IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8395 of 1996 1. THE MANanging .COMMittee OF MADARSA BAHRUL Oloom Mohania No. 836 Through its Secretary Md. Sajjad Hussain, resident of village Mohania, P.O. and P.S. Palasi via Madanpur District Araria. 2. Md. Abul Kalam son of Sheikh Imtiyaz Ali. 3. Md. Qurban Ali son of Sheikh Saghir Uddin, Both residents of village Mohania, P. O. and P S. Palasi, via Madanpur District Araria. …. Petitioners. Versus 1. THE STATE OF BIHAR 2. The Special Director Secondary Education new Secretariat, Patna. 3. The Bihar State Madarsa Education Board through its Chairman. 4. The Secretary Bihar Madarsa Education Board, Patna. 5. Md. Qasim son of not known resident of village Barhat, P.O. and P.S. Palasi, via Madanpur, District Araria. 6. Md. Anwar son of late Md. Bashiruddin resident of village Tangtangi P.S. Bahadurganj P.O. Baignahat, District Kishanganj .. Respondents. With CWJC No.2748 of 2004 1. MD.QURBAN ALI son of late Sheikh Saghiruddin 2. Md. Abul Kalam son late Sheikh Imtiaz Ali, both assistant teachers of Madarsa Bahrul Uloom at MOhania, P.S. Palasi, District Araria village- Mohania, P O. and P S. Palasi District Araria. 3. The Managing Committee of Madarsa Bahrul Uloom Mohania Madarsa No. 836 P O & P. S. Palasi District Araria- through its Secretary Md. Sajjad Hussain s/o Sheikh Imtiaz Ali of village- Mohania P.S. Palasi, District Araria. … Petitioners. Versus 1. THE STATE OF BIHAR 2. The Special Director Secondary Education New Secretariat, Patna. 3. The Chairman, Bihar State Madarsa Education Board Vidyapati Marg, Patna- 1. 4. The secretary, Bihar State Madarsa Education Board Vidyapati Marg, Patna- 1. 5. The District Education Officer, Araria 2 6. Md. Ghulam Amir Hemza s/o late Sheikh Moharram Ali 7. Md. Salahuddin s/o Md. Tahir Hussain 8. Md. Haroon Rashid s/o late Haji Habibur Rahman All of village- Mohania P.O and P.S. Palasi District Araria. 9. Md. Mushtaque Alam s/o Shamsuddin, resident of village Machhela P O- Kelabari, P S. Mahalgain Distrit Araria. 10. Md. Qasim s/o not known resident of village Barhat P O & P S. Palasi, District Araria. … Respondents. ----------- 7. 01.07.2010 Heard Mr. Shabbir Ahmad, learned counsel for the petitioners and MD. Rashid Alam, counsel for the Bihar State Madarsa Board (hereinafter referred to as „the Board‟). The prayer of the petitioner in the first writ petition, CWJC No. 8395 of 1996 reads as follows: “(a) For issuance of an appropriate writ for quashing the order dated 11.7.1996 passed in Appeal No.19/1984 by respondent no. 2 as contained in Annexure-8. (b) For issuance of an appropriate writ for quashing the order dated 12.7.84 of the Secretary Bihar State Madarsa Education Board duly approved by the Chairman Bihar State Madarsa Education Board by his order dated 7.8.84 as contained in Annexure-5. (c) For permanently restraining the respondents from interfering with the power and function of the petitioner no. 1 to run the affairs of Madarsa in question. (d) for permanently restraining the respondents from interfering with the services of the 3 petitioner no. 2 and 3 as assistant teachers of Madarsa in question.” It has to be noted that the petitioner nos. 2 and 3 of the first writ petition, CWJC No. 8395 of 1996 have also filed another writ petition, CWJC No. 2748 of 2004 wherein their prayer reads as follows:- “(a) For issuance of a writ of certiorari for quashing the order of Madarsa Board as contained in Annexure-6. (b) For issuance of a writ of certiorari for quashing the order of special Director Secondary Education as contained in Annexure-7” Inasmuch as the fate and future of the second writ petition would be solely dependent on the outcome of the first writ petition, CWJC No. 8395 of 1996, on the request of the learned counsel for the petitioners and there being no objection on behalf of the learned counsel for the Board, both the cases have been heard together and are being disposed of by this common order. The impugned order as contained in Annexure- 5, the communication of the Secretary of the Board dated 16.8.1984 is in three parts, namely; (i) declaration of one Md. Bashiruddin as 4 Head Maulavi of Madarsa Bahrul Oloom, Mohania No. 836 (hereinafter referred to as „the Madarsa‟). (ii) declaring the appointment of petitioner nos. 2 and 3 on the post of Alim and Maulavi respectively as illegal and hence to be not treated as teachers against sanctioned posts of Alim in Madarsa with effect from 7.8.84. (iii) a direction to the District Education Officer for constituting a new managing committee by holding a meeting of local public in terms of sub-Section 2(N) of Section 7 of the Bihar State Madrasa Education Board Act (hereinafter referred to as the „Act‟) dated 16.8.1984 on appeal before the State Government as also affirmed by the Special Director Secondary Education dated 11.7.1996 (Annexure-8). At the outset Mr Ahmad, learned counsel for the petitioner would submit that in view of the death of Md. Bashiruddin on 12.2.1994, the issue with regard to Head Maulavi as decided by the Board and affirmed by the appellate authority would require no adjudication inasmuch as the matter has now become academic. As with regard to the direction of constitution 5 of Managing Committee in the impugned order passed by the Secretary to the Board this Court is of the view that such order cannot now be given effect to inasmuch as a Managing Committee has to be constituted every three years and therefore Madarsa Education Board would be at liberty to get new managing committee constituted in terms of the provision made under the Act after expiry of the term of the present Managing Committee. Thus, reverting to the sole question left relating to the validity of the appointment of the petitioners no. 2 and 3 vis a vis respondent no. 5 this Court has to strictly go by the norms as prescribed by the Board. It is not in doubt that the Government in the year 1980 had laid down the norms for reorganization of Madarsa and the Madarsa in question of the petitioners also is one recognized in terms of said Government decision followed by the order of the Board. Let it be noted, Madarsas are not government institutions and therefore the private managing committee can appoint any person but the payment of salary as per the government pay-scale can only be given to the persons whose appointment is found to be valid. 6 The Board in this regard has recorded a finding which has been affirmed by the appellate authority that though the date of appointment of the petitioners no. 2 and 3 was shown in the school as 2.1.1970 and 21.1.1970, they actually came to acquire their qualification of Alim and Maulavi examination in 1976 and 1977 only and that too from a private Madarsa of Laheriasarai. Counsel for the Board has informed that such qualification acquired from any private Madarsa is not recognized by the Board for the purpose of granting approval to the service of teachers and consequential payment of salary. In that view of the matter, this Court would not find any error in the following finding recorded by the appellate authority, Special Director, Secondary Education, Bihar Patna as with regard to validity of the appointment of the petitioners no. 2 and 3 vis a vis respondent no. 5. “13. I carefully examined all aforementioned points raised by the parties and materials on record. The appellants admitted that Abdul Kalam and Md. Qurban Ali appellant no. 2 and 3 respectively were appointed on the post of Alim and Maulvi on 2.1.70 and 21.1.70 respectively and they passed Alim and Maulvi examination in 1976 and 1977 from a private Madarsa …. 7 Laheriasarai. From this fact it is cleared that in 1970 they were not qualified for the post in question. The other aspect of the matter which came before me that the enquiry was made by the Assistant Secretary as well as the Secretary of the Board and both found that the resignation of Md. Bashiruddin is forge and Md. Quasim was duly appointed by the Managing Committee having requisite qualification of Fazil from Darululoom Deoband. The certificates of Abul Kalam and Md. Qurban Ali are doubtful which seem to be forged. The members of the managing committee did not support the appellants and it appeared from their statements also that Abul Kalam appellant no. 2 and Md. Qurban Ali appellant no. 3 are brother and cousin of the Secretary of the said Madarsa and to save their illegal appointment this appeal was filed on behalf of the Managing Committee, although the managing committee did not resolve to file appeal. In such circumstances, the appellant no. 1 has not right to file the appeal. 14. A detail order dated 12.7.84 after giving the full opportunity to the parties concerned passed by the Secretary of the Board and in this order every matter was discussed which was approved by the Chairman of the Board by his order dated 16.8.84. I do not find nullity in the order dated 16.8.84 as well as 12.7.1984. 15. For the reasons discussed herein above, I find that Md. Quasim respondent no. 4 was duly appointed teacher of the Madarsa Baharululoom, Mohania (Purnea) and is working on the sanctioned post of Alim and he is entitled to get his salary of Alim post. Salary must be paid to him and dues salary also. Md. Bashiruddin 8 respondent no. 3 who died on 12.2.94 during his service was Head Maulvi of the said Madarsa till his death. So all dues amounts of his salary be paid to his widow or his legal heirs without any delay.” Mr. Ahmad, however would submit that in the year 1970 when the Madarsa was established there was no government guideline requiring the qualification for the posts of teachers in such private Madarsa and therefore the petitioners no. 2 and 3 even if they had been appointed without acquiring such qualification, the subsequent refusal of their approval of their appointment by the Board by which time they had already acquired such qualification has to be held as bad. In the opinion of this Court, first of all, there is no averment in the writ petition as with regard to such autonomy to the Managing Committee of a recognized Madarsa for making appointment of any person who had held no qualification required for the posts of teacher in Madarsa. Madarsa education is a specialized education and therefore the persons holding post of teachers in such Madarsa must have the qualification for the post from the date of their first appointment. That apart, once the issue 9 of approval of the Board, for the purpose of payment of salary to the teachers of private recognized Madarsa receiving aid from the Government will have to be adjudicated, the power and jurisdiction of the regulatory controlling authority i.e. the Board to the extent of laying down norms including qualification will have to be strictly also followed by recognized Madarsa. The Apex Court has itself laid down that if any minority institution or any other private institution would seek government financial aid by way of grant of fund from the Government, it has to follow the prescribed norms fixed by the State and to that extent there would be no curtailment of autonomy of such minority institution in terms of Articles 29 and 30 of the Constitution. Thus, this Court would find that when the petitioners had not even obtained their basic qualification for the post of teachers even after 6 to 7 years of their appointment in Madarsa recognized by the Board, their plea of having acquired qualification subsequently from some private Madarsa in Laheriasarai, not recognized by the Board, cannot be sustained for upholding their appointment as teachers for the purposes of getting 10 approval from the Board or receiving payment from the funds of the Government through the Board. The petitioners themselves claim that they had received their salary from the Madarsa for a period of 10 years through public donation and contribution and therefore if the Managing Committee can choose to pay them such salary from any other sources including public donation, the authority of the Board or the State Government can have no objection but the moment, the petitioners claim release of fund for their salary from the funds of the Government, they must strictly abide by the norms fixed by the Government and regulated by the Board. That being so, this Court would find no error in the order either disapproving service of petitioner nos. 2 and 3 or approving services of respondent no. 5 about whom there is a finding of fact recorded by the both the authorities, namely, Board as well as the Special Director that he had passed his examination well before his appointment and his appointment was made by the duly constituted managing committee in the prescribed manner. This Court, therefore would also uphold such finding 11 recorded by the appellate authority in paragraph 15 of the impugned appellate order as quoted above in respect of respondent no. 5. Consequently, the first writ petition, CWJC No. 8395 of 1996, for the reasoned indicated above, must fail and is, accordingly, dismissed. Reverting to the second writ petition, CWJC No. 2748 of 2004, this Court would find that the two orders assailed by the petitioners, dated 4.12.2002 passed by the Chairman of the Board and 19.1.2004 passed by the Special Director, Secondary Education, were in terms of a direction given by this Court in CWJC No. 1066 of 2001 and therein all that has been done is that the District Education Officer after holding enquiry had found that Md. Ghulam Amir Hamiza, Head Maulvi, Md. Salahuddin, Md. Mustaque Alam, Md. Quasim, and Md. Haroon Rashid were the genuine teachers of the Madarsa. Thus, the direction for payment or release of salary to such approved and validly appointed teachers cannot be questioned by the petitioner nos. 1 and 2 of this case inasmuch as their case has already been rejected by the Board at earlier point of time and their appointments 12 did not receive approval and such finding of the Board also was affirmed by the appellate authority which having been being made subject matter of the first writ petition, CWJC No. 8395 of 1996 also stood affirmed by its dismissal by this Court. Thus, there would be nothing now left for the petitioner nos. 1 and 2 of this case who are petitioners no. 2 and 3 in CWJC No. 8395 of 1996 to contend as with regard to any illegality in the impugned order assailed in this second writ petition. Such order with regard to recognition and approval and payment of salary to the duly appointed teachers was in fact sought to be assailed by Mr. Ahmad, learned counsel for the petitioners only on the ground since the posts were filled up during the pendency of the first writ petition, the petitioners could not got substantial relief if their appointment were not cancelled. In view of the fact that this Court has not found any merit in the first writ petition itself, the challenge made by them to the appointment and approval of other teachers of the school in the second writ petition, must fail. That being so, second writ petition No. 2748 of 2004, is also without any substance and merit, and is, 13 accordingly, dismissed. In the result, both the writ petitions are dismissed. There would be, however, no order as to costs. kanchan (Mihir Kumar Jha, J.)