STATE OF BIHAR AND ANR. ETC. ETC.versusRADHA K. JHA AND ORS. ETC. ETC.

               STATE OF BIHAR AND ANR. ETC. ETC.                                 A
                              v.
                RADHA K. JHA AND ORS. ETC. ETC.

                              JULY 22, 2002

                                                                                 B
          [D.P. MOHAPATRA AND BRIJESH KUMAR, JJ.]


     Service Law:

       Lab Assistants/Techniciansllnchargesllnstructors-Plea for re-             C
designation as Demonstrators with all benefits-Allowing Writ Petition, High
Court directed State Government to dispose of representation of employees in
the light ofrelevant decisions of High Court/Supreme Court-State Government
not complied with the direction and rejected the representation-Contempt
Petition and second Writ Petition allowed by Division Bench with modification
in earlier order-Cross appeals-Held, earlier order of the High Court has         D
not been challenged by State Government-Therefore, order of the High Court
had attained finality and State Government should have followed it, specially
when it has not brought to the notice of the Court the/act of abolition ofpost
of Demonstrator.

      Constitution of India, 1950                                                E

      Article 226-Writ jurisdiction-General directions-Not to be given when
relevant facts in each case have to be examined separately.

      Lab-Asistantsffechnicians/lnchargesllnstructors working in Colleges
under University of Ranchi tiled a Writ Petition with a prayer for issuing       F
directions to redesignate them as 'Demonstrators' with all consequential
benefits. Single Judge allowed the Writ Petition and directed the State
Government to decide the representation of these employees in the light
of the decisions of the High Court and the Supreme Court. State
Government did not comply with the direction and rejected the                    G
representation. Aggrieved, employees filed a Contempt Petition on which
the State Government was required to take a decision afresh but it again
rejected the representation. Single Judge, allowing the second Writ
Petition, directed the State Government to treat the petitioner as teachers
and give them all consequential benefits. State Government preferred
                                                                                 H
                                     269
    270                    SUPREME COURT REPORTS [2002) SUPP. I S.C.R.

A Letters Patent Appeal. Division Bench partly allowed the appeal by setting
  aside that part of the order of the Single Judge which directed the State
  Government to treat the Lab-Assistants as teachers with all consequential
  benefits but quashed the order of the State Government rejecting the
  representation of the employees and further directed the State Government
B to decide the representation afresh in the light of the Judgment of the High
  Court dated 7.9.1995. Hence these cross appeals.

        It was contended for the State Government that in view of the
    Judgment of High Court in Bhubneshwar Prasad Gupta v. State of Bihar
    point in dispute in the present matter stands concluded; that the State
C Government in its order dated 16.9.1975 has taken a decision that no
    further appointment was to be made on the post of 'Demonstrator', and
    tl:erefore, Lab-Assistants could not be designated as Demonstrators; and
    that decision of Supreme Court relied upon by the High Court has no
    application in the present case.

          It was contended on behalf of the Lab-Assistants that the order of
D
    the State Government stopping further appointment on the post of
    Demonstrator was never acted upon and many Lab-Assistants had been
    re-designated as Demonstrators in subsequent years.

          Dismissing both appeals, the Court
E         HELD: I.I. Contempt Petition filed by the Lab-Assistants 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 Single Judge in the first Writ Petition. That order also does
    not seem to have been challenged. Another opportunity provided to the
F   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.
                                                                     (274-F-H)

          1.2. Single Judge of the High Court in his Judgment dated 7.9.1995
G in the first Writ Petition, had categorically held that the Division Bench
    decision of the Patna High Court in the case of Sindheshwari Prasad Singh
    and that of the Supreme Court in Civil Appeal No. 2530of1993 applied
    to the case in hand and issued a direction to the State Government to
    decide the representation in the light of those decisions. The Judgment
    dated 7.9.1995 does not appear to have been challenged and, therefore,
H   had attained finality. (274-D)
          STATE OF BIHAR v. RADHA K. JHA [BRIJESH KUMAR. J.]             271

      State of West Bengal and Anr. v. Hirendra Nath Bhowmik and Anr., A
12001 J 5 SCC 338 and Sidheshwari Prasad Singh and Anr. v. State of Bihar,
C.W.J.C. No. 522 of 1979 decided by the Patna High Court on 2.7.1980,
referred to.

      1.3. Subsequent decision of the High Court dated 13.8.1996 should
have followed the earlier decision dated 7.9.1995 which on the other hand       B
was distinguished saying that the Government had to take a decision in
the matter. In case the earlier case 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. The
latter order does not in any manner affect the finality of the order passed     C
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, [275-A, BJ

       2. So far as the question of abolition of post of 'Demonstrator' is
concerned, admittedly no counter/affidavit had been filed on behalf of the D
State bringing this fact to the notice of the Court while deciding the matter
vide its order dated 7.9.1995. That judgment was allowed to have attained
finality. 1275-C, DJ

      3. The Division Bench of the High Court rightly observed th~t a
general direction, viz. "to treat the Lab-Assistants as teachers" could not E
be issued as the qualifications and other relevant facts in respect of each
Lab-Assistant may have to be examined by the State Government while
considering their representation, 1276-D]

     CIVIL APPELLATE JURISDICTION: Civil Appeals No. 4215-16
of 2002.                                                                        F
     From the Judgment and Order dated 9.12.98 of the Patna High Court
in L.P.A. No. 274 of l 997(R).

      Rakesh Dwivedi, P.S. Mishra, Abhishek Chaudhary, Ashok Matur,
B.B. Singh, Rakesh K. Khanna, Vishnu Sharma, Upendra Mishra, Ms.                G
Ritu Jalali, Ms. Ranjana Narayan, Rajesh Prasad Singh and Bhava Dutta
Sharma for the appearing parties.

     The Judgment of the Court was delivered by

     BRfJESH KUMAR, J. Leave granted.                                           H
    272                     SUPREME COURT REPORTS [2002] SUPP. l S.C.R.

A          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.

B         The Lab Assistants/Technicians/lncharges/lnstructors 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
C   in the following terms:

            "The writ application must succeed. Accordingly, mandamus is issued
            to the respondents l 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.
D           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 and Ors. v. State of
E   Bihar and Ors. decided on 2. 7 .1980. The graduate Laboratory Assistants in
    Muzaffarpur 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 learned Single Judge
F   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
G   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 l.10.1994.

H         It appears that the State Government by order dated 18.11.1995 rejected
              STA TE OF B!HAR v. RADHA K. IHA [BRIIESH KUMAR, J.]             273

    the representation of the appellants-Lab Assistants which according to the        A
    appellants was not in accordance with the direction given by the learned
    Single Judge. The appellants therefore filed a Contempt Petition No. MJC
    508195, 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        B
    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         C
           and the State Government is hereby asked by issuance of mandamus
I          to treat the petitioners as teachers and give them all consequential
           benefits including promotional avenues, ifthere remains any technical
           difficulty in designating the petitioners as 'Demonstrators'.

          The State Government preferred LPA No.274/97 against the judgment           D
    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-Appdlants, set aside the other part of the order of the learned        E
    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     F
    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 Division Bench by which it has
    directed that the matter be considered afresh in the light of the judgment        G
    dated 7.9.1995 passed in CWJCNo.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          H
    -274                    SUPREME COURT REPORTS [2002] SUPP. I S.C.R.

A   dated 13.8.1996 passed in CWJC No.9485/96 Bhubneshwar Prasad Gupta v.
    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
B   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
C 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
D   (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. 3 87 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
E   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 CWJCNo. 387/95 that the said two decisions had full application to the
F   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
G   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 basis of the judgment
H    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
          STATE OF BIHAR v. RADHAK. !HA [BRIJESH KUMAR, J.]                275

present case is concerned. As a matter of fact, the latter decision dated         A
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      B
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,   C
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          D
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 198 l, 1983 and in E
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 p
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 G
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 Assista~ts 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 H
    276                      SUPREME COURT REPORTS [2002] SUPP. l S.C.R.

A   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 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
B   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.
c          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 pray.er was made, the Bench rightly observed that such a general
D   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.

E         In the result both appeals lack merit and they are dismissed .. Parties to
    bear their own cost.

    S.K.S.                                                        appeals dismissed.