JUDGMENT S. K. Dhaon, J. 1. On the basis of a communication dated 4th October, 1974, issued by the director of education (secondary), the regional inspectress of girls schools, allahabad, has passed the order dated 23rd march, 1987 that the petitioner, a lady teacher in the primary section of an intermediate girls college, is not entitled to receive the salary and other emoluments as a teacher in the c. T. Grade. The legality of the aforesaid communication of the director of education (secondary) and the aforesaid order of the regional inspectress is being questioned in the present writ petition 2. The standing counsel represents the regional inspectress and the state of u. P., who are cited as the respondents no 1 and 3 to the writ petition. A counter-affidavit has been filed on behalf of the regional inspectress as well as the state of u. P. By one sri a. P. Singh, a camp clerk, in the office of the regional inspectress. A rejoinder-affidavit has been filed to this affidavit on behalf of the petitioner. The petition is ripe for hearing. It has not been formally admitted as yet. With the consent of the learned counsel for the parties we are disposing of the same finally. On 31st October, 1973, the petitioner was appointed as a lady teacher in the b.t.c. Grade in the primary section in a regular vacancy in the Indian girls inter college, allahabad and on 18th December, 1973. Her appointment was approved by the regional inspectress. At the time of her appointment the petitioner was a trained graduate (b.a.l.t.). In 1974 she passed the m. A. Examination in sociology from the university of kanpur. Since January, 1980, the case of the petitioner for being paid emolument of a teacher in the c. T. Grade had been pending before the regional inspectress and that authority for the first time negatived the claim of the petitioner by her order dated 23rd march, 1987 (one of the impugned orders). 3. In prem lata misra v. H. L. Dutt, ilr (1) all. 1974, 220 a division bench of this court took the view that it was permissible for a higher secondary school to maintain only classes xi and XII or classes vi to xii or even classes i to xii. 3. In prem lata misra v. H. L. Dutt, ilr (1) all. 1974, 220 a division bench of this court took the view that it was permissible for a higher secondary school to maintain only classes xi and XII or classes vi to xii or even classes i to xii. In each case the institution would be categorised as higher secondary school and if it is recognised by the board of high school and intermediate education, it will be deemed to be a recognised institution within the meaning of the u. P. Intermediate education act, 1921 (hereinafter referred to as the act). It was also held that the words "every person employed in a recognised institution" used in section 16-g of the act were very comprehensive and of general import to include all teachers and employees of an intermediate college or higher secondary school irrespective of the class they taught. This decision was given on 11th September, 1973. At that time in section 2 (b) "institution" was defined to mean "whole of an institution or part thereof, as the case may be and in section 2 (d) 'recognition' was defined to mean "recognition for the purpose of preparing candidates for admission to the board's examinations". By section 2 of u. P. Secondary education laws (amendment) act no. 26 of 1975 the definition of "institution" was substituted thus : "institution means a recognised intermediate college, higher secondary school or high school, and includes, where the context so requires, a part of an institution and "head of institution" means the principal or the head master, as the case may be, of such institution. No change was introduced in the definition of "recognition". Section 21 of the u. P. Act no. 26 of 1975 provides : - "notwithstanding anything contained in any of the principal acts referred to in chapters ii and iii, it shall be lawful for the state government to make, within one year from the commencement of this act, regulations in respect of the matters contained in chapter it or, as the case may be, rules in respect of the matters contained in chapter iii, and every regulation or rule so made by the state government shall continue to remain in force, until it is duly amended or rescinded under the principal act as amended by this act." (principal act means the u. P. Intermediate education act 1921. In chapter ii the amendments of the intermediate education act, 1921 have been introduced and in chapter iii amendments of u. P. High school and intermediate colleges (payment of salaries of teachers and other employees) act, 1971 are introduced). By u. P. Gazette extra-ordinary dated 7th July, 1976, chapter ii of the regulations framed under the act had been substituted and a fresh set of regulations were introduced. In this petition, we are concerned with regulation 7 as inserted by the said notification of 7th July, 1976. A detailed reference to this regulation will be made at the appropriate place in this judgment. Regulation 1 in chapter ii, before the notification of 7th July, 1976 read : "the minimum qualifications for appointment as principal, headmaster and teachers in recognised higher secondary schools shall be as given in appendix 'a'." Appendix a, as it then stood, contained 49 items. Item no. 1 related to the principal of a higher secondary school or intermediate college. The remaining items related to teachers for classes xi and xii or ix and x. None of the items related to the teachers of class viii and below that class. Some items related to the assistant teachers teaching in the intermediate classes. After the notification of 7th July 1976, appendix a was amended. In the amended appendix a category of "other teachers" was added. Under this head teachers for junior classes (classes vi, vii and viii) and teachers for primary classes (classes i to v), if any or teachers of girls institutions were mentioned. The minimum qualification of both the categories of teachers was also mentioned. 4. In commissioner, lucknow division v. Km. Prem lata misra, air 1977 sc 334 (decided on 26th october, 1976) the supreme court reversed the decision of this court in prem lata's case (supra) and held that the basic section of a school was not a part of a recognised institution. Their lordships disagreed with the view of this court that the basic section is an integral part of the institution and, therefore, must be governed by the provisions of the act. Their lordships also held that a school by extending its operation to fields beyond that covered by the act cannot extend the ambit of the matter to include in its sweep new fields of education which were outside its scope. Their lordships also held that a school by extending its operation to fields beyond that covered by the act cannot extend the ambit of the matter to include in its sweep new fields of education which were outside its scope. It may be noted that their lordships interpreted the definitions of "institution" and "recognised" as they stood prior to the enforcement of u. P. Act 26 of 1975. It appears that their lordships' attention was not invited to the changed definition of "institution". It also appears that their lordships' attention was not invited to the newly added chapter ii of the regulations as substituted by the notification dated 7th July, 1976. In mahanand singh v. State of u. P., 1978 alj 1042 (decided on 28th march, 1978) division bench of this court relying upon the decision of the supreme court in prem lata's case (supra) held that the provisions of the u. P. Intermediate education relate to the recognised institutions and recognition by the board is for the purposes of preparing candidates for board's examination, which means the board of high school and intermediate education; the basic section of a high school is not a part of the recognised institution. 5. On or before 25th January, 1974, sub-section (4) of section 9 of the act read :- "in any emergency which, in the opinion of the state government requires that immediate action should be taken, the state government may take such action consistent with this act as it deems necessary without previous consultation with the board, and shall forthwith inform the board thereof." On that date, the state government in the purported exercise of the afore- quoted power issued a d. O. To the director of education-cum-chairman of the board of high schools. In this d. O., inter-alia, it was provided that teachers employed in a recognised high school or intermediate college in the jtc or btc pay scale would be automatically (suo motu) promoted to the c. T. Grade, provided such teachers had passed the intermediate or equivalent examination and had undergone either the course of j. T.c. Or b. T.c. And had completed five years of service and they were found fit by a specially constituted selection committee which was to be constituted a rider was added to the effect that the automatic promotion to the c. T. Grade would not commence from a date prior to 1st november, 1973. On the plain reading of this d. O. It is clear that it applied to all the teachers who were working in a recognised high school or intermediate college in the pay scale of b. T.c. Or j.t.c. It made no exception in the case of those teachers who were employed in the primary section of a recognised high school or intermediate college. Again it did not make any distinction in the case of those teachers who were teaching neither classes xi and xii nor classes ix or x nor class viii. In other words it was applicable even in case of those teachers who were teaching classes vi, vii and viii and class vi in particular. To put it differently, the d. O. Gave the benefit of the automatic promotion to all teachers who fulfilled the conditions laid down irrespective of the class they were assigned to teach. Presumably an emergency arose to issue the said d. O on account of the judgment given by this court in the case of prem lata misra's case (supra). 6. The communication dated 4th October, 1974, issued by the director of education (secondary) to all the district inspectors of schools and regional inspectresses of girls schools has now to be examined. The subject of the communication is with regard to automatic promotion to the c.t. Grade of those teachers who were employed either in j.t.c. Or b.t.c. Pay scale. Specific mention is made of teachers and lady teachers. According to this communication, the state government had given a decision. Query no. The subject of the communication is with regard to automatic promotion to the c.t. Grade of those teachers who were employed either in j.t.c. Or b.t.c. Pay scale. Specific mention is made of teachers and lady teachers. According to this communication, the state government had given a decision. Query no. 6, on which a decision was given by the state government and which is relevant to the present controversy, was somewhat like this : whether lady teachers of the primary classes employed in the institutions meant for girls could be given the facility of automatic promotion. The answer given was that lady teachers employed in the primary section of an institution meant for girls would not be entitled for being considered for automatic promotion. As already stated, this decision of the state government is the sheet-anchor of the order of the regional inspectress which is being impugned in the present petition. We have already indicated that the decision of the state government of 25th January, 1974, was an order passed in exercise of powers under subsection (4) of section 9 of the act. There appears to be a clear conflict between the order of 25th January, 1974 and the decision of the state government as contained in the communication of the director dated 4th october, 1974. A perusal of the communication of the director will immediately show that the state government did not purport to pass any order under any statutory provision of the act. It appears that certain queries by the subordinates were answered by the state government. At best, the decision of the state government as contained in the said communication can be termed as a government order passed in the purported exercise of powers conferred under article 154 read with article 162 of the constitution. The exercise of such a power could not be made in the teeth of the statutory order passed under sub-section (4) of section 9. Therefore, the decision of the state government, as contained in the aforesaid communication of the director, in so far as it affects the right of the petitioner, must give way to the statutory order passed under sub-section (4) of section 9 of the act and, therefore, the same should be ignored. 7. Therefore, the decision of the state government, as contained in the aforesaid communication of the director, in so far as it affects the right of the petitioner, must give way to the statutory order passed under sub-section (4) of section 9 of the act and, therefore, the same should be ignored. 7. Another striking feature in the clarification or the decision given by the state government as contained in the communication of the director, is that it does not prohibit the giving of the benefit of statutory order dated 25th January, 1974, to either male teachers or female teachers employed in the j.t.c. Or b.t.c. Pay scale and given the task of teaching the students of the primary section attached to a recognised high school or intermediate college meant for males. There appears to be no rational basis for segregating female teachers employed for imparting education in the primay section of a girls' institution. Such a classification has no nexus with the object of the order dated 25th January, 1974. The object being to promote automatically all teachers working in the j.t.c. Or b.t.c. Pay scale to the c. T. Grade. The classification, therefore, is arbitrary on the facts of it and hit by article 14 of the constitution. That apart, since the female teachers are being descriminated solely on the ground of sex article 15 (1) of the constitution will also be attracted and the impugned decision/clarification of the state government is liable to be struck down as violative of that provision. 8. It is an admitted position that classes i to v are comprised in the primary section. Classes vi, vii and viii and class vi in particular, can by no stretch of imagination be considered to be an integral part of a recognised higher secondary school or intermediate college, if the reasoning given by the supreme court in prem lata mishra's case (supra) and by this court in mahanand singh's case (supra) is applied. It is not the case of the respondents nor can it be, that the students of classes vi, vii and viii of the Indian girls inter college, allahabad appear in any examination conducted by the board. It is conceded that for the students of the said classes an internal examination is held by the institution concerned. It is not the case of the respondents nor can it be, that the students of classes vi, vii and viii of the Indian girls inter college, allahabad appear in any examination conducted by the board. It is conceded that for the students of the said classes an internal examination is held by the institution concerned. Therefore, for the purposes of automatic promotion to the c. T. Grade teachers who are assigned the task of teaching class v and teachers who are assigned the task of teaching classes vi, vii and viii stand on the same footing. There is no rational basis for segregating teachers who are employed for teaching the students of classes i to v and the teachers who are assigned the task of teaching classes vi, vii and viii. The classification, therefore, is on the face of it arbitrary. The decision/clarification of the state government is, therefore, liable to be struck down on this score too last but not the least, regulation 7 (2) may now be read : "where in an institution any teacher working in the j.t.c./b. T.c. Grade has passed intermediate or an equivalent examination or is a trained graduate and has completed five years service in that grade he shall be promoted in the c. T. Grade by the committee of management and information of such promotion shall be immediately conveyed to the inspector." It will be remembered that regulation 7 (2) forms part of chapter ii, which was substituted under the government notification dated 7th July, 1976. It may also be noted that the source of the regulation contained in chapter ii is section 21 (1) of the u. P. Act 26 of 1975 and this provision has already been quoted above. It opens with a non-obstante clause-notwithstanding. The plain meaning of the provisions of section 21 (1) of the (j. P. Act 26 of 1975 is that inspite of the provisions of the act, the state government is empowered to make regulations with respect to matters contained in chapter ii. It, therefore, follows that the state government is empowered to frame regulations inspite of the definition of "recognised" as contained in section 2 (d) of the act. It, therefore, follows that the state government is empowered to frame regulations inspite of the definition of "recognised" as contained in section 2 (d) of the act. It is also apparent that the "institution" in the regulation under reference has to be assigned the meaning as given to that expression in section 2 (b) of the act as substituted by section 2 of the u. P. Act 26 of 1975. We have already extracted the definition above. In the context and setting of regulation 7 (2), there can be no difficulty in taking the view that a teacher working in jtc/btc grade and assigned the task of taking the primary classes attached to a recognised intermediate college or higher secondary school or high school would be considered to be working in the part of the institution, "as the case may be". That apart, the wordings of regulation 7 (2) are wide enough to include all the teachers working in the jtc/btc grade in an institution irrespective of the class assigned to them. It makes no difference whether a teacher is allowed to teach students of class v or of classes vi, vii or viii. The regulation does not draw any such distinction. Therefore, in any view of the matter, there can be no difficulty in taking the view that the clarification/decision of the state government as contained in the communication of the director dated 4th October, 1974, became repugnant to the provisions as contained in regulation 7 (2). The two cannot co-exist. Consequently, it must be held that the offending portion of the clarification/decision, which affects the petitioner, became ineffective upon the enforcement of regulation 7 (2). Annexure x to the writ petition is a communication dated 1st may, 1980, of the regional inspectress to the manager of the Indian girls inter college, allahabad, the institution wherein the petitioner is employed. In this communication the regional inspectrees approved the resolution of the committee of management dated 6th January, 1980, for the automatic promotion of three teachers of that institution, who were employed in the btc grade, to the ct grade. These teachers were smt. Satya ganguli, smt. Mahuwa chaterjee and smt. Deepali chakrawarti. In paragraph 18 of the counter-affidavit filed on behalf of the regional inspectress it is admitted that the aforesaid lady teachers were promoted to the ct grade. These teachers were smt. Satya ganguli, smt. Mahuwa chaterjee and smt. Deepali chakrawarti. In paragraph 18 of the counter-affidavit filed on behalf of the regional inspectress it is admitted that the aforesaid lady teachers were promoted to the ct grade. However, it is stated that they were appointed as lady teachers in the old pay scale to teach junior classes form class vi to class viii. In paragraph 8 of the counter- affidavit the stand taken is that the provisions of regulation 7 (2) of chapter ii is meant for promotion of btc/jtc grade teachers who were appointed to teach classes vi to viii and who were appointed in the pay scale of rs. 320/--. It has also been stated that the provisions of regulation 7 (2) were not applicable to teachers who were appointed to teach in the primary section in old pay scale of rs. 175-250. We have already given our interpretation to regulation 7 (2). We have also expressed the view that there is no rational basis for segregating the teachers assigned to teach class v and teachers assigned to teach classes vi, vii and viii. We need not repeat ourselves. In our opinion the provisions of regulation 7 (2) as contained in chapter ii were and are attracted even to the case of the petitioner. We may at once state that the sole basis of the impugned order dated 23rd march, 1987, passed by the regional inspectress is the clarification/decision given by the state government to the portion which offends the petitioner. We have already held above that the offending portion is bad on a variety of grounds and is liable to be struck down or ignored. It necessarily follows that the impugned order of the regional inspectrees cannot be sustained. It is, accordingly, quashed. 9. We are now left with the question as to what relief should be granted to the petitioner. It cannot be disputed, in any view of the matter, that the petitioner completed five years of service in the Indian girls intermediate college on 17th December, 1978. It is, accordingly, quashed. 9. We are now left with the question as to what relief should be granted to the petitioner. It cannot be disputed, in any view of the matter, that the petitioner completed five years of service in the Indian girls intermediate college on 17th December, 1978. In paragraph 11 of the writ petition it has been averred that, in accordance with the regulation 7 (2), the committee of management of the institution concerned itself approved the name of the petitioner for being promoted to the c. T. Grade and due communication of the said decision was sent to the regional inspectress by letters dated 15th January, 1980 and 27th march, 1980. In paragraph 10 of the counter-affidavit filed on behalf of the regional inspectress this allegation is not denied. The only averment made is that the provisions of regulation 7 of chapter ii do not govern the case of the petitioner. The regional inspectress it appears, did not give any reply to the communications of the management. Therefore, the petitioner was not paid the emoluments of a lady teacher in the c. T. Grade. 10. Having given an anxious consideration to the facts and circumstances of this case, we feel that the petitioner suffered all these years for no fault of hers. We, therefore, consider it expedient in the interest of justice that a direction should be given to the regional inspectrees and the state of u p. To treat the petitioner as having been promoted to the c. T. Grade with effect from 1st may, 1980 and pay her all the emoluments etc. Which would have been payable to her as a lady teacher in the c. T. Grade with effect from that date. While computing the amount to be paid to the petitioner the increments which the petitioner would have got, if she had been promoted to the c. T. Grade from 1st may, 1980, would also be taken into account. In other words, the regional inspectrees and the state of u. P. Shall treat the petitioner as if she has been in continuous service from 1st may, 1980 in the c. T. Grade. of course, whatever amount has been paid to the petitioner with effect from 1st may, 1980 will be adjustable. In other words, the regional inspectrees and the state of u. P. Shall treat the petitioner as if she has been in continuous service from 1st may, 1980 in the c. T. Grade. of course, whatever amount has been paid to the petitioner with effect from 1st may, 1980 will be adjustable. The arrears shall be paid to the petitioner within a period of four months from the date of presentation of a certified copy of this order by the petitioner before the regional inspectress. The arrears will include the salary etc. of the petitioner for the month of may, 1990. The respondents shall commence paying the salary to the petitioner as lady teacher in the c. T. Grade with all the increments etc. From the month of June, 1990 will become payable in the month of July, 90. With these directions, this petition is disposed of finally. 11. The petitioner is entitled to her costs.