PETITIONER: THE STATE OF BIHAR & ORS. Vs. RESPONDENT: SYED ASAD RAZA & ORS. DATE OF JUDGMENT: 04/04/1997 BENCH: K. RAMASWAMY, G.B. PATTANAIK ACT: HEADNOTE: JUDGMENT:
O R D E R
Leave granted.
Substitution allowed.
This appeal by special leave is from the judgment of
the Patna High Court. Ranchi Bench, made on may 2, 1996 in
LPA No. 14/1996.
The admitted facts are that Maulana Azad college,
Ranchi established in 1970 is a minority institution;
Pursuant to an agreement dated December 15, 1972, it was
agreed that on new posts shall be created in the college
without obtaining prior permission of the Vice-Chancellor.
Two posts were created by the Government Body on September
7, 1975. One, Anup Narain Singh and one Pandey Janardhan
Prasad were appointed on April 8, 1976. Pandey Janardhan
Prasad ceased to work from February 10, 1979. Thereafter,
the first respondent, Syed Asad Raza came to be appointed on
July 1, 1979. The question is whether the prior sanction
from Vice Chancellor for the post to which syed Asad Raza
came to be appointed is a pre-condition? Section 35 of the
Bihar state University Act, 1976 has stepped in and states
that:
’35 (1) No post for appointment
shall be created without the prior
sanction of the state Government.
Notwithstanding anything contained
in this Act, no University or any
college affiliated to such a
University, except such College,
(a) as is established, maintained
or governed by the state
Government; or
(b) as is established by a
religious or linguistic minority;
(i) After the commencement of this
Act. no teaching or non-teaching
post involving financial
liabilities shall be created
without the prior approval of the
state Government.
(ii) Shall either increase the pay
or allowance attached to any post,
or sanction any new allowance;
Provided that the state Government
may, by an order, revise that pay
2scale attached to such post or
sanction any new allowance.
2. Notwithstanding anything
contained in this Act., no college
other than one mentioned in clause
(a) and (b) of sub-section (1) ,
shall, after the commencement of
this Act, appoint any person on any
post without the prior approval of
the state Government.
Provided that the approval of the
state Government shall not be
necessary for filling up a
sanctioned post of a teacher for a
period not exceeding six months by
a candidates possessing the
prescribed qualification.”
The reading of the above clearly indicate that after
coming into force of the Bihar state Universities Act, 1976
w.e.f. May 16, 1976, t is enjoined that for appointed of a
teacher prior approval of the state Government is necessary.
However, exception have been engrafted in respect of (a) the
institution run by the state Government and (b) institution
established by a religious or linguistic minority. Even the
non-obstante clause in sub-section (2) also makes exceptions
to the clauses (a) and (b) of sub-section (1) of Section 35
of the Act. Thus, it could be seen that for the creation of
a post in minority institution for the appointment thereof,
prior approval of the University Vice-Chancellor or the
state Government , is not a pre-condition. The question,
therefore, is: whether such an appointee, first respondent
is to the payment of the granted-in-aid. By operation of
clause (1) of Article 30, all minorities, whether based on
religion or language, shall have the right to establish an
educational institution of their own choice. Under clause
(2) of Article 30, the state shall not, in granting aid to
educational institution, discriminate against any
educational institution on the ground that it is under the
management of a minority, whether based on religion or
language.
Thus, It could be seen that on establishment of an
educational institution by the minority, the competent
authority is bound to sanction grant-in-aid subject to such
regulation as may be available under law to regulations as
may be available under law to regulate the recruitment of
service administration, use of fund etc. The contention of
Shri B.B. Singh, learned counsel for the appellant, is that
pursuant to the agreement dated December 15, 1972 it is
necessary to obtain the prior approval of the Vice-
Chancellor. This agreement was relevant before the Bihar
state Universities Act, 1976 came into force. After the Act
has come into force, the agreement no longer subsists. Thus,
the statute operates in the field so long as no regulation
have been made. By statutory operation, the respondent is
entitled to the payment of the grant-in-aid.
The appeal is, accordingly, dismissed. No costs.