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 26/8/2010 These 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
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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-
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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
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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.
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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