IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7726 of 1997 Bir Shankar Prasad, S/o late Awadh Bihari Ram, Resident of Village/P.O. Mohiuddin Nagar, District Samastipur at present working as Assistant Professor (Mathematics) Muzaffarpur Institute of Technology, Muzaffarpur. --------- Petitioner Versus 1. The State of Bihar through the Secretary, Department of Science and Technology, Vikas Bhawan, Patna. 2. Director, Science and Technology, Bihar, Vikash Bhawan, Patna. -------------- Respondents ----------- 7 20.07.2010 Heard learned counsel for the petitioner and counsel for the State. In this writ application, the prayer of the petitioner reads as follows:- “1.(i) To give retrospective effect to his promotion on the post of Assistant Professor from 1.4.1973 with actual payment of arrear from 1.4.1975. (ii) Pay fixation, which is pending for the last five years, with promotional benefit by adding 12% or Rs. 150/- which ever is less. (3) Time Bond promotion consequent upon sanction of pay from 1.1.1973.” 2 Mr. M.P. Shukla, learned counsel for the petitioner with reference to the aforementioned relief would submit that though the petitioner was entitled for grant of promotion on the post of Assistant Professor with effect from 1.4.1973 but the same was wrongly given to him by an order dated 23.12.1992 only with effect from 23.2.1988. He would, therefore, contend that when there are large number of cases in which the respondents have given retrospective up- gradation/promotion with consequential benefit of the post of Assistant Professor in Engineering Colleges of Bihar, the petitioner alone cannot be discriminated in the matter of paying either up-gradation of post or the financial benefit. A question thus would arise that the UGC pay scale came into existence in the year 1983 and the petitioner, who was working initially on the post of Technical Assistant and later on was re-designated on the post of Demonstrator in the Engineering College, if he became entitled to any benefit of Assistant Professor even by way of up- 3 gradation and had left the matter as it is, till the year 1992, he cannot claim such promotion from retrospective effect. The plea, therefore, that in the judgment of this Court someone was given the date of 1973 cannot be a ground, inasmuch as, such relief was not given in rem rather in personem. As a matter of fact, this aspect of the matter that the petitioner would not be entitled to grant of such UGC pay-scale as he did not fulfill the criteria fixed by the UGC in the year 1987 is also beyond dispute. The petitioner had passed the M.Sc. examination with only 49%. The UGC norms before the 1983 for a teaching assignment was 52.5% for being having a High Second Class in Post Graduate and later on from 1983, the same became 55% plus either of Ph.D. or M.Phill. Admittedly, the petitioner did not possess the aforesaid qualification and therefore, if the petitioner was given the benefit of pay-scale from 23.2.1988, that cannot be found to be either wrong or illegal only because it was not given a retrospective operation as claimed by the petitioner. 4 The only other instance of the petitioner by relying on a precedent of Mr. Keshav Kishore Sinha has to be understood in the context that today itself this Court in the case of Keshav Kishore Sinha has held that he was actually not entitled for such promotion and that was wrongly given to him. In fact, the respondents are correct in pointing out that such promotion given to Keshav Kishore Sinha was wholly unjustified for the following reasons:- “---- The department’s grant of the U.G.C. scale of pay to Keshav Kishore Sinha was wrongly given without considering (1) relevant letter dated 13.7.1962 of the U.G.C. relating to qualifications necessary (2) the government of India, Ministry of Education and Social Welfare, letter no. F-141/74 U.1 dated 7.1.1977 whereby the State Government was at liberty to grant different scales of pay from a date other than 1.1.73 (iii) the Government of India’s letter no. F-1/82-U-1 dated 15.12.1982 relating to qualification necessary for grant of Pay scales (iv) the Govt. of India’s letter no. F.1-21/87-U.1 dated 22.7.1988 and (v) the Government of India’s letter no. 5 F.6-1/88-T.5 dated 28.2.1989. The case of Games teachers is quite distinct from the case of persons like the petitioner.” It is well settled that right to equality order Article 14 of the Constitution has not to be enforced in negative manner. Once this Court is satisfied that Keshav Kishore Sinha was granted absolutely a wrong pay fixation benefit which has already been discussed today itself in his case and in fact the respondents also had made it clear his order cannot be treated as a precedent, this Court at least would not be in a position to give any relief to the petitioner on account of alleged discrimination of his case vis-à-vis case of Keshav Kishore Sinha. The only thing that the respondents would still be required to consider is as to whether any person like the petitioner having not obtained the requisite qualification and/or the marks of 49% or below was given such benefit. Though there is no such clear assertion but the petitioner still has an impression that someone alike him working on a Technical Assistant in the Engineering 6 Colleges was given even though he too was not fulfilling the UGC criteria. If the petitioner, therefore, can point out any specific case of grant of such benefit to any of his counterpart having no prescribed UGC qualification or the marks, the respondents would consider at least giving the petitioner the notional benefit so that he too become entitled for grant of fixation of his pension in the revised pay-scale to which he could be entitled had he been given the benefit from 1973/75. The reason for this Court to grant notional benefit is that the petitioner had not approached any court claiming the retrospective promotion from 1973 or 1975 and this writ application was for the first time filed in the year 1997 even when he was already given the benefit from 1988 as noted above. In that view of the matter, this Court cannot allow full financial benefit to the petitioner but then if he can satisfy the authority with regard to any similar case alike him, the authority will consider giving him notional benefit and pay fixation thereon 7 for the purpose of revision and payment of his monthly pension on such revised pay. Subject to the aforementioned observations and directions this writ application is dismissed. Rsh (Mihir Kumar Jha, J.)