Judgment S. B. Sinha, J. 1. These two writ applications involving common questions of law and fact were heard together and are being disposed of by this common judgment. 2. In both these writ applications the petitioners inter alia question the legality of a notification No.921 dated 1st September, 1992 passed by the state of Bihar and as contained in Annexure 1 to the writ application whereby and whereunder it had been directed that the students of such High schools, which had been granted permission for establishment would be debarred from appearing in 1993 Bihar Secondary Examination Board through the said schools. 3. The petitioner No.1 of CWJC No.9741 of 1992 is said to be an association of Teachers of such High Schools of the State of Bihar which have been granted permission for establishment thereof, 4. It has inter alia been contended that villagers ordinarily establish high school after donating lands in the name of the Governor of Bihar and thereafter buildings are constructed by taking donations from the villagers and others. The appointment of teaching staff as also the non-teaching staff are made by the Managing Committee appointed in this regard. The State granted permission for establishment of the said schools after inspections are held by the concerned officers of the State of Bihar and reports to that effect are submitted to the Director of Secondary education. 5. According to the petitioners about 1700 high schools in the State of Bihar have been granted permission for establishment by the State of bihar and in all such schools about 150 and 170 students are reading. 6. According to the petitioners as far back as in 1984 a policy decision has been taken by the State that the students of such high schools which were granted permission for establishment would be permitted to appear in 1985 Secondary School Examination conducted by respondent no.3 through their own schools. The said purported Government decision dated 4th December, 1984 is contained in Annexure 3 to the writ application. Similarly a Government order dated 9th December, 1985 was issued permitting the students of such High Schools which were granted permission to appear in 1986 Secondary Education Board (Annexure 4 ). 7. The said purported Government decision dated 4th December, 1984 is contained in Annexure 3 to the writ application. Similarly a Government order dated 9th December, 1985 was issued permitting the students of such High Schools which were granted permission to appear in 1986 Secondary Education Board (Annexure 4 ). 7. The petitioners have, therefore, contended that pursuant to the aforementioned policy decisions of the State which have been adopted in each year, the students were allowed to appear by the Bihar School examination Board through their own schools. Paragraph 14 of the writ petition reads as follows : "that as stated above the procedure is that the students for appearing in Secondary School Examination have to be registered first with the respondent No 3 and for that registration forms are to be filled up by the students duly certified by the Headmasters and along with fees, as the same used to be deposited in the office of respondent No.3 where the same used to send (sic)to the schools for filing up examination forms (sic) for appearing the Secondary Schools Examination to follow this procedure for 1993 Secondary Schools Examination, respondent No.3 has issued order to all Government High Schools, Nationalised high School, and such High Schools which have been granted permission for establishment stating therein that registration forms of the students for appearing in 1993 Secondary School examination registration forms of the examinees will be accepted to 8- (sic)8-1992, It was also provided in the said communication that blank registration forms shall be available in all District Headquarters on 7/7/1992 and the same is being sent through special messengers. It has also been provided that upto 25/8/1992 filed (sic) up registration forms will be accepted alongwith late fine of Rs.1/- per day. The Headmasters headmistress of Government/nationalised High Schools including permission of establishment of High Schools were directed to comply with the said direction. " The said order is contained in Annexure 5 to the writ application. 8 The petitioners have contended that pursuant ito the said order (Annexure 5) the Headmaster of the concerned school upon getting the forms filled up by the concerned students deposited the same in the office of the respondent No.3 together with the requisite fees The last date fixed for depositing fees and forms in terms of Annexure 5 was 31st august, 1982. 9. 9. It has, therefore, been contended that the direction issued by the State Government in terms of its notification dated 1st September, 1982 as contained in Annexure 1 to the writ application to the effect that no student would be granted permission to appear through such schools; permission for establishment wherefor had been granted but they would be treated as Private candidates and they would have to appear at the examination for being sent up conducted by the nearby recognised High schools, and only thereafter their fees and form shall be accepted through recognised High Schools, is wholly illegal as without jurisdiction. 10. The District Education Officer in terms of the aforementioned notification has been authorised to tag such high schools which have been granted permission for establishment with the nearby recognised high schools, but in terms of the said notification not more than 50 per cent students of total number of recognised high schools students shall be allowed to appear at the matric examination from such recognised High schools. 11. The respondent No.3 had also issued a communique in the newspaper which has been published on 8th September, 1992, being communique No.44 of 1992 which is contained in Annexure 6 to the writ application from a perusal whereof it appears that the Human Resources development Department had issued a letter to the Chairman/secretary of the Examination Board on 26/8/1992 being letter No.871 whereby inter alia the date of registration of examiners (sic) has been extended upto 30th september, 1992. 12. In CWJC No.9642 of 1992, it has been contended that the deputy Secretary (Koshi) Bihar School Examination Board, Patna, returned the deposited registration forms of the students by his letter dated 9/9/1992 as contained in Annexure 1 to the writ application. 13. Mr. Rajendra Prasad Singh, learned counsel appearing on behalf of the petitioner has submitted that prior to coming into force of the Bihar non-Government Secondary School (Taking Over of Management and control) Act, 1981, partial recognitions used to be granted to the Bihar Secondary education Board, prior to 1974 students were allowed to appear through their own schools but after 1974 when Bihar High School (Control of regulation Administrative) Act, 1960, was repealed in terms of the provisions of Bihar Secondary Education Board Act, 1976 , a procedure was evolved to (sic) grant of permission for establishment of the said school. 14. 14. According to the learned counsel thereby only nomenclature was changed but for the process for grant of partial recognition and the process of grant of permission for establishment of the school remained the same. It has been submitted that in some High Schools classes are held from VIIIth to Xth and in some High Schools from Classes VIth to xth. The taken over schools of the schools which are proposed to be taken over and/or in respect whereof the permission for establishment had been granted used to take admission of those students who had passed Class v or Class VII, as the case may be from other schools. 15. The learned counsel submitted that in the year 1984 some confusion arose with regard to the procedure for permitting the students to appear as the secondary examination and thus the State issued the aforementioned orders which are contained in Annexures 3 and 4 to the writ application. 16. According to the learned counsel in this year like the previous year, the fees and form of the students had been submitted and accepted by the Board but by reason of the impugned notice as contained in annexure 6 to the writ petition all such schools have been directed to take back the fees and forms on the purported ground that the students thereof should be treated as private candidates. 17. The learned counsel submitted that time for deposit of fees and forms had merely extended upto 30th September, 1992 but by this time all the seats must have been filled up. 18. The learned counsel submitted that as the matter relating to grant of permission for establishment of the school is governed by a legislative Act, there is absolutely no reason as to why fees and forms had been returned by the Bihar Schools Examination Board. 19. The learned counsel submitted that the impugned notification as contained in Annexure 1 as also the communique issued by the Bihar school Examination Board as contained in Annexure 6 are wholly impractical and being arbitrary is violative of Article 14 of the Constitution of india as thereby the practice followed for several years have been done away with. 20. Mr. The learned counsel submitted that the impugned notification as contained in Annexure 1 as also the communique issued by the Bihar school Examination Board as contained in Annexure 6 are wholly impractical and being arbitrary is violative of Article 14 of the Constitution of india as thereby the practice followed for several years have been done away with. 20. Mr. Y. V. Gin, learned counsel appearing on behalf of the Bihar school Examination Board, however, has drawn our attention to the following directions which is contained in Annexure 5 to the writ applications :- "asthapna ki swaikrti praptat vidyalaya se panjiyan adadan patra ese sarte part liye jayange ke unke pariksharti kisi rajkiya athwa rajkiykrti mandhymik vidyalaya ke madhyam se swantrat pariksharti ke rupe me parisha me samillat hoge. Asthapana ki swaikrti prapt vidlayao me pariksharti, jo rajkiya ya rajkriyat vidyalaya se swantrat pariksharti ko rupe me utprawit hoge unke pariksharti ko sammilat karane ke bade bhi sambandhit rajkiya ya rajkritya vidyalaya ke niymit chatro ke 50% se adhik unke kul swantrata chatro ke sankhya nai honi chahiyea," 21. The learned counsel also draw our attention to the provisions of Bihar School Examination Board Act, 1952 and the regulations framed thereunder and submitted that in terms of statute and the statutory regulations, private students are required to appear only in accordance with the procedures laid down thereunder. It has further been submitted thut as admittedly the Institutions concerned are not recognised ones ; the students of the said institutions do not have any legal right to appear at the examination through the said schools or getting their results published. 22. The learned counsel in this connection has relied upon the decisions of this court in Rahmania Primary Teachers Training College V/s. State of Bihar, 1991 (I) PLJR 595, A1-Karim Educational V/s. Trust and another, reported in 1992 (1) PLJR 747 and M. M. Hague Primary Teacherstc V/s. State of Bihar, 1992 (1) BLJ 722. 23. Dr. Ram Vinod Jha, who appeared in person in CWJC No.9642 of 1992 has further drawn my attention to Article 22 of Chapter IV of the regulation and submitted that the Bihar School Secondary Board merely returned the forms but has retained the fees. 24. Before dealing with the rival contentions of the parties, as noticed hereinbefore, the following fact may be noticed. 24. Before dealing with the rival contentions of the parties, as noticed hereinbefore, the following fact may be noticed. The State of Bihar enacted the Bihar High School Control and Regulations of administration Act, 1960 in order to control and regulate administration of High Schools other than the school owned by the State government and matters connected therewith, 25. Section 3 of the said Act empowers the State Government to establish Board or Secondary Education. Sec.4 of the said Act provided for the functions of the Board which interalia includes the power to grant recognition to schools for imparting secondary education subject to such conditions and restrictions as may be imposed by it. 26. The said Act was repealed and replaced by the Bihar Secondary education Board Act, 1976 being Act No.25 of 1976. It may be mentioned here that prior to enactment of aforementioned 1976 Act various ordinances had been promulgated from time to time since 1973 by the Governor of Bihar covering the subject-matter of the said Act. 27. Section 3 of the said Act provided for constitution of the Board known as Bihar Secondary School Board. Sec.16 of the said Act inter alia provided for powers and functions of the said Board. Sec.29 of the said Act which occurs for Chapter IV thereof provided for grant of permission for establishment of the said school and it was directed thereby that no secondary school shall be established nor shall function unless a prior permission in this regard is obtained. Sec.30 provides for recognition of the school. Sec.31 provides for the conditions for grant of Establishment of the school. Sec.32 provided for the conditions for grant of recognition of the said school. 28. Sections 31 and 32 of the said Act read as follows : 29. From a. perusal of the aforementioned provisions it is clear that the conditions for grant of establishment of the secondary schools and those for grant of recognition thereof are absolutely distinct and different. 30. The State of Bihar thereafter enacted Bihar Non-government secondary School (Taking Over of Management and Control) Act, 1981. Sec.19 of the said Act provides for grant of permanent recognition to the proprietory schools. 31. 30. The State of Bihar thereafter enacted Bihar Non-government secondary School (Taking Over of Management and Control) Act, 1981. Sec.19 of the said Act provides for grant of permanent recognition to the proprietory schools. 31. The State of Bihar issued a notification bearing No.129 dated 30th November, 1981, laying down the rules for grant of recognition and taking over of Management of the proposed secondary school under section 3 (3) of the 1981 Act. In terms of Rule 1 of the said rules no school shall be established without obtaining prior permission therefor. Rule 2 provides for the conditions for grant of Establishment. 32. Rule 7 of the said notification, however, provides power to the state Government to relax the conditions for grant of permission for establishment of the said school. 33. The Legislature of the State of Bihar also enacted the Bihar school Examination Board Act 1952 (Bihar Act No.7 of 1952) as it was considered expedient to establish the school Examination Board in the State of Bihar for conducting examination at the end of secondary school education stage for prescribing courses of studies for such examination and generally for carrying out of such other objects or duties as may be considered necessary (hereinafter referred to as the examination Board act ). 34. In terms of the examination Board, Act, the Board is required to conduct examination called as secondary school Examination. In that examination all such candidates who have completed the prescribed courses of studies in a secondary school or at a High School may be allowed to appear. 35. The word High School has been defined in Sec.2 (d) to mean a recognised school or department of a recognised school imparting instruction in Secondary Education and recognised as such. 36. Section 15 of the said Act inter alia provides that the Examination conducted after the year 1954 shall aim at testing the training of the candidates as useful citizens of the Indian Union, their qualifications and and preparences (sic) for absorption in different vacations or service and their suitability for receiving University Education. 37. Section 17 of the said Act empowers the Board to make regulations in reduction of the matters enumerated therein which includes the conditions under which students shall be admitted in examination of the board. 38. 37. Section 17 of the said Act empowers the Board to make regulations in reduction of the matters enumerated therein which includes the conditions under which students shall be admitted in examination of the board. 38. The Bihar School Examination Board thereafter framed regulations known as bihar School Examination Board Regulation 1965 (sic), which has been confirmed by the Governor of Bihar by a Notification dated 19th December, 1967 and 1st November, 1976. 39. Chapter IV of the said regulation deals, with conditions under which students are to be admitted to the Secondary School Examination board. Regulation [ provides that every recognised secondary school in the State of Bihar shall be eligible for being sent up subject to such conditions as may be specified. 40. Regulation 2 of Chapter IV of the said regulation provides for eligibility of the candidates. Regulation 3 provides for eligibility for the private candidates for secondary school examination. The said regulation reads as follows :- "eligibility of private candidate for Secondary School Examination.- (a) A candidate who has not attended any recognised secondary school as pupil at any time during one year immediately proceeding the examination, in which he wants to appear may be admitted to the Boards secondary school examination as a private condidate. (b) Such private candidates as have not been resident in the State for at least one year immediately prior to the secondary school examination will not be permitted to appear at the Board Examination unless they are the sons or wards (sic) of Government servant transferred from another State within that period. (c) In order to be eligible for appearing at the Secondary school examination, such private candidates shall have to pass a preliminary test examination held at any Government Secondary school or other secondary school appointed by the Director of Public Instruction for the purpose. (d) Such candidates shall also have to produce a certificate of good conduct from a respectable person of the locality to the satisfaction of the head of the Institution concerned. (e) The private candidate shall have to register himself in the Board under Article 22 of Chapter IV of the regulation. " 41. From a perusal of the aforementioned regulation and particularly sub-regulation (e) thereof, it is clear that the private candidate shall have to register himself in the Board under Article 22 of Chapter IV of the said regulation. 42. " 41. From a perusal of the aforementioned regulation and particularly sub-regulation (e) thereof, it is clear that the private candidate shall have to register himself in the Board under Article 22 of Chapter IV of the said regulation. 42. Article 22 of the said regulation reads as follows :- "registration of candidates.- (i) Subject to conditions prescribed under these regulations, the registration of all candidates including private candidates appearing at these secondary school examination shall be made by the Board (ii) The registration fee will be Rs.5 per student, (iii) Applications from regulation candidate with requisite fee for registration duly forwarded by the Head of the Institution shall be received up to 31st March of the proceeding year of the board Examination. No application for registration shall be entertained after this date. (iv) A private candidate shall also send the application for registration with requisite fees through the Head of the Institution from which he intends to be sent up for the Board examination latest by the 31st March. (v) A private candidate however can register himself up to 31st july of the preceding year on payment of late fine of Rs.5 (Rupees five) only. (vi) Ex-students not registered earlier can get, themselves registered till the last date for submission of fees and forms with late fine for that examination. (vii) Duplicate registration card will be issued to a candidate in case his/her card is lost, on payment of Rs.2 as fee. (viii) These schools which have got their all or some of their students registered till 31st March, 1973 may get registered after submitting their registration fee and application form alongwith Rs.5 as late fine per candidate latest by 31 May, 1973. This consession is meant only for the year 1973. (ix) Such school whose period of recognition has expired or whose recognition is under consideration or where there are students in Class XI in anticipation of recognition will have to get their students registered in accordance with clauses (ii), (iii), (vi) and (viii ). " 43. From a perusal of the aforementioned regulation it is therefore, clear that the students of those institutions are entitled to appear only as private candidates as the said institutions are not recognised High Schools and thus they are not entitled to send up the students obtaining instructions therein directly for appearing at the examination. 44. " 43. From a perusal of the aforementioned regulation it is therefore, clear that the students of those institutions are entitled to appear only as private candidates as the said institutions are not recognised High Schools and thus they are not entitled to send up the students obtaining instructions therein directly for appearing at the examination. 44. It is true as has been submitted by Mr. Rajendra Prasad Singh, that in the year 1984-85 exemption had been granted by reason of Annexures 3 and 4 to the writ application. However, from a perusal of the said letters dated 9th December, 1985 as contained in Annexure-4 to the writ application it appears that it was made clear therein that the said exemption was not to remain available in the next year 45. For the reasons aforementioned, there cannot be any doubt whatsoever that the students of any unrecognised institution have no legal right to appear at the secondary school examination. 46. In Rahmania Primary Teachers Training College and others V/s. The state of Bihar, reported in 1991 (1) PUR 595, a Full Bench of this court was considering the provisions of Bihar Non Government Physical Training college and Non-Government Teachers Training Colleges and Non-Government primary Teachers Colleges Act as also the provisions of Bihar Schools examination Board Act, 1952 and it inter alia held :- "that the State can always take regulatory provisions for upholding the standard of education even in relation to minority institution. " 47. In this case the schools in question are not even minority institutions. 48. In Al-Karim Education Trusts v The State of Bihar, reported in 1992 (1) PLJR 747 G C. Bharuka, J. on a difference of opinion on certain points between S. B. Sanyal, J. and Aftab Alam, J. held that High Court is not competent to issue any mandamus directing the students to appear at the examination conducted by the University unless the statutory requirements with regard to them are fully complied with. Similar view has been taken by another division Bench of this court upon taking into consideration various decisions of the Supreme Court in M. M. Haque, Primary Teachers Training College V/s. State of Bihar, reported in 1992 (1) BLJ 712. Reference in this connection may also be made to state of Maharathrtra V/s. Vikas Subarahran Rourkela, reported in JT 1992 (5) SC 175. 49. Reference in this connection may also be made to state of Maharathrtra V/s. Vikas Subarahran Rourkela, reported in JT 1992 (5) SC 175. 49. In view of the aforementioned binding precedents there cannot be any doubt that the students of the institutions which have only received permission for establishment but have not yet been recognised cannot be permitted to appear as regular candidates but they have to appear as private candidates. We also reject the contention of Mr. Rajendra Prasad Singh to the affect that in view of Annex ures 3 and 4, to the writ petition the students of such institutions have right to appear at the secondary examination as the conditions for appearance at the examination are governed by the statutory regulations. In our opinion, even the practice adopted in the past cannot overried the statute and statutory regulations. 50. However in our opinion, the Bihar School examination Board had no right to issue a direction that the number of private candidates sent up through recognised institutions should not be more than 50% Such a condition neither appears to be inconsonance with the regulations and provisions of the 1952 Act nor reasonable. If such condition are laid down keeping in view the number of recognised and un-recognised Institutions and further keeping in view the fact that students of particular area have to be sent up through the recognised schools situated in that area the same would cause to undue hardship to the students and the possibility of many students thus becoming unable to appear at the Examination cannot be ruled out. 51. Tn that view of the matter, the District Education Officers of the respective districts are directed to see that the genuine students who had completed their courses of studies from such schools which have been granted permission for establishment and are awaiting recognition should be allowed to appear at the test examinations from the recognised school irrespective of the restrictions imposed by the Secretary of the Secondary Education Board. Bihar as mentioned here in before. 52. Bihar as mentioned here in before. 52. The District Education Officers of the concerned district and the headmasters of the concerned schools as also those of the concerned recognised High Schools of the concerned area must meet immediately so that they can finalise the entire matter as to how and m what manner the eligible candidates can be allowed to appear at the test examination and their fees and forms be sent to the Board within the shortest possible time. 53. The Bihar Schools Examination Board, in the peculiar facts and circumstances of the case are also directed to extend time for acceptance of fees and forms upto 15th of January, 1993 or such time as would be sufficient for it to accept fees and forms from the eligible candidates and take steps for allowing the eligible candidates to sit at the examination. 54. In the event, the Bihar School Examination Board had not returned the fees together with the forms deposited by the students they should do so immediately and/or are allow (sic) such students to fill up the forms only. 55. The authorities of the Education Department of the State of bihar and the Board are also hereby directed to render all cooperation and see that a cordinated efforts in this regard may be made by the District education Officer, Headmasters, of the concerned schools and authorities of the Bihar School Examination Board in this regard. It would be open to the State of Bihar to issue such directions from time to time as may seem fit and proper so that career of so many students may not be jeopardised (sic ). 56. In the facts and circumstances of the case, the State of Bihar is also directed to finalise the matter relating to grant of recognition of the concerned school expeditiously and preferably within a period of six months from the date of the receipt of a copy of this order. 57. These applications are allowed to the extent mentioned hereinbefore. The parties in the facts and circumstances of the case would pay and bear their own costs. Applications Allowed