D. K. Seth, J. - (1.) THE appointment of class ivth staff by the college was refused to be approved by an order dated 25th October, 1983 being Annexure-1 to this writ petition on the ground that the appointment in the vacant post of class ivth staff does not appear to be justified for according approval. The said order has been impugned in the present writ petition.
(2.) MR. R.K. Jain, learned counsel for the petitioner, contends that the petitioner is a minority institution so recognised by the University in its order dated 27.1.1982 being Annexure 1A to the writ petition as well as by the order dated 24th November, 1983 issued by the Higher Education Service Commission. Annexure-A-3. This fact is not disputed by MR. R. K. Saxena, learned standing counsel, the restriction on the appointment of employees Imposed in Statute 25.04 of the First Statutes, 1976 of the Allahabad University read with Section 60A (iii) (hi of the State Universities Act, 1973 does not apply in the case of the minority institutions particularly, in view of Section 24 of the U. P. Higher Education Service Commission Act. The second contention of MR. Jain was that the said post having already been in existence, there was no question of holding the appointment non-justified. In support of his contention Mr. Jain has asserted that the restrictions imposed by Section 60A (ill) (b) of the Act does not apply in the case of minority institutions in view of Section 24 of the U. P. Higher Education Service Commission Act and Article 30 of the Constitution of India, therefore, the order impugned cannot be sustained. Mr. R. K. Saxena, learned standing counsel, on the other hand, contends relying on Section 24 of the Service Commission Act read with Article 30 of the Constitution of India that liberty is given to minority institutions from the restrictions in its administration and management. But the same does not extend to the liberation of the regulatory measures imposed by the State Government Particularly, when a minority institution is an aided one and the liability of payment of salary is with the Government. The according of permission does not affect the right to appoint any person. Because, according to him, the restriction is with regard to the creation and continuation of posts as is required to be sanctioned on the proportion of the teachers-students ratio. On the strength of the students it is determined to be 28. Whereas the college had employed as many as 53 non-teaching staff which, according to Mr. Jain is 55 including 43 class IVth employees. The strength having been in excess of the sanctioned posts, relying on the statement made in paragraph 12 of the counter-affidavit, Mr. Saxena contended that by reason of circular Issued In 1968 on the strength of the ratio of students the number of class IVth staff would not exceed 28. But since there were excess staff instead of retrenchment it was decided that on the day of retirement of excess staff the post would cease to exist so as to bring the strength of the staff within the sanctioned ratio. Present appointment having been sought to be made beyond the strength, it was open to the Director of Higher Education to refuse the approval.
(3.) IN reply Mr. Jain contended that the U. P. State Universities Act came into force in 1973. The circular issued in 1968 cannot have any effect after the promulgation of the State Universities Act, 1973. Since no rules have been framed in terms of Section 60A ft? of the State Universities Act with regard to the number of strength of class IVth staff, regulating the service condition of class IVth employees, the respondents cannot impose any restrictions on the question of strength of staff by virtue of 1968 circular and the circular cannot remain valid after the promulgation of the State Universities Act 1973. Now Section 60A (til) while denning an employee says that an : "'employee', in relation to a college means a non-teaching employee of {Such college.";