IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5478 of 2003 PREM KANT MISHRA Versus THE STATE OF BIHAR & ORS ----------- 07. 18.02.2011 No one appears on behalf of the petitioner or the State, since the Advocates are on strike. This Writ Application is being decided on perusal of the Writ Application, Counter Affidavit and the pleadings of the parties. Petitioner was initially appointed as Laboratory Assistant in the Department of Chemistry in Muzaffarpur Institute of Technology, Muzaffarpur (MIT, Muzaffarpur) vide Memo No. 2213, dated 24.06.1969. Subsequently, he was transferred from MIT, Muzaffarpur to BIT, Sindri on the same post vide Order, contained in Memo No. 5078, dated 04.12.1973, issued by the Industry and Technology Education Department (Technology), Government of Bihar. However, the transfer order was modified and the petitioner was transferred from BIT, Sindri to Government Polytechnic, Muzaffarpur on the same post vide Order, contained in Memo No. 67, dated 05.01.1973. Finally, the petitioner was transferred to Government Polytechnic, Purnea, where he was working till the date of filing of the Writ Application. 2 The Laboratory Assistants of the Government Polytechnic Institutions, including Government Polytechnic of the State of Bihar, were demanding for redesignation of their post as Demonstrator and also for implementation of University Grant Commission pay scale, admissible to the Demonstrators. C.W.J.C. No. 522 of 1979 was filed by some of the Laboratory Assistants of various Engineering Colleges, which was allowed by a Division Bench Order, dated 02.07.1980 and a direction was issued to redesignate the post of Laboratory Assistant as Demonstrator and also for giving them UGC scale of pay. The redesignated Demonstrators, earlier appointed as Laboratory Assistants, were granted UGC pay scale w.e.f. 1973 and the payment was given to them w.e.f. 01.04.1975, since the payment was not started to all such persons, like the petitioner, a contempt application was filed. Thereafter, in compliance of the order they started getting UGC pay- scale. They were also allowed revised UGC scale of pay. Demonstrators of Government Engineering Colleges and Government Polytechnics of the State of 3 Bihar were also demanding to fix their age of superannuation, similar to a Teacher because of the definition of Demonstrator as provided under section 2 (v) of the Bihar University Act, 1976. As per section 2 (v), Demonstrators are also „Teachers‟. C.W.J.C. No. 228 of 1983 was filed by Demonstrators, working in the Government Engineering Colleges and Government Polytechnics of the State of Bihar for directing the Respondents to allow same age of superannuation to them, as it is in case of Demonstrators, working in Bihar College of Engineering (BCE, Patna). The age of superannuation of the Demonstrators, working in Bihar College of Engineering (BCE, Patna) was 60 years as they were considered to be „Teacher‟ as per section 2 (v) of the Bihar State University Act, 1976. The Writ Application was allowed by the Division Bench, reported in 1996 (2) PLJR 646. In para 7 of the reported decision, there is discussion relating to this issue, which is as follows: “It would appear that except the fact that AICTE scales have been implemented from 01.01.1986, rest of the facts were already brought to the notice of this Court. In the previous writ petition i.e. C.W.J.C. No. 522 of 1979 but this Court did not 4 accept the Respondent‟s case that the Demonstrators in the two sets of Engineering Colleges did not stand at par. So far as giving AICTE scale of pay is concerned, it would appear from the letter of the Science and Technology Department dated 16.02.1999 copy whereof is marked Annexure-B to the supplementary Counter Affidavit, that the same pay scales as recommended by the AICTE, and superannuation age of the years, amongst others, have been made applicable to teachers of all Government Engineering Colleges including BCE, Patna, MIT, Muzaffarpur, BIT, Sindri and Bhagalpur Engineering College. In other words, by reason of the Government decision as contained in letter, dated 16.02.1999, the teachers of all Engineering Colleges have now been brought at par in the matter of not only pay scales but also the superannuation age. The said letter does not mention about Demonstrators. Mr. Basudev Prasad stated in this connection that no appointment to the post of Demonstrators has been made after 1975. What according to me is more relevant is the fact that in both Bihar State Universities Act, 1976, vide Section 2 (v) and the Patna University Act, 1976, vide Section 2 ®, the 5 term „teacher‟ includes amongst others “demonstrator and any other person imparting instruction in any Department, Institute and college maintained by the University”. It is true, as noticed above, that according to the Respondents it is BCE, Patna alone which is maintained by the (Patna) University, the other three Engineering Colleges in question are controlled and maintained by the State Government through the Department of Science and Technology. But is not in dispute that even those Engineering Colleges are affiliated with the respective Universities, namely, Bihar University in the case of MIT, Muzaffarpur Bhagalpur University in the case of Bhagalpur University in the case of Bhagalpur Engineering College and Ranchi University in the case of BIT, Sindri. If those Demonstrators also are teachers (and there is no dispute that they also do the teaching work) it would not be just and proper to treat them as a different class and hold that the Government decision as contained in the aforesaid letter dated 16.02.1999 is not applicable to them. If the State Government intended to treat the teachers of all Engineering Colleges whether maintained by the Department of Science and Technology or by the 6 University concerned on the same footing in the matter of not only pay but also the age of superannuation, it is not understandable to why the Demonstrators working in the Engineering Colleges should be treated differently merely on the ground that some of them are controlled and maintained by the Government while others are controlled and maintained by the University. If the two sets of colleges are treated alike with respect to other categories of teachers, in my opinion, they should be treated alike so far as the Demonstrato5rs are concerned as well.” In this very decision, reliance was also placed on a Bench Decision of this Court in Teachers Association of Government Engineering Colleges and others versus State of Bihar (1992 (2) PLJR 742). In this case also the question was whether different age of superannuation in different Engineering Colleges was discriminatory and arbitrarily. In para 15 of the judgment, it was held that “I, thus, do not see any justification as to why the age of superannuation of those Teachers, who are imparting education in the Bihar College of Engineering, Patna and those like the petitioners, who are imparting education in other 7 three Engineering Colleges of the State, should be different. The State of Bihar can not be allowed to make discrimination in regard to the age of retirement of the petitioner viz-a-viz those who are working in the Bihar College of Engineering, Patna.” C.W.J.C. No. 220 of 1983 was allowed, directing the Respondents to treat the petitioners, who were Demonstrators, working in other Engineering Colleges / Polytechnics of Bihar at par with the Demonstrators of Bihar College of Engineering, Patna in the matter of age of superannuation and give them consequential benefits. The order passed in the Writ Application was challenged before the Supreme Court, but the same was dismissed and the order passed in the Writ Application by the High Court was affirmed. In the Counter Affidavit, filed on behalf of the State, similar grounds have been taken, as it was filed in C.W.J.C. No. 228 of 1983. The objection raised in the Counter Affidavit is that the petitioner is not in the category of Teacher. Petitioner‟s service condition and other staff in the Technical Institution is Governed of Bihar Service Code under the relevant provisions of the Bihar Service Code. The age of superannuation 8 was 58 years at that point of time in the year 2003. Every employee (non-gazetted) of the Polytechnic and Engineering College was to retire on attaining the age of 58 years. Along with the Writ Application, a judgment, passed in Civil Appeal No. 3546-50 of 1993 by the Supreme Court and judgment and order passed in LPA No. 505 of 2009 and LPA No. 506 of 2009, has been annexed to show that the petitioner is not entitled for enhancement of his age of superannuation from 58 years to 60 years. The petitioner in the LPA are Instructors, working in Muzaffarpur Institute of Technology and Bhagalpur Institution of Technology. So far the post of Instructor is concerned, that is not within the purview of Teachers, defined under section 2(v) of the Bihar University Act. Section 2(v) of the Bihar University Act, includes Demonstrator within the definition of the Teacher, considering that the Division Bench of this Court in 1996 (2) PLJR 646 as well as in the earlier decision reported in 1992 (2) PLJR 742, has already held that Demonstrators are entitled for same benefits as it is allowed to a „Teacher‟, working in the Bihar College of Engineering, Patna, the issue is already settled. 9 I find that the issue, which is involved in the present Writ Application has already been settled by the decision reported in 1996 (2) 646 and the State of Bihar in Department of Science and Technology has also accepted the age of superannuation of the Teachers in all Government Engineering Colleges and Polytechnic College as 60 years. Demonstrators have also been considered to be „Teachers‟ as per the definition u/s 2 (v) of Bihar State University Act. The educational qualification and job contents of the „Demonstrators‟ of all Polytechnic and Government Engineering College, Patna are same as it is in case of Demonstrators of Government Engineering College of Bihar. It is true that service conditions of Demonstrators working in Government Engineering Colleges / Polytechnics are governed by the State of Bihar through Science and Technology Department. Despite this fact, since Demonstrator of Government Engineering College are also treated as „teaching staff‟ in that case, it would not be just and proper, not to treat the Demonstrators of Government Polytechnic, at par with Demonstrator of Bihar College of Engineering, Patna, even though they are controlled and maintained by the Government of Bihar. The 10 State of Bihar can not be allowed to make discrimination in regard to the age of retirement of a Demonstrator, working in the Government Engineering College / Polytechnic vis-à-vis working in the Bihar College of Engineering, Patna simply on the ground that it is being controlled by the University. The issue is already settled, as such the order contained in Memo No. 129, dated 08.04.2003, directing the petitioner to retire on completion of 58 years of age on 31.05.2003 is quashed. The Respondents are directed to retire he petitioner from service on completion of age of 60 yeas with all consequential benefits. With this direction, this application is allowed. SKM (Mridula Mishra, J.)