Judgment 1. These two writ petitions, one filed by the management of a private college, called the Allama Iqbal College and the other at the instance of a teacher employed in that college challenge the same Government decision/direction and seek the same reliefs. These two cases were, therefore, heard together and are being disposed of by this common judgment. Of the two cases, CWJC No. 12329 of 2001 has been used for taking note of the relevant facts and for referring to the annexures. 2. The petitioners in these two writ petitions seek to challenge the Government decision communicated to the Secretary of the college through letter, dated 13-8-2001 (Annexure 1) issued by the Secretary, Higher Education, Government of Bihar. In this letter, the Secretary, Higher Education declared that an earlier Government order issued under memo No. 1445, dated 9-9-1998 by which the Government had made a commitment to give deficit grant-in-aid for the posts created by the governing body of the college was void-ab-initio, being violative of Sec. 35 of the Bihar Universities Act, 1976, apart from the directions contained in the departments circulars and the provisions of Governments resolution and, therefore, the Government order No. 1445, was cancelled with effect from 9-9-1998, the date of its issuance. The petitioners further seek a direction to the State Government to release funds in furtherance of its commitment to give deficit grant-in-aid to the college in accordance with its order, dated 9-9-1998. 3. A society registered under the Societies Registration Act and calling itself as the Council of Allama Iqbal College established this college in the year, 1978 as a minority institution. The managing committee of the college in its meetings held from time to time created a number of teaching and non-teaching posts to carry on the teaching work in the college smoothly. In 1981 the college was granted affiliation for conducting inter level courses in certain Arts. subjects and in 1983 for courses up to B.A. level. The affiliation was granted with the prior approval of the State Government, though making it expressly clear that there was no commitment to meet the financial burden. The State Government declared the college a minority institution and the decision of the State Government was communicated to the Vice Chancellor, Magadh University by the Dy. The affiliation was granted with the prior approval of the State Government, though making it expressly clear that there was no commitment to meet the financial burden. The State Government declared the college a minority institution and the decision of the State Government was communicated to the Vice Chancellor, Magadh University by the Dy. Secretary to the Government in the Human Resources Development Department under his memo No. 1149, dated 17-8-1988 (Annexure 7). It may be noted here that the minority status of the college is not in question in the present controversy before this Court. Further, on the basis of the recommendation of the University the State Government gave its approval for the grant of permanent affiliation to the college for B.A. Pass Course from the Session 1990-91, for B.Com. Pass Course from the Session 1991-92 and for B.A. Honours Course from the Session 1991-92. The grant of affiliation was indeed without any commitment to meet any resultant financial burden. The decision of the Government was communicated to the Vice Chancellor of the University by the Dy. Secretary, Department of Higher Education Department under his memo No. 1, dated 1-1-1998 (Annexure 3). Later on, the Dy. Secretary, Department of Higher Education under his memo No. 626, dated 24-4-1998 informed the Vice Chancellor about the Governments decision to grant permanent affiliation to the college for the subjects specified in the letter (Annexure 3/A) for B.A. Pass Course from the year, 1997-98, for B.A. Honours Course from the Session, 1997-98, for B.Com. Honours Course from the Session 1997-98, for B.Sc. Pass Course from the Session, 1990-91 and for B.Sc. Honours Course from the Session 1997-98. The grant of approval was once again without any commitment to meet the financial burden. 4. Then comes the letter from the Dy. Secretary, Department of Higher Education under his memo No. 1445, dated 9-9-1998 (Annexure 13). By this letter addressed to the Secretary of the college, he was informed about the Government decision to give deficit grant-in-aid to the college in respect of posts created by the governing body in its meetings held on 8-10-1978, 13-5-1979 and 11-7-1982. Having regard to the importance of this letter in this controversy, it will be expedient to re-produce it in extenso : (Vernacular matter omitted.........Ed.) 5. Having regard to the importance of this letter in this controversy, it will be expedient to re-produce it in extenso : (Vernacular matter omitted.........Ed.) 5. From a careful perusal of the above quoted letter, it will become evident that it was issued on the basis of a two fold Government decision; the first decision was to grant approval, accepting financial liabilities, to the creation of posts by the governing body of the college in its three meetings held on the dates referred to in the letter and the second Government decision was to grant approval to the college, already declared a minority institution, as a recipient of deficit grant-in-aid from the Government in terms of the provisions of the departments letter No. 1018, dated 3-10-1987 and resolution No. 1065, dated 9-12-1982. 6. However, it is an admitted position that no financial aid was given to the college in furtherance of the Government decision No. 1445, dated 9-9-1998 and as it will be seen presently the State counsel has tried to make the most out of this fact. As no financial aid was received from the Government even after its order, dated 9-9-1998 individual teachers of that college came to this Court, in at least two cases seeking direction to the Government to release funds for payment of their arrears and current salary in terms of the Government order. In those cases the State Government did not disown its decision and order, dated 9-9-1998 but took the plea that there were a number of unresolved disputes regarding validity of appointments made in the college in order to justify its action in not releasing the amount of deficit grant-in-aid. In view of the stand of the State Government CWJC No. 7067 of 2001 (filed by Gajendra Prasad Singh, a teacher in the college who is once again before this Court as petitioner in one of the two cases in hand) was disposed of by a learned single Judge of this Court by a brief order, dated 20-6-2001, the relevant portion of which is as follows :"A counter affidavit has been filed on behalf of the State. In paragraph 13 of the counter affidavit, it has been stated as follows : "That though the decision of Chancellor is awaited regarding the complaint of appointment/termination of the so-called teaching and non-teaching staff of the college but the State Govt. In paragraph 13 of the counter affidavit, it has been stated as follows : "That though the decision of Chancellor is awaited regarding the complaint of appointment/termination of the so-called teaching and non-teaching staff of the college but the State Govt. will release the fund for making payment of those persons whose appointment is not under dispute and who have already been concurred by the College Service Commission." "JC to SC 7 now states that necessary funds shall be released to the college in question for payment of current as well as arrears of salary to this petitioner, in case, the appointment of the petitioner is not in dispute, within a period of two months from today. The current salary of the petitioner, however, must be paid to him from July 2001 onwards." 7. Following the above quoted order similar order was passed by me in another case being CWJC No. 6328 of 2001. 8. It was at this stage that the college, instead of getting the amount of deficit grant-in-aid, got the impugned letter from the Secretary, Department of Higher Education cancelling the earlier order, dated 9-9-1998 by which the college was declared as recipient of deficit grant-in-aid and the Government had committed itself to give deficit grant-in-aid to the college. 9. Here, it may also be noted that the impugned order as contained in the Secretarys letter was passed without any notice or an opportunity of hearing to the management of the college and this was one of the grounds on which the Government decision was assailed by the petitioners. 10. In the impugned letter, dated 13-8-2001 issued by the Secretary, Department of Higher Education, Govt. of Bihar, it is stated that Order No. 1445, dated 9-9-1998 by which the Government earlier made this college a recipient of deficit grant-in-aid was issued in violation of (i) Sec. 35 of the Bihar State Universities Act, 1976 , (ii) directions issued by the Department, and (iii) provisions contained in (Government) Resolutions in the following ways : (i) The Governing Body of the college took initial steps to have the college declared as minority (institution) in the year, 1984 and the University made recommendations to that effect on 30-8-1984. The College was declared as a minority (institution) by departments letter No. 1149, dated 17-8-1988. The College was declared as a minority (institution) by departments letter No. 1149, dated 17-8-1988. In terms of provisions contained in Sec. 35 of the Universities Act the Governing Body of this college (constituted in terms of the provisions contained in the Act and the Statutes) would get the power to create posts, in accordance with the criteria laid down by the U.G.C. and the State Government only after the college was declared as a minority (institution). Yet, by the letter under reference (dated 9-9-1998) approval was accorded to the teaching and non-teaching posts created by the Governing Body of the college about 8 to 10 years before the college was declared as a minority (institution) by the State Government. (ii) The prior permission of the State Government for the Ist affiliation of the college at Inter Arts level in a few subjects was communicated in December, 1981 and the prior permission of the State Government for affiliation upto the B.A. level, without any financial burden was communicated in February, 1983. In pursuance of the decision of the Council of Ministers taken in its meeting of 19-10-1982 the State Government had issued Resolution No. 1065, dated 9-12-1982 in Paras 3 and 4 of which it was stated that "any financial burden resulting from affiliation of any fresh faculties and creation of any new teaching or non-teaching posts by an affiliated college shall have to be borne by the college itself and the financial burden being borne by the State Government on the basis of decisions taken by it so far shall continue to be borne, as before, by the State Government."Because the State Government was not bearing the financial burden of any teaching or non-teaching employees of the college till the issuance of the resolution on 9-12-1982, the letter under reference (dated 9-9-1998) by which the college was granted approval as recipient of deficit grant-in-aid for payment of deficit salary (of its employees) was contrary to the provisions contained in the resolution. (iii) From the facts stated in sub-paras 1 and 2 above, it is clear that prior to 17-8-1988, i.e. before being declared as a minority college, this was an affiliated college. (iii) From the facts stated in sub-paras 1 and 2 above, it is clear that prior to 17-8-1988, i.e. before being declared as a minority college, this was an affiliated college. This fact is also confirmed by the letter dated 26-10-1989 sent by the Magadh University in which a request is made to the State Government, for creating posts for this college on the basis of affiliation granted to it upto intermediate and graduate level. But by the letter under reference, (dated 9-9-1998) approval has been accorded to posts created unauthorisedly by the Governing Body (which at that time) did not have any power or authority to create posts. It is thus clear that the letter, dated 26-10-1989 sent by the University to the State Government and the action of the Governing Body (in creating posts) beyond its jurisdiction were contrary to each other.(iv) In the same manner, the criteria as laid down in Para 3 of the departmental letter No. 531, dated 23-2-1979, for determination of pay deficit and the date of creation of posts for the teachers of affiliated colleges are as follows : (a) Such posts which were approved by the University on the proposal of the Governing Body prior to 7-5-74, shall be deemed to have been duly created. (b) Such posts which were created after 7-5-74, and were not approved by the State Government, shall not be deemed to have been duly created. But, in the letter under reference, (dated 9-9-1998) posts created by the Governing Body in the years, 1978, 1979 and 1982, were accorded approval and the college was acknowledged as a deficit-grant college making payment of salary and allowance, (to its employees) from the Government grant. 11. On the basis of the four reasons as quoted above, the impugned letter went on to declare that Order No. 1445, dated 9-9-1998 was void ab initio and was, therefore, cancelled with effect from 9-9-1998, the date of its issuance. 12. Both Mr. Y. V. Giri, Senior Advocate appearing for the petitioners in CWJC No. 12329 of 2001 and Dr. S. N. Jha, Senior Advocate appearing for the petitioner in CWJC No. 12506 of 2001 strongly assailed the Government decision/direction as contained in the Secretarys letter, dated 13-8-2001 and contended that it was the latter decision which was wholly bad and illegal, rather than the earlier Government decision which it attempted to cancel. S. N. Jha, Senior Advocate appearing for the petitioner in CWJC No. 12506 of 2001 strongly assailed the Government decision/direction as contained in the Secretarys letter, dated 13-8-2001 and contended that it was the latter decision which was wholly bad and illegal, rather than the earlier Government decision which it attempted to cancel. Taking one by one each of the reasons assigned in the impugned letter for declaring the earlier Government decision as void ab initio, learned counsel pointed out that all the four reasons were unsustainable in law and could not stand a moments scrutiny. 13. Both Mr. Giri and Dr. Jha submitted that the reason assigned in sub-paras (i) and (iii) of the impugned letter was that the Governing Body of the college could only create posts after the college was declared as a minority institution and the earlier Government decision was bad and erroneous because by that decision the Government gave approval and committed itself to give deficit grant-in-aid to posts created by the governing body of the college long before it was declared as a minority institution. Learned counsel submitted that this proposition was based on three assumptions each of which was plainly and directly contrary to the decisions of the Supreme Court and this Court. The assumptions on which the proposition is founded may be stated as follows : (a) A college can acquire its character as minority institution only after it is so declared by the Government. (b) The bar of Sec. 35 of the Bihar Universities Act, 1976 would apply to a minority institution as well; at any rate the bar would apply before the college was declared as a minority institution by the Government. (c) Sec. 35 of the Act allowed for creation of posts only with the prior approval of the Government. 14. Learned counsel submitted that by declaring a college as a minority institution the Government does not confer on it minority status but simply acknowledges the existing fact and the first premise at (a) was plainly contrary to this legal position laid down by the Supreme Court in N. Ammad V/s. Manager, Emjay High School, (1998) 6 SCC 674 . 14. Learned counsel submitted that by declaring a college as a minority institution the Government does not confer on it minority status but simply acknowledges the existing fact and the first premise at (a) was plainly contrary to this legal position laid down by the Supreme Court in N. Ammad V/s. Manager, Emjay High School, (1998) 6 SCC 674 . In Para 13 of this decision it was observed as follows at page 52-53 of AIR : "When the Government declared the School as a minority school it has recognised a factual position that the School was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the School can claim protection only after the Government declared it as a minority school on 2-8-1994." 15. The second assumption that the bar of Sec. 35 of the Act applied to a minority institution as well was similarly contrary to another Supreme Court decision in the case of Maulana Azad College, Ranchi arising from Bihar itself which is reported under the title, State of Bihar V/s. Syed Asad Raza, (1997) 11 SCC 442 . In Para 5 of that decision it was held as follows at page 2426 of AIR : "A reading of the above clearly indicates that after coming into force of the Bihar State Universities Act, 1976 w.e.f. 16-5-1976, 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 religious or linguistic minority. Even the non obstante clause in Sub-sec. (2) also makes exceptions to the Clauses (a) and (b) of Sub-sec. (1) of Sec. 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 precondition. The question, therefore, is whether such an appointee, the first respondent is entitled to the payment of the grant-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. The question, therefore, is whether such an appointee, the first respondent is entitled to the payment of the grant-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 institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language." 16. Learned counsel submitted that the first two premises being clearly contrary to the decisions of the Supreme Court the ground founded on those premises must be held to be bad and illegal but if it were not sufficient the third assumption that Sec. 35 allowed for creation of posts only with the prior permission of the Government was equally bad being in the teeth of the Full Bench decision of this Court in Braj Kishore Singh V/s. State of Bihar, 1997 (1) PLJR 509 . The Full Bench decision of this Court painstakingly explained that an undue insistence on prior sanction for creation of posts would make the section unworkable. The decision then went on to read down Sec. 35 so as to also include within its ambit post facto approval of the already created posts. In Para 21 of the judgment it was observed as follows : "The relevant part of Sec. 35 requiring prior approval in the matter of appointment has to be read down to include post facto approval otherwise the provision may become unworkable and lead to anomalous or absurd situations." 17. Learned counsel submitted that even assuming that the bar of Sec. 35 applied to a minority college, the earlier Government Order, dated 9-9-1998 was fully consistent with the legal position enunciated by the Full Bench decision and the Government acted perfectly lawfully in giving approval to the posts created by the Governing Body earlier. 18. I find considerable force in the petitioners criticism and the reasons assigned in sub-paras (i) and (iii) of the impugned letter for declaring the earlier Government decision (dated 9-9-1998) as void ab initio must, therefore, be held non est for being contrary to the pronouncements of the Supreme Court and this Court. 19. 18. I find considerable force in the petitioners criticism and the reasons assigned in sub-paras (i) and (iii) of the impugned letter for declaring the earlier Government decision (dated 9-9-1998) as void ab initio must, therefore, be held non est for being contrary to the pronouncements of the Supreme Court and this Court. 19. Learned counsel for the petitioners then took up the reason assigned in sub-Para (ii) of the impugned letter that the earlier Government decision (dated 9-9-1998) was bad for being passed in disregard of and in violation of Government Resolution No. 1065, dated 9-12-1982 and submitted that this plea too was equally unsustainable in law for the following reasons : (a) Government Resolution No. 1065, dated 9-12-1982 had no application in case of a minority institution; and (b) In the case of Maulana Azad College, Ranchi, the reliance placed by the Government on this resolution for not giving the deficit grant-in-aid to the petitioner in that case was not accepted by this Court as would be evident from the (unreported) judgment and order, dated 17-5-1995 in C.W.J.C. No. 1879 of 1992 (R), Syed Asad Raza V/s. State of Bihar (which finally went to the Supreme Court and resulted in the decision in the State of Bihar and others V/s. Syed Asad Raza and others) (supra). 20. In my view it is not needed to go into the question whether the provisions of Government Resolution No. 1065, dated 9-12-1982 are applicable to a minority institution because to hold the earlier Government decision, dated 9-9-1998 as bad and illegal on the basis of Government Resolution No. 1065, dated 9-12-1982 appears to me to be quite wrong and unsound for another reason. It is incorrect to say that the Government decision, dated 9-9-1998 was taken in disregard of and in violation of that Government Resolution. The Government decision, dated 9-9-1998 expressly refers to Resolution No. 1065, dated 9-12-1982. Further, it is to be seen that Para 3 of that Resolution reads as under : "Any financial burden resulting from affiliation of any fresh faculties and creation of any new teaching or non-teaching posts by an affiliated college shall have to be borne by the college itself and the financial burden being borne by the State Government on the basis of decisions taken by it so far shall continue to be borne, as before, by the State Government." 21. This is clearly capable of two meanings; one that the Government will not take up any financial burden in respect of any new teaching or non-teaching posts, i.e. posts created after 9-12-1982 and the other that the Government will not take up any financial burden after 9-12-1982. At the time of taking the decision, dated 9-9-1998 the Government clearly read its resolution, dated 9-12-1982 to mean that it will not accept any financial liabilities for posts created after the issuance of that resolution and, therefore, made its commitment for giving deficit grant-in-aid to the college in respect of posts created by the Governing Body before 9-12-1982. 22. Now the Secretary seeks to read the Government Resolution to mean that the Government will not accept any financial liabilities after 9-12-1982 and on that ground holds the earlier decision as violative of the Government Resolution. To hold the Government decision as bad on a fresh interpretation of the Government Resolution which was clearly followed in the earlier decision as well is, to my mind, impermissible and, therefore, the reason assigned in sub-para (ii) of the impugned letter must also be held to be non est. 23. This leaves the last reason for holding the Government decision dated 9-9-1998 as void ab initio as stated in sub-paragraph 4 of the impugned letter. The Secretary took the view that the Government decision dated 9-9-1998 was taken in violation of the departmental letter No. 531, dated 23-2-1979. Counsel for the petitioners stated that the letter under reference was incorrectly mentioned and the correct number of the Government letter was 537 and it was dated 19-2-1979. It was further submitted that the Government decision dated 9-9-1998 did not in any way violate the Government Circular dated 19-2-1979. The impugned letter of the Secretary quoted sub-paragraph Ka and Kha of Paragraph 3 of the Government letter No. 537 dated 19-2-1979 but did not take into consideration sub-paragraph Ga and Gha. Sub-paragraph Ga of Para 3 of that letter was as follows "However, such posts in respect of which there is no approval either of the University or of the State Government but in respect of which, on the basis of the affiliation, the University Service Commission had issued advertisement and made its recommendation and against which appointments are also made, they would also have to be approved, because there is no other alternative." 24. Learned counsel further submitted that apart from this, by its decision dated 9-9-1998 the Government had first accorded approval to the posts created by the Governing Body and had then proceeded to declare them as recipient of deficit grant-in-aid. There was, therefore, no question of any violation even of sub-para Kha of Para 3 of the departmental letter under reference. 25. I find much substance in the submissions advanced on behalf of the petitioners and I find that the petitioners are able to successfully demolish all the three reasons assigned in the impugned letter for holding the Government decision dated 9-9-1998 as void ab initio. In the light of the discussions made above, the impugned letter issued by the Secretary must be held to be bad and illegal. 26. The petitioners in support of their case also relied upon a decision of this Court in Governing Body of Sanjay Gandhi Smarak Mahavidyalaya, Sheikhpura V/s. State of Bihar, 1999 (1) BLJ 544. In this decision a learned single Judge of this Court set aside a similar direction by which an earlier decision of the Government to give deficit grant-in-aid to the Sanjay Gandhi College, Sheikhpura was sought to be cancelled simply on the ground that the latter Government decision was taken without giving any show cause or opportunity of hearing to the college concerned. The decision in the case of Sanjay Gandhi College fully supports the petitioners in this case. 27. Ms. Priyadarshini, JC to SC 7, appearing for the State, strenuously tried to defend the directions contained in the impugned letter of the Secretary. Learned counsel submitted that notwithstanding the earlier Government decision dated 9-9-1998 no grant-in-aid was in fact ever given to the College and, therefore, no enforceable right ever accrued to the petitioners. 28. I am unable to accept the submissions and to my mind the fact whether or not the amount of deficit grant-in-aid was given to the college is not the determining factor in this case. It is undeniable that the Government took the decision to accord approval to the posts created by the Governing Body of the college and to give for those posts deficit grant-in-aid and the Government decision was communicated to the Secretary of the college under Memo No. 1445, dated 9-9-1998 issued by the Dy. Secretary to the Government. This certainly gave a right to the college. Secretary to the Government. This certainly gave a right to the college. Now, that Government decision is sought to be characterised as bad and void ab initio for reasons, which as seen above, are totally unfounded and untenable. The petitioners certainly have a right to challenge this letter by which an earlier decision taken in favour of the college is sought to be cancelled with effect from the date of its issuance. 29. Ms. Priyadarshini then sought to argue at length that the earlier Government decision was erroneous and was likely to put a heavy financial liability on the Government. She was, however, unable to show why was the earlier Government decision dated 9-9-1998 erroneous, illegal and fit to be recalled. I am, therefore, unable to accept her submission though I do appreciate the effort she made in defending the impugned letter and the amount of work she apparently put in the case. 30. For the reasons discussed above, the directions contained in the impugned letter of the Secretary, Department of Higher Education dated 13-8-2001 are set aside. This would naturally restore the earlier Government decision dated 9-9-1998. But it must be stated here that the counsel for the petitioners in these two writ petitions acted fairly and plainly, stated that they did not intend to pin down the State Government to its commitments (as contained in the letter dated 9-9-1998) in respect of all the posts created by the Governing Body on the three dates mentioned in the letter. 31. Mr. Y. V. Giri and Dr. Sadanand Jha clearly stated that though the State Government must not be allowed to go back on its commitment to give deficit grant-in-aid to the college, the petitioners will not dispute the right of the State Government to examine the actual requirement of teaching and non-teaching posts in the college in the light of the norms/staffing pattern laid down by the U.G.C. and the State Government and further having regard to the number of students in courses for which the college had got affiliation. This Court appreciates the fair stand taken by the petitioners and holds that though the commitment made by the State Government in its letter, dated 9-9-1998 to give deficit grant-in-aid to the college remains subsisting and binding on it, it will be open to the Government to re-determine the number of posts (both teaching and non-teaching) in respect of which it would give the deficit grant-in-aid. The number of posts will be determined in the light of the norms laid down by the State Government and the staffing pattern recommended by the U.G.C. and further having regard to the number of students in the courses for which the college has got affiliation. Further, the defincit grant-in-aid will be given only to such staff (both teaching and non-teaching) who are holding the posts approved by the State Government validly and legally. The exercise of determining the number of posts for which deficit grant-in-aid is to be allowed must be completed, after giving due notice to the college management, within three months from the date of receipt/production of a copy of this order in the office of the Secretary, Higher Education. 32. In the result, this writ petition is allowed subject to the aforesaid observations and directions. Petition allowed.