IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8937 of 2009 SRIRAM DAS, S/O LATE MANGAN DAS, R/O VILLAGE- KEWALDIH, P.S. AND DISTRICT-BANKA. ……………………PETITIIONER. Versus 1. THE STATE OF BIHAR THROUGH THE SECRETARY- CUM-COMMISSION, SCIENCE AND TECHNOLOGY DEPARTMENT, GOVERNMENT OF BIHAR, TECHNOLOGY BHAWAN, BAILEY ROAD, PATNA. 2. THE DIRECTOR, SCIENCE AND TECHNOLOGY DEPARTMENT, GOVERNMENT OF BIHAR, TECHNOLOGY BHAWAN, BAILEY ROAD, PATNA. 3. THE PRINCIPAL, BHAGALPUR COLLEGE OF ENGINEER, BHAGALPUR. ………………RESPONDENTS. ----------- For the Petitioner : Mr.Shivendra Kishore, Adv. For the State : Mr.Sunil Kumar Mandal, SC-XV and Mr.Bipin Kumar, Adv. ------------ 4 17.09.2010 Petitioner while working as Senior Instructor in the Bhagalpur College of Engineering, Bhagalpur was made to superannuate with effect from 31.03.2009 by the order of the Principal, as contained in Annexure-1. The said order of the Principal is under challenge in this writ application. The petitioner claims that he should have been allowed to continue up to the age of 65 years in the light of certain letters of Government of India and by treating him at par with the employees of the constituent Colleges of the University. During the pendency of this writ application petitioner’s pending representation was rejected, which is annexed as Annexure-19 with the I.A. No. 5902 of 2009. The same 2 is also being sought to be challenged in this case through the I.A. The I.A is allowed and the petitioner is granted liberty to challenge the said Annexure-19 also. In view of the judgment of the Apex Court in the case of State of Bihar and Others Vs. Teachers Association of Government Engineering Colleges and Others disposed of on 22.08.1998, learned counsel for the petitioner has given up the claim of the petitioner for being treated at par with the employees of the other constituent Colleges of the University and, therefore, he has given up the claim of the petitioner for being entitled to superannuate on completion of 65 years of age. However, he submits that, by specific resolution dated 28.08.2006, a copy whereof is annexed as Annexure-12, the age of superannuation of all category of teachers of all the three Engineering Colleges, including Bhagalpur College of Engineering, was enhanced from 60 to 62 years. He submits that this resolution applies to petitioner also. He refers to a letter of the Government addressed to the Accountant General, as contained in Annexure-17 with the I.A., which shows that by this letter, upon establishment of the Bhagalpur College of Engineering, Bhagalpur, the cadre creation was intimated to the Accountant 3 General, Bihar. This letter, which is dated 23.12.1960, shows that the staffs of the College were categorized as teaching and non-teaching. In the teaching category the first were Gazetted teachers which included Principal, Assistant Professor and Workshop Superintendent, whereas in the teaching category itself, amongst non- Gazetted staffs, were Foreman, Senior Instructor, Laboratory Assistant and Draughtsman. There is a separate category of non-teaching staff in the list of cadre creation and of Hostel Staff. On the basis of this letter, he has claimed that the petitioner, who was admittedly Senior Instructor, was non-Gazetted teaching staff of the College. He further refers to a judgment of a learned Single Judge of this Court, as contained in Annexure-4, and submits that as per this judgment the post of Senior Instructor of the College in question has been declared as teaching post and the Senior Instructor has been declared as teaching staff. He submits that against this judgment the respondents moved in appeal before this Court which was dismissed, vide Annexure-5, and their SLP before the Apex Court also failed, vide Annexure-6. Hence, he submits that the judgment of this Court, as contained in Annexure-4, has attained finality which has categorically declared the post of Senior Instructor, amongst others, as a 4 teaching post and the holder of the post as teaching staff. Hence, he submits that in terms of Annexure-12, the said resolution of the Government, the petitioner was entitled to continue in service up to the age of 62 years. Counter affidavit has been filed and the respondents have taken a stand that the petitioner though was indeed a teaching staff, but not was a teacher. They have annexed with the counter affidavit a judgment of the learned Single Judge as Annexure-E which was set aside by a Division Bench of this Court vide order, as contained in Annexure-F. On the basis of this judgment, learned counsel for the respondents submits that the petitioner cannot be treated at par with the teachers so as to claim the benefit of said Annexure-12 and to have continued till he attain the age of 62 years. Reliance placed by learned counsel for the respondents on the Division Bench judgment, as contained in Annexure-F, is misconceived. The judgment shows that the dispute before the Court was as to whether the staff of the Government Engineering Colleges could be treated at par with the staff of constituent Colleges of the Universities so as to get the benefit of UGC pay scales. Referring to the said 5 judgment of the Apex Court in the case of State of Bihar and Others Vs. Teachers Association of Government Engineering Colleges and Others, the Division Bench denied the claim of the writ petitioners and set aside the order of the learned Single Judge. Here in this case, the petitioner has given up his claim for being treated at par with the employees of the constituent Colleges of the University. His sole claim is now based on said Annexure-17, i.e., the Government letter to the Accountant General dated 23.12.1960, Annexure-12, i.e., the resolution of the Government dated 28.08.2006 and the judgment of the learned Single Judge dated 2.11.1995, as contained in Annexure-4. The said judgment of the learned single Judge 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 three Government Engineering Colleges have been extended up to 62 years. The distinction which is being sought to be made 6 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 years. Hence, the order of superannuation of the petitioner, as contained in Annexure-1 and, the order of rejection of representation of the petitioner, as contained in Annexure-19, are quashed. This Court directs the respondents to reinstate the petitioner in 7 service and allow him to continue till he attains the age of 62 years, with all consequential benefits of full salary, increment, revision of pay scale etc. However, for the period 31.03.2009 till today the petitioner will get only 50% of his salary minus the pension which he may have drawn in this period, as he has not worked on the post during this period. Now that the petitioner accepts that he can only claim his status as Government employee, he will be at liberty to file his representation for other benefits which may have accrued to him during the service period treating him as Government employees in terms of the Rules and regulations applicable in the matter. If such a representation is filed by the petitioner before the Director, Science and Technology within one month from today the respondents shall consider the same and dispose it of preferably within a period of three months from the date of filing of such representation. The writ application is allowed with the aforesaid observations and directions. Arvind/ ( J. N. Singh, J.)