IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9624 of 1997 1. Dr. Ram Deo Mahto, Son of Sri Muneshwar Mahto, Associate Professor of Physics, Muzaffarpur Institute of Technology, Muzaffarpur-3. 2. Sri Ram Nath Singh, Son of late Ram Dahin Singh, Associate Professor of Physics, Muzaffarpur Institute of Technology, Muzaffarpur-3. 3. Sri Baidya Nath Choudhary, Son of late Deo Nandan Choudhary, Associate Professor of Mathematics Muzaffarpur Institute of Technology, Muzaffarpur. ------ Petitioners Versus 1. The State of Bihar through the Secretary, Department of Science & Technology, Govt. of Bihar, Vikas Bhavan, Bailey Road, Patna- 15. 2. The Addl. Secretary, Department of Science & Technology, Govt. of Bihar, Vikas Bhawan, Bailey Road, Patna-I. 3. The Director, Department of Science & Technology, Government of Bihar, Vikash Bhawan, Bailey Road, Patna-15. ------- Respondents With CWJC No.5684 of 1998 Dr. Ram Deo Mahto, Son of Sri Muneshwawr Mahto, Associate Professor of Physics, Muzaffarpur Institute of Technology, Muzaffarpur-3. -------- Petitioner Versus 1. The State of Bihar through the Secretary, Department of Science & Technology, Patna. 2. The Additional Secretary, Department of Science & Technology, Vikas Bhawan, Bailey Road, Patna-I. 3. The Director, Department of Science & Technology, Government of Bihar, Vikash Bhawan, Bailey Road, Patna-15. 4. The Bihar Public Service Commission, Bailey Road, Patna through its Chairman. --------- Respondents ----------- 7 03.08.2010 Heard learned counsel for the petitioners in both the cases. It has to be noted that the petitioner no.1 is the petitioner in both the cases and in view of the relief made in the first writ application, the second writ 2 application was not maintainable, inasmuch as, the relief claimed in both the writ application is virtually and in fact actually also identical as would be apparent from the relief prayed in the two writ applications, which reads as follows:- CWJC No. 9624 of 1997 “20(I). That, a direction may kindly be issued to the Respondents to promote the petitioners to the post of Professor in Time Bound Promotion Scheme w.e.f. the dates they qualify in their respective service as provided in the scheme. (II) That, the Respondents may kindly be directed to initiate and dispose of the promotion matters of the petitioners also soon.” CWJC No. 5684 of 1998 (1) That the present writ application is being filed for issuance of a writ in the nature of mandamus or any other appropriate writ, direction commanding the respondents to grant promotion to the Petitioner to the post of Professor in the Institutions under the Department of Science and Technology Government of Bihar with effect from 19.10.80 when the petitioner being a Scheduled Caste, became eligible 3 for such promotion which has not been given to the petitioner till date though there is a vacant post of professor lying from 1.5.78 in the reserve category.” Nonetheless, as the matter has remained pending before this Court for a period over thirteen years and the issue only relates to consideration of the case of promotion of the petitioners holding the post of Lecturer (Associate Professor) in the Engineering Colleges of the State of Bihar, this Court would consider the case of the petitioner no.1 in the first writ application, who is the sole petitioner in the second case, treating his relief to be identical in both the writ applications. It is not in doubt that the State of Bihar still has its own Engineering Colleges for which it has been prescribing the service condition, which may be some time at par with the University Grant Commission (U.G.C.) or later on as introduced by the All India Council for Technical Education (A.I.C.T.E.). Nonetheless, to the extent they have been adopted by the State of Bihar in its order 4 for the Engineering Colleges alone would be made applicable and not the scheme of U.G.C. or A.I.C.T.E. as a whole. Once this aspect becomes clear, this Court would find that the claim of the petitioners has to be considered strictly on the basis of the letter of the Science and Technology Department contained in Resolution dated 16.2.1990, which had introduced the new revised pay-scale for the teaching posts in the Engineering Colleges and had also made certain provision for promotion. Paragraph nos. 4 & 5 of the said Resolution, being relevant, are quoted hereinbelow:- “4- u;s osrueku esa osru fu/kkZj.k ,oa lHkh lsok 'krZ rFkk ca/ku ¼dEiksftV Ldhe½ ekuo lalk/ku fodkl ea=ky; ¼f'k{kk foHkkx½ }kjk fu/kkZfjr lsok 'krZ] fu;e rFkk QkeqZys ds vuqlkj fuEukafdr la'kks/ku ds lkFk Lohd`r fd;k tkrk gS%& ¼d½ bu f'k{kdksa dh lsok fuo`fr vk;q 60 o"kZ gksxhA ;g izko/kku 31-10-89 ls ykxw gksxkA ¼[k½ f'k{kk foHkkx ¼fcgkj½ dh Hkkafr 1-3-89 rd tks izksUufr gqbZ gS ;k ns; gS mls dk;e j[kk tk;sxk ysfdu bl rjg ds ekeys esa osru iqujh{k.k izksUufr dh frfFk ls ns; gksxkA 5- jkT; ds fo'ofo|ky;@egkfo|ky;ksa@ch0lh0bZ0] iVuk ds fy, Lohd`r lHkh izdkj dh izksUufr ;k mlh lsok 'krZ ,oa ca/kst ds lkFk vfHk;a=.k egkfo|ky; ¼ch0vkbZ0Vh0] flUnjh] ,e0vkbZ0Vh0] eqtQ~Qjiqj] ch0lh0bZ0 Hkkxyiqj] vkj0vkbZ0Vh0] te'ksniqj lfgr½ ,oa jktdh; iksfyVsdfud rFkk [kuu~ laLFkku 5 esa ;w0th0lh0 osrueku izkIr dj jgs f'k{kdksa dks ns; gksxkA ;s izksUufr;kW fuEukafdr gS %& ¼d½ 17-2-84 ls lgk;d izk/;kid ls lg&izk/;kid ,oa lg&izk/;kid ls izk/;kid ds in ij es/kk ¼esfjV½ izksUufr ;kstuk tks jktHkou lfpoky; ds i=kad 3976 fnukad 22-12-86 ds vuq:i ykxw gksxkA ¼[k½ 1-2-85 ls lgk;d izk/;kid ls lg&izk/;kid ds in ij 10 o"kZ ij ,oa lg&izk/;kid ls izk/;kid ds in ij 25 o"kZ ij dkyc) izksUufr ;kstuk tks jktHkou lfpoky; ds i=kad 4032 fnukad 24-12-88 ds vuw:i ykxw gksxkA ¼x½ 1-2-85 ls lg&izk/;kid ls izk/;kid ds in ij 16 o"kZ ¼lgk;d izk/;kid@lg&izk/;kid dh dqy lsok½ ij dkc) izksUufr ;kstuk tks jktHkou lfpoky; ds i=kad 4099 fnukad 20-11-87 ds vuq:i ykxw gksxkA dqykf/kifr dk;kZy; }kjk fuxZr fo'ofo|ky; ds fy, bu izksUufr laca/kh vkns'k dh izfr layXu gSA” to show that what was made applicable in the Government Engineering Colleges while adopting the Time Bound Statute applicable to the other colleges of the State of Bihar governed by the provision of Bihar State University Act, 1976 was very much confined. In fact with regard to the aforementioned relief, the respondents have also explained that since the petitioners did not possess the Ph.D. qualification on or before 1.3.1989, they could not be given Time Bound Promotion on the post of Professor. 6 Counsel for the petitioners of the first case had made a herculean effort to make out a case that a Lecturer under the Bihar State University Act under the Time Bound Promotion Statute could be promoted on the post of Professor even when he had not possessed Ph.D degree. The difficulty for the petitioners however that they has to accept or reject the scheme of the Government for the Engineering College as a whole as was introduced in the two letters of the Chancellor Secretariat no. 3976 dated 22.12.86 and letter no. 4032 dated 24.12.1988, which, in fact, were only adopted by the State Government for the Engineering Colleges by the order no. 379 dated 16.2.1990 (Annexure-1 to the first writ application). The Statute for promotion dated 22.12.1986 is of-course with regard to the merit promotion and the petitioners had not claimed any benefit under the said statute. Then would come the provision with regard to the promotion from the post of Assistant Professor to the Associate Professor on completion of ten years and from Associate 7 Professor to Professor on completion of twenty-five years as per the statute of the University contained in Chancellor’s Secretariat letter no.4032 dated 24.12.1986. On the basis of this, the petitioner no.1 of the first case, who is the sole petitioner in the second case, has submitted that he could not have earned promotion as he had no Ph.D. and that as he had completed his Ph.D. in the year 1997. The counsel for the petitioners in the second case submits that sole petitioner of his case would be entitled for reconsideration of his case of promotion in terms of the Government resolution dated 30.12.2003 giving retrospective effect from 1.1.1996. In view of the fact that while the supplementary affidavit in the second case was served on the counsel for the State only on 3.8.2010 i.e. today, the same is not capable of being replied in a hearing case, which has remained pending for last thirteen years. In such a situation, this Court would direct the Principal Secretary of the 8 Science and Technology Department to consider the case of the petitioners for promotion in terms of the resolution dated 30.12.2003 under the Career Advancement Scheme. It is, however, made clear that while doing so, the respondent must take into account that the petitioners have already retired from service and when the scheme in Government Resolution dated 30.12.2003 itself has been introduced after their retirement giving retrospective effect from 1.1.1996, its benefit it at all admissible to the petitioners must be extended to them because their entitlement for post retirement benefit may increase on being granted promotion to the post of Professor. Additionally this Court would also observe that as the only objection with regard to the grant of Time Bound Promotion to the petitioners was based on their not possessing the Ph.D. degree and now the petitioner no.1 Dr. Ram Deo Mahto, is said to have conferred Ph.D. degree in 1997, any decision for such benefit that may become available to the petitioner no.1 for grant of 9 promotion in the post of Professor, must be taken expeditiously preferably within a period of four months from the date of receipt/production of a copy of this order. With the aforementioned observation and direction, both of these applications are disposed of. Rsh (Mihir Kumar Jha, J.)