (Taking Over Management and Control) 1981.Section 18 of the 2 said Act deals with minority institutions. In this, the right of recognized minority institutions to manage their schools was recognized and such schools were not taken over provided the management of the school was constituted by a registered society. Thus, for enjoying the minority status and recognition as a school, it was essential in terms of Section 18 that the school be managed by a Managing Committee, which was duly registered, failing which it would lose the status of a recognized minority institution and thus consequential loss the status of a school, which could affiliate itself to any governmental institution in any manner. Section 18 further provides that so far as appointments of teachers in such minority recognized schools are concerned, the Managing Committee would be free to make appointments but it would have to seek the approval of the School Service Board ( Vidyalaya Sewa Board) . Thus, for all appointments, the sanction of the posts for appointment to the post has to be done with the approval of a statutory Board being the School Service Board. As a consequence whereof it goes that the School Service Board can only grant approval as required in respect of schools of minority, which comply with Section 18, the condition of being managed by a registered society otherwise it has no jurisdiction in the matter.
The case of the petitioner in CWJC No. 2302 of 1997 is that the school enjoined the minority status prior to 1981 Act and in 1998 the school affiliated itself to Anjuman -e- 3 Islahul Muslemin , which was a registered society since 1968. Once this affiliation was done, a Managing Committee was formed under the said society for managing this school of which Shamshuzzoha was the Secretary .It is the case of the petitioners that under aegis of the trust/society the school was managed and it functions. Government also corresponded with the Secretary of the Managing Committee all along and the School Service Board on strength of the said Managing Committee affiliated to the said society granted approval from time to time. At that time, the Principal/Headmaster of the school was Md. Sulaiman. He also filed statutory return with the State of the School Service Board showing the management affiliated to the trust/society as noted earlier. The case of the private respondent is that in 1988 the muslim public of Banka, which as per him was running the school, decided in an election to oust old Managing Committee and was installed as new Secretary. Thereafter the State authority having asked the Managing Committee to get affiliated to a registered society. A society was formed in the year 1991 and upon its registration it took over the management of the school. Subsequently, the State recognized the minority school with the said new management under the new registered society and thus started controversy. By an interim order of this Court since 1999 the old Secretary has been given charge and is carrying on the management. Thus the question is which is the management and which is the registered 4 society under which the management is functioning. The first thing that is to be noted is the period from 1981 to 1988. This is the period under the Take over Act, 1981. As noticed above, the minority school has to be recognized and mandatorily affiliated to a registered society for its management under Section 18 of the Act. State and the School Service Board records should reveal that with which society and the Managing Committee they were dealing with in this period because private respondent's case is that there is no society in the picture and it was a Managing Committee constituted by the public itself of which the petitioner was the Secretary. The stand of the petitioner is to the contrary that it was affiliated to the registered society and through that society the Managing Committee has been formed of which he was the Secretary. This issue becomes an important because if it is found , as a matter of fact, that the earlier society was there in the picture and the management of the school was through that society then there is nothing on the record to suggest that the management of the said society was ever disbanded or abandoned and it got affiliated to another society of which respondents are members. If that be the position then the respondent has no case but if it is found that during this period of 1981-1988 there was no registered society in picture, the question would be if there was no society in picture in that period then with whom the government was recognized and whom was recognized it in violation of Section 18(1) of the Act. 5
This mystery can only be solved by the State and the School Service Board, with whom all informations are available in this regard.
I, therefore, direct the State and the School Service Board, now merged in Staff Selection Commission, to place before this Court all contemporaneous records of that period being correspondences between the School, the State and the Board and also compliance of Section 18 of the Act. The entire dispute would get resolved on basis thereof because if there is mention of the first society then respondent would have no case but if there is no first mention of society between the said period, then petitioner would have no case.
Let records be placed before this Court within one month.
By using the State I mean the Sub-divisional Officer, District Superintendent of Education and District Education officer concerned. Records from all these officers have to be traced and it is not acceptable to the Court that the records are not available.
Put up these matters for further hearing on 28.9.2010.
( Navaniti Prasad Singh, J.) singh