JUDGMENT 1. - Appellant Amarchand who is a Senior Teacher in the Govt. Higher Secondary School, Motikatla, Jaipur filed a writ petition before this Court challenging the vires of, the Schedule appended to the Rajasthan Educational Service Rules, 1970, namely, the entry in column 5 against item (i) of Group `P' whereby the teachers in Grade II....... have been placed at par with tho Senior Teachers for the purposes of promotion to the post of the Head Masters/Head Mistresses of the Secondary Schools, as violative of Articles 14 and 16 of the Constitution of India. The learned Single Judge, after hearing both the parties, partly allowed the writ petition. He rejected the plea of discrimination in the matters of selection to the pest of Head Master from two sources namely, the Senior Teachers and the leachers Grade II, but he directed the respondents to prepare a common seniority list of the Senior Teachers and the Teachers Grade II and others on a just and fair basis before proceeding to make promotions to the Rajasthan Educational Service from the members of the Rajasthan Educational Subordinate Service. Both the petitioners as well as the Government preferred an appeal before this Court against this judgment of the learned Single judge. A similar writ petition filed by one Devisingh was pending before the Single Judge, but as the same questions of law and fact were involved in that petition, it was tagged with these appeals As the question of validity of the Rules was involved, a Special Bench of 5 Judges was constituted under Article 228A(3) of the Constitution and it is in this manner that these three matters came up for hearing before us. 2. The main grievance of the petitioner Amarchand is that by amending the Rajasthan Educational Service Rules, 1970, the Government have opened a channel for the promotion to the post of Head Master/Head Mistress of Secondary Schools- 50% by direct recruitment and 50% by promotion. The Rules provided that promotion to the post of a Head Master shall take place from the Senior Teachers as well a, from the Teachers Grade II in the ratio of 1:4. The grievance of the petitioner was that these two sources viz. the Senior Teachers and Teachers Grade II, which are not equally placed, cannot be clubbed together for the recruitment to the post of Head Master/Head Mistress of Secondary Schools by promotion. The grievance of the petitioner was that these two sources viz. the Senior Teachers and Teachers Grade II, which are not equally placed, cannot be clubbed together for the recruitment to the post of Head Master/Head Mistress of Secondary Schools by promotion. The contention of the petitioner is that by adopting this procedure the unequals are treated as equals which offended the provisions of Articles 14 and 16 of the Constitution. 3. The Government did not accept this contention of the petitioners and came out with a plea that by recruiting to the post of Head Master from the two sources namely, Senior Teachers and the leachers Grade II, it cannot be said that unequals are being made equals. According to the Govt., in many other services recruitment is made from various sources which are not in all respects equal to each other arid, therefore, the question of offending Article 14 does not at all arise. 4. The learned Single Judge, while dealing with this question, came to the conclusion that taking Head Mister from the two sources namely, Senior Teachers and the Teachers Grade II, though their salaries & xxxx grades are different, cannot be said to be treating unequals as equals. It is open for the Government to create the channel of recruitment in a manner which may open opportunities to various employees who are otherwise eligible to be appointed to the post for which selection is being made and, therefore, the learned Single Judge rejected the plea of the petitioner that clubbing Senior Teachers with Teachers Grade II for the purpose of recruitment of 50% quota for the post of Head Master by promotion in any manner offends Article 14 of the Constitution. 5. The learned Single Judge, however, found out an anomaly in the matter of determining seniority and therefore, he suggested a line of approach to the Govt provides as suitable for preparing a common seniority list for Senior Teachers and Teacher Grade II for the purpose of rule 24 of the Rules and he suggested that it could have been done by treating the service in higher grade as equivalent to a certain multiple of the period of service in the lower grade. That was one way to look at this problem. That was one way to look at this problem. The another way which he suggested was that a certain proportion for filling up the posts in the Rajasthan Educational Service be fixed for Senior Teacher; and other for Teachers Grade II, but he made it very clear that the Government was the best Judge to decide matters and to modify the Rules as it deemed necessary to do so. It was only an indication of a line of approach which the Government could take to remove the anomaly in the matter. 6. Mr. Mridul vehemently urged that the petitioner who was a Senior Teacher and who was better qualified than a per on who became a Teacher Grade II, was undoubtedly superior to the member of the Cadre of Grade II Teachers. He also contended that in matters of qualifications, a Senior Teacher is appointed only when he holds a degree of post graduation in a particular subject for which a vacancy falls. Whereas it is not necessary for the Teacher Grade II to hold a Master's Degree in any subject. He also contended that before a Senior Teacher is selected a Head Master, he is required to pass the Degree of Bachelor of Education which is also necessary for the Grade II Teachers to hold. In that way is can be said that a Senior Teacher definitely places himself in superior category and, therefore, he cannot be equalised in the matter of selection to the post of a Head Master, with a Teacher Grade II, who in matters of salary and educational qualifications stands inferior to the former class. 7. Relying on Nawal Kishore Singh v. Union of India (Patna) reported in 1973 (1) SLR 509 , Mr. Mridul urged that the case of his client provides an example of discrimination and prayed that this Court being the guardian of the rights of the people should strike down the rule which provides for clubbing of the Senior Teachers and the Teacher Grade II for the purposes of selection to the post of Head Master. In Nawal Kishore Singh's case, supra, it was held by the learned Judge of the Patna High Court that if the officers are appointed from two different grade, one higher from the other, then surely the officer appointed from the higher grade cannot be placed below these who were appointed from the lower grade. In Nawal Kishore Singh's case, supra, it was held by the learned Judge of the Patna High Court that if the officers are appointed from two different grade, one higher from the other, then surely the officer appointed from the higher grade cannot be placed below these who were appointed from the lower grade. This judgment, however, does not lay down that the person; belonging to the different categories or grades cannot from a class for the recruitment to a particular post. It simply says that a person appointed from the higher grade should not be placed below one who was appointed from the lower grade. It is not an authority for supporting the plea of Mr. Mridul about the challenge thrown by him to the clubbing of the two categories namely, Senior Teachers and Teachers Grade II for the purpose of selection to the post of the Head Master.' 8. A similar question came before the Supreme Court in Mohd Usman and ors. v. The State of Andhra Pradesh, AIR 1971 SC 1801 where for the recruitment to the post of State-wise Grade II Sub-Registrar from the Ministerial Officials of Registration having been made open to the Lower Division Clerks and Upper Division Clerk being undoubtedly constituted a different class by themselves, the Upper Division Clerk being definitely superior to the Lower Division Clerk. it was argued before the Supreme Court that this type of recruitment was violative of Article 14 of the Constitution because though among the clerks there are UDCs as well as LDCs yet all of them had been put in one class for the purposes of recruitment. As per the Ministerial Service Rules the UDCs had to be selected from the LD. Cs after, the LDCs had put in certain number of years of service and after they had passed the Account Test as well as Registration Test. It cannot be denied that a UDC holds superior post to that of an LDC. His salary is higher and his conditions of service are better than that of an LDC. It was in these circumstances that a prayer was made to the Supreme Court that Rule 5 treats UDCs and LDCs as equal for the purpose of recruitment for the post of a Grade II Sub-Registrar and, therefore, the doctrine of equality was offended. Like Mr. It was in these circumstances that a prayer was made to the Supreme Court that Rule 5 treats UDCs and LDCs as equal for the purpose of recruitment for the post of a Grade II Sub-Registrar and, therefore, the doctrine of equality was offended. Like Mr. Mridul an argument was advanced that equality doctrine is attracted not only when equals are treated as unequals but also where unequals are treated as equals. The plea of the State in that case was that for the recruitment to the State-wise cadre, it was not possible for the State to make distinction between LDCs and UDCs. The only reasonable basis that could have been adopted , was to treat UDCs and LDCs a one class for the purpose of recruitment. Their Lordships, on the facts and circumstances before them observed as follows: "On the facts before us we are unable to agree that for the purpose of recruitment with which we are concerned here in the State should have classified the UDCs and LDCs separately. If the State had treated the UDCs as being superior to the LDCs for the purpose of that recruitment it would have resulted in a great deal of injustice to a large section of the clerks. The fortuitous circumstance of an officer in a particular district becoming an UDC would have given him an undue advantage over his seniors who might have been as efficient or even more efficient than himself, merely because they chanced to serve in some other district. For the reasons mentioned above, we do not think that in the present case the State can be said to have treated unequal as equals. The rule of equality is intended to advance justice by avoiding discrimination. In our opinion the High Court by overlooking the reason behind Rule 5 came to the erroneous conclusion that the said rule violated Article 14 of the Constitution." 9. Learned Advocate General argued before us that there are 12,000 teachers of Grade II and 3,000 senior teachers. If the venue had been open for the recruitment to the post of a Head Master only for Senior Teachers, then the Teachers Grade II would have been put to a great disadvantage and therefore, justice is done by the State by opening the venues for promotion to the post of Head Master both to the Senior Teachers and Teachers Grade II. 10. 10. We feel that by clubbing the Grade II Teachers with the Senior Teachers for the purpose of promotion to the post of a Head Master, the State has avoided injustice to large number of Grade II Teachers and, therefore, on the basis of the Supreme Court judgment relied upon by the Advocate General, we are convinced that the Rule does not in any manner offend Art. 14 of the Constitution. The clubbing of the two categories of teachers as one class for the purpose of promotion to the post of a Head Master is, therefore, justified. 11. It was next contended by Mr. Mridul that the question of seniority in the Rajasthan Educational Service must not disturb their seniority in their separate categories as Senior Teachers and Teachers Grade II. In substance he urged that when Senior Teachers are recruited to the post of the Head Master along with the Teachers Grade II, the former should be given seniority in the new service to the later. The learned Single Judge, in our opinion, has given a line of approach for the State to consider the question raised by the petitioner. While giving two suggestions, the learned Single judge did not throw a third suggestion to the State which can conveniently be given by us i.e. when the officers are appointed from two different grades one higher from the another, then in that event, the officer appointed from a higher grade should not be placed below one appointed from the lower grade. This principle of fixing seniority has been laid down in Nawal Kishore Singh's case, supra by the Patna High Court. We are in agreement with the Patna High Court judgment. In the present case, the recruitment is made in a particular ratio of 1:4 i.e. one from the Senior Teachers and 4 from Teachers Grade II. Their seniority is also fixed in a cyclic order i.e. one Senior Teacher and and then four Teachers Grade II and so forth and so on. This cyclic order undoubtedly creates heart-burning in those teachers who come from a superior position of Senior Teacher. Thus it is better if the State Govt can reconsider the question of appointing the Head Masters from the two sources fixing their seniority in the new service in accordance with the principles laid down, in Nawal Kishore Singh's case, supra, by the Patna High Court. Thus it is better if the State Govt can reconsider the question of appointing the Head Masters from the two sources fixing their seniority in the new service in accordance with the principles laid down, in Nawal Kishore Singh's case, supra, by the Patna High Court. There are the principles which we find in other services also. For example, in the Rajasthan High judicial Service a promotee is always kept senior to a direct recruit both of them are recruited in the same year. On that analogy it is suggested that the rule of seniority should be suitably amended by the Stare Government so as to avoid anomaly which stares us in the face. 12. The learned Advocate General, however, did not place any arguments before us in support of his appeal except the reasons given by him in the memo of appeal, for which no material has been placed by the State for the opposite party to meet the arguments. In these circumstances we dismiss both the appeals. 13. Since the petition of Shri Devisingh raises similar questions for our determination, we need not deal with it separately. The writ petition of Shri Devisingh is decided in terms of the appeal of the parties referred to above. Parties shall bear their own costs.Appeals dismissed. *******