IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.9013 of 2009 1.Dr.Avesh Chandra Jha, son of Late Ganesh Chandra Jha, resident of Lal Niwas, Station Road, Madhubani, P.S. & District- Madhubani 2.Dr.Baua Kant Choudhary son of Satya Deo Choudhary, at present residing in MOhalla Dighi West, West of Mahadeo Mandit, Mishar Tola, P.S. Darbhanga Town, District- Darbhanga 3.Dr.Sushil Jha, son of Late Manghi Jha, at present residing at Professor’s Colony, Dighi West, Near BSNL Tower, P.S. Darbhanga Town, District- Darbhanga 4.Dr.Pramod Jha, son of Sri Tosh Mani Jha, at present residing at Mohalla Kadirabad, East of Naka No.2, L.N.M.U. Police Station, District- Darbhanga ………… Petitioners Versus 1.The State Of Bihar 2.Principal Secretary, Higher Education Department, Govt. of Bihar, Patna 3.Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga through its Registrar 4.Vice Chancellor, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga 5.Registrar, Lalit Narayan Mithila University, Kameshwar Nagar, Darbhanga 6.Principal, R.B.College, Dalsinghsarai ……………… Respondents ----------- For the Petitioners : M/s Gyanand Roy and Sheo Nandan Mishra, Advocates For the University : Mrs.Nivedita Nirvikar, Adv. For the State : Mr.Nagendra Sharma, A.C. to G.P.8 ----------- 3. 19/08/2010 Petitioners have filed this writ application for quashing of notification issued by the University dated 20.6.2009, as contained in Annexure-1, by which in terms of Government Memo No.2G1-07/2007 Higher Education 12 dated 18.12.2008 (wrongly typed in the Annexure as 08.12.2008), petitioners have been denied recognition of their services 2 as teachers and benefits thereof. Petitioners have also prayed for quashing of subsequent show cause notice dated 22.6.2009, annexed as Annexure-2 series, issued to them. By filing I.A.No.4805 of 2009, petitioners have also prayed for quashing of the subsequent notification of the University, as contained in Annexure-35, which has been issued on purported consideration of their reply to the show cause notice, on the same terms as contained in Annexure-1. This notification has been issued by the University during the pendency of this writ application and therefore I.A. is allowed and petitioners are allowed to challenge the said notification also in this writ application. From Annexure-1 it appears that the matter of re-designation of Laboratory Assistants/Technicians as Demonstrators traveled upto the Apex Court. After the judgment was pronounced by the Apex Court by order dated 22.7.2002, a Government notification was issued vide letters dated 14.6.2006 and 1.8.2006 by which benefits of re-designation and pay scale of the post was 3 granted to the erstwhile Laboratory Assistants/Technicians. However, vide said memo of the Government dated 18.12.2008 they were denied their status as Teachers and benefits thereof. In terms of this memo, impugned order (Annexure-1) was issued and after show cause notices, impugned order (Annexure-35) was issued by the University affirming the said decision, as contained in Annexure-1. The order of the Apex Court and the decision of the Government notified by the said letters dated 14.6.2006 and 1.8.2006 and the effect of the said memo dated 18.12.2008 upon the said decision of the Government fell for consideration before this Court in the case of Suresh Prasad Yadav Vs. State of Bihar, reported in 2010(3) PLJR 366 which was a case of similar nature of incumbents of B.N.Mandal University. After examining the said letters of the Government, this Court came to the conclusion that the benefits of re-designation granted to the erstwhile Laboratory Assistants and Technicians by the said letters dated 14.6.2006 and 1.8.2006 could not be taken by the subsequent memo dated 18.12.2008. This Court came to the 4 conclusion that the earlier decision of the Government was in conformity with the judgment of the Apex Court and therefore, the same could not be rescinded. This Court found that by a conscious decision of the Government in terms of the order of this Court as well as Apex Court, the Laboratory Assistants and Technicians were held re-designated from their initial date of appointment subject to possessing qualification. Once they were re- designated and got the status of Demonstrators, they got the status of teachers and under the Statute they were entitled for promotion from Demonstrators to the post of Lecturers and Readers which could not be denied to them on the basis of executive instructions. Learned counsel for the petitioners has referred to clause (xii) of the said memo dated 18.12.2008, as contained in Annexure-G to the counter affidavit, to contend that re- designation of Laboratory Assistants/ Technicians as Demonstrators was accepted by this letter also but it was held that they could not be treated as teachers pursuant to judicial decisions. It is clear that once it 5 is accepted that re-designation of Laboratory Assistants/Technicians as Demonstrators was valid, they are legally entitled to get the benefit of their status as teachers and of the Statute for time bound promotion of Demonstrators to Lecturers and Readers. Mere saying in this memo that they will not be entitled to the benefits of teachers cannot override their legal right flowing from the said Statute. By referring to Annexures-9 to 25, learned counsel for the petitioners has submitted that the petitioners were appointed as Laboratory Assistants/Technicians long before, and their posts were upgraded to the post of Demonstrators long back, and petitioners were confirmed on those posts. Therefore, their status as Demonstrators was established and accepted by the University from much before this controversy arose. In the circumstances, petitioners were rightly considered for their promotion as Lecturers and Readers in terms of the Statute and they were indeed promoted. However, by impugned Annexure-1 as well as Annexure-35 the benefits of their promotion to the post of Lecturers 6 and Readers have been invalidated. Be that as it may, question arises that if once the re-designation of the Laboratory Assistants/Technicians as Demonstrators has been found to be valid, whether they are entitled for consideration of their promotion as Lecturers and Readers in terms of the Statute or not. Annexure-1 as well as Annexure-35 shows that the question of re- designation of the petitioners as Demonstrators has not been reopened. In fact, it has been accepted that in terms of the letters dated 14.6.2006 and 1.8.2006 approval has been granted to re-designation of the Laboratory Assistants/Technicians as Demonstrators. If that position is accepted, then whether it is open to the respondents to deny the benefits flowing to them as per the Statute is the question. This Court in the earlier case of Suresh Prasad Yadav (Supra) has already held that the Statute, which has a force of law in terms of the Universities Act, has to prevail upon any executive instructions. Therefore, clearly the benefits of the Statute could not be denied to the petitioners pursuant to the letter of the 7 Government dated 18.12.2008. In the circumstances, this Court is unable to accept the validity of the notification of the University, as contained in Annexure-1 and Annexure-35 and the same are hereby quashed. To settle the controversy at rest, it would be appropriate to deal with the relevant portion of the letter dated 18.12.2008 here itself. For easy reference, clause (xii) of the letter is quoted herebelow : “(xii) ekuuh; loksZPp U;k;ky; }kjk ikfjr U;k;kns'k ds vuqikyu esa ,sls iz;ksx'kkyk izHkkjh@lgk;d dks tks fof/kor :i ls Lohd`r fd;s x;s inksa ij fu;fer :i ls fu;qDr gS rFkk ftudh lsok fofgr izfØ;kvksa ds v/khu l{ke izkf/kdkj dk vuqeksnu izkIr dj iz;ksx&izn'kZd ds in ij dsoy inukfer fd;k x;k gS] dks Lohd`r dh tkus okyh jkf'k ls dsoy ek= iz;ksx&izn'kZd in ij osrueku ,oa vuqekU; HkRrk dk Hkqxrku lacaf/kr vkns'kksa ds fuxZr dh frfFk ls fd;k tk ldrk gS ijUrq mUgsa U;k; fu.kZ;ksa ds vkyksd esa f'k{kd ds :i esa ekU; ugha fd;k tk jgk gS AÞ The above quoted portion of the said letter makes it clear that re-designation of Laboratory Assistants/Technicians as Demonstrators have been accepted as valid. However, it is said that they are entitled to the payments only as Demonstrators but their 8 status as teachers in terms of the judgment of this Court is not being accepted. This stipulation in the last sentence of the letter is clearly ultra vires as it is in teeth of the judgment of this Court and amounts to denial of benefits to the Demonstrators flowing to them under the Statute meant for promotion of Demonstrators to the post of Lecturers and Readers under time bound scheme. Thus, respondents have exceeded their powers in putting that condition in the said paragraph denying such benefits to the Demonstrators. Therefore, to settle the controversy, the said last sentence of the said paragraph is hereby quashed. In the result, this writ application is allowed and the matter is remitted back to the Screening Committee of the University to consider the case of the petitioners afresh for grant of all benefits of promotion etc. to them flowing from the Statute as aforesaid and in the light of observations and findings made hereinabove. Pradeep/ ( J. N. Singh,J.)