1 IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.366 of 2009 KALIKA PRASAD SINGH, son of late Ram Udar Singh, presently posted as In-charge, H.M. of Anand Sanskrit High School, Mirjapur, Raj Nagar, Madhubani, resident of village Simri, P.S. Raj Nagar, District Madhubani … Petitioner- Appellant Versus 1. THE STATE OF BIHAR 2. The Chairman, Bihar Sanskrit Shiksha Board, Patna 3. The Secretary, Bihar Sanskrit Shiksha Board, Patna 4. The Principal Secretary, Human Resources Development Department, Bihar, Patna 5. The Director, Secondary Education, Govt. of Bihar, Patna … Respondents-Respondents ----------- For the Appellant: Mr. Ram Shankar Das, Adv. For the State : Mr. Rambilash Mahto, AAG8 For the Board : Mr. Awadhesh Pd.Sinha,Adv. ----------- PRESENT- THE HON’BLE THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE MIHIR KUMAR JHA O R D E R (12.5.2010) As per Mihir Kumar Jha,J. 1. Heard counsel for the parties. 2. In this intra-Court appeal the appellant- writ petitioner has assailed an order dated 2.2.2009 passed by the learned Single Judge in C.W.J.C.No. 1606/2009 dismissing the writ application of the appellant- writ petitioner as against an order dated 15.6.2002 withdrawing recognition of Anand Sanskrit High School, Mirjapur, Rajnagar, Madhubani (hereinafter referred to as ‘the School’) alongwith other 2 85 Sanskrit schools. 3. Counsel for the appellant- writ petitioner submits that the order passed by the Chairman of Bihar Sanskrit Shiksha Board dated 15.6.2002 seeking to cancel the recognition of the school alongwith other 85 schools is patently without jurisdiction, inasmuch as the Chairman of the Board has got no power to cancel recognition. In terms of section 6 of the Bihar Sanskrit Shiksha Board Act, 1981 (hereinafter referred to as ‘the Act’) the power is vested in the Board itself. He has also submitted that the subsequent confirmation by the State Government in the order dated 21.7.2008 is equally unsustainable as it seeks to confirm/ ratify an illegal order passed by the Chairman of the Board. Counsel in this context has also submitted that the school was recognized way back in the year 1960 and its recognition granted under the earlier provisions could not have been cancelled on the new parameters laid down under 1994 Rules. It is, thus, submission of the learned counsel for the petitioner that all these aspects were not gone into by the learned Single Judge who has passed the impugned order without appreciating the issues involved 3 in the connected writ petition. 4. On the other hand, learned counsel appearing on behalf of the State Government and the Board while supporting the order of the learned Single Judge have submitted that when the school did not fulfill the requirement of land and/or it did not have the attendance of the students, its recognition could not have been allowed to continue and the same was correctly cancelled/ withdrawn by the Chairman of the Board who had under section 11 of the Act an emergent power to pass an order on behalf of the Board. In this context they have also referred to the subsequent order of the State Government dated 21.7.2008 approving/ ratifying the order of the Chairman of the Board. 5. In the opinion of this Court the first and fore-most thing to be examined is with regard to jurisdiction of the Chairman of the Board in passing the impugned order as with regard to cancelling recognition of the school of the petitioner. It is not in doubt that the power of recognition to a Sanskrit school under the Bihar Sanskrit Shiksha Board Act, 1981 is vested in the Board. Section 6 reads as follows: 4 “6. Powers and functions of the Board.- (1) It shall be the duty of the Board to advise the State Government on all matters relating to Sanskrit Education up to Madhyama Standard. (2) Subject to the provision of this Ordinance and the regulations and rules made thereunder, the Board shall have the power to direct, supervise and control Sanskrit Education up to Madhyama Standard in the State and in particular have the following powers- (a) To grant recognition to Sanskrit Schools and Tols up to Madhyama Standard, with the prior approval of the State Government and within the number fixed by the State Government in accordance with such rules as may be made in this behalf; (b) To withdraw recognition of recognized Sanskrit institutions in accordance with such rules made in this behalf; … … … … …” 6. Thus, from the reading of the provisions it would be absolutely clear that either the power of recognition or withdrawal of recognition is vested in the Board and not in its Chairman. 7. The power of the Chairman of the Board is again controlled by Section 11 of the Act which reads as follows: “11. Powers and functions of the Chairman.-(1) The Chairman shall be the principal executive and academic officer of the Board and shall preside at 5 the meetings of the Board: Provided that the Chairman shall not vote at the first instance but shall have and exercise casting vote in the case of an equality of votes. (2) The Chairman, shall subject to the provision of this Ordinance and the regulation and rules made thereunder, have powers to make appointments to posts within the sanctioned grades and scales of pay and within the sanctioned strength of the ministerial staff and other servants other than teachers and officers of the Board and have control and full disciplinary powers over such staff and servants. (3) The Chairman shall have the right to visit and inspect the Sanskrit Schools and other institutions affiliated with the Board or cause such inspections to be made by such persons as may be authorized by him. (4) If at any time, except when the Board is in session, the Chairman is satisfied, that an emergency has arisen requiring him to take immediate action involving the exercise of any powers vested in the Board, by or under this Ordinance, the Chairman shall take such action as he deems fit and shall report the action taken by him to the Board in the next meeting. (5) Subject to the provisions of this Ordinance, it shall be the duty of the Chairman to see that the proceedings of the Board are carried on in accordance with the provisions of this Ordinance and the regulations and rules made thereunder and the Chairman shall report to the State Government every such proceeding which is not in conformity with such provisions. Till such time as the orders of the State Government are not received on the report 6 of the Chairman, the Chairman shall have the powers to stay the proceeding reported against. (6) The Chairman shall exercise other powers and perform such other duties as are conferred or imposed on him by this Ordinance, the regulations and rules made thereunder.” 8. From the conjoint reading of the provisions of Section 6 and 11 it thus becomes clear that the Chairman of the Board is only the Principal Executive and academic officer of the Board and cannot exercise the power of the Board all by himself except in an emergent situation and that too its immediate approval in the next meeting of the Board. The scope of section 11(4) of the Act and emergent power of the Chairman of the Board has in fact been gone into by the Division Bench of this Court in the case of Sri Ram Nihore Pandey vs. State of Bihar & ors., reported in 1993(2) PLJR 469. 9. Thus, on the face of record when the Chairman of the Board had passed the order of withdrawing/ cancelling recognition of the school of the petitioner, the same being impermissible in terms of section 6(2) of the Act has to be held to be bad on this ground alone. 7 10. It is also well settled that if any action is without jurisdiction or is void the same cannot be ratified so as to give life to a dead action/ order. Consequently the order passed by the Deputy Secretary of the State Government under Memo No. 807 dated 21st July, 2008 seeking to approve the order of the Chairman of the Board dated 15.6.2002 as with regard to cancellation/ withdrawal of recognition of 86 schools including the school of the petitioner is equally bad. 11. Normally having held that the order of cancellation/ withdrawal of recognition of the school of the petitioner was without jurisdiction, this Court would have left the matter over there but then as the learned Single Judge has gone to examine the grounds of cancellation/ withdrawal of recognition of the school of the petitioner, this Court must advert to those aspects as well. 12. The history of Sanskrit school in the State of Bihar has a glorious past; inasmuch as right from the 1st Government Order No. 2077-E dated 29th November, 1915 issued by the Education Department it can be found that the recognition of Sanskrit Education 8 and Sanskrit Examination has always engaged the attention of the Government. In this regard one may usefully refer to Resolution No. 4124 dated 11th August, 1956 issued by the Govt. of Bihar in the Education Department as with regard to constitution, nature and function of the Bihar Sanskrit Siksha Association, which was the first controlling body of the State Government for regulating Sanskrit Education and Examination. 13. The school in question in fact has got recognition of Bihar Sanskrit Siksha Association in the year 1960 and at that point of time the following provisions had governed the field: “Rules regulating Sanskrit Institutions and Administrative Organization of Sanskrit Education (1) Scope of the Bihar Sanskrit Association- (1) The Bihar Sanskrit Association is concerned with Sanskrit Education at all stages except research and Post-Graduate Studies and with Sanskrit examination in various subjects. It also aims at promoting exchange of ideas and thought among Sanskrit scholars through such functions as Shastra Vichar, Seminars, etc. It may also organize teachers’ training programmes, Seminars etc., with the approval of the State Government. It is an affiliating and examining body and it has no teaching institution of its own. The teaching is imparted by Sanskrit institutions recognized and controlled by it. (2) Institutions for studies in Sanskrit will be of 9 three categories, corresponding to the three stages of Sanskrit Education, Primary, Secondary and Higher known as (i) Sanskrit Pathasshalas (Sanskrit Primary Schools), (ii) Sanskrit Vidyalayas including those in which a modernized syllabus is introduced (Sanskrit high schools), (iii) Sanskrit Mahavidyalaya including those in which a modernized syllabus is introduced (Sanskrit colleges). It will be the endeavour of the Association to introduce the modernized syllabus in as many institutions as possible depending upon the availability of funds and feasibility of the programme. But the existing Sanskrit institutions of the old type will continue to be recognized so long as they work efficiently. (3) The Mithila Institute of Post-Graduate studies and Research in Sanskrit Learning, Darbhanga, the Nalanda Institute of Post-Graduate Studies and Research in Pali and the Institute of Post-Graduate Studies and Research in Prakrit and Jain learning are not part of or under the Sanskrit Association but they will work in close co-operation with the Association.” 14. From the said rules and also Rule 15 laying down as follows: “15. Recognition of Sanskrit institution and award of grant-in-aid- The following are the rules and conditions governing the grants of recognition, award or grant-in-aid, etc. A. Recognition of Sanskrit Institutions.-(i) No Sanskrit institution shall be considered eligible for presenting candidates at any examination of the Sanskrit Association as regular students thereof unless it has been recognized by the Association. 10 (ii) No Sanskrit institution seeking recognition shall submit an application for the same in a prescribed form to the Secretary of the Association through the Deputy Inspector of Schools concerned in the case of a Pathshala and the District Inspector of Schools in the case of a Vidyalaya or Mahavidyalaya. The application should reach the Secretary latest by the end of January every year. The application shall be for a particular standard in a particular subject or subjects. General condition of Recognition.- In order to be recognized, a Sanskrit institution must fulfil the following conditions:- (i) that it maintains properly all registers required by the department for the purpose of both inspection and auditing; (ii) that it makes necessary arrangements for the efficient teaching of the subjects up to the standard for which it seeks recognition or has been recognized; (iii) that it has qualified and competent teachers of the requisite number on its staff; (iv) that it is housed in a suitable building of its own, which is free objections on sanitary grounds and affords sufficient accommodation; (v) that in case it has no building of its own, the management provides a satisfactory building of its own within a reasonable period of time; (vi) that the teachers are paid regularly, according to the prescribed scales of salaries; (vii) that the institution maintains a library, befitting its status and standard of teaching; (viii) that it is open to inspection by the officers and by other authorized inspecting officers of the 11 Education Department; (ix) that it puts in at least five hours of sustaining in teaching and tutorials, etc., every working day. Special conditions of recognition, in addition to conditions laid down above.- I. An institution shall be recognized as the Sanskrit Mahavidyalaya on the fulfillment of the following conditions:- (i) that the institution imparts higher instruction in more than one subject to students preparing for Shastri and Acharya examinations; (ii) that it has a minimum of five teachers on its staff, all of whom must be at least second class Acharyas; (iii) that it provides for a hostel, a play-ground, a common-room and a teachers common-room; (iv) that in case it is a non-Government institution, it has a reserve fund of at least Rs. 5000 in each in a public account or in the form of a property, or security, yielding an annual income of not less than Rs.500; (v) that it possesses a library having books worth Rs. 2000. II. A Sanskrit institution shall be recognized as a Sanskrit Vidyalaya on the fulfillment of the following special conditions:- (i) that the institution imparts instruction up to the Madhyama standard in subjects, prescribed for the examination; (ii) that it has at least three teachers on its staff, all of whom must be at least a second class Shastri; (iii) that it has necessary equipments including a library containing books worth Rs. 1000 at least, all the text-books and important reference books and periodicals; (iv) that in case it is a non-Government institution, it 12 has a reserve fund of at least Rs. 1000 in cash or a property yielding as annual income of not less than Rs. 250.” it would be absolutely clear that there was no requirement of having land as a part of condition of grant of recognition to the school in question which was already a recognized institution of the year 1960 as also shown in the Bihar Gazette dated 27th June, 1962. For the category of the school of the petitioner, therefore, the requirement of the land and absence thereof could not have been made the ground for withdrawal/ cancellation of recognition as has been noticed by the learned Single Judge, inasmuch as at that point of time the Sanskrit schools could even have the recognition without having a building of its own. None-the-less it has to be recorded herein that the inspecting team has found existence of full-fledged building of the school and about the land its adverse inference is also ignorance of the fact that the land donated to the school were made subject matter of the ceiling proceeding and were only subjudice. However, in view of the resolution of the State Government laying down the terms and conditions of the recognition of the year 1956 and the recognition given to 13 the petitioner in the year 1960, there being no requirement for having land registered in the name of the school that could not have been made a ground for cancelling/ withdrawal of recognition of the school. 15. As a matter of fact after the resolution dated 11th August, 1956 the next Government instruction as with regard to norms of fulfillment of the terms and conditions of grant of recognition can be found only by a notification No. 2291 dated 18th October, 1976 wherein for the first time the requirement of land of minimum 2 kathas in the rural area and 1 katha in the urban area for primary school with two room building for a primary school, 5 kathas of land in rural area and 2 kathas of land in ruban area in the name of the school along with four room building for the middle school and 1 bigha of land in rural area and 10 kathas of land in urban area along with six room building for the High School was prescribed alongwith other requirements. It is, however, absolutely clear that these conditions of recognition laid down in the Government resolution dated 18th October, 1976 could have been made applicable only for Sanskrit schools which came to be established after 18.10.1976 14 and were to be recognized on the basis of the aforementioned resolution dated 18.10.1976. 16. The picture will not be complete if this Court does not take into notice the Rules framed by the State Government, Bihar Arajkiyay Sanskrit Vidyalaya Niyamawali, 1993 framed under section 22 of the Act, wherein one of the requirements for grant of recognition was 15 decimals of land in rural area and 6 decimals of land in urban area for primary school, 13 decimals of land in rural area and 15 decimals of land in urban area for middle school and 1 acre of land in rural area and 45 decimals of land in urban area for a High School. Again the said requirement of land and building or other conditions laid down in 1993 Rules which came into force on 18.6.1994 could not have been given a retrospective operation and as such, this Court must hold that the cancellation/ withdrawal of recognition of the school of the petitioner on the ground of non-availability of land could not have been made a ground for cancellation of recognition. 17. Coming to the next aspect as with regard to number of students this Court would hold that in 15 absence of any particular details that again could not have been made the ground for cancelling/ withdrawing of recognition of the school. In this context reference may also be made to an order dated 24.3.2006 in C.W.J.C.No. 5133/2003, Tejdhari Nandan Sanskrit vs. State & ors., wherein the learned Single Judge of this Court noticing the ground of cancellation/ withdrawal of recognition on the basis of presence of number of students in the school had recorded as follows” “By the impugned order, Annexure 7, recognition of the many schools including that of the petitioner’s school was cancelled on the ground that on the date of inspection students as were present were less than 70 per cent. There is no dispute that 124 students were registered with the petitioner’s school on the date of inspection and 72 of them attended the school. Accordingly, it may be possible that 70 per cent of the students attended the school on the date of the inspection but that cannot be reason for cancellation of the recognition of the petitioner’s school. In the matter of absence of the students on a particular date the school cannot be blamed. For non-attendance of 30 per cent students on the particular date the school cannot be blamed. Therefore, it cannot be a ground for cancellation of recognition of the petitioner’s school. In those circumstances in so far as impugned decision, being Annexure 7 to the writ petition, deals with cancellation of the recognition of the 16 petitioner’s school, the same is quashed.” 18. Counsel for the appellant- writ petitioner has brought to the notice of this Court that the order dated 24.3.2006 in C.W.J.C.No. 5133/2003 has been given effect to by the Board by issuing the consequential order No. 6268 dated 18.9.2007 after the matter was placed in the meeting of the Board on 24.4.2007. 19. The ratio of the judgment of this Court in the case of Tejdhari Nandan Sanskrit (supra) so far it relates to cancellation on the ground of number of students would also be squarely applicable to the face of the appellant- writ petitioner. 20. In that view of the matter, this Court while allowing the appeal and setting aside the order of the learned Single Judge would quash the order of cancellation/ withdrawal of recognition of the school of the petitioner, namely, Anand Sanskrit Uchchya Vidhyalaya, Mirjapur, Raj Nagar, Madhubani. 21. There would be, however, no order as to costs. (Dipak Misra,C.J.) (Mihir Kumar Jha,J.) Patna High Court The 12th May, 2010/Surendra. 17