Patna High Court
Rabindra Narain Singh vs The State Of Bihar on 5 August, 2025
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.16835 of 2021
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Rabindra Narain Singh Son of Late Nareshwar Prasad Singh, Resident of
Village - Jaiprabha Nagar, Kaiyasth Tola, Police Station - Saharsa, District -
Saharsa.
... ... Petitioner/s
Versus
1. The State of Bihar through, Secretary, Department of Science and
Technology, Government of Bihar, Patna.
2. The Director, Department of Science and Technology, Government of Bihar,
Patna.
3. The Joint Director (Admin), Department of Science and Technology,
Government of Bihar, Patna.
4. The Assistant Director (Admin), Department of Science and Technology,
Government of Bihar, Patna.
5. The Principal, Government Polytechnic, Saharsa.
... ... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. Rajesh Kumar Singh, Sr. Advocate.
Mr. Sumit Kumar, Advocate.
For the Respondent/s : Mr. Pratik Kumar Sinha, AC to GA-5.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL JUDGMENT
Date : 05-08-2025
Heard Mr. Rajesh Kumar Singh, learned senior
counsel along with Mr. Sumit Kumar, learned counsel appearing
on behalf of the petitioner and Mr. Pratik Kumar Sinha, learned
AC to GA-5 for the State.
2. The petitioner in paragraph no. 1 of the
present writ petition has sought, inter alia, following relief(s),
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
2/12
which is reproduced hereinafter:-
"1.(a) That the above named petitioners are filing
the present writ petition before this Hon'ble Court for
issuance of writ of certiorari for quashing/setting aside the
memo no. 497 dated 10.02.2021 issued by Respondent No.3
(Joint Director, Department of Science & Technology,
Government of Bihar, Patna) by which petitioner has not
been found fit for promotion to the post of Lecturer
(Selection Grade) on the ground that petitioner does not
possess Ph.D. degree which is essential in view of clause
3.5 of memo no. 02 dated 02.01.2003 issued by Department
of Finance and clause 43 of notification dated 04.01.2016
issued by AICTE.
1.(b) That the abovenamed petitioners are further
praying before this Hon'ble Court for issuance of writ of
mandamus for directing/commanding the respondent
authorities to grant the petitioner his due promotion to the
post of Lecturer (Selection Grade) w.e.f. 25.02.2001) under
Career Advancement Scheme with all consequential
benefits in view of Item-10 of the clarification issued by
AICTE as contained in letter no. FD/PSSC/clarify/2003/1
dated 10.09.2003 and as has been held in order dated
24.01.2017
passed in MJC No. 1438 of 2015.
3. The petitioner is aggrieved for having not
been promoted on the post of Lecturer (Selection Grade) w.e.f.
08.03.2002 the date he became entitled after completion of five
years from 08.03.1997 on which date he was granted Lecturer
(Senior Scale).
4. The Finance Department, Government of
Bihar came out with a Notification dated 02.01.2003. The said
notification was clarified by the All India Council for Technical
Education (AICTE) in respect of Item No.10 by a clarificatory
notification dated 10.09.2003 giving retrospective effect to the
notification dated 02.01.2003. In respect of the clarification,
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
learned senior counsel submitted that a writ petition was filed by
Shiv Shankar Prasad Singh and others and against the order
passed by the learned Single Judge, said Shiv Shankar Prasad
Singh preferred L.P.A. No. 720 of 2006 before this Court and
against the final judgment passed by the Division Bench, said
Shiv Shankar Prasad Singh and others preferred MJC No. 1438
of 2015. The Division Bench of this Court vide order dated
24.01.2017 had noticed the clarificatory notification dated
10.09.2003 issued by the AICTE made in respect of Item No.
10, particularly Sub Clause 3.5(ii) of the Notification dated
02.01.2003. Learned counsel placed reliance on the said
clarification made by the Division Bench in its order passed in
M.J.C. No. 1438 of 2015 dated 24.01.2017. In the background
of the admitted position, learned counsel contended that the
petitioner became entitled for Lecturer (Selection Grade) w.e.f.
08.03.2002 keeping in view Kalavadhi of five years as
stipulated in the said Notification. The petitioner having not
been paid the required pay scale applicable for Lecturer
(Selection Grade) was forced to file C.W.J.C. No. 16508 of
2017. The said writ petition was disposed of vide order dated
16.05.2019 giving liberty to the petitioner to file representation
before the respondent no.2 to be considered and disposed of
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
within a period of eight weeks thereafter. Learned senior
counsel further submitted that the petitioner filed his detailed
representation dated 02.07.2019 (Annexure-4) giving all the
details relating to his service particulars and the interpretation
made by the Central Government in respect of Item No.10 vide
AICTE notification dated 10.09.2003 before the Director,
Science and Technology Department, Government of Bihar,
who after delay of nearly two years passed the impugned order
contained in Memo No. 497 dated 10.02.2021 (Annexure-5)
rejecting the claim of the petitioner from 08.03.2002 on the
ground that as per item no. 43 of the subsequent notification
which came into effect from 04.01.2016, the minimum
qualification of Ph.D. is an essential qualification for upward
movement to the Lecturer (Selection Grade). Learned senior
counsel asserted that the Notification dated 04.01.2016 has its
prospective effect and in absence of any clear stipulation in the
said notification in respect of its retrospectivity, denial of pay
scale applicable to the Lecturer (Selection Grade) to the
petitioner w.e.f. 08.03.2002 till the Notification came into effect
on 04.01.2016 being against the clarification dated 10.09.2003
cannot sustain in the eye of law. Learned counsel further
submitted that the judgment relied by the respondent rendered in
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
the case of The Secretary, All India Shri Shivaji Memorial
Society (AISSMS) & Ors. Vs. The State of Maharashtra and
Ors. (Special Leave Petition (Civil) No(s). 7058-7061 of 2019
is not applicable in the case of the petitioner. In this regard,
learned counsel has clarified that in the present case, petitioner
is seeking his promotion in Selection Grade having appointed in
the year 1985 i.e. prior to the effective date of 01.01.1996,
which has been prescribed by the AICTE vide its Notification
dated 10.09.2003. Therefore, the case of the petitioner is entirely
different from the facts of the The Secretary, All India Shri
Shivaji Memorial Society (supra) where the case of the
teachers who were aggrieved was related to the appointments
made between 1995 to 2009.
5. Per contra, Mr. Pratik Kumar Sinha, learned
counsel appearing on behalf of the State submitted that the Joint
Director, Science and Technology Department, Government of
Bihar vide its Letter No. 497 dated 10.02.2021 has passed a
speaking order and the said order cannot be interfered in any
manner in accordance with law. Learned counsel further
submitted that in view of the Clause 3.5 (ii) of the Notification
dated 02.01.2003 issued by the Department of Finance,
Government of Bihar and clarification to the same vide AICTE
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
Notification dated 10.09.2003 in view of the terms stipulated in
Item No. 43 of the AICTE Notification dated 04.01.2016,
petitioner is entitled for promotion to the post of Lecturer
(Selection Grade) and the order impugned cannot be interfered
in any manner by this Court.
6. Heard the parties.
7. The issue involved in the present writ petition
is, as to whether, the petitioner is entitled for Lecturer (Selection
Grade) pay scale and secondly, whether the AICTE Notification
dated 04.01.2016 has retrospective effect which mandates the
teacher to have Ph.D. degree for being entitled for promotion to
the post of Lecturer (Selection Grade)?
8. The petitioner was appointed on 22.02.1985,
thereafter, he was given time bound promotion in the year 1997
on the post of Lecturer (Senior Scale) after having performed 12
years of service. The Department of Finance, Government of
Bihar came out with Notification dated 02.01.2003 mandating
five years of service as Lecturer (Senior Scale) having Masters
Degree for promotion to the post of Lecturer (Selection Grade).
9. I find it proper to reproduce Item No. 10 of
the Clarificatory Notification dated 10.09.2003 issued by the All
India Council for Technical Education (AICTE):
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
"Item No. 10. Anomaly in AICTE
recommended pay scales for teachers of diploma
level technical institutions (polytechnics)
Decision taken:
The committee had discussed the issue at
length and it was decided that the teachers who
have been recruited prior to 1.1.1996, should be
governed by the existing Recruitment Rules(RR's).
So, the committee recommends relaxation of
qualification for such teachers to consider them for
CAS in the grade of Lecturer (i.e., from Lecturer to
senior grade & from senior grade to selection
grade) and also for those who were promoted
before the implementation of revised AICTE pay
scales & service conditions. (From the date of
AICTE notification to the date of implementation of
the same by the concerned State Govt/Union
Territory)."
10. In respect of the clarification of the said
Notification, the Division Bench of this Court had occasioned to
reconsider the said notification and clarification made by the
AICTE vide order dated 19.04.2010 passed in L.P.A. No. 720 of
2006 (Shiv Shankar Prasad Singh & Ors. Vs. The State of Bihar
& Ors.), against which order, MJC No. 1438 of 2015 was filed.
The Division Bench vide order dated 24.01.2017 passed in MJC
No. 1438 of 2015 had noticed the clarification made by the
AICTE which is a Central Agency in respect of Item No.10
which has been clearly observed as under:
"We would like to say, enough is enough. State
cannot behave like Shylock or make a citizen fight for every
inch of his rights. An apex body like AICTE, having
clarified the matter by its own regulations, we do not think
it lies with the State, which is the implementing authority, to
challenge the legality of the clarification by the parent apex
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
body. It is there to implement the orders of the AICTE and
not to deny or challenge that. The clarification is
categorical and be quoted:
"Item No 10: Anomaly in AICTE
recommended pay scales for teachers of diploma
level technical institutions (polytechnics)
Decision taken:
The committee had discussed the issue at
length and it was decided that the teachers who
have been recruited prior to 01.01.1996, should be
governed by the existing Recruitment Rules (RR's).
So, the committee recommends relaxation of
qualification for such teachers to consider them
for CAS in the grade of Lecturer (i e, from
Lecturer to senior grade & from senior grade to
selection grade) and also for those who were
promoted before the implementation of revised
AICTE pay scales & service conditions. (From the
date of AICTE notification to the date of
implementation of the same by the concerned State
Govt/Union Territory)."
Keeping in view the clarification as given by the
principal apex body, the AICTE, as quoted above, clearly
DPC and the State are wrong in depriving the petitioners of
their right to be considered for promotion. We do not
approve of the manner in which State has consistently
created obstacles to deprive the consequential benefits to
the petitioners. We do not approve of such a legalistic
attitude of the State to defeat the legitimate rights of
citizens.
We, thus, have no option but to hold that the stand of
the State in this regard is not bona fide. Clarification
having been made by the AICTE about its own regulations
and also communicated it to all parties including the State,
State, being subordinate in that respect to AICTE, must fall
in line.
We, accordingly, direct the State to take a decision
appropriate to the clarification supplied by AICTE, as
noted above within a period of three weeks from today and
needless to repeat yet again, as we have repeated several
times earlier, give consequential relief and benefit to the
petitioners. If the same is not done, we would expect the
Principal Secretary, Department of Science and Technology
to be personally present on the next day to answer Rule of
Contempt.
11. It is well settled law that the Central Legislation
is binding on the State and the State cannot overreach the same.
12. The clarification having been made by the
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
AICTE about its own regulation and also communicated to all
the parties including the State, the State is required to abide by
the said clarification.
13. It is further clarified that the respondent no.3
has totally misconceived the regular promotion with financial
upgradation. In this regard, the Apex Court in the case of
Amresh Kumar Sinha & Ors. Vs. The State of Bihar & Ors.
reported in 2023 SCC OnLine SC 496, while observing the
claim of the appellant of the said case who became entitled for
the Assured Career Progression (ACP) on completion of 12
years of service to avoid stagnation in Para-17 to 20 has
observed as under:
"17. It was further observed that fulfilment of educational
qualifications prescribed under the recruitment rules for the
purposes of promotion are not necessary for non-functional
in situ promotion. In other words, educational qualification
required for the purposes of promotion is not necessary for
the grant of in situ promotion, i.e., only for extending the
monetary benefit where there are no promotional avenues
and the employees are likely to be stagnated.
18. In the aforesaid case, the employees were working as
malis (Gardeners) and had claimed promotion in the higher
pay scale. The Central Administrative Tribunal seized of the
original applications observed that the employees cannot
claim the scale of the next higher post by way of in situ
promotion. On the matter being taken to the High Court by
way of a writ petition, the contention of the employees was
accepted and it was observed that the object of in situ
promotion on non-functional posts, is to ensure that the
group C and D employees are not stagnated in the same
cadre/pay scale and that they should be provided with
certain monetary benefits. Therefore, the rejection of the
claim for such nonfunctional in situ promotion on the
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
ground that the employees do not possess the necessary
minimum qualification of matriculation as per the rules is
not justified and renders the order erroneous in law. The
view so taken by the Division Bench of the High Court was
affirmed by this Court in the above referred Civil Appeals
holding that the High Court has correctly analysed the
object of the in situ promotion and fixation of pay scales to
Group C and D employees to avoid stagnation.
19. In view of the aforesaid legal position coupled with the
fact that the qualification of graduation prescribed is for
the promotion to the post of Accounts Officer rather than
for the grant of in situ promotion on the non-functional post
or for extending the benefit of ACP which is purely and
simply in the nature of grant of monetary benefit without
actually effectuating any promotion to any higher post, we
are of the opinion that the judgment and order of the
Division Bench of the High Court impugned in the appeals
cannot be sustained. It is accordingly hereby set aside and
that the judgment of the writ court dated 28.11.2017 is
restored. The appellants are extended the benefit of ACP, as
directed by the writ court.
20. We have not considered it necessary to deal with the two
cases on the basis of which the Single Judge has allowed
the writ petitions and granted the benefit of the ACP to the
appellants, as we have independently of those two decisions
have considered and held that the appellants are entitled to
financial upgradation under the ACP Scheme on
completion of requisite regular service ignoring the higher
qualification prescribed for the next higher post as grant of
such benefit is not actually a promotion but only financial
upgradation and if the higher qualification is insisted it
would frustrate the purpose of the entire scheme.
14. The Apex Court has clarified in Para-17 that
educational qualification required for the purposes of promotion
is not necessary for the grant of non-functional in situ promotion
i.e. only for extending the monetary benefit where there are no
promotional avenues and the employees are likely to be
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
stagnated.
15. In view of the clarification made by the AICTE,
the petitioner becomes entitled for Lecturer (Selection Grade).
The notification which came into effect from 04.01.2016 has no
application in the case of the petitioner. The rejection of the
claim of the petitioner for his entitlement of pay scale of
Lecturer (Selection Grade) by the Joint Director, Science and
Technology, Government of Bihar (respondent no.3) is contrary
to the Notification dated 02.01.2003 and its clarification made
by the AICTE dated 10.09.2003. Accordingly, the impugned
order dated 10.02.2021 being wholly misconceived is set aside
and quashed.
16. In the present case, I have already clarified that
the petitioner is entitled for Lecturer (Selection Grade) w.e.f.
08.03.2002. The petitioner is entitled for the Lecturer (Selection
Grade pay scale till the date of his retirement i.e. 31.03.2021. I,
accordingly, direct the respondent no.2 - The Director,
Department of Science and Technology, Government of Bihar to
take corrective measures to grant Lecturer (Selection Grade) to
the petitioner w.e.f. 08.03.2002 in view of the fact that he has
completed 5 years of Kalavadhi for the post of Lecturer
(Selection Grade) from the date he was granted Lecturer (Senior
Patna High Court CWJC No.16835 of 2021 dt.05-08-2025
Scale) w.e.f. 08.03.1997. The petitioner also becomes entitled
for other consequential benefits arising out of said pay scale.
17. The writ petition stands allowed.
18. There shall be no order as to costs.
(Purnendu Singh, J)
mantreshwar/-
AFR/NAFR NAFR
CAV DATE N.A.
Uploading Date 06.08.2025
Transmission Date N.A.
