IN THE HIGH COURT OF JUDICATURE AT PATNA
LETTERS PATENT APPEAL No.294 of 2011
IN
C. REV. No. 10 of 2011
IN
CIVIL WRIT JURISDICTION CASE No. 13130 of 2009
WITH
INTERLOCUTORY APPLICATION No. 1443 of 2011
IN
LETTERS PATENT APPEAL No.294 of 2011
====================================================
Bhim Rao Ambedkar College, Nawada through its Secretary, Naresh Prasad,
S/o Sri Ramjee Prasad, resident of Sohpur, Nawada, P.S.:Nawada, District-
Nawada.
.... .... Petitioner/Respondent/ Appellant
Versus
1. The Secretary, Bihar School Examination Board, Budh Marg, Patna.
.... .... Respondent/Petitioner/Respondent
2. The State of Bihar through the Principal Secretary, Human Resources
Department, Government of Bihar, New Secretariat, Patna.
3. The Director, Higher Education, Human Resources Department,
Secondary Education, Government of Bihar, Patna.
.... .... Respondents/Respondents/Respondents
====================================================
WITH
LETTERS PATENT APPEAL No.296 of 2011
IN
C. REV. No. 11 of 2011
IN
CIVIL WRIT JURISDICTION CASE No. 17389 of 2010
WITH
INTERLOCUTORY APPLICATION No. 1444 of 2011
IN
LETTERS PATENT APPEAL No.296 of 2011
====================================================
Bhim Rao Ambedkar College, Nawada through its Secretary, Naresh Prasad,
S/o Sri Ramjee Prasad, resident of Sohpur, Nawada, P.S.:Nawada, District-
Nawada.
.... .... Petitioner/Respondent/ Appellant
Versus
1. The Secretary, Bihar School Examination Board, Budh Marg, Patna.
2. The Chairman, Bihar School Examination Board, Budh Marg, Patna.
.... .... Respondent/Petitioner/Respondent
3. The State of Bihar through the Principal Secretary, Human Resources
Department, Government of Bihar, New Secretariat, Patna.
4. The Director, Higher Education, Human Resources Department,
Secondary Education, Government of Bihar, Patna.
.... .... Respondents/Respondents/Respondents
====================================================
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Appearance:
(In LPA No.294 of 2011)
For the Appellant: Mr. Y.V. Giri, Senior Advocate with
Mr. Deepak Sahay Jamuar, Advocate
For the Respondent State: Mr. Prahlad Kr. Bhagat, G.P.-13 with
Mr. Binay Kumar, A.C. to G.P.-13
For the Respondent Board: Mr. Lalit Kishore, Senior Advocate with
Mr. Satyabir Bharti, Advocate
(In LPA No.296 of 2011)
For the Appellants: Mr. Y.V. Giri, Senior Advocate with
Mr. Deepak Sahay Jamuar, Advocate
For the Respondent State: Mr. Y. P. Sinha, AAG-15 with
Mr. Razeen Kumar Sinha, A.C. to AAG-15
For the Respondent Board: Mr. Lalit Kishore, Senior Advocate with
Mr. Satyabir Bharti, Advocate
====================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE JYOTI SARAN
ORAL ORDER
(Per: HONOURABLE THE CHIEF JUSTICE)
3. 28.2.2011. With the consent of the learned Advocates
these Appeals are decided by this common order.
These two Appeals preferred under Clause
10 of the Letters Patent arise from the common judgment
and order dated 19th January 2011 passed by the learned
single Judge in Civil Review Nos. 10 of 2011 and 11 of
2011 and C.W.J.C. Nos. 13130 of 2009 and 17389 of
2010.
The appellant in both these appeals is Bhim
Rao Ambedkar College, Nawada. The appellant is
running an Intermediate School comprising standards XI
and XII since the year 1991. In the year 1999 or
thereabout the appellant approached the Bihar
Intermediate Education Council (hereinafter referred to
as “the Council”) established under Section 3 of the
Bihar Intermediate Education Council Act, 1992
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(hereinafter referred to as “the Act of 1992”) for
approval/recognition under the Act of 1992. As the said
applications were not processed the appellant approached
this court in above C.W.J.C. No. 13130 of 2009 for
direction to the Council to grant recognition to the
appellant.
By order dated 12th October 2009 made by
this Court (Coram : Navin Sinha, J.) the appellant was
directed to apply afresh in accordance with the required
standards without paying fees afresh and the Council was
directed to take a decision afresh within a maximum
period of six months. As the said direction was not
carried out the appellant once again approached this
Court in above C.W.J.C. No. 17389 of 2010. The
appellant also prayed for issuance of examination forms
(OMR forms) to its students. By order dated 23rd
November 2010 the learned single Judge directed; “…if
the inspection has been carried out for purposes of
recognition on 3.5.2010, as is contended on behalf of
the petitioner, let the respondents take all necessary
steps to conclude the issue of recognition preferably
within a maximum period of three months…..”. Since
the aforesaid order the respondent Bihar School
Examination Board (hereinafter referred to as “the
Board”) approached the learned single Judge in Civil
Review Nos. 10 of 2011 and 11 of 2011 for recall of the
above referred orders dated 12th October 2009 and 23rd
November 2010.
According to the Board, in view of the
prevailing statutory position the exercise to accord
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recognition to the appellant cannot be undertaken by the
Board. The learned single Judge has, by the impugned
judgment and order, considered the prevailing law and
allowed the review applications to recall the above
referred orders dated 12th October 2009 and 23rd
November 2010 and has dismissed the writ petitions.
Therefore, the present appeals.
The facts stated above are not in dispute. The
only question that arises for our consideration is whether
the appellant has a right to recognition by the Board in
view of the prevalent statutory provisions.
The Act of 1992, inter alia, governs the
establishment of the Intermediate School education
[standards XI and XII referred to as (+2)] imparted in the
State of Bihar. Section 3 of the Act of 1992 provides for
the establishment of the Council known as “the Bihar
Intermediate Education Council”.
Section 2 (i) thereof defined “Intermediate
Education” to mean “the education of (+2) standard
imparted according to the Intermediate syllabus in
the subjects and up to the standard prescribed by the
State Government from time to time, and it includes
(+2) or the post 10th standard and the pre-degree
(three years) standard education of two years
duration imparted in secondary schools.”
Section 41 of the Act of 1992 envisaged
establishment of the Intermediate Schools with prior
approval of the Council. Sub-Section (4) thereof
debarred the intermediate schools not recognized by the
Council from sending-up students in the examination
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conducted by the Council. Sub-section (6) thereof
provided for recognition of Intermediate School. Thus, it
is apparent that under the Act of 1992 no institution was
permitted to impart +2 education unless it had the prior
approval of the Council and it was recognized by the
Council. Indisputably, the appellant neither had prior
approval nor was it recognized under the Act of 1992. In
the year 2007, the State Government enacted the Bihar
Intermediate Education Council (Repeal) Act, 2007 (Act
17 of 2007) (hereinafter referred to as “The Repeal
Act”). Under the Repeal Act, the Act of 1992 was
repealed. However, under Section 7 of the Repeal Act
the acts done or actions taken in exercise of powers
conferred by or under the Act of 1992 have been saved.
Simultaneously, the State of Bihar enacted
the Bihar School Examination Board (Amendment) Act,
2007 (hereinafter referred to as “the Act of 2007”) to
amend the Bihar School Examination Board Act, 1952.
By the said amendment two definitions have been added
in the Act of 1952. The term “Secondary School” is
defined to mean, “a school imparting education of
courses up to grade 10 as prescribed by the Board”
and the term “Senior Secondary School” is defined to
mean, “a school imparting education of courses up to
grade 12 as prescribed by the Board, and includes
institutions of Intermediate (+2) Education, duly
recognized under Section 39 of the Bihar
Intermediate Education Council Act, 1992”.
A conjoint reading of the Act of 1992 and
the Act of 2007 discloses the legislative intention to
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recognize only those institutions which impart education
from the grades 1 to 10 or from the grades 1 to 12. In
other words, the legislative intention is not to allow the
institutions to impart (+2) education alone i.e. only
standards XI and XII, unless such institution was already
recognized under the Act of 1992.
It is an admitted fact that the appellant did
not receive recognition under the Act of 1992 until it was
repealed in the year 2007 by the Repeal Act. It is also not
in dispute that the appellant imparts (+2) education i.e.
standards XI and XII alone and it does not impart
education from standards 1 to 10. The appellant is,
therefore, not a “Senior Secondary School” within the
meaning of the Act of 1952 as amended by the Act of
2007. Consequently, the appellant is neither recognized
under the Act of 1992 nor can it be recognized under the
Act of 1952.
These statutory provisions were not brought
to the notice of the learned single Judge earlier when the
above referred orders were made on 12th October 2009
and 23rd November 2010. In view of the aforesaid
statutory position the learned single Judge has recalled
the earlier orders made on 12th October 2009 and 23rd
November 2010 and has dismissed the writ petitions.
Learned Counsel Mr. Y.V. Giri has appeared
for the appellant. He has emphatically relied upon
Section 7 of the Repeal Act. He has submitted that
anything done or any action taken under the Act of 1992
has been saved by the aforesaid Section 7 of the Repeal
Act. In that view of the matter, the appellant having
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made application for recognition and having paid fees for
inspection; the inspection having been carried out on 3rd
May 2010 by the Sub Divisional Officer, Nawada, the
action under the Act of 1992 has been taken; it must be
held to have been saved as aforesaid.
We are afraid, we are unable to agree with
Mr. Giri. Anything done or action taken under the Act of
1992 should necessarily mean an action taken or an act
done by an officer empowered to take such action or to
do such act under the provisions of the Act of 1992. We
do not need elaborate discussion to hold that mere
making an application for recognition under the Act of
1992 or payment of inspection fee would not enjoin the
authority to continue to operate the Act of 1992 to accord
recognition to the appellant. The inspection carried out
by the Sub Divisional Officer on 3rd May 2010, long
after the repeal of the Act of 1992, is of no consequence.
In our view, the learned single Judge has
rightly considered the statutory provisions to recall the
earlier orders made on 12th October 2009 and 23rd
November 2010 and to dismiss the writ petitions.
No case for interference is made out. The
Appeals are dismissed in limine.
Interlocutory Applications stand disposed of.
(R.M. Doshit, CJ)
(Jyoti Saran, J)
Pawan/-
A.F.R.