Section 28 Bihar State Madarsa Education Board Act | Official Gazette Notification Mandatory for Appellate Authority Jurisdiction : Patna HC

The Patna High Court has reaffirmed that an appellate authority under Section 28 of the Bihar State Madarsa Education Board Act, 1981 (BME Act) must be formally notified in the official gazette to exercise jurisdiction. The Court set aside an impugned order passed by an unauthorized Joint Director, emphasizing that statutory powers cannot be delegated through mere departmental orders. The judgment underscores the necessity of strict compliance with procedural requirements for quasi-judicial authorities, with significant implications for service law and administrative jurisprudence.

Background & Facts

The Dispute

The petitioner, The Managing Committee, Madarsa Faizul Uloom (Kabai Banghara), challenged an order dated 09.06.2016 passed by Dr. Vijay Kumar Pandey, Joint Director of Secondary Education, under Memo No. 331. The impugned order set aside earlier decisions of the Madarsa Education Board and the founding Managing Committee, which had approved the shifting of the Madarsa from its original location. The petitioner contended that the Joint Director lacked the legal authority to pass the impugned order as an appellate authority under Section 28 of the BME Act, 1981.

Key Facts

• The Madarsa Faizul Uloom was established at Mohalla Chandchaur, Rahimtola, District-Samastipur.
• The founding Managing Committee passed a resolution on 15.12.1988 approving the Madarsa's shifting, which was later ratified by the Madarsa Education Board through orders dated 30.09.2014 and 30.12.1989.
• Respondent No. 9 (Iftekhar Alam), a former Head Moulvi of the Madarsa, challenged the shifting decision before the Joint Director, Secondary Education.
• The Joint Director, Secondary Education passed the impugned order on 09.06.2016, setting aside the earlier decisions of the Board and the Managing Committee.
• The petitioner argued that the impugned order was passed without jurisdiction, as the Joint Director was not formally notified as an appellate authority in the official gazette, as required under Rule 3 of the Bihar Rajay Madarsa Siksha Board Niyatran (Appeal) Niyamawali, 1983.

Procedural History

• 15.12.1988: Founding Managing Committee resolves to shift the Madarsa.
• 30.09.2014 and 30.12.1989: Madarsa Education Board ratifies the shifting decision.
• 17.08.1995: Chairman, Madarsa Education Board, reinstates Respondent No. 9 as Head Moulvi and directs preparation of salary bills.
• 07.11.2007: Director, Secondary Education, sets aside interim orders dated 28.09.1995 and 31.07.1996 and affirms the order dated 17.08.1995.
• 09.06.2016: Dr. Vijay Kumar Pandey, Joint Director, Secondary Education, passes the impugned order under Memo No. 331, setting aside the earlier decisions.
• 2016: Petitioner files CWJC No. 19255 of 2016 before the Patna High Court challenging the impugned order.
• 02.04.2026: Arguments heard; petitioner confines relief to prayer (i) and (iv) of the writ petition.
• 30.04.2026: Judgment delivered by Hon’ble Mr. Justice Alok Kumar Sinha.

Relief Sought

The petitioner sought:

1. Quashing of the impugned order dated 09.06.2016 passed by the Joint Director, Secondary Education.
2. A writ of mandamus directing the respondents, particularly Respondent Nos. 7 and 8, to pay arrears and current salaries of the Madarsa employees.

The Legal Issue

The central question before the Court was whether Dr. Vijay Kumar Pandey, Joint Director of Secondary Education, was legally empowered to act as an appellate authority under Section 28 of the BME Act, 1981 and Rule 3 of the Appeal Rules, 1983, in the absence of a formal notification published in the official gazette.

Arguments Presented

For the Petitioner

1. Lack of Jurisdiction: The petitioner contended that Dr. Vijay Kumar Pandey was not legally authorized to act as an appellate authority, as there was no notification in the official gazette designating him as such, as required under Rule 3 of the Appeal Rules, 1983.
2. Violation of Natural Justice: The impugned order was passed without affording an opportunity of hearing to the petitioner or the Madarsa employees, violating principles of natural justice.
3. Res Judicata: The issue of shifting the Madarsa had been conclusively decided over a decade prior, and reopening it violated the principle of res judicata.
4. Ultra Vires: The Joint Director’s order was contrary to Articles 29 and 30 of the Constitution of India, which protect the rights of minorities to establish and administer educational institutions.
5. Precedent Reliance: The petitioner relied on a prior judgment of the Patna High Court in CWJC No. 19290 of 2016, where a similar order passed by the same Joint Director was set aside for lack of authority.

For the Respondent-State

1. Departmental Authorization: The State contended that Dr. Vijay Kumar Pandey was authorized to act as an appellate authority through a departmental order dated 20.04.2015, passed by the Director (Administration)-cum-Additional Secretary.
2. De Facto Doctrine: The State relied on the de facto doctrine, arguing that even if the appointment was irregular, the Joint Director’s actions should be upheld as he was discharging his duties in good faith.
3. No Gazette Notification: The State admitted that there was no notification in the official gazette designating the Joint Director as the appellate authority but argued that the departmental order sufficed.

The Court's Analysis

The Court undertook a detailed examination of the statutory framework governing the appointment of appellate authorities under the BME Act, 1981 and the Appeal Rules, 1983:

1. Statutory Requirement of Gazette Notification: The Court observed that Section 28 of the BME Act, 1981 empowers the State Government to entertain appeals against orders of the Madarsa Education Board. However, Rule 3 of the Appeal Rules, 1983 mandates that the appellate authority must be notified in the official gazette. The Court held that this requirement is mandatory and cannot be bypassed through a mere departmental order.

   “The notification, as contemplated under Rule 3 of the Rules, means notification published in official gazette, within the meaning of Section 4(37) of the Bihar & Orissa General Clauses Act, 1917.”

2. Departmental Order Insufficient: The Court rejected the State’s reliance on the departmental order dated 20.04.2015, holding that it did not meet the statutory requirement of a gazette notification. The Court emphasized that statutory powers must be exercised in the manner prescribed by law, and any deviation renders the exercise of power illegal and without jurisdiction.

3. Precedent Application: The Court relied on its earlier judgment in CWJC No. 19290 of 2016, where a similar order passed by Dr. Vijay Kumar Pandey was set aside for lack of authority. In that case, the Court had directed the Principal Secretary, Education Department, to notify an appellate authority in the official gazette within two weeks.

4. De Facto Doctrine Distinguished: The Court distinguished the de facto doctrine relied upon by the State, noting that the doctrine applies only where an officer is discharging duties by virtue of holding a particular post. In this case, the Director (Administration)-cum-Additional Secretary lacked the power to authorize the Joint Director as an appellate authority, rendering the impugned order void ab initio.

5. Fair Admission by the State: The Court took note of the affidavit filed by the State, wherein it was categorically admitted that Dr. Vijay Kumar Pandey was not authorized to act as an appellate authority on 09.06.2016. The State conceded that the impugned order was illegal and without jurisdiction.

The Verdict

The Patna High Court allowed the writ petition in part and passed the following orders:

1. Quashed and set aside the impugned order dated 09.06.2016 passed by Dr. Vijay Kumar Pandey, Joint Director of Secondary Education, under Memo No. 331.
2. Remanded the matter to the current Appellate Authority, identified as the Special Secretary, Education Department, Government of Bihar, Patna, for fresh adjudication.
3. Directed the Special Secretary to decide the matter within six months from the date of receipt/production of a copy of the order, after hearing all parties concerned.
4. Permitted the petitioner to agitate the prayer for payment of arrears and current salaries of the Madarsa employees before the Appellate Authority.

What This Means For Similar Cases

Strict Compliance with Statutory Notification Requirements

The judgment reaffirms that quasi-judicial authorities must be formally notified in the official gazette to exercise statutory powers. Mere departmental orders or executive authorizations are insufficient to confer jurisdiction. Practitioners must:

• Verify whether the authority passing an impugned order was notified in the official gazette.
• Challenge orders passed by unauthorized authorities on the ground of lack of jurisdiction.

Res Judicata and Finality of Decisions

The Court’s observations on res judicata underscore that administrative decisions, once conclusively settled, cannot be reopened without proper authority. This has implications for:

• Service matters, where reinstatement or pensionary benefits are contested.
• Educational institutions, where decisions of managing committees or boards are challenged after prolonged periods.

De Facto Doctrine Limited to Valid Appointments

The judgment clarifies that the de facto doctrine does not apply where the authorizing authority itself lacks power. This limits the doctrine’s applicability to cases where:

• The officer holds a valid post but the appointment process is irregular.
• The officer discharges duties in good faith under color of authority.

Remedies for Unauthorized Orders

Where an order is passed by an unauthorized authority, the appropriate remedy is:

• Quashing the order and remanding the matter for fresh adjudication.
• Agitating ancillary reliefs (e.g., salary arrears) before the duly authorized authority rather than the original forum.