STATE OF BIHAR AND ORS. versus BIHAR RAJYA M.S.E.S.K.K. MAHASANGH AND ORS.

Citation: [2004] SUPP. 5 S.C.R. 376 · Decided: 12-10-2004 · Supreme Court of India · Bench: Y.K. SABHARWAL · Disposal: Dismissed
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Judgment (excerpt)

A 
ST A TE OF BIHAR AND ORS. 
v. 
BIHAR RAJY A M.S.E.S.K.K. MAHASANGH AND ORS. 
B 
OCTOBER 12, 2004 
[Y.K. SABHARWAL AND D.M. DHARMADHIKARI, JJ.] 
Service ~Absorption-Colleges affiliated to various universities taken 
C over as constituent colleges under the Act of 1976-Jurisdiction of University 
vis-a-vis the State Government to adjudicate upon validity of appointments in 
affiliated colleges and absorption of those appointees in constituent colleges-
Held: App?intments in affiliated college in normal circumstances has to be 
with the prior approval of State Government in accordance with S.35-But 
D subject matter of absorption of staff of the taken over institutions shall be 
within exclusive jurisdiction of the concerned University in accordance with 
S.4(1)(14)-0n that matter, S.35 is not a constraint on the power of the 
University-No conflict between provisions of S.4(1)(14) and S.35, although 
each contains a non-obstante clause-The two provisions intend to operate in 
E two different situations and fields, hence, over-ride each other in the field 
exclusively assigned to each-Bihar State Universities Act, 1976-Sections 
4(1)(14) and 35-lnterpretation of Statutes-Harmonious construction-
Requirement of-Jn case of two provisions in same Act each containing a 
non-obstante clause. 
F 
Constitution of India, 1950-Atticle 166-0rder of State Government 
formally not expressed in the name of Governor-Challenge to, by the State 
itself-Validity of-Held, not valid-State being the author of that decision, it 
itself cannot be allowed to resile or go back on that decision-Mere change 
of the elected government does not justify dishonouring the decision of previous 
G elected government-If at all the decision of the earlier Government was not 
acceptable to the newly elected Government, it was open to it to withdraw or 
rescind the same formally. 
Interpretation of Statutes-Non-obstante clause-Meaning, object and 
H 
376 
STATE OF BIHAR v. BIHAR RAJY A M.S.E.S.K.K.MAHASANGH 
3 77 
effect of-Two provisions each containing a non-obstante clause-Mode of A 
interpretation in such situation---Held: No settled principles can be applied 
except to refer to the object and purpose of each of the two provisions and the 
language employed in each-Harmonious construction required 
Dispute concerning absorption of about 4,000 employees working on B 
teaching and non-teaching posts in 40 colleges "affiliated" to various· 
universities which were taken over as "constituent" colleges in accordance 
with the provisions ofBihar Universities Act, 1976 arose for consideration 
in the present appeal. 
The aforementioned "affiliated" colleges were made "constituent 
colleges" of respective universities under the Resolution of the Government 
of Bihar taken in the year 1986 and implemented by the respective 
universities on entering into formal agreements with the affiliated colleges 
c 
in the year 1987. The words 'affiliated college' and 'constituent college' D 
are defined in Section 2(c) and 2(i) of the Act. Every institution recognized 
and receiving privileges of the universities in accordance with provisions 
of the Act and universities' statutes is called 'affiliated college' while 
'constituent college' means a teaching institution maintained and 
controlled by the university itself. 
E 
The High Court in the impugned judgment held that in accordance 
with Section 4(1)(14) of the Act, the concerned Universities themselves are 
empowered to take a decision on the disputes regarding the validity of the 
appointments in the affiliated colleges and the absorption of those 
appointees in the constituent colleges; and that in view of the non-obstante F 
clause contained in proviso in section 4(1)(14), the constraints in Section 
35 which provides for grant of prior approval of the State Government 
to the creation and appointment to the posts in the affiliated colleges, will 
have no application to absorption of existing staff of affiliated colleges 
taken over by the universities on their conversion as constituent colleges. a' 
The High Court rejected the contentions of the State that it alone 
has jurisdiction to set up enquiries including a vigilance enquiry for 
identification and considering the absorption of only such staff of the 
erstwhile affiliated colleges which had been duly appointe() with the prior H 
378 
SUPREME COURT REPORTS [2004] SUPP. 5 S.C.R. 
A approval of the State Government. Consequently allowing the writ 
petition
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