THE STATE OF BIHAR AND ORS.versusSYED ASAD RAZA AND ORS.

A                           THE STATE OF BIHAR AND ORS.
                                               v.
                              SYED ASAD RAZA AND ORS.

                                        APRIL 4, 1997

B                    (K. RAMASWAMY AND G.B. PATIANAIK, JJ.)

                Bihar State Universities Act, 1976 :

         Section 35-Scope of-Minority lnstitutio1t-Bihar State--Maulana
C Azad College Ra11chi-Agree111e11t entered into by minority institution on
   December 15, 1972-Stipulation that no new posts shall be created in the
   college without prior pem1ission of Vice-Chancelloi--Subsequently 1976 Act
   came into force-Conte11tion that agreement was relevalll before the 1976 Act
   came into force-Acceptance of-After the Act has come into force the
   agreement no longer subsists-After coming into force of the Act for the
D creation of a post in a minority institution for the appointment thereof, prior
   approval of the University Vice-Chancellor or the State Government, is not a
  ·pre- condition-Respondent held entitled to the payment of grand-in-aid.

                Constitution of lndia, 1950 : Anic/e 30.
    '
E               Min01ity Institution-Grand-in-aid--Entitlemelll to.

                CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3003 of
        1997.

              From the Judgment and Order dated 2.5.96 of the Patna High Court
F
        in L.P.A. No. 17 of 1996.

                B.B. Singh for the Appellants.

                S.B. Upadhyay, Brij K. Mishra, Ms. Shabana Tarannum and Ejaz
G Maqbool for the Respondent.

                The following Order of the Court was delivered :

                Leave granted.

H               Substitution allowed.
                                               658
                      STATE v. SYED ASAD RAZA                              659

     This appeal by special leave is from the judgment of the Patna High          A
Court. Ranchi Bench, made on May 2, 1996 in LPA No. 17/1996.

       The admitted facts are that Maulana Azad College, Ranchi estab-
lished in 1970 is a minority institution; minority status is given by the State
Government. Pursuant to an agreement dated December 15, 1972, it was
agreed that no new posts shall be created in lhe College without obtaining        B
prior permission of the Vice-Chancellor. Two posts were created by the
Governing 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.            C
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 Universities Act, 1976 has stepped in and
states that :

         "35(1) No post for appointment shall be created without the prior        D
         sanction of the State Government. Notwithstanding anything con-
         tained 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 Govern-
         ment; or                                                                 E

         (b) as is established by a religious or linguistic minority;

         (i) After the commencement of this Act no teaching or non-teach-
         ing post involving financial liabilities shall be created without the
         prior approval of the State Government.                                  F

         (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
        the pay scale attached to such post or sanction any new allowance.        G
        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.            H
    660                   SUPREME COURT REPORTS                    [1997) 3 S.C.R.

A               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 candidate possessing the
             prescribed qualification."

            A reading of the above clearly indicate that after coming into force
B   of the Bihar State Universities Act, 1976 w.c.f. May 16, l<J76 it is enjoined
    that for appointment of a teacher prior approval of the State Government
    is necessary. However, exceptions have been engrafted in respect of (a) the
    institution run by the State Government and (b) institution established by
    a relii,rious or linguistic minority. Even the 11011-obstante clause in sub-sec-
C   tion (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 a 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 entitled to the payment of the grant-in-aid. By operation of
D   clause (1) of Article 30, all minorities, whether based on religion or
    language, shall have the right to establish an educational institutions of
    their own choice. Under clause (2) of Article 30, the State shall not, in
    granting aid to educational institutions, discriminate against any education-
    al institution on the ground that it is under the management of a minority,
E   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 bonnd to sanction
    grant-in-aid ~ubject to such regulations as may be available under law to
    regulate the recruitment of service administration, use of fund etc. The
F   contention of Shri B.B. Singh, leaned 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,
G   the statute operates in the field so long as no regulations 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.

    T.N.A.                                                      Appeal dismissed.