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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

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    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.