IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.12651 of 2008 MD.SHAMIR JUNG KHAN, SON OF LATE MD. SHAMSUL JUNG KHAN, RESIDENT OF VILLAGE-JUAKHER, P.S. – SHAHKUND, DISTRICT – BHAGALPUR. - ----- PETITIONER Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, VIKAS BHAWAN, PATNA. 2. PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, VIKAS BHAWAN, PATNA. 3. DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA, VIKAS BHAWAN, PATNA. 4. SPECIAL DIRECTOR, SECONDARY EDUCATION, BIHAR, PATNA, VIKAS BHAWAN, PATNA. 5. DEPUTY DIRECTOR, SECONDARY EDUCATION, BIHAR, VIKAS BHAWAN, PATNA. 6. SECRETARY, BIHAR STATE MADARSA EDUCATION BOARD, PATNA. ----------- RESPONDENTS. ----------- For the petitioner : Mr. Alim Jung Khan, Advocate. For the State : Mr. Narendra Kishore Sinha, AAG-X Mr. Md. Anis Akhtar, AC to AAG-X For the Madarsa Board : Mr. Md. Rashid Alam, Advocate. ---------- 8. 12/5/2009 Heard the parties. According to the averments made in paragraph-3 of the writ petition, the petitioner obtained permission to file an appeal as per Section 28 of the Bihar State Madarsa Education Board Act, 1981 (hereinafter referred to as the “Act”) from this Court in CWJC No. 12732 of 2004 and accordingly he preferred appeal No. 12 of 2006 and appeal No. 13 of 2006 before the Deputy Director, Secondary Education, Bihar, Patna. According to the petitioner, those appeals are still pending but now in view of Government Notification dated 5.12.2007; such appeals are required to be heard by Deputy Director, Secondary Education, - 2 - Bihar, Patna. Petitioner wants those appeals to be heard by the State Government in view of provisions in Section 28 of the Act. According to the learned counsel for the petitioner, the State Government would mean the Secretary of the concerned department and not any other Officer notified by the State Government. In view of context, the petitioner has challenged Provision for delegation of appellate power by the State Government as contained in Rule 3 of Bihar State Madarsa Education Board Control Appeal Rules 1983 (hereinafter referred to as the “Rules). The aforesaid issue is no longer res-integra and has already been settled by Judgment of this Court reported in 1995 (2) PLJR 447 (Managing Committee, Madarsa I.F. Muslemeen Vrs. State of Bihar) and 2001 (3) BLJ 83 (Abdul Azeem Haidri Vrs. State of Bihar and Others). In those cases it has been held that the State Government has the power to delegate the appellate power vested in the State Government by Section 28 of the Act through Rules framed in exercise of Rule making power given to the State Government under the Act. Hence the challenge to Rule 3 fails. On behalf of the petitioner, it was next submitted that recently through another Notification, the State Government has delegated the power of hearing appeals to the Special Director of the concerned department ignoring the fact that Special Director is also an Ex-Offiicio member of the Board. It - 3 - has been submitted that the Special Director should not have been delegated with the power of hearing and deciding appellants against decisions of the Madarsa Board of which he himself is an Ex-Officio member. It was further submitted that a similar issue was raised before this Court in the case of Md. Saleem Vrs. State of Bihar in CWJC No. 1290 of 2000 which was decided by Judgment and order dated 28.7.2005 contained in Annexure-11 to the supplementary affidavit in this case. That Judgment has held that Special Director being Ex-Officio member of Madarsa Board could not have sat over an appeal over his own decision. There is no dispute with the aforesaid issue in view of the judgment contained in Annexure-11 but on facts, there is no material on record to show that presently the power of hearing appeals stands delegated to the Special Director of the concerned department. Since the issues of law are already settled and need no discussion, the writ petition is disposed of with a direction to the petitioner to file a representation in the matter before the Secretary, Human Resources Department, Government of Bihar, who shall examine the factual situation and ensure that power to hear appeals on behalf of the State Government under the Act, is delegated to a proper authority competent to hear such appeals and not to a person who as per earlier judgment of this Court may not be competent to hear the - 4 - appeals. If, necessary, a fresh Notification may be issued by the State Government without any delay, preferably within one month from the filing of the representation. In any event, the concerned authorities of the State Government will ensure that appeals preferred by the petitioner which are said to be pending, are disposed of by a competent appellate authority at the earliest, preferably within three months from today. S. Ali (Shiva Kirti Singh, J.) (Dr. Ravi Ranjan, J.)