CIVIL WRIT JURISDICTION CASE No.5238 OF 2006 1. RAM KUMAR PRASAD Son of Late Moti Mahton resident of Mohalla Ghughri Tard P.S. Civil Lines District- Gaya at present Laboratory Assistant, Govt. Polytechnic, Gaya 2. Manoj Kumar Singh son of late Haribansh Pd. Singh resident of Village Maldiha P.S. Barhara Kothi District- Purnea. 3. Yogendra Prasad Rajak son of late Gauri Prasad Rajak resident of village Paharpur P.S. Mahnar Road District-Vaishali At present both petitioner nos. 2 and 3 are Laboratory Assistant, New Govt. Polytechnic, Patliputra, Patna-13 4. Chandra Shekhar Prasad son of late Shiv Narayan Pd. Resident of Village Pamai P.S. Parmalpur District-Nalanda 5. Baleshwar Prasad son of Late Sahadeo Singh, resident of Village- Mahendrapur, P.S. Hathidah, District- Patna At present both petitioner nos. 4 and 5 are Laboratory Assistant, Govt. Polytechnic Barauni, Begusarai --------------- Petitioners Versus 1. THE STATE OF BIHAR 2. The Commissioner and Secretary, Department of Science and technology, Government of Bihar, Patna . 3. The Director, Science and Technology, Govt. of Bihar, Patna ---------------Respondents ******* For The Petitioner : Mr. Taranath Jha, Adv. Mr. Shashank Shekhar Jha, Adv. For The Respondent : Mr. Anil Kr. Jha, G.A. 2 Mr. Binodamand Mishra, AC to G.A. 2 ******** P R E S E N T THE HON'BLE MR. JUSTICE NAVIN SINHA ******* Navin Sinha, J. Heard learned counsel for the petitioners and learned counsel for the State of Bihar. An advertisement was published by the State Government on 15.10.1986 inviting applications for appointment on the post of Laboratory Assistants in the pay scale of 785-1210. The qualification 2 prescribed was B.Sc (Physics) with Chemistry and Mathematics. The petitioners having applied came to be appointed on 7.6.1989 and 5.7.1989 posted at different Government Polytechnics. Having learnt of certain orders of this Court and the Apex Court granting UGC pay scales to Laboratory Assistants as granted to Demonstrators, the petitioners also represented for the same and ultimately filed C.W.J.C. No. 3954 of 2000. A Bench of this Court on 16.9.2005 granted liberty for filing of representation which was required to be disposed by reasoned order. The respondents then passed the impugned order dated 28.1.2006. It rejects the claim of the petitioners on the grounds (a) the State of Jharkhand had passed orders with regard to Laboratory Assistants of the Ranchi University to which UGC norms apply. After 1986, the pay scale prescribed by the All India Council of Technical Education (hereinafter called the AICTE Act) shall apply to Government Polytechnics and there was no post of Demonstrator prescribed therein or recommended pay scale (b) the norms prescribed under the AICTE Act for technical education with regard to staffing pattern, service conditions, infrastructure required etc. were different (c) with effect from 1.1.1986, the AICTE 3 norms applicable in technical institutions has been approved by the State Government and under which the staffing pattern, service conditions and salary were to be in accordance with the provisions of the AICTE Act and not the UGC scales (d) there was no post of Demonstrator under the AICTE Act but only of Laboratory Assistants on which the petitioners had been appointed after 1.4.1980 in the sanctioned pay scale. Laboratory Assistants were employees of the State Government according to the AICTE Act. Their pay scale was to be fixed/revised by the State Government and the provisions of the Bihar Service Code shall apply to them, (e) by notification dated 5.7.1991 the post of Demonstrator had been abolished by the State Government. There existed only the post of Laboratory Assistants. The persons presently working as Demonstrators had been appointed prior to 1.4.1980 and with their retirement the post shall stand abolished. Learned counsel for the petitioners submitted that earlier their existed the post of Demonstrator only in Government Polytechnics. On 25.6.1973 this was redesignated as Laboratory Assistants. In that light C.W.J.C. No. 522 of 1979 was filed by certain persons holding the post of 4 graduate Laboratory Assistants in Muzaffarpur Institute of Technology at Muzaffarpur (hereinafter called the M.I.T.), Bhagalpur College of Engineering and the Bihar Institute of Technology, Sindri District- Dhanbad. These all are technical institutions under the Department of Science and Technology. They claimed parity for grant of UGC pay scale of Demonstrators which had been granted to graduate Laboratory Assistants functioning in the Bihar College of Engineering. While, the latter was directly under the Patna University, the others were Government colleges affiliated to University. The State Government had decided to introduce the revised pay scale for teachers of Universities and degree colleges as recommended by the UGC. The petitioners raised a claim for the UGC scale. A Division Bench of this Court held that the nature of work of Laboratory Assistants in the technical institutions of the Department of Science and Technology are the same as of Demonstrators in the Universities and their qualifications for appointment to those posts are also the same. Reliance for was placed on a letter dated 30.7.1976 from the State Government in the Department of Science and Technology which reads as :- 5 “Since the Laboratory Assistants working in the Engineering Colleges and Polytechnics have more or less similar qualifications as compared with their counter-parts in colleges and universities, their representation, for redesignating them as Demonstrators may be considered if Govt. of India agree to implement the scale given to the Demonstrators of colleges & universities. The Government of India have already sent recommendation in respect of teaching personnel in Engineering Colleges and the State Govt. will shortly implement U.G.C. pay scales in Engg. Colleges. In view of the same it is only desirable that similar recommendation in respect of Laboratory Assistants/Demonstrator of Engineering Colleges on the same line as recommended for demonstrators of colleges/universities are sent to the Government of Bihar, immediately”. Directions were therefore given to pay them the UGC pay scale in accordance with that implemented by the State Government with regard to those under the Patna University. The decision of this Court was reflected in a Government decision dated 9.3.1995 explicitly stating that the UGC pay scale shall also be applicable to persons holding the post of Laboratory Assistants inter alia in the Government Polytechnic. The petitioner, assails the impugned order to the extent that it grants the benefit only to persons appointed as Laboratory Assistants after 1.4.1973 but before 1.4.1980. The submission is that there is no 6 justification for this arbitrary cut off date. The petitioners were appointed under an advertisement prior to coming into force of the AICTE Act. The qualification for appointment on the post of Laboratory Assistants prescribed by the State Government was B.Sc. That stipulated under the AICTE norms is 10+2 with five years experience or 10 years schooling plus a national trade certificate or vocational course certificate in an appropriate trade with three years practical experience. Once the process of selection had been initiated, the intervening AICTE Act with effect from 8th December 1987, the date of publication in the Gazette of the Act, shall not interfere with the original conditions of the advertisement. The Act shall be prospective in its operation. The petitioners are therefore persons appointed as Laboratory Assistants entitled to grant of UGC scale of Demonstrator. The post of Demonstrator has been abolished only on 5.7.1991. They are required to be redesignated as Demonstrators and the post shall stand abolished likewise on their superannuation. Counsel for the State acknowledged that in terms of the judgment in C.W.J.C. No. 522 of 1979, persons working as graduate Laboratory Assistants in 7 Government Polytechnics are also entitled to the UGC pay scale of Demonstrators. However, a distinction was sought to be made based upon the order of the Government dated 9.3.1995 that this benefit under the aforesaid judgment shall be available only to those appointed in between 1.4.1973 and 1.4.1980 as Laboratory Assistants. Learned counsel very fairly acknowledged that the impugned order contains no explanation and the counter affidavit does not help him to demonstrate in any manner the relevance of the cut off date 1.4.1980. He next urged that after coming into force of the AICTE norms, it no more providing for the post of Demonstrator but only of Laboratory Assistants, a post on which the petitioners have been appointed in 1989 after coming into force of the AICTE Act they cannot be granted the UGC pay scale. The AICTE Act 1987 (Act 52 of 1987) was published in the Gazette on 28.12.1987. It was proceeded by the All India Council for Technical Education set up in 1945 by a Government resolution as a national expert body to advise the central and the State Government for ensuring coordinating development of technical education in accordance with the approved standards. In 1986 it was decided 8 to be given a statutory form by promulgation of the AICTE Act. In C.W.J.C. No. 522 of 1979, this Court noticed that the predecessor advisory body has clearly taken the stand that revision of pay scales was exclusively the jurisdiction of the State Government. The State Government took a conscious policy decision to grant the pay scale of Demonstrators in accordance with the revision done by the UGC to those appointed as Laboratory Assistants after 25.6.1973 consequent to the redesignation of the post of Demonstrator as Laboratory Assistants. It then decided to extend this benefit to those appointed as Laboratory Assistants till 1.4.1980 only. This Court has already noticed that the State was unable to demonstrate the relevance of the cut off date of 1980 for granting UGC pay scale to Laboratory Assistants. A cut off date having relevance or nexus with the object that it seeks to achieve making a rational distinction or qualification shall be upheld by the Court. But when there is no rational basis or classification for fixation of such cut off date it becomes arbitrary. All such persons appointed as Laboratory Assistants granted UGC pay scale therefore stand at par till the coming into force of the AICTE norms. 9 This Court in C.W.J.C. No. 522 of 1979 did not redesignate Laboratory Assistants as Demonstrators. It arrived at the finding that in view of the fact that the qualifications for appointment, nature of duties etc of Demonstrators and Laboratory Assistants were the same, the latter were entitled to the UGC pay scale as granted to Demonstrators since there could not be discrimination between persons essentially holding the same nature of post performing similar duties. The Division Bench did not redesignate Laboratory Assistants under the Science and Technology department as Demonstrators. After 25.6.1973 there existed no post of Demonstrator in the Science and Technology department. The contention of the petitioners, therefore, that the post of Demonstrators having been abolished on 5.7.1991 only, they must be redesignated as Demonstrators in light of the finding in C.W.J.C. No. 522 of 1979 does not appeal to this Court. This Court has already held that the Division Bench did not give any such finding. This Court does not upheld the objection of the State that after coming into force of the AICTE Act in December, 1987 (not 1986 as mentioned in the 10 impugned order), the petitioners are no more entitled to the UGC pay scale and shall be entitled to separate fixation of pay scale as Laboratory Assistants at the discretion of the State in accordance with AICTE norms. The Court arrives at this conclusion for the reason that the respondents advertised the post on 15.10.1986 prior to the promulgation of the AICTE Act. They prescribed a qualification higher that that laid down under the AICTE Act. The AICTE Act is prospective in its operation and shall not interfere with an advertisement published prior thereto with its own specific terms and conditions including that of the pay scale. Any fixation of such pay scale on the post of Laboratory Assistants by the State Government purportedly under the AICTE norms shall necessarily have to be prospective in its application to those appointed after 28.12.1987 as Laboratory Assistants. The delay by the State Government in making the appointment shall not result in variation of the terms of the advertisement. The Court does not concur with the submission of the petitioners that by the order dated 5.7.1991, consequent to the judgment in C.W.J.C. No. 522 of 1979, the post of Demonstrator stood 11 redesignated as Laboratory Assistants. This Court is satisfied that the recitals in the order dated 5.7.1991 are basically clarificatory in nature that in view of the ongoing controversy in between Demonstrator and Laboratory Assistants it was considered expedient to formally declare that the post of Demonstrator no more existed. In the result, this Court holds that the petitioners are fully covered by the judgment of this Court in C.W.J.C. No. 522 of 1979. They shall be deemed to be persons equivalent to Demonstrator on the date they came to be appointed as graduate Laboratory Assistant and that they are entitled to the UGC pay scale. The petitioners are also held entitled to the consequential benefits with revision of pay scale to be complied with within a maximum period of ten months preferably from the date of receipt/production of a copy of this order. The writ application stands allowed only to the extent indicated. Patna High Court Dated the 06th April 2010 P. Kumar/NAFR (Navin Sinha, J.)