IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.505 of 2009 1. THE STATE OF BIHAR THROUGH THE SECRETARY, SCIENCE AND TECHNOLOGY DEPARTMENT, GOVERNMENT OF BIHAR PATNA. 2. THE ADDITIONAL SECRETARY, DEPARTMENT OF SCIENCE AND TECHNOLOGY, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, DEPARTMENT OF SCIENCE AND TECHNOLOGY, GOVERNMENT OF BIHAR, PATNA. 4. THE PRINCIPAL, M.I.T., MUZAFFARPUR – 842003. ..............Respondents-Petitioners-Appellants. Versus SURESH KUMAR SARAN, SON OF LATE RAM BIHARI SARAN, JUNIOR INSTRUCTOR (RTD.), ELECTRICAL, DEPARTMENT OF ELECTRICAL ENGINEERING, MUZAFFARPUR INSTITUTE OF TECHNOLOGY, MUZAFFARPUR AND RESIDENT OF MOHALLA - NAYA TOLA, BEHIND GOVT. POLYTECHNIC, MUZAFFARPUR. ………..Petitioner-Opp. Party-Respondent. WITH LPA No.506 of 2009 1. THE STATE OF BIHAR THROUGH THE SECRETARY, SCEINCE AND TECHNOLOGY DEPARTMENT, GOVERNMENT OF BIHAR PATNA. 2. THE ADDITIONAL SECRETARY, DEPARTMENT OF SCIENCE AND TECHNOLOGY, GOVERNMENT OF BIHAR, PATNA. 3. THE DIRECTOR, DEPARTMENT OF SCIENCE AND TECHNOLOGY, GOVERNMENT OF BIHAR, PATNA. ALL ADDRESSED AT TECHNOLOGY BHAWAN, BAILEY ROAD, PATNA. 4. THE PRINCIPAL, M.I.T., MUZAFFARPUR – 842003. Versus SURESH KUMAR SARAN, SON OF LATE RAM BIHARI SARAN, JUNIOR INSTRUCTOR (RTD.), ELECTRICAL, DEPARTMENT OF ELECTRICAL ENGINEERING, MUZAFFARPUR INSTITUTE OF TECHNOLOGY, MUZAFFARPUR AND RESIDENT OF MOHALLA – NAYA TOLA, BEHIND GOVT. POLYTECHNIC, MUZAFFARPUR. For the Appellants : Shri P. K. Sahi, A.G., Shri Satya Prakash Tripathy, S.C. VII Suresh Kumar, B.K. Pandey, M.N. Jha, R.K. Jha, ACs to SC VII. For the Respondent : Suresh Nandan Sinha, Subodh Chandra Jha, Advocates. ----------- 2 7/ 07.12.2009 Heard learned Advocate General for the State of Bihar, the appellant in both these appeals and learned Counsel for the sole respondent, Suresh Kumar Saran who had preferred writ petition bearing C.W.J.C. No. 14845 of 2004 to claim that he should not have been superannuated at the age of 58 years on the Post of Instructor in Muzaffarpur Institute of Technology, Muzaffarpur and instead he should have been allowed to continue to work up to the age of 60 years by treating him to be in the category of Teacher in the said institute as per the UGC norms. 2. The aforesaid writ petition was allowed by order dated 18.08.2005 and against that order State preferred LPA No. 89 of 2006 which was dismissed with observations that for better appreciation in the matter, appellant, if so advised, may file review application before the learned Single Judge. This was due to mistaken submission that State had not been 3 able to file counter affidavit in the writ proceeding. Thereafter, the appellants preferred Civil Review No. 135 of 2007 which has been dismissed along with a cost of Rs. 50,000/- by order dated 07.11.2008 which is under appeal in LPA No. 505 of 2009. The appellants have chosen again to challenge the order dated 18.08.2005 whereby the writ petition was allowed, through the other appeal. 3. Learned Advocate General drew our attention to certain facts which are based upon materials on record and not under dispute. It was pointed out that the sole respondent and another Instructor in the same institute Sri Braj Nandan Roy preferred two writ petitions in the year 2000/2001 and the same were disposed of by a common judgment and order dated 10.05.2004 with a direction that the representation which may be filed by them for treating their age of superannuation as 60 years and for some notional promotion be 4 considered and disposed of in accordance with law. The authorities declined to grant relief to the respondent as well as to Sri Braj Nandan Roy and hence both of them again preferred separate writ petitions. The order passed in the case of respondent has already been noticed earlier. The order passed by the Division Bench in LPA No. 196 of 2007 has been annexed to show that State had preferred that appeal against order of the writ court granting relief to Braj Nandan Roy and the State’s appeal was allowed by the Division Bench vide judgment and order dated 21st November, 2008, placing full reliance upon the judgment of the Apex Court in the case of State of Bihar and others Vrs. Teachers Association of Government Engineering Colleges and others reported in 2000 10 SCC 527. 4. So far as the case against the respondent is concerned, it has been submitted by learned Advocate General that the Counsel appearing for the State was 5 misled on certain facts and had advanced a factually wrong submission in LPA No. 89 of 2006 that writ petition had been heard without State having filed counter affidavit. This submission finds mention in the order dated 23.02.2007 whereby the LPA was dismissed with the observation that for full appreciation of facts State should filed a review petition. This erroneous submission was immediately noticed by the Court while hearing Civil Review No. 135 of 2007. The State Counsel had no explanation for such error and hence the learned Government Counsel appearing in the review case, as appears from the order under appeal dated 07.11.2008 in LPA No. 505 of 2009, sought permission to withdraw the review application with the undertaking to implement the order under review. On such undertaking the review application was permitted to be withdrawn with a direction to pay costs of Rs. 25,000/- to the writ petitioner and a further cost of Rs. 6 25,000/- to be deposited with the High Court Legal Services Committee, Patna. Apparently, the cost was imposed because before the LPA Bench factually wrong submission had been advanced that writ petition was disposed of without there being any counter affidavit on records. 5. Since the review petition was withdrawn, the State preferred two appeals, one against the order passed in review and other against the judgment and order allowing the writ petition of the respondent on 18.08.2005. The records of these appeals disclose that after hearing the parties, the delay in preferring the appeals has already been condoned. 6. In our view once the review application was withdrawn at the request of the Government Counsel, an appeal against the judgment and order permitting the review application to be withdrawn would not have been maintainable in ordinary circumstances. However, while permitting 7 the review application to be withdrawn the learned Single Judge has also imposed in total a cost of Rs. 50,000/-. That decision is not as per prayer made by learned Counsel for the State and hence only that part of the order under appeal passed in the review case can be assailed by the State. So far as the other appeal is concerned the issue whether the dismissal of the first LPA No. 89 of 2006 would bar the other appeal or not has to be decided first. The earlier appeal was no doubt dismissed on 23.02.2007 but that was clearly under factual mistake committed by Counsel appearing for the State. He was under a wrong impression that counter affidavit had not been filed in the writ proceedings and on such submission the Division Bench gave clear observations indicating its preference that the matter be pursued through a review application and did not go into the merits of the appeal. Such order, in our view, based upon 8 misunderstanding of facts and not touching the merits of the appeal cannot be treated to be an order on merits so as to create the bar of res judicata. In fact the mistake of fact by the Counsel caused misunderstanding in the mind of the Division Bench also, leading to order dated 23.02.2007. In our view such order cannot be allowed to stand in the way of justice. Hence, LPA No. 506 of 2009 in which delay has already been condoned deserves to be considered on merits. 7. So far as the merits of the matter is concerned, it is not in dispute that the respondent was working in Muzaffarpur Institute of Technology which is an institute belonging to the State of Bihar and managed by the concerned department of the Government having no parity with the Engineering Colleges belonging to the Universities of Bihar. It was on clear understanding of this factual and legal situation that the Apex Court 9 decided the case reported in (2000) 10 SCC 587 (Supra) and held that the three Engineering Colleges which included Muzaffarpur Institute of Technology also, are owned by the State and the service condition of Teachers of these colleges are governed by Bihar Service Code. On that ground the claim of the Teachers of Muzaffarpur Institute of Technology and two other Engineering Colleges of the State seeking parity with the superannuation age of Teachers of University Engineering Colleges was denied. 8. Hence there is no difficulty in concluding that the age of superannuation of the sole respondent shall be governed by the provisions of Bihar Service Code as modified by the State Government from time to time. On behalf of respondent it has been pointed out that at about the same time when the aforesaid judgment was rendered by the Apex Court, vide letter dated 06.07.1998 contained in Annexure-4 to 10 the writ petition the department of Science and Technology, Government of Bihar communicated its decision to all concerned that Demonstrators working in Government Engineering Colleges would now have their retirement age as 60 years. According to the learned Counsel for the sole respondent Demonstrators were given parity in the matter of age of superannuation by the State of Bihar because some time earlier the Teachers of the Government Engineering Colleges had been given the benefit of 60 years as retirement age. 9. According to learned Counsel for the respondent, there are documents to show that respondent as an Instructor was also declared to be holding a post of teaching staff in the institute and hence the benefit of enhanced age of superannuation available to Teachers and Demonstrators automatically became available to the respondent also by virtue of being holder of a post of teaching staff. 11 10. On the other hand, learned Advocate General submitted that there is vast difference factually as well as legally between Teachers and holders of post of teaching staff in an Engineering College. He submitted that both posts require different qualifications and have different pay scales and it was only pursuant to directions in a writ petition noticed in Annexure-4 to the writ petition that benefit of enhanced age of superannuation was given to the Demonstrators describing them as such and not under the general category of Teacher or teaching staff. He pointed out that no such order has been issued by the State Government in respect of the respondent who held the post of Instructor, a teaching staff. It was pointed out that earlier to holding the post of Instructor the respondent held the post of mechanic (electrical). 11. In reply learned Counsel for 12 the respondents submitted that even if no specific order granting benefit of higher age of retirement at 60 years was issued by the Government in respect to Instructors, senior or junior, the same should be granted to the respondent on the ground of equality which must be maintained between Teachers and teaching staff of the same institution. 12. Having given our anxious consideration to all the facts, we are of the view that the respondent/writ petitioner was bound by the provisions in the Bihar Service Code governing his age of superannuation and in absence of any clear and specific order of the State Government enhancing the age of superannuation in respect of Instructors, he was to superannuate at the age of 58 years only. So far as claim for enhanced superannuation age on ground of equality is concerned we find substance in the submission of learned Advocate General that there is no parity 13 between the post of Instructor and that of Teachers and Demonstrators either on facts or in law. These posts are in different pay scales having different qualifications and therefore, benefit of higher superannuation age given to Teachers and Demonstrators will not be, ipso facto, available to the respondent. Thus, we find no good reason to take a different view than what has been decided by the Division Bench in the case of State of Bihar and others vrs. Braj Nandan Roy decided on 21.11.2008. A copy of that judgment is available as Annexure-6 to the LPAs. 13. In the result, we have no option but to allow Appeal No. 506 and set aside the judgment of the writ court. As a consequence the writ petition shall stand dismissed. So far as LPA No. 505 is concerned, we are of the view that we should consider only whether the quantum of fine is proper and reasonable. In the facts and circumstances of the case and 14 considering that review application was lodged on misconceived facts and that proceeding was unnecessarily thrust upon the respondent, we modify the judgment and order dated 07.11.2008 to the extent that cost payable by the State to the petitioner would be a sum of Rs. 5000/- payable within four weeks from today. Both the appeals are accordingly disposed of. kksinha/- ( Shiva Kirti Singh, ACJ. ) (Shyam Kishore Sharma, J.)