MD.SHAMIR JUNG KHAN SON OF LATE MD.SHAMSUL JUNG KHAN Vs. STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEVELOPMENT DEPARTMENT, VIKAS BHAWAN, PATNA

JUDGEMENT

(1.) 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, 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.

(2.) 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").

(3.) 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 vs. State of Bihar and Others) and 2001 (3) BLJ 83 (Abdul Azeem Haidri vs. 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.