IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.7998 of 2009 1.Dharmeshwar Prasad Sharma 2. Ramanand Sharma 3. Narendra Prasad Sinha-------Petitioners Versus The State Of Bihar & Ors ---------------------------------- For the petitioners:- Mr. Shivendra Kishore, Advocate For the State:- MMr. Manikant Mishra, G.P.25 7 4.8.2011 Heard counsel for the petitioners and the counsel appearing for the State. Petitioners are Instructors of Bhagalpur College of Engineering, Bhagalpur. Petitioner No.1 is posted as Demonstrator at Mechanical Engineering Department. Petitioner no.2 is posted as Senior Instructor and in additional charge of Foreman/Foreman Instructor in Mechanical Department and petitioner no.3 was posted as Junior Instructor in Electrical Department. Petitioner nos. 1 and 2 are still working but so far petitioner no.3 is concerned, he had been asked to superannuate with effect from 31.12.2010 vide order contained in Annexure-22. Petitioner no.1 has also been noticed by the respondents informing that in the month of November, 2011, he will superannuate on completion of 60 years of age. Petitioners have prayed for a direction to the respondent to consider the enhancement of age of 2 superannuation from 60 to 65 years in the light of letters dated 23.3.2007, 4.4.2007 and 31.12.2008 issued by the Deputy Secretary to the Government of India, Ministry of Human Resources Department of Higher Education, Government of India. Alternative prayer of the petitioner is to allow them to continue in service until they have attained the age of 65 years or at least 62 years with all consequential benefits, in terms of Resolution bearing Memo no. 1738 dated 28.8.2006 (Annexure- 12) issued under the Signature of Joint Secretary, Science and Technology Department, Government of Bihar, whereby the age of superannuation of teachers of Engineering Colleges, Government Ploytechnic under Bihar Government has been determined at 62 years. Counsel for the petitioners submits that the issue relating to the question whether instructors of Government Engineering Colleges should be treated in the category of teaching staff and entitled for benefits of U.G.C. pay scales has already been settled in a writ application vide CWJC No. 7160 of 1991 ( Deonandan Prasad Sinha and ors. vs. State of Bihar and ors). In this writ application a direction 3 has been issued to the respondents to pay the Instructors of Government Engineering Colleges the pay scale of teaching staff as recommended by the U.G.C. and/or All India Council of Technical Education. The post of Instructors was held to be a teaching post. This order was challenged by the State in LPA No. 888 of 1997, which was dismissed on 9.1.1998. SLP No. 6091 of 1998 filed against LPA was also dismissed vide order dated 11.9.1998. The Government thereafter implemented the judgment by declaring Junior and Senior Instructors as teaching staff vide order dated 15.7.1998 and 20.7.1998 followed by consequential letter 8.9.1998 and 29.1.1999. The junior and Senior Instructors were also allowed UGC pay scale of Demonstrators with effect from 18.10.1991. Counsel for the petitioners submits that petitioners holding the post of Instructors will also come within the definition of teachers as defined under Section 2(v) of the Bihar State Universities Act, as the word „teachers includes Principals, University Professors, Readers, Lecturers, Demonstrators and other persons imparting instruction Department, College or Institute 4 maintained by the University. The Department of Science and Technology, Government of Bihar has taken resolution contained in Memo no. 1738 dated 28.8.2006 (Annexure-12), whereby the age of superannuation of all categories of teachers working in different Engineering Colleges, Government Polytechnic and Government Women‟s Polytechnic under Science and Technology Department, Government of Bihar has been enhanced from 60 to 62 years. This resolution is implemented with effect from 28.8.2006. Despite this resolution of the Government, petitioners who are Instructors, and admittedly within the category of teaching employees, have been deprived of the benefits of the enhancement of age of superannuation contained in memo no. 1738 dated 28.8.2006. The Instructors is not being treated as teachers by the Government, placing reliance on letter contained in memo no. 1995 dated 30.12.2003 annexed as Annexure-F in the supplementary counter affidavit filed on behalf of the State. The stand of the State is that the service conditions of teacher of the University and that of the Government Engineering Colleges are guided by 5 different Act. The service condition of the teachers are guided by the Bihar State University Act 1976, whereby the service condition of the Engineering College including Government Engineering Colleges are guided by All India Council of Technical Education 1987. All India Council of Technical Education has issued a notification No. F. No.1- 65/LD/NEC/98-99 dated 15.3.2000, whereby a guideline has been recommended with regard to teachers regarding their cadre structure, appointment process eligibility, promotion and other service condition ( age of superannuation). Nomenclature of the teachers have also been changed in the recommendation letter of the AICTE. These guidelines will be effective retrospectively from 1.1.1996. As per this letter there are only six categories of teachers in the Government Engineering College. So far Instructors are concerned, they will not come within the cadre of teacher, as their appointment process, cadre structure, eligibility, promotion are different, they are not entitled for the benefit of age of superannuation which has been allowed to the teachers vide resolution contained in memo 1738 6 dated 28.8.2006 ( Annexure-12). Counsel for the petitioner submits that for similar relief one instructor of Bhagalpur College of Engineering, Bhagalpur has filed CWJC No. 8937 of 2009. All issues in the present writ application were also raised in that writ application. Similar objections regarding non- availability of benefit of enhancement of age of superannuation was raised in the counter affidavit filed by the State in that writ application as it has been raised in the present writ application. Considering the pleadings of the parties, the Hon‟ble single Judge recorded a finding in the judgment which is as follows:- “The said judgment of the learned single Judge in CWJC No. 7160 of 1991, which has attained finality has clearly held that the post of senior Instructor, amongst others, is a teaching post and the holder of the post in the college is a teaching staff. This finding of the learned single Judge cannot be now questioned. Hence, it is clear that in the background of this categorical finding of the learned single judge the petitioner is entitled to the benefits of Annexure-12, by which the age of superannuation of all category of teachers of all the 7 three Government Engineering Colleges have been extended up to 62 years. The distinction which is being sought to be made by the respondents that although the petitioner may be treated as teaching staff, but not a teacher is only their fig of imagination. There is no document on record to show that the State Government or the AICTE has made this distinction at any point of time in any manner. This submission advanced by the respondents is also in the teeth of findings of the learned single Judge in the judgment, as contained in Annexure-4. It may be pointed out that the learned single Judge has not only held that the senior Instructors of the college in question are to be treated as teaching staff, the Court has also held in categorical terms that the post of Senior Instructor has to be treated as teaching post. That being the finding, no distinction is possible between the teachers and teaching staff. In the circumstances, this Court finds that the claim of the petitioner for the benefits of Annexure-12 is correct. Accordingly, this Court holds that the petitioner ought to have been allowed to continue in service till he attains the age of 62 8 years.” The finding recorded in CWJC No. 8937 of 2009 fully covers case of these petitioners. They are also entitled for the benefits of Annexure-12 as it is the same resolution bearing memo no. 1738 dated 28.8.2006 in both the writ applications. All three petitioners are entitled for same benefit as has been allowed in the case of petitioner in CWJC No. 8937 of 2009. Since petitioner no.3 has been made to retire vide Annexure-22 dated 31.12.2010, his order of superannuation is quashed. The respondents are directed to reinstate Petitioner no.3 in his service and allow him to continue till he attains the age of 62 years with all consequential benefits and for the period since 31.12.2010 till today he well get 50% of his salary minus the pension, which might have been drawn during this period. So far other two petitioners are concerned, they are still working and they will continue to discharge their duties till the date they will attain the age of 62 years of age. The writ application stands allowed. A. Kumar ( Mridula Mishra, J.)