JUDGMENT
Binod Kumar Roy, J.
1. In these writ petitions since common questions of law and facts are involved, they are being disposed of by this common judgment.
2. Petitioner No. 1 of C.W.J.C. No. 1451 of 1988 is the Teachers’ Association of the Government Engineering Colleges, Petitioner No. 2 is its Vice-President and Petitioner No. 3 is its Secretary, C.W.J.C. No. 9111 of 1988 has been filed by the Principal of the Bhagalpur Engineering College, Bhagalpur, C.W.J.C. No. 2157 of 1989 has been filed by an Associate Professor and Head of the Department of Electrical Engineering, B. I. T. Sindri, C.W.J.C. No. 4290 of 1989 has been filed by a Professor of Mechanical Engineering, Muzaffarpur Institute of Technology, Muzalfarpur, Bihar. C.W.J.C. No. 7609 of 1989 has been filed by the Director, Bihar Institute of Technology, Sindri. Their common prayers, as pressed during hearing, are (i) to issue an appropriate writ/writs or direction to the Respondents to give similar benefits to the petitioners in the matter of pay scales and retirement age, which have already been given to the Teachers of the Bihar College of Engineering, Patna, and (ii) they be paid arrears in U.G.C scale from 1-1-1973 to 31-3-1975 and not only from 1-4-1975 (as decided vide Annexure-1 of C.W.J.C. No. 1451 of 1988).
3. No counter-affidavit has been filed by the Respondents, except in C.W.J.C. No. 7609 of 1989.
4. The undisputed facts are that (1) The Government of Bihar has four Engineering Colleges-Bihar College of Engineering, Patna (Controlled and affiliated under the Patna University) Muzaffarpur Institute of Technology (affiliated and controlled by the Bihar University), Bhagalpur Engineering College, Bhagalpur (affiliated and controlled by the Bhagalpur University) and B.I. T., Sindri (affiliated and controlled by the Ranchi University), all of which are financed by the Government of Bihar through its Technical Education Department, (2) The Government of Bihar transferred the control and management of the Bihar College of Engineering to the Patna University, (3) Though U. G. C. recommended the age of superannuation 60 years but the State Government enhanced the age of Patna University Teachers to 62 years, which has not been given to the Petitioners, (4) In C.W.J.C. No. 522 of 1979, this Court held that the Bihar College of Engineering is owned by the Government of Bihar and the facilities enjoyed by its teachers should be extended to other Engineering Colleges of the State and (5) Petitioners are being given U. G. C. Scale.
5. Learned Counsel for the petitioners submits as follows:
(i) In view of the ratio decidendi of this Court in the case of Sundesh-wari Pd. Singh and Ors. v. State of Bihar and Ors. CWJC No. 522 of 1979, disposed of by a Division Bench on 2-7-1980, which stood affirmed by the Supreme Court by rejection of the Petition for Special Leave to Appeal (Civil) No. 9096 of 1980, preferred against the aforementioned judgment, the petitioners are entitled to Relief No. 1.
(ii) In view of the patent fact that the State of Bihar was provided necessary Grant by the U. G. C., it was not justified in not granting Relief No. 2 to the petitioners on the ground that necessary files have been misplaced.
6. Mr. Rafat Alam and Mr. Roy, learned Counsel appearing on behalf of the Respondents, however, submit that the petitioners are not entitled to any relief whatsoever. The judgment of this Court relied upon by the learned Counsel for the petitioners, is distinguishable and its ratio does not apply to their cases. The age of the teachers in the Patna University has been prescribed under the University Act, whereas, the petitioners being Government servants, are governed by the Bihar Service Code.
7. In the earlier writ petition bearing C.W.J.C. No. 7853 of 1988 (Dr. Nagina Prasad Yadav v. The State of Bihar and Anr. disposed of by a Division Bench on 12-10-1988, the following order was passed:
Heard learned Counsel for the parties. The stand of the petitioner is that he is entitled to be treated as the teachers of other Engineering Colleges in the State in the matter of emoluments as well as tenure of service as conferred by the University Grant Commission. Reliance has been placed upon this stand on a Division Bench decision of this Court in C.W.J.C. No. 522 of 1979 disposed of on 2-7-1980. In the instant case, we are concerned with the tenure of service of the petitioner, namely, the age at which he will superannuate. In terms of the rule as existing today, the petitioner is to superannuate on 31-10-1988. The petitioner has filed representation to the State Government to the effect that his age of retirement must be sixty years as prevailing in some of the Engineering Colleges of the State or 62 years as applicable to the teachers of the Bihar * College of Engineering, Patna. Learned Counsel for the petitioner states that the petitioner had filed representation to the State Government in this behalf in March, 1988 but it has not been disposed of as yet. The representation filed by the petitioner must be disposed of within two months from today. We are informed at the Bar that the petitioner is to superannuate by the present rule on 31-10-1988. If the petitioner is aggrieved by the final order of the State Government, it will be open to him to move this Court against the said order of the State Government rejecting his representation.
With that observation, this application in disposed of finally. If the Government accepts the petitioner’s stand, the petitioner shall be deemed to be in continuous employment.
8. Similar order was also passed in C.W.J.C. No. 8019 of 1988, Dr. Baikunth Prasad Ambasht v. The State disposed of on 2-11-1988, Annexure-3 of C.W.J.C. No. 4290 of 1990 contains the order of the State Government rejecting the representation in question.
9. The preamble of the Constitution unequivocally suggests that the People of India, are the ultimate sovereign had tried to guarantee equality of status and of opportunity and to promote among them all.
10. Article 14 of the Constitution of India runs as follows:
14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
11. Article 16 of the Constitution runs as follwos:
16. (1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
12. The Rule making power as well as the power of legislation even in regard to Government Servants under Article 309 of the Constitution of India, is subject to the equality Clause enshrined in Articles 14 and 16 of the Constitution of India.
13. Very recently in All India Judges Association v. Union of India , the Apex Court issued a direction to raise retirement age of Judicial Officers to 60 years to bring uniformity amongst all Judicial Officers of the country.
14. In C.W.J.C. No. 522 of 1979, (supra), a question arose before a Division Bench of this Court as to whether Respondent No. 1, the State Government, was illegally discriminating against the petitioners by not implementing the U. G. C. Pay Scale in their cases while granting the same to the employees similarly situate ; that is to say the employees of the Bihar College of Engineering, Patna. This Court after taking into account (i) that the Bihar College of Engineering is a Government College and (ii) that the word ‘Teacher’ defined in Section 2(v) of the Bihar State Universities Act, 1976, includes within its ambit the Principal, University Professor, College Professor, Reader, Lecturer, Demonstrator and other persons imparting instructions in any Department, College, or Institute maintained by the University and (iii) that the Colleges, in question, in which they were working, are affiliated to the different Universities within the State of Bihar, held that they are owned by the State Government. This Court further held that the discrimination made by the State Government in implementing the U. G. C. Pay Scale in case of counterpart to the petitioners in the Bihar College of Engineering, Patna, and refusing the same to the petitioners must be held to be discriminatory and without any reasonable cause. This Court also held that it would be highly unfair and unjust on the part of the State Government to discriminate between the two sets of employees and the classification, if at all, must be struck down as arbitrary and unreasonable inasmuch as Articles 14 and 16 of the Constitution of India strike at arbitrariness in State action and ensure fairness and equality of treatment.
15. I fully agree with the reasons and the conclusions of this Court in the aforementioned Division Bench judgment, which is also binding on us. I, thus, do not see any justification as to why the age of superannuation of those teachers, who are imparting education in the Bihar College of Engineering, Patna, and those like the petitioners, who are imparting education in other three Engineering Colleges of this State, should be different. The State of Bihar cannot be allowed to make discrimination in regard to the age of retirement of the petitioners vis-a-vis those who are working in the Bihar College of Engineering, Patna. Accordingly, the submissions of the learned Counsel for the petitioners are accepted. For these reasons, I hold that the petitioners are entitled to the relief No. 1.
16. Some of the petitioners have already attained the age of even 52 years. Even then I am of the view that they are entitled to the reliefs claimed for by them. The writ petitions cannot be thrown out as having become infructuous specially when the first one was filed on 10-3-1988 and admitted on 11-8-1988 taking into account non-giving of instructions by the Respondents.
17. The petitioners are also entitled to the relief No. 2. No reason has been stated in Annexure-1 as to why the arrears are not being paid. Thus, if it is a fact that the Grants were received by the State from the University Grant Commission for the period in question, it is obliged to pay the arrears.
18. I, accordingly, allow these writ petitions to the extent indicated and direct the State of Bihar (Respondent No. 1) to bring peremptorily within three months from today the age of superannuation of the teachers working in the Engineering Colleges other than the Bihar College of Engineering, Patna, at par with those working in the Bihar College of Engineering, and to pay them the arrears of salary if received and give benefits flowing therefrom to the petitioners.
19. In the peculiar facts and circumstances, however, I make no order as to costs.
I.P. Singh, J.
20. I agree.