State of Bihar & Ors Vs. Syed Asad Raza &
Ors  INSC 389 (4 April 1997)
RAMASWAMY, G.B. PATTANAIK
O R D
E R Leave granted.
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.
admitted facts are that Maulana Azad college, Ranchi established in 1970 is a minority institution;
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.
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:
(1) No post for appointment shall be created without the prior sanction of the
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
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
Shall either increase the pay or allowance attached to any post, or sanction
any new allowance;
that the state Government may, by an order, revise that pay 2scale attached to
such post or sanction any new allowance.
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.
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.
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.
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
appeal is, accordingly, dismissed. No costs.