Civil Writ Jurisdiction Case No.707 of 1997 With Civil Writ Jurisdiction Case no.4092 of 1998. ---- In the matter of applications under Article 226 of the Constitution of India. ---- C.W.J.C.No.707 of 1997 1. Arun Kumar Shrivastava,S/o Shri Bindeshwari Prasad, R/o Mohalla Bahadurpur,P.s. and District-Samastipur, at present, Demonstrator in Govt.Polytechnic,Muzfaffarpur,P.S. and District-Muzaffarpuir. 2. Shashi Bhushan Verma, S/o Late Shri R.S.Verma, R/o Mohalla Orient Club Lane, Kalam Bagh Road, at present Demonstrator in Govt.Polytechnic, Muzaffarpur, P.s. & Dist- Muzaffarpur. 3. Satyadeo Prasad, S/o late Sri Kishun Lal,R/o Mohalla Mithapur, P.S.Jakkanpur,Dist-Patna, at present Demonstrator in New Govt.Polytechnic Patnad-13,Patliputra Dist-Patna. 4. Hafiz Syed Nasimul Hassasn, S/o Late Syed Nazeem, Ex- Demonstrator, Govt.Polytechnic, Bhagalpur,P.S.& District- Bhagalpur. Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Old Secretariat Building, Patna, 2. The Finance Commissioner, Finance Department, Old Secretariat Building, Patna, 3. The Secretary, Science and Technology Department, New Secretariat Building, Patna, 4. The Secretary, Department of Human Resources Development (Education), Bihar, New Secretariat Building, Patna.-------Respondents With C.W.J.C.No.4092 of 1998 1. Razaur Rashid Jauhar, S/o Late Sayad Mohammad Ali, R/o Village & P.S. Phulwaria, District- Begusarai, at 2 present, posted as Demonstrator in Chemistry in Government Polytechnic, Barauni, Begusarai, P.S. and District- Begusarai.------ Petitioner Versus 1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Old Secretariat Building, Patna, 2. The Finance Commissioner, Finance Department, Govt. of Bihar, Old Secretariat, Patna, 3. The Secretary, Science and Technology Department, Govt. of Bihar, New Secretariat (Bikash Bhawan), Patna, 4. The Secretary, Department of Human Resources Development (Education)Govt. of Bihar, New Secretariat (Vikash Bhawan), Patna 5. The Director, Science and Technology Department, Govt. of Bihar, New Secretariat (Vikash Bhawan), Patna. 6. The Joint Director, Science and Technology Department, Govt. of Bihar, New Secretariat (Vikash Bhawan), Patna, 7. The Principal, Govt. Polytechnic , Barauni, Begusarai- -- Respondents. For the petitioners in Mr. Ganesh Prasad Singh Both the cases: Senior Advocate with Mr. C.M.Chaurisia,Advocate For the State in both cases : Mr. Shyam Kishore Sharma Govt.Advocate-V with Mr. Sanjay Prakash Varma, JC to G.A.V. In person (petitioner Mr. Satyadeo prasad No.3 in CWJC No.707/97): P R E S E N T THE HON’BLE MR.JUSTICE CHANDRAMAULI KR.PRASAD THE HON’BLE DR.JUSTICE RANJAN Prasad Ranjan,JJ. Prayer of the petitioners in both the writ applications are for issuance of a writ in the nature of mandamus commanding the respondents to grant them the pay scale equal to the pay scale of the Demonstrators of the Engineering Colleges situated in the State of Bihar and 3 that of the Bihar College of Engineering, Patna, revised from time to time along with the Time Bound Promotion and further for enhancing the age of superannuation from 58 years to 60 years and the consequential benefits flowing from that. For the purpose of adjudication, reference basically has been made to the pleadings in C.W.J.C.No.707 of 1997. Petitioners are Demonstrators in Government Polytechnics situated in different districts of the State of Bihar. An agreement was entered between the Federation of the University Teachers Association and the State Government, wherein it was decided that the Demonstrators of the Universities will be given time bound promotion. In the light of the aforesaid, the State Government resolved to grant time bound promotion to the Demonstrators working in the Universities and different Colleges in the State of Bihar. However, the said benefit was not given to the demonstrators working in one of the constituent college of the Magadh University and hence, demonstrators working in the said College filed C.W.J.C.No.9368 of 1989 (Choudhary Rajendra Roy Vs. The State of Bihar and ors) before this Court, inter alia, praying for a direction to the respondents for grant of time bound promotion with effect from Ist of February, 1985. A Division Bench of this Court, by order dated 5.9.1991 (Annexure-1), disposed of the writ application giving liberty to the petitioner of that case to file representation and the State Government in turn was 4 directed to consider it taking into account its decision dated 11.1.1991, referred to above. Another writ application bearing C.W.J.C.No.522 of 1979 (Sundeshwari Prasad Singh and others Vs. The State of Bihar and others), was filed by the Graduate Laboratory Assistants working in Muzaffarpur Institute of Technology, Bhagalpur College of Engineering and Bihar Institute of Technology,Sindri, inter alia, praying for issuance of a writ in the nature of mandamus commanding the respondents to designate them as Demonstrators and implement the University Grants Commission pay scale prescribed for Demonstrators with effect from 1.4.1973. The aforesaid relief was founded on the ground that the University Grants Commission pay scales have been implemented in the case of the employees of the Bihar College of Engineering, Patna but without any justification, they have been discriminated. The aforesaid writ application was heard by a Division Bench of this Court and one of the Hon’ble Judge constituting the bench, directed the respondents to implement the University Grants Commission pay scale for the Demonstrators in the case of petitioners of the said case with effect from Ist of April, 1975. While doing so, the learned Judge observed as follows: 5 “xxx It is, therefore, manifest that the discrimination made by the State Government in implementing U.G.C. scale of pay in case of counter-part of the petitioners in the Bihar College of Engineering, Patna, and refusing the same to the petitioners must be held to be discriminatory and without any reasonable cause. If the recommendation of U.G.C. scale of pay can be implemented in the case of Laboratory Assistants/Demonstrators of the Bihar College of Engineering, Patna, there is no reason why it should not be done in the case of the petitioners. For all these reasons, the second contention of the learned counsel for the petitioners must be accepted” Another Hon’ble Judge, constituting the bench, agreed with the judgment aforesaid, but had assigned further reason. The Hon’ble judge in the concurring judgment, observed as follows: “xxx The following facts which clearly emerge from the admitted documents are- (i) that the educational qualifications and job contents of the Demonstrators (erstwhile Laboratory Assistants) in engineering colleges controlled by the university are the same as those of Laboratory Assistants employed in such engineering colleges and polytechnics as are owned, controlled and maintained by the State Government, (ii) that it was the State Government’s decision which made the U.G.C. revised scale and designation applicable to the case of the then Laboratory Assistants in the engineering colleges controlled by the 6 universities and (iii) that the funds out of which payment of salaries is made to the Demonstrators employed in the engineering colleges controlled by the University are supplied by the State Government.” The State Government unsuccessfully assailed the aforesaid judgment before the Supreme Court. It is worthwhile mentioning here that the aforesaid writ applications i.e. C.W.J.C.No.9368 of 1989 (Choudhary Rajendra Roy Vs. State of Bihar and others) and C.W.J.C.no.522 of 1979 (Sundeshwari Prasad Singh and others Vs. The State of Bihar and others) were filed by the Demonstrators working in the College of Commerce, a constituent college of Magadh University or the Engineering Colleges of the State of Bihar. The Laboratory Assistants of Government Polytechnic claiming parity with those Demonstrators filed C.W.J.C.No.2721 of 1981 (Prem Kant Mishra and others Vs. The State of Bihar and others) before this Court. A Division Bench of this Court, by order dated 27.11.1984, allowed the writ application in the following words: “Heard learned counsel for the parties. Learned Counsel for the parties are agreed that the points involved in this writ petition are fully concluded by the Division Bench decision of this Court in Sundeshwari Prasad Singh and others Vs. The State of Bihar and others (C.W.J.C.No.522 of 1979) decided on the l2nd July, 1980). 7 This writ petition is accordingly allowed in the same terms. There will be no order as to costs.” The State Government, by its letter dated 23rd of November, 1985 (Annexure-4), designated the petitioners as Demonstrators and allowed them the benefits of pay scales of Demonstrators as recommended by the U.G.C. with stipulation that the actual payment in the revised scale of pay would be made from Ist of April,, 1978 in place of 1.4.1975. The Laboratory Assistants of the Government Polytechnics, designated as Demonstrators, filed a contempt application bearing M.J.C.No.692 of 1985 before this Court complaining that the Demonstrators of the Engineering Colleges and other Colleges have been granted the U.G.C. scale of pay w.e.f. 1.4.1975, there does not seem any justification to grant them the said scale of pay w.e.f. 1.4.1978. A Division Bench of this Court, by order dated 18th of May, 1986 (Annexure-5), disposed of the contempt application, inter alia, observing that the action of the respondents in making payment of U.G.C. scale of pay w.e.f. 1.4.1978 is wholly unjustified. However, this Court did not punish the contemnor on its finding that the disobedience cannot be said to be willful. In the light of the aforesaid observation, the State Government gave the U.G.C scale pay to the Demonstrators of the Government Polytechnics w.e.f.1.4.1975. 8 The U.G.C. by its letter dated 7.8.1989 (Annexure-6), revised the pay scale of the Demonstrators of the universities and Colleges of Bihar in the scale of pay of Rs.1740-3000 in place of Rs.500-900 w.e.f. 1.1.1986. In the light of the aforesaid recommendation, the State Government, by its letters dated 28.9.1991 (Anneuxre-6/1), granted the scale of Rs.1740-3000 w.e.f. 1.8.1989 to the Demonstrators of the Engineering Colleges, University Degree Colleges, Government Polytechnics and the Mining Institutions. Later on, the State Government, by its letter 16.2.1990 (Annexure-9), revised the pay scale of the teachers working in the Bihar Institute of Technology, Sindri, Muzaffarpur Institute of Technology, Muzaffarpur, Bihar College of Engineering, Bhagalpur, Regional Institute of Technology, Jamshedpur, Bihar College of Engineering, Patna and teachers of the Government Polytechnics appointed prior to 5.1.1975. It also enhanced the age of superannuation to 60 years w.e.f. 1.10.1989. In the light of the agreement dated 14.8.1986 entered between the Bihar University Teachers Federation and the State Government, the State Government, by its letter dated 11.1.1991 (Annexure-8), revised the pay scale of the Demonstrators of the Universities, but the Demonstrators of the Government Polytechnics were left out. In the light of the aforesaid decision of the State Government, Patna University, by its letter dated 20.2.1991(Annexure-9), granted Time Bound Promotion to its Demonstrators in the pay scale of Rs.700-1300 w.e.f.1.4.1981 and Rs.2200-4000/ 9 w.e.f.1.1.1986. Similarly, the Bihar College of Engineering also granted Time Bound promotion to its Demonstrators. It is worth mentioning here that the age of superannuation of the Demonstrators of the Bihar College of Engineering, Patna was enhanced to 60 years on the recommendation of the U.G.C. but the said benefit was not given to the Demonstrators working in the Muzaffapur Institute of Technology, Muzaffapur, and Bihar Institute of Technology, Sindri and aggrieved by the same, they preferred C.W.J.C.No.228 of 1983 (Sundeshwari Prasad Singh and others Vs. The State of Bihar and others) before this Court and a Division Bench of this Court, by judgment dated 25th June, 1986 (Annexure-12/1) allowed the writ application and directed that the Demonstrators working in the aforesaid Engineering Colleges be treated at par with the Demonstrators of the Bihar College of Engineering, Patna in the matter of age of superannuation. The State of Bihar challenged the aforesaid order before the Supreme Court, but the same has been dismissed in S.L.P.(Civil) No.7347 of 1997 on the ground of limitation by order dated 19.9.1997 (Annexure-26). It is relevant here to state that the Workshop Superintendent, working in various engineering colleges and the Government Polytechnics, filed writ application before this Court, inter alia, contending that they are entitled to U.G.C. scale of pay. Ultimately, the matter travelled in L.P.A.No.30 of 1987 and the Division Bench of this Court by order dated 19.1.1990, held that the Workshop 10 Superintendents would be entitled to the U.G.C. pay scale. The matter further travelled to the Supreme Court in Civil Appeal No.499 of 1993 (The State of Bihar and others Vs. Bihar State Workshop Superintendents Federation and others) and the Supreme Court, by order dated 9.2.1993, passed in the aforesaid appeal and analogous appeals, held that the Workshop Superintendent shall be entitled to revised pay sale of Assistant professors and while doing so, it observed as follows: “xxx In view of the historical background and the terms and conditions of the service and pay scales remaining applicable to the respondents for a considerable long period of time, we hold that in order to do complete justice, the respondents are entitled to the revised pay- scales allowed to the Assistant Professor (Senior Scale i.e.3000-100-3500-125-59000.” It is worth mentioning here that during the pendency of the writ application, the State Government, by resolution dated 3rd of March, 2004 (Annexure-28), decided to grant to the Demonstrators of the Government Polytechnics the pay scale of Rs.5500-9000/ w.e.f.1.1.1996. It is the stand of the petitioners that although a decision (Annexure-22) was taken for grant of Time Bound Promotion to the Demonstrators of the Government Polytechnics, but the same has been turned down by the Finance Department of the State Government. Accordingly, the prayer of the petitioners is for issuance of a writ in the nature of mandamus commanding the respondents to give them the Time Bound promotion and to 11 enhance the age of superannuation from 58 years to 60 years on parity with those of the Demonstrators working in the various engineering colleges. Mr. Ganesh Prasad Singh, Senior Advocate, appearing on behalf of the petitioners in both the petitions, contends that the Demonstrators of the Government Polytechnics have been treated at par with Demonstrators working in the engineering colleges of the State of Bihar. Further, the Demonstrators working in various engineering colleges of the State of Bihar have been treated similar to the Demonstrators working in the Bihar College of Engineering. He submits that when the Demonstrators working in various engineering colleges of the State of Bihar have been granted Time bound Promotion and their age of superannuation having been enhanced from 58 years to 60 years, the action of the respondents in not granting them the Time Bound Promotion and enhancing the age of superannuation from 58 years to 60 years, is absolutely discriminatory and in the teeth of the petitioners’ fundamental right guaranteed under Articles 14 and 16 of the Constitution of India. J.C. to G.A.V, however, contends that the petitioners are Demonstrators in Government Polytechnics, which imparts diploma and they cannot equate themselves with the Demonstrators working in engineering colleges, which impart degree. Having appreciated the rival submission, I do not find any substance in the submission of Mr. Singh. Petitioners 12 are working as Demonstrators in the Government Polytechnics, which as stated earlier, imparts education leading to grant of diploma, whereas the engineering colleges imparts education for grant of degree. Thus, the responsibility of the Demonstrators working in the Government Polytechnics is not equal to that of the Demonstrators working in the engineering colleges. In that view of the matter, I am of the opinion that the two constitute different and distinct class, hence the allegation of discrimination is absolutely misconceived. In view of the authoritative pronouncements of the Supreme Court in Civil Appeal No.2540-50 of 1997 (State of Bihar and others Vs. Teachers Association of Government Engineering Colleges and other), this point need not detain me. It is relevant here to state that the teachers working in engineering colleges other than the Bihar College of Engineering, filed writ application before this Court, ,inter alia, praying that their age of superannuation be made similar to that of the teachers of the Bihar College of Engineering. This found favour with this Court in the case of Teachers Association of the Government Engineering Colleges and others vs. the State of Bihar and others 1992 (2) PLJR 742 and in the said case, relying on its earlier decision, the Division Bench, allowed the writ application directing that the age of superannuation of the teachers working in the engineering colleges, be made at par with those working in the Bihar College of Engineering. The State of Bihar preferred appeal before the Supreme Court 13 against this order and the Supreme Court, by judgment referred to above, set aside the judgment of this Court and while doing so, it observed as follows: “xxx We fail to see how in respect of teachers who are government servants, governed by the Bihar Service Code, the age of superannuation should be different from the age of superannuation for all other government servants governed by the Bihar Service Code. The High Court ought not to have equated the service condition s in the three State Colleges with the service conditions in a university college. Application of Article 14, in these circumstances, is misconceived, when there are valid criteria for different rating between the service conditions in the two sets of colleges. In the premises, the impugned judgment of the High Court insofar as it directs that the age of superannuation of teachers working in the three Engineering Colleges other than the Bihar College of Engineering, Patna should be brought at par with the age of superannuation of those working in the Bihar college of Engineering at Patna, is set aside. The further direction to pay arrears or give benefits flowing from the extended age of superannuation, is also set aside. The appeals are allowed accordingly.” It is worth mentioning here that the Demonstrators working in various polytechnics are the employees of the State Government as that of Demonstrators of other Engineering Colleges, other than Bihar College of Engineering, which is a constituent college of the University. The claim of the Demonstrators working in Government colleges seeking parity with Demonstrators of University College has been found to be untenable by the Supreme Court. I wonder how in view of the decision of the Supreme Court, quoted above, they can claim parity with the Demonstrators of the Engineering Colleges. 14 Mr. Singh, then contends that once the State Government having decided to treat the petitioners as Demonstrators working in Government Polytechnics similar to the Demonstrators working in the Engineering Colleges, later they cannot discriminate the petitioners. I do not find any substance in this submission also. As observed earlier, the Demonstrators working in the Government Polytechnics and those working in the Engineering Colleges, constitute a different and distinct class and even at one point of time, they were treated similarly, nothing prevents the State Government to treat them differently later, if in the opinion of the State Government, they constitute a different and distinct class. In view of the judgment of the Supreme Court in the case of State of Bihar and others Vs. Teachers Association of Government Engineering Colleges and others (supra), there is no escape from the conclusion that the status of the Demonstrators working in the Government Polytechnics is not similar to that of the Demonstrators working in the Engineering Colleges. The distinction made by the State Government between the Demonstrators of the Government Polytechnics and the Engineering Colleges, is based on reasonable differentia and hence, the petitioners are not entitled to be treated similar to the Demonstrators working in the Engineering Colleges and thus, not entitled to the Time Bound Promotion given to the later and also parity in the age of superannuation. 15 In the result, I do not find any merit in the both the writ applications and they are dismissed accordingly, but without any order as to cost. (C.K.Prasad) Dr.Ravi Ranjan,J. I agree. (Dr.Ravi Ranjan) Patna High Court, Dated,24th October, 2008. AFR/ahk