CWJC No.17378 of 2008 SANSKRIT SHASTRA SANRAKSHAN MANCH, BIHAR THROUGH ITS CHAIRMAN NAMELY, DR. VIR CHANDRA RAI, S/O LATE MAHABIR RAI, R/O VILLAGE AND P.O- BATHO- P.S.-NEHRA, DISTRICT- DARBHANGA VERSUS 1. THE STATE OF BIHAR 2. THE CHIEF SECRETARY, GOVT. OF BIHAR, PATNA 3. THE COMMISSIONER CUM SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, GOVT. OF BIHAR, PATNA 4. THE SPECIAL DIRECTOR (INCHARGE SANSKRIT EDUCATION), NEW SECRETARIAT, PATNA 5. THE DEPUTY SECRETARY, GOVT. OF BIHAR, PATNA 6. THE BIHAR SANSKRIT SHIKSHA BOARD THOURGH ITS SECRETARY, EAST BORING CANAL ROAD, PATNA 7. SRI SIDHESHWAR PRASAD, CHAIRMAN, BIHAR SANSKRIT SHIKSHA BOARD, PATNA --------- For the Petitioner :- Mr. Purushottam Jha, Advocate For the State :- Mr. AAG-I For the Board :- Mr. Tej Bahadur Singh, Sr. Advocate For the Respondent No. 7 :- Mr. Kali Kant Jha, Advocate Mr. Manish Jha, Advocate -------------------------- P R E S E N T THE HON’BLE THE ACTING CHIEF JUSTICE THE HON’BLE MR. JUSTICE SHYAM KISHORE SHARMA C.K.PRASAD, ACJ & S.K. SHARMA, J. This application has been filed for issuance of a writ in the nature of quo-warranto for quashing the notification dated 15.09.2008 appointing respondent no. 7 as the Chairman of the Bihar Sanskrit Shiksha Board. According to the petitioner, respondent no. 7 is not fit to be appointed as Chairman of the Bihar Sanskrit Shiksha Board (hereinafter referred to as the Board) as he does not possess the qualification as contemplated under section 8 (1) of the Bihar Sanskrit Shiksha Board Act 1981. It has been pointed out that petitioner is neither an eminent scholar of - 2 - Sanskrit learning and education nor he was ever attached with the teaching work and imparted education in any school/college/university. According to the petitioner, a candidate shall be eligible for appointment only, if he is reputed scholar in Sanskrit learning having interest in Sanskrit education and in this connection reference has been made to Section 8 of the Bihar Sanskrit Education Board Third Ordinance 1980. It inter alia provides as follows: 8. Chairman- (1) Subject to the provision of this Ordinance, the Chairman shall be appointed by the State Government for a term not exceeding three years from the date he assumes office and on the expiration of the said term, he shall be eligible to be re-appointed for a period not exceeding three years. No person shall be eligible for appointment as a chairman, unless he holds administrative experience for not less than 10 years under the Central or the State Government or unless he holds teaching experience for not less than ten years in any University College and in the opinion of the State Government he is a reputed scholar in Sanskrit learning having interest in Sanskrit Education. (2) Other terms and conditions for appointment of the Chairman shall be such as may be determined from time to time by the State Government. It is not in dispute that, thereafter, successive Ordinances were promulgated and ultimately the Legislature enacted Bihar Sanskrit Shiksha Board Act, 1981. As the - 3 - appointment in question has been made after coming into the force of the Act, the requirement for appointment as a Chairman of the Board shall be governed by section 8 of the Act, which reads as follows : “8- v/;{k %& (1) bl vf/kfu;e ds micU/kksa ds v/;/khu jkT; ljdkj }kjk in&xzg.k dh rkjh[k ls rhu o"kksZ ls vuf/kd dkykof/k ds fy, jkT; ljdkj ds izlkn i;ZUr fu;qDr fd;k tk;sxkA bl vof/k ds volku ij og rhu o"kksZ ls vuf/kd dkykof/k ds fy, jkT; ljdkj ds izlkn i;ZUr fu;qDr fd;k tk;xkA bl vof/k ds volku ij rhu o"kksZ ds vuf/kd dkykof/k ds fy, iqu% fu;qfDr dk ik= gks ldsxkA v/;{k dk in /kkj.k djus ds fy, dksbZ O;fDr rc rd ik= u gksxk tc rd fd og dsUnzh; ;k jkT; ljdkj ds v/khu U;wure nl o"kksZ dk iz’kklfud vuqHko u j[krk gks vFkok ftls fdlh fo’ofo|ky; @ egkfo|ky; esa U;wure nl o"kksZ dk f’k{k.k vuqHko izkIr u gks vFkok tks jkT; ljdkj dh jk; esa viuh fo}rk rFkk fo|kuqjkx ds fy, fo[;kr u gksA (2) v/;{k dh fu;qfDr ds vU; ca/kst vkSj ’krZ oSlh gksaxh tks jkT; ljdkj le;&le; ij vo/kkfjr djsaA” Mr. Purushottam Jha, appearing on behalf of the petitioner submits that the respondent no. 7 is not a reputed scholar in Sanskrit education. He points out that the function of the Board is to advise the State Government on all matters - 4 - relating to Sanskrit education up to Madhyama standard and to supervise and control Sanskrit education up to Madhyama standard and hence a person having no excellence in the field of Sanskrit education shall not be eligible for appointment. Mr. AAG- 1 appears on behalf of the State. Board is represented by Mr. Tej Bahadur Singh whereas respondent no. 7 is represented by Mr. Kali Kant Jha. The submission advanced on behalf of the petitioner does not commend us. While comparing the provisions of Section 8 of the Ordinance referred to above and section 8 of the Act it is evident that the requirement of a person being a reputed scholar in Sanskrit learning having interest in Sanskrit education have been deleted and a person in the opinion of the State Government known for his learning and education is also eligible for appointment. True it is that Bihar Sanskrit Shiksha Board 3rd Ordinance 1980 (Bihar Ordinance No. 144 of 1980) require that for appointment as Chairman the candidate has to be a reputed Scholar in Sanskrit learning having interest in Sanskrit education. However, the legislature while making law has omitted those words and now a reputed scholar having interest in education shall be eligible. The Legislature has purposely, while enacting the law had omitted the requirement in Sanskrit learning having interest in Sanskrit education for appointment as Chairman. This is purposive omission and hence this Court in exercise of power of judicial review shall not read those words in the Act. - 5 - Additional Advocate General No. -1 has produced the original file in which the decision to appoint respondent no. 7 has been taken. After considering the bio data of respondent no. 7 the State Government came to the conclusion that the respondent no. 7 is fit to be appointed being a reputed scholar having interest in education. The bio data of respondent no. 7 shows that he has authored a large number of books. The books said to have been authored by the respondent no. 7 have been narrated in paragraph 17 of the counter affidavit filed by the respondent no. 6 as also paragraph 8 of the counter affidavit filed by the respondent no. 7. On the basis of the materials available, the State Government came to the conclusion that respondent no. 7 is a reputed scholar having interest in education. This opinion basically has to be formed by the State Government, and it having formed opinion, this Court in exercise its power of judicial review in the facts of the present case, shall not substitute its opinion and hold that he is not a scholar. In the result, we do not find any merit in the application and it is dismissed with cost of Rs. 5,000/- (five thousand) to be paid by the petitioner to the respondent no. 7. (Chandramauli Kr. Prasad, ACJ.) (Shyam Kishore Sharma, J.) PATNA HIGH COURT THE 11TH FEBRUARY, 2009 Avin/N.A.F.R.