Judgment (1.) THE above matter has been assigned to this bench by the then Honble acting Chief Justice, by His Lordships order of determination dated 1st march 2007 for answering two following questions framed by a learned single judge as stated hereinafter. It is necessary to narrate briefly the fact of this case. (2.) THE petitioners in the writ petition are the office bearer of the organising managing committee and teaching and non-teaching staff of a Junior High Madrasah situate at village Mohhamadpur, Police station Noida, District Murshidabad. This Madrasah was originally established in the year 1922 and got recognition of the Government of bengal upto classes V and VI for a period ending 31st December 1944, subsequently got extension for a further period of 5 years ending 1949. This Madrasah functioned till 1952 and thereafter due to communal disturbances it could not be run after 1952 and ceased to exist as teaching and non-teaching staff left this village for erstwhile East Pakistan because of the said disturbances for the safety and security of their lives. Thereafter effort was made in or about 25th, December 1993 for revival of the said Madrasah as such on and from 1st May 1994 with the appointment of 6 teaching and two non-teaching staff the said Madrasah was sought to revive initially with opening of classes V and vi and thereafter upgrading by two Classes VII and VIII on and from 1st may 1995 and 1996 respectively. Initially the strength of the students was 150 with the adequate number of teaching and non-teaching staff thereafter students in the said Madrasah in its roll have increased now upto 302. It is claimed that all infrastructures are available, funds are sufficient to meet the requirements of the Madrasah. With the aforesaid background these writ petitioners made application for revival of recognition as it was done previously. The instances of three Madrasahs are given where the Government has revived recognition for restarting the Madrasah. According to the petitioners they are standing on the same footing as those three institutions did. The application for revival of recognition was not considered. Inevitably these writ petitioners approached this Court by filing a writ petition being W.P. No. 5623 (W) of 1997. The said writ petition was disposed of by order passed by a learned single judge of this Court giving direction. The application for revival of recognition was not considered. Inevitably these writ petitioners approached this Court by filing a writ petition being W.P. No. 5623 (W) of 1997. The said writ petition was disposed of by order passed by a learned single judge of this Court giving direction. The said writ petition was duly contested by the State Government. Upon hearing His Lordship the then Honble Mr Justice S. B. Sinha (as His Lordship then was) pleased to give following direction by the said order: "the District Level Inspection Team shall inspect the Madrasah in question and submit report within 8 weeks from the date of communication of this order. The Director of School Education upon receipt of recommendation, if any, from the District Inspector of School shall forward this matter with his recommendation, if any, to the secretary Education Department. The Secretary Education Department shall examine the data and pass an appropriate order at an early date. . . West Bengal Board of Madrasah Education which is a competent authority for grant of recognition, shall pass an appropriate order. It is expected that the concerned respondent shall take step as expeditiously as possible in view of the fact that the inhabitants of the locality have taken effective step for revival of the old Madrasah. . . " (3.) IN purported compliance of the said order it appears that all the aforesaid officials including the State Government considered and thereafter the matter was decided by Madrasah Board by passing an order dated 12th October 1999, whereby and whereunder the Madrasah board refused to revive the recognition on the ground that the recognition committee of the Board did not recommend revival of recognition on the various ground namely (i) it ceased to function long time back, (ii) There is a High School within 5 km. (iii) DLIT did not recommend the Madrasah for recognition. Moreover this application should be treated as a fresh proposal for recognition, as such prayer for revival of recognition was not granted. (4.) THE writ petitioners again came to this Court challenging the above order of refusal to revive recognition with the writ petition being no. WP No. 10155 (w) of 2000. The said writ petition was disposed of by a learned single judge of this Court upon hearing State and also other respondents. (4.) THE writ petitioners again came to this Court challenging the above order of refusal to revive recognition with the writ petition being no. WP No. 10155 (w) of 2000. The said writ petition was disposed of by a learned single judge of this Court upon hearing State and also other respondents. The reasons for refusal recorded in the said impugned order of Madrasah Board was not accepted by this Court and as such the Board was directed to take decision on the question of fresh recognition on receipt of the fresh report from District Level Inspection team. In the later order of the learned single judge it was specifically mentioned that if the Board finds there has been improvement of the condition of the Madrasah concerned from the date when application was made, then recognition shall be granted. (5.) THE President of the Board decided the matter and refused to grant fresh recognition also on the various grounds, one of the grounds is that this Madrasah started functioning in the year 1993 without prior permission of the State Government or of the Board which is essential for the purpose of recognition by the competent authority. Thus by the order, which came to be challenged by the instant writ application the learned single judge while taking up this matter for hearing felt that the aforesaid point of obtaining prior permission is to be decided as His lordship recorded that there are two conflicting views on these point of two different Division Benches of this Court. (6.) THIS matter was heard by me on 7th March 2007 with his Lordship to Honble Mr. Justice Arun Kumar Bhattacharya (as His Lordship then was) and on that date on behalf of the petitioners argument was advanced and the same was recorded in the order dated 7th March 2007. The points as referred to by the learned single judge on which argument was advanced are as follows: i) Is prior permission of State Government to start a school or Madrasah is an essential prerequisite for grant of recognition? ii) Can school or Madrasah voluntarily start without prior permission of the State Government seeking recognition? (7.) MR. The points as referred to by the learned single judge on which argument was advanced are as follows: i) Is prior permission of State Government to start a school or Madrasah is an essential prerequisite for grant of recognition? ii) Can school or Madrasah voluntarily start without prior permission of the State Government seeking recognition? (7.) MR. Amjad Ali appearing on behalf of the writ petitioners, in substance, contends that prior permission as recorded in the order of the President of Madrasah Board is not a mandatory, but directory one, even if it is assumed such condition is applicable in the facts and circumstances of this case. He urged that this point has been taken subsequently by the Madrasah Board and was not raised previously, but it could or ought to have been raised previously, as such it is hit by the principle of constructive res judicata, if not waiver. Principle of waiver can be applied, as obtaining prior permission is not statutory requirement and it is merely a stipulation and direction of the Education department. (8.) HE contended that the two Division Bench judgments dwelt upon the circular of 1978 which is applicable in case of a school and, is not applicable in case of Madrasah. There is no such circular in case of establishing of Madrasah. In section 40 of the West Bengal Madrasah board Education Act there is no provision that in order to organise a Madrasah the organising committee has to seek permission from the government nor such permission is sine qua non in the matter of recognition. Moreover, he says that the aforesaid stipulation for obtaining prior permission for establishing Madrasah runs counter to article 21 (A) of Constitution of India which has been inserted of late following the Supreme Court judgment rendered in Unnikrishnans case (1993)1 SCC 645 . He on the question of directory nature of the aforesaid circular relied on two judgements reported in AIR 2000 Cal. 73 and AIR 2000 Bom. 437 . (9.) MR. Sumit Panja learned Advocate appearing for Madrasah Board submits that it is not correct to say that there is no stipulation like school for obtaining prior permission for establishing Madrasah. By a circular in Bengali No. 643 (70) (Education) (Secretary Secondary) 35-14-86 dated 5th May 1986 it has been specifically provided that without prior permission of Education Department no Madrasah can be established. By a circular in Bengali No. 643 (70) (Education) (Secretary Secondary) 35-14-86 dated 5th May 1986 it has been specifically provided that without prior permission of Education Department no Madrasah can be established. Thus it is clear this stipulation is almost identical with that of one applicable in case of Secondary School. According to him this is a precondition and unless it is fulfilled question of recognition does not and cannot arise. (10.) MRS. Chameli Mazumdar learned Advocate appearing for the State supported the contention of Mr. Panja. She has cited in support of the aforesaid contention the Division Bench judgment of this Court reported in AIR 2002 Cal 200 . She has also relied on the decision of Supreme Court reported in (1993) 4 SCC 25 . According to her aforesaid stipulation has got the effect of law, therefore, the rule of promissory estoppel does not apply as against the provision of law, even if in some cases recognition is granted in past. Another judgment has been cited by her, reported in AIR 1994 SC 43 (Saint Jhons Teachers Training Institute v. State of Tamil Nadu). (11.) WE feel we are to answer queries raised by the learned single judge considering provision of law broadly, and that too in the context of the aforesaid factual background. We find that Mr. Panja is right in saying that like school there is a circular by the Government dated 5th may 1986 for obtaining prior permission for establishing a Madrasah. The language of the said circular is very clear in terms that the same will be applicable prospectively meaning thereby on and from 5th May 1986. In view of the order passed by this Court this matter has to be dealt with for fresh recognition not for revival of recognition. Now the point is whether such a permission is sine qua non meaning thereby whether it is condition precedent or not. To put it differently slightly whether it is mandatory or not. We read the decision of Division Bench of this Court in case of State of West Bengal and Ors. v. Abdul Kuddus and Ors. and find it has held while examining a similar circular letter dated 26th April 1978 in paragraph 10 as follows: "so far as the circular letter dated 26. 4. We read the decision of Division Bench of this Court in case of State of West Bengal and Ors. v. Abdul Kuddus and Ors. and find it has held while examining a similar circular letter dated 26th April 1978 in paragraph 10 as follows: "so far as the circular letter dated 26. 4. 78 is concerned evidently the same was not issued by the State in exercise of its power conferred upon it under Article 162 of the Constitution of India. The matter relating to regulation of education in the State of West Bengal is governed by a statute known as West Bengal Board of Secondary education Act, 1963. The said Act nor the Rules framed thereunder provide for grant of recognition of schools, nor provide for the modes and manner which are required to be followed for such grant. The circular letter dated 26. 4. 78 prima facie does not satisfy the requirement of Article 166 of the Constitution of India. The said circular letter also has not been authenticated in terms of clause (3) of Article 166 of the Constitution of India. Even assuming that the said circular letter should ordinarily be followed, a bare perusal thereof would make it clear that thereby merely establishment of school has been discouraged. The said circular letter does not provide for any consequence in relation to any school which might have been started without obtaining any permission from the Government or the Board. No procedure has been laid down in the said circular as to how and in what manner such permissions are to be obtained. In terms of the provisions of the West Bengal Board of Secondary education Act, 1963 State has taken over the control in respect of the secondary schools. The West Bengal Board of Secondary education having been created under the said Act, specific power had been delegated to it only in terms of the said statute, and thus, in our opinion, vague instructions could not have been issued that permission to start a school should be obtained either from the government or the Board. In any event, as no consequence far non-observance thereof had been provided for, such a provision does not appear to be a mandatory one. In any event, as no consequence far non-observance thereof had been provided for, such a provision does not appear to be a mandatory one. The very fact that the State government and/or the Board, in similar situation, had granted recognition to other schools, also is a pointer to the fact that the State government or the Board had not considered the said provision to be mandatory in nature." (12.) THUS in no uncertain terms the Division Bench of this Court has decided that the circular of the nature of one dated 16th April, 1978 has got no constitutional sanction and naturally it cannot have any statutory force at all to make it obligatory for compliance. In case of Madrasah the same is the situation. Similarly the West Bengal Board of Madrasah Education Act, 1993 does not provide any methodology for obtaining prior permission from the government or the Board for establishing a Madrasah as a pre condition. The Government and Madrasah Board seek to place reliance on the said letter dated 5th May 1986. We with respect, accept the observation of Their Lordships as quoted above by us and we adopt the same view that in case of Madrasah also this direction has got no statuary force but it has got a value of guidelines as such this cannot be a mandatory one. Moreover, in view of the said Act having come into operation, the effect of the said letter dated 5th May, 1986 ceases. It is true the Division Bench of this Court in case of West Bengal Board of Secondary Education v. Dukhiram has dealt with the matter in almost similar issue. The Division Bench in this case has merely noted the said circular dated 26th April 1978 containing the clause for obtaining prior permission from the Government or the from the Board. While noting the same Their Lordships on the facts and circumstances observed that prior permission for setting up a school was required to be obtained. Their Lordships noted the earlier judgment on this issue in paragraph 12. While noting the same Their Lordships on the facts and circumstances observed that prior permission for setting up a school was required to be obtained. Their Lordships noted the earlier judgment on this issue in paragraph 12. This bench did not differ with the ratio decided in the earlier bench rather accepted the views expressed by the earlier bench that this kind of circular is not a mandatory, however, it has been added by this bench that when it has been issued by the government as a matter of policy and such policy decision cannot be ignored as non existent. This judgment has not dealt with the problem of Madrasah. (13.) WE are therefore, of the view that when the two earlier bench has concurrently decided and held that this kind of notice is not a mandatory one it cannot be said that prior permission is required to start school or Madrasah as essential prerequisite for grant of recognition. (14.) IT is settled position of law that unlike mandatory provision directory provision can be waived by act and conduct of the parties. Any act or omission in violation of the mandatory provision of any statute is always nonest. Governments direction of this nature cannot be termed to be an act of executive government as observed by Their lordships in the case of Abdul Kuddus ( AIR 2000 Cal 73 ). Therefore, we broadly answer the questions as follows: that Ordinarily the aforesaid stipulation should not be ignored, however, on the facts and circumstances of the case of this nature when there has been recognition earlier this can be waived by the government or Madrasah Board. (15.) IN this particular case we find that the plea of obtaining prior permission was never taken at any point of time. So this point taken by the State Government at this stage is hit by the principle of constructive res judicata. On both the cases the State Government or the Madrasah Board could take this point. However this was not taken. As such the same is deemed to have been waived. As we have already observed the aforesaid Government instruction is a directory in nature hence it is waivable. (16.) THE decision cited by Mrs. On both the cases the State Government or the Madrasah Board could take this point. However this was not taken. As such the same is deemed to have been waived. As we have already observed the aforesaid Government instruction is a directory in nature hence it is waivable. (16.) THE decision cited by Mrs. Mazumdar reported in (1993) 4 SCC 25 and AIR 2001 SC 2151 respectively are not at all helpful to answer the aforesaid questions the same have been decided on different context. (17.) THERE is no quarrel with the proposition laid down by the Supreme Court that as against the statutory provision the principal of promissory estoppel does not apply. (18.) ON the discussion as above we therefore, answer the questions framed by the learned single judge for this matter as follows: (i) Is in negative. (ii) In the affirmative. (19.) NOW this matter is sent back to the learned appropriate single bench for decision of this matter on merit. Cost costs in the cause in the hearing and will abide by the result of the decision of the learned single judge. Writ application succeeds.