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 ==================================================== - 2 - 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 - 3 - (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 - 4 - 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 - 5 - 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 - 6 - 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 - 7 - 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. Pawan/- A.F.R. (R.M. Doshit, CJ) (Jyoti Saran, J)