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CASE NO.:

Appeal (civil) 4215-16 of 2002

PETITIONER:

STATE OF BIHAR & ANOTHER ETC. ETC., DR. RADHA KRISHNA JHA & ORS.

Vs.

RESPONDENT:

RADHA K. JHA & ORS. ETC, THE STATE OF BIHAR & ORS.

DATE OF JUDGMENT: 22/07/2002

BENCH:

D.P. Mohapatra & Brijesh Kumar

JUDGMENT:

Brijesh Kumar, J.

Leave granted.

The above noted two appeals arise out of the

judgment and order dated 9.12.1998 passed in LPA

No.274 of 1997 by a Division Bench of the Patna High

Court. The dispute pertains to the question as to

whether or not the Lab Assistants, could be re-

designated and treated as Demonstrators and be

entitled to all such benefits, pecuniary and otherwise

in the matter of promotion etc.

The LabAssistants/Technicians/Incharges/Instructors

in different Colleges under Ranchi University filed a

writ petition CWJC No.387/95 in Patna High Court

with a prayer that a direction be issued to re-designate

them as Demonstrators with all benefits and

promotional avenues as well. The learned Single Judge

by judgment dated 7.9.1995 allowed the writ petition in

the following terms:

"The writ application must succeed.

Accordingly, mandamus is issued to the

respondents 1 to 2 to pass appropriate

orders on the representation of the Ranchi

University in the light of the decision of

the Supreme Court and the decision of this

Court referred to above. They are given

three months time to pass final orders.

There will be no order as to costs."

The learned Single Judge while issuing the above

direction, apart from other facts relied upon, a

decision of the Division Bench of the Patna High Court

in CWJC No.522/79 - Sindeshwari Prasad Singh &

Ors. versus State of Bihar & Ors. decided on

2.7.1980. The graduate Laboratory Assistants in

Musaffarpur Institute of Technology were directed to

be paid UGC Scales for the post of Demonstrator.

The learned Single Judge has also relied upon and

elaborately quoted from the judgment of the

Supreme Court in Civil Appeal No.2530/93 by which

Laboratory Instructors were accorded status of the

Demonstrators and that of the teaching staff. The

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learned Single Judge held that the decision of the

Supreme Court and that of the Division Bench in the

case of Sindeshwari Prasad Singh (supra) are fully

applicable to the facts of the present case. As noted,

earlier, ultimately a direction was given to State to

decide the representation in the light of the aforesaid

decisions. The learned Single Judge had also observed

about the qualifications of the appellants-Lab

Assistants, most of whom are Ph. D. in different

subjects. It was also noted that the State

Government had failed to file any counter-affidavit.

The Ranchi University had filed its counter-affidavit

indicating that it had recommended the cases of

appellants to the State Government for taking a

decision in the matter vide letter dated 1.10.1994.

It appears that the State Government by order

dated 18.11.1995 rejected the representation of the

appellants-Lab Assistants which according to the

appellants was not in accordance with the direction

given by the learned Single Judge. The appellants

therefore filed a Contempt Petition No. MJC 508/95,

it was allowed by order dated 25.3.1996 and the

order rejecting the representation was set aside. The

Government was required to take a decision afresh.

The State Government, however again rejected the

representation by order dated 4.5.1996. This gave

rise to filing of the second writ petition namely CWJC

No.2176/96. The learned Single Judge allowed the

writ petition by order dated 3.4.1997 quashing the

order dated 4.5.1996 passed by the State

Government. The operative part of the order reads as

under:

"Thus, the writ petition is allowed.

Annexure-13 is hereby quashed and the

State Government is hereby asked by

issuance of mandamus to treat the

petitioners as teachers and give them all

consequential benefits including promotional

avenues, if there remains any technical

difficulty in designating the petitioners as

`Demonstrators' "

The State Government preferred LPA

No.274/97 against the judgment and order dated

3.4.1997 passed by the learned Single Judge in CWJC

No.2176/96. The Division Bench partly allowed the

appeal and while upholding the judgment of the learned

Single judge in so far as it quashed the order of the

State Government rejecting the representation of the

Lab-Assistants-Appellants, set aside the other part of

the order of the learned Single Judge directing the

State Government to treat the Lab-Assistants as

teachers with all consequential benefits since it was

found that no such prayer was made by the appellants

in the writ petition to the effect that a direction be

issued to the State Government to treat them as

teachers and for the reason that the cases were also

to be examined individually. The Division Bench

directed the State to decide the representation

afresh in accordance with law in the light of the

judgment of the Patna High Court dated 7.9.1995

rendered in CWJC No. 387/95. Against the said order

passed by the Division Bench, both parties have

preferred appeals. The State of Bihar has preferred

an appeal against the part of the judgment of the

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Division Bench by which it has directed that the

matter be considered afresh in the light of the

judgment dated 7.9.1995 passed in CWJC No.387/95

whereas the Lab-Assistants-Appellants preferred an

appeal against the part of the order setting aside the

direction given to the State Government to treat them

as teachers.

The main question raised on behalf of the State

of Bihar is that point in dispute had already been

decided by a learned a Single Judge by order dated

13.8.1996 passed in CWJC No.9485/96

Bhubneshwar Prasad Gupta versus State of Bihar

holding that Lab-Assistants cannot be upgraded as

Demonstrators. The LPA preferred against the said

order was also dismissed. The other point which has

been pressed on behalf of the State is that the

Government had already taken a decision on 18.9.1975

that only those Lab Assistants who were appointed

prior to 1.1.1973 would be designated as

Demonstrators and on their retirement the posts shall

stand abolished and no further appointment was to be

made on the post of `Demonstrator'. Hence, there is

no occasion to designate Lab Assistants as

Demonstrators.

The learned counsel appearing for the State of

Bihar has also tried to submit that the decision of the

Supreme Court relied upon by the learned Single

Judge in the first writ petition No.387/95 pertained

to Technical Institute of West Bengal and that case

has no application to the present case. But we find

that the matter was examined and the learned Single

Judge in Writ Petition CWJC No.387/95 had

categorically held that the Division Bench decision of

the Patna High Court in the case of Sindheshwari

Prasad Singh (supra) and that of the Supreme Court

applied to the case in hand and a direction was issued

to decide the representation in the light of those

decisions. So far the decision in CWJC No. 387 of

1995 is concerned, it does not appear to have been

challenged and therefore had attained finality. We

find force in the submission made on behalf of the

Lab Assistants that in case the State wanted to take a

stand that the decisions of the Supreme Court and

that of the Patna High Court in the case of

Sindheshwari Prasad Singh (supra) did not apply to

the facts of the present case, they could not say so by

means of an administrative order passed on their

representation in the teeth of the judicial finding in

the judgment of the learned Single Judge dated

7.9.1995 in CWJC No. 387/95 that the said two

decisions had full application to the present case. But

only way open to the State was to challenge the above

said order before an appropriate forum. We also find

that the Contempt Petition filed by the Lab-Assistants

also seems to have been decided taking a view that the

order passed by the State Government on the

representation was not in keeping with the direction

issued by the learned Single Judge in the first writ

petition. That order also does not seem to have been

challenged. Another opportunity provided to the

State to decide the representation culminated into

repetition of the same exercise in rejecting the

representation without following the two judgments in

the light of which representation was directed to be

decided. The plea raised by the State of Bihar on the

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basis of the judgment in CWJC No. 9485/95 decided

on 13.8.1996 saying that Lab-Assistants could not be

upgraded as Demonstrators will make no difference so

far as the present case is concerned. As a matter of

fact, the latter decision dated 13.8.1996 should have

followed the earlier decision dated 7.9.1995 which on

the other hand was distinguished saying that the

Government had to take a decision in the matter. In

case the earlier case namely CWJC No.387/95

decided on 7.9.1995 stood distinguished, it would not

be open to the State to argue that it would come in

the way of implementing the order passed by the High

Court dated 7.9.1995 in CWJC No.387/95. The latter

order does not in any manner affect the finality of the

order passed on 7.9.1995. The State was thus left

with no option but to decide the representation

following the two decisions referred to in the order

dated 7.9.1995.

So far the question of abolition of post of

`Demonstrator' is concerned, admittedly no counter-

affidavit had been filed on behalf of the State

bringing this fact to the notice of the Court deciding

CWJC No. 387/95.

That judgment was allowed to have attained

finality. It was only in reply to the contempt

proceedings initiated by the Lab Assistants that the

Notification of 1975 was pressed into service to say

that only those Lab Assistants who were appointed

prior to 1.1.1973 alone could be designated as

Demonstrators and not those appointed thereafter

whose services were to be terminated. On behalf of

the Lab Assistants, it has been vehemently urged that

even after issuance of the order of 1975 a number of

Lab Assistants had been re-designated as

Demonstrators in different years. Some documents

are on the record to indicate such re-designations in

the year 1981, 1983 and in 1988 with certain

conditions about non admissibility of emoluments. On

the basis of these specific orders re-designating Lab

Assistants as Demonstrators, it is submitted that the

order of 1975 was never acted upon and in different

Colleges Lab Assistants were designated as

Demonstrators. It is also submitted that there is

nothing to indicate that in pursuance of the aforesaid

order of 1975 services of any one may have ever been

terminated. The State could not deny the aforesaid

facts, however, the stand is that the orders issued

from time to time designating Lab Assistants as

Demonstrators were wrongly issued. But, surprisingly,

it is to be found that no step was ever taken to set

the wrong right except at a very late stage same

orders are now said to have been issued which

according to the other side have not been

implemented. Learned Single Judge in the second writ

petition namely CWJC No. 2176/96 ( R) has noticed

that in CWJC No. 522/79 ( R ) a similar question

had arisen and ultimately an order was passed for re-

designating Laboratory Assistants as Demonstrators

in the scale of pay as per U.G.C. norms. The case

related to Graduate Laboratory Assistants of

Muzzafarpur Institute of Technology and the case was

duly contested on behalf of the State Government. It

could not be indicated on behalf of the State as to

what material difference it would make by reason of

the fact that in the case in hand they are Lab

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Assistants/Lab Instructors etc. under the Ranchi

University and not in the labs of Technical Institutes.

Both are governed by the norms of U.G.C. It would

have been only appropriate if all these pleas had been

raised, if at all, including one about abolition of posts

of Demonstrators in the Writ Petition No. 387/95 as

they involve disputed facts as to whether order of

1975 was ever acted upon or not etc. That was not

done nor any appeal was preferred. Presently dispute

is confined to compliance of the order passed in Writ

Petition No.387/95 and thereafter in contempt

proceedings.

In so far the Appeal preferred by the Lab

Assistants is concerned against the order by which

the Division Bench set aside the direction of the

Single Judge to treat the Lab Assistants as Teachers

we find that the order of the Division Bench cannot be

faulted with. Apart from the fact that no such

specific prayer was made, the Bench rightly observed

that such a general direction could not be issued as

the qualifications and other relevant facts in respect

of each Lab Assistants may have to be examined by

the State Government while considering their

representation. We, therefore, find no merit in the

challenge made against that part of the order of the

Division Bench.

In the result both appeals lack merit and they

are dismissed. Parties to bear their own cost.