IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11308 of 1996 1. MANAGING COMMITTEE OF MADRASA ISLAMIA, Raghepura Nabtoli, P.S. Bisfi District Madhubani through its Secretary, Fajlur Rahman 2. Md. Mohasin, son of late Md. Hasmat 3. Md. Aquil, son of Haji Mohammad Sabir Ali 4. Md. Aaqueel, son of Md. Abid 5. Md. Jamalur Rahman, son of Fajlur Rahman Petitioner no.2 to 5 are resident of village Madhwapatti P.S. Arer District Madhubani and at present working as the Assistant Teacher, Madrasa Islamia, Raghepura Nabtoli P.S. Bisfi District Madhubani … Petitioners Versus 1. THE STATE OF BIHAR 2. The Special Director, Secretary Education, Bihar, Patna 3. Bihar State Madrasa Education Board, Sri Krishnapuri Patna through its Chairman 4. The Chairman, Bihar State Madrasa Education Board Sri Krishnapuri, Patna 5. The Secretary, Bihar State Madrasa Education Board Sri Krishnapuri, Patna 6. The District Education Officer, Madhubani 7. Abdul quader son of Farhat Hussain, resident of village Raghepura P.S. Patauna District Madhubani 8. Sohrabuddin son of Md. Jakir Hussain resident of village and P.O. Sukhpur District Saharsa 9. Farooque Ahmad son of Md. Idrish, resident of village and P.O. Jabalpur District Darbhanga 10. Md. Isa son of Md. Najmuddin, resident of village and P.O. Badrohi Jamoria District Madhubani 11. Md. Arif Hussain son of Md. Daud resident of village and P.O. Sonsay District Madhubani … Respondents. ----------- 5. 13.7.2010 Heard Mr. Vishwanath Prasad Singh, learned Senior counsel for the petitioners and the counsel for the respondent Bihar State Madarsa Education Board as also the State of Bihar and the private respondents 2 no. 7 to 11. The prayer of the petitioners in this writ application reads as follows: “This is an application for issuance of a writ in the nature of certiorari for quashing the order dated 4.9.1996 passed by the Chairman, Bihar State Madarsa Education Board in case No. 19 of 1996 “Abdul Quadeer and others vs. The Managing Committee of Madarsa Islamia Raghepura, Navtoli, District Madhubani and others” as contained in Annexure 14 by which the payment of salary of the petitioners no. 2 to 5 and others have been stopped and further direction was issued for recovery of payment made to the petitioners no. 2 to 5 and also ordered make payment to the respondents no. 7 to 11 and revoke the approval granted to petitioner no.5 and has ordered for instituting a criminal case against the Managing Committee (petitioner no.1) after holding that the Managing Committee is illegal, alongwith other directions and also for issuance of other appropriate writ, order or direction to grant the petitioners other appropriate reliefs for which they are legally entitled.” 3 It would be clear from the reading of the aforementioned prayer that the said order has been passed by the Chairman of Bihar State Madarsa Education Board (hereinafter referred to as „the Board‟). Such order is an appealable order in terms of section 28 of the Bihar Rajya Madarsa Siksha Board Adhiniyam, 1981. Mr. Singh, however, would take a plea that the petitioners at that point of time when this writ application was filed on 17.10.1996 did not choose to file the appeal, inasmuch as the same person was holding the post of Chairman of the Board who was also Special Director in the State Government, authorized to hear the appeal on behalf of the State Government. In the opinion of this Court an statutory appeal could not have been avoided by the petitioners, inasmuch as the same was not to be filed before the Special Director but before the State Government itself. Section 28 in this context reads as follows: ^^cksMZ ds vkns'k ds fo:) vihy%& cksMZ vFkok cksMZ ds v/;{k }kjk fn;s x, vkns'k ls vlarq"V dksbZ O;fDr ;k izca/k lfefr vkns'k fuxZr gksus dh frfFk ls 60¼lkB½ fnuksa ds vUnj jkT; ljdkj ds le{k vafre lquokbZ ds fy;s vihy dj ldsxkA** (underlining for emphasis) 4 Inasmuch as the statutory provision only would clearly indicate that the appeal lies before the State Government it cannot be valid defence on the part of the petitioners that the appeal was not filed because it had to be ultimately heard by the Special Director who was also holding the post of the Chairman of the Board. In fact if there was any threat to doctrine of fair play on account of hearing of the appeal before the Special Director, the petitioners could have easily brought this issue into notice of the Commissioner of the Department by pointing out that such appeal was to be disposed of by the State Govt. and not necessarily by the Special Director himself. Today such situation would not be of much relevance because the then Special Director of the State Govt. who also happened to be the Chairman of the Board is no longer in office. Moreover it is also apparent from the relief sought in this writ petition that question of genuineness of the appointment of the petitioners vis-à-vis respondents no. 7 to 11 has been raised which is purely a 5 question of fact and must be determined and decided by the final fact finding authority in terms of section 28 of the Act. Guided by these considerations this Court would give liberty to the petitioners to approach the State Govt. by filing an appeal in terms of section 28 of the Act. It is made clear that if the petitioners would file their appeal within a period of 60 days from today the appeal shall be heard by the present Special Director, to which the learned counsel for the petitioners have no objection. The Special Director, therefore, is directed to consider and decide the appeal on merits taking into account that this writ application was filed immediately after passing of the impugned order by the Chairman of the Board well within a period of 60 days and thereafter the matter has remained pending before this Court. Let it be made clear that this Court has expressed no opinion on the merits of the claim of either of the parties and therefore, it would be open for the Special Director to decide the appeal strictly in 6 accordance with law. With the aforementioned observations and directions, this application is disposed of. (Mihir Kumar Jha,J.) Surendra/