JUDGMENT S. B. SINHA, J. 1. All these writ applications involving common questions of fact and law were taken up for hearing together and are being disposed of by this common judgment. 2. Petitioners of C.W.J.C. No. 3475 of 1988 who are eight in number are Assistant teachers of Middle School of Sheikhtoli in the district of Samastipur. Petitioners of C.W.J.C. No. 1239 of 1991, who are nine in number, are Assistant teachers of various Middle Schools situated in the district of Nawada. 3. In all these writ applications, petitioners have questioned the orders of promotion given to the private respondents to the post of Head master in different Schools in the districts of Nawada and Samastipur. Petitioners are Arts Graduate. Some of them hold and possess degrees of Master of Arts also. All of them were appointed as Assistant teacher in the Primary Schools. Some of them were appointed in the scale of pay of Matric trained teacher and some of them were appointed in the post of untrained I.A. teacher which is equivalent to trained or Untrained Matric. 4. Private respondents, however. Were initially appointed under a scheme commonly known as UNICEF scheme on stipend basis and later on their services were absorbed by the State of Bihar and they were given Intermediate or graduate trained scale on different dates from the year 1980. 5. The grievance of the petitioners is that although they were appointed much prior to the private respondents and although they are B.A. trained or M.A. trained, most of them are still getting the scale of pay of Matric trained only because they are teachers in Arts subjects, whereas the private respondents who were appointed under UNICEF scheme are teachers in science subjects Admittedly none of the petitioners have been promoted to the graduate trained scale, whereas and the private respondents prior to their promotion to the post of Head–master were in the cadre of graduate-trained scale. 6. It is admitted that the Governor of Bihar promulgated an ordinance in the year 1973. Whereby an where under the primary Schools run and managed by: (1) Municipal Corporations and Municipalities; (ii) By the various Establishments and maintained under the extension of improvement programme and (iii) Aided or unaided managed by managing Committee were taken over with effect from 1.1.1971. Most of the Schools were taken over and nationalised by Ordinance no. Whereby an where under the primary Schools run and managed by: (1) Municipal Corporations and Municipalities; (ii) By the various Establishments and maintained under the extension of improvement programme and (iii) Aided or unaided managed by managing Committee were taken over with effect from 1.1.1971. Most of the Schools were taken over and nationalised by Ordinance no. 62 of 1976 promulgated on 3.12.1976 with effect from 1.1.1971. The said Ordinance was followed by various ordinances which were ultimately replaced by e legislative Act known as Bihar Non Government Elementary School (Taking over Management and Control) Act. 1976 (hereinafter referred to as 'the 1976 Act'). Admittedly apart from the School which were taken over under the aforementioned Act there were Government Elementary Schools Middle Schools which were called Basic Schools, the teaching staff whereof belong to the cadre of a Bihar Education Service. So far as the Schools which were being run and managed by the Managing Committees are concerned, in terms of the 1916 Act the Committee constituted thereunder was registered to test the feasibility and viability of taking over of other Schools and upon its recommendations and consequent unconditional handing over of the assets of the Schools to the State Government by the concerned Managing Committee, such Schools could be taken over by the State of Bihar on and from the date specified in the gazette issued in this behalf. 7. Section 7 of 1976 Act vests the State Government with a power to frame Rules. Admittedly no Rules have yet been framed by the State of Bihar. The State of Bihar however, had issued various circulars and executive instructions from time to time in purported exercise of its power under section 8 of the said Act. Some circulars have also been issued in terms of Article 16 of the Constitution of India. In terms of some of the circulars a Committee known as District Education Establishment Committee bad been constituted and the said Committee has inter alia been given power to make appointment and grant promotion from one scale to higher scale. In the year 1973, however special posts of Assistant teachers were created in terms of a crash programme under the scheme known as UNICEF scheme. Admitted however, different scales of pay paid to the teachers of the Elementary Schools are as follows:– (a) Rs. 1000-50 1700 EB 60-1820 Senior Selection grade scale in B.A. trained scale. In the year 1973, however special posts of Assistant teachers were created in terms of a crash programme under the scheme known as UNICEF scheme. Admitted however, different scales of pay paid to the teachers of the Elementary Schools are as follows:– (a) Rs. 1000-50 1700 EB 60-1820 Senior Selection grade scale in B.A. trained scale. (b) Rs. 940-40-1500-EB 40-1660 Junior Selection grade scale in B.A. trained scale. (c) Rs. 850-30-1270-EB-30-1360 Senior Selection grade scale in B.A. trained scale (d) Rs. 850-30-1270-EB-30-1360 Senior Selection grade scale in Intermediate trained. (e) Rs. 785-25-1135-EB-25-1210-Junior Selection grade scale in Intermediate trained. (f) Rs. 730-15-820-EB-20-1080-Intermediate trained scale. (g) Rs. 730-15-820-980-EB-20-1090 Senior Selection grade scale in matric trained. (h) Rs. 680-15-890-EB-15-965 Junior Selection grade scale in matric trained. (i) Rs. 590-10-620-15-770-EB-860 Matric trained scale. 8. With effect from 1.3.1986, however, a separate scale of pay of Head–master was introduced in the scale of Rs. 880-35-1510. 8. It also appears that in most of the Schools, Class VIII has been opened wherein the following subjects are taught: – (1) English (2) Hindi (3) Sanskrit (4) History (5) Geography (6) Civics (7) Math (8) Physics (9) Chemistry (10) Biology 9. The contention of the petitioners is that they are eligible to teach seven out of the aforementioned ten subjects, whereas only physics, Chemistry and Biology used to be taught by Science graduate trained teachers and thus the State could not make any discrimination between Science teachers and Arts teachers. The petitioners of C.W.J.C. No.1239 of 1991 have also questioned various notifications purported to have been issued under section 8 of the Act which are contained in Annexure–15, 16 and 17 of the application which are as follows:– Notification No.4557 dated 15.12.1976–Issued under section 8 of the Act dealing with teachers' appointment and other matters as also grant of selection grade scale of pay. Notification No.1938 dated 21.8.1981–Issued under section 8 of the Act, where by amendments made in circular 4557 dated 15.12.1976 granting different grades of pay scale and promotions thereto as also making provisions for direct appointment also. Notification No.2060 dated 15.9.1981–Issued under section 8 of the Act, amending 4557 dated 15.12.1976 and superseding 1938 dated 21.8.1981 whereby scales of pay of six grades were fixed as also procedures for appointment, promotion and qualification were prescribed. It further provided that seniority would be according to appointment promotion in the grade. Notification No.2060 dated 15.9.1981–Issued under section 8 of the Act, amending 4557 dated 15.12.1976 and superseding 1938 dated 21.8.1981 whereby scales of pay of six grades were fixed as also procedures for appointment, promotion and qualification were prescribed. It further provided that seniority would be according to appointment promotion in the grade. Notification No.168 dated 7.3.1984–Refers to 2060 dated 15.9.1981 and other circulars and partially modified them laying down procedure of preparation of lists and issue orders. Notification No.1054 dated 28.5.1984–Refers to 2060 dated 15.9.1981–Where by provisions has been made for approval of lists by R.D.D.E. wide publication and appeal to Divisional Commissioner. Notification No.2440 dated 18.12.1984–Issued under section 8 of the Act, amending and consolidating 4557 dated 15.12.1976, 1938 dated 21.8.1981, 2060 dated 16.9.1981, 168, dated 7.3.1984, 1054 dated 28.5.1984 in terms whereof orders with regard to appointment promotion and conversion of revised pay scale from 1.4.1981 junior and senior selection grades introduce in all the three grades were provided. 10. The petitioners have made the following submissions in their writ applications:– (i) Although some of the petitioners entered into the service as far back as in the year 1965-66, they have Dot been granted graduate trained scale of teachers, but, others who had entered service on a later date have obtained such scale of pay which is violative of Articles 14 & 16 of the Constitution of India. It has been submitted that there was no provision for direct appointment to Intermediate trained scale of pay or Graduate trained scale of pay. (ii) The post of Head–master being an administrative post, the same should have been directed to be filled up by a teacher who was senior and as the petitioners have been discharging similar duties having equal qualifications, they are also entitled to they scale of pay of Intermediate trained teacher and graduate trained teacher. It has been submitted that the notifications bearing no. 4557 dated 15.12.1976 and subsequent notifications issued under section 8 of the 1976 Act including the notification no. 1978 dated 21.8.1981, notification no. 2060 dated 15.9.1981 notification no. 168 dated 7.3.1984, notification no. 1054 dated 18.12.1984 and notification no. 2440 dated 18.12.1984 are ultravires as has been held by a Full Bench of this Court in the case of Krishnadeo Mishra vs. State of Bihar & other, 1987 P.L.J.R. 854. 1978 dated 21.8.1981, notification no. 2060 dated 15.9.1981 notification no. 168 dated 7.3.1984, notification no. 1054 dated 18.12.1984 and notification no. 2440 dated 18.12.1984 are ultravires as has been held by a Full Bench of this Court in the case of Krishnadeo Mishra vs. State of Bihar & other, 1987 P.L.J.R. 854. (iii) The extra benefit granted to the teachers imparting Science education amounts to creation of a class within a class whereby the right of seniority has been effected and thus, the same is violative of Articles 14 & 16 of the Constitution of India. (iv) Petitioners are entitled to equal pay for equal work in any event so far as the matter relating fixation of pay of Headmaster is concerned, the same has got no connection or nexus to the subjects taught in the School. The Science teachers have all along been enjoying a better chance of promotion and thus, the chance of promotion of Arts teacher having been reduced and thus the same is ultravires Article 14 of the Constitution of India. Reference in this connection has been made to the judgment passed in the case of Council of Scientific and Industrial Research and another V.K.G.S. Bhatt and another, A.I.R. 1989 Supreme Court 1972. 11. The respondents, on the other hand, have submitted that a combined gradation list is prepared from time to time of both Arts and Science teachers and promotions are given to both the categories of teachers according to their seniority. In Magadh Division such a gradation list was prepared in August, 1987, whereas Arts graduate were above Science graduate and because of lack of vacancy they could not get promotion at that time. However, when vacancy became available they were promoted upon getting due approval from the Regional Deputy Director, Education as per his letter dated 6.10.1990. It has been contended that it is just a chance that they are Science graduates. It has further been submitted that in terms of the recommendations of the 4th Pay Revision Committee letters were issued from the Education Department to the Subordinate Officers directing them to fill up the vacancy in different grade of teachers including that of the Headmaster Copies of the said letter dated 20.12.1989 and 26.2.1991 are Annexure–C/7 and D/7 to the counter affidavit filed on behalf of respondents 5 to 15 in C.W.J.C. No. 1239 of 1991. It has been contended that all the respondents are senior and were appointed before many of the petitioners. It has further been contended that their initial appointment have been made in I. Sc. trained scale and they were given the basic pay of I. Sc. trained scale as they were B. Sc. untrained at the time of appointment. It has further been contended that the petitioners who ace still in Matric trained scale cannot be promoted to the post of Head–master as they were yet to be promoted on the post of I.A. trained scale and some to the B.A. trained scale. It has been further contended that the petitioners at no point of time questioned the gradation list (Annexure–A/7) which was approved by the competent authorities nor any appeal against the original gradation list or subsequently approved gradation list (Annexure–B/7) was filed before the Education Commissioner in terms of the departmental letter no. 1995 dated 2.4.1985. It has further been contended that so for as the matter of promotion from one grade to the other and one post to the higher post is concerned, the same is covered by a Government notification no. 2440 dated 4.4.1984 and promotions were given to the said respondents on the basis of the said circular. It has also been contended that the petitioners have already filed representations for grant of B.A. trained scale and unless they are promoted to the said scale of pay the question of their being considered for the posts of Headmaster does not arise. 12. The State in its counter affidavit has also raised a plea that in terms of the Government notification no. 2440 dated 18.12.1984 and notification no. 2060 dated 15.9.1981 and letter no. 995 dated 24.4.1985 provisions have been made to the effect that if any body is aggrieved by the decision of the District Establishment Committee regarding appointment, seniority, promotion etc., he can prefer an appeal for redressal of his grievance before the Divisional Commissioner but the Petitioners have not preferred any such appeal. It has also been contended that the seniority list was prepared in the year 1985-86 containing the name of 57 graduate trained teachers out of which serial nos. 2 to 25 were promoted to the post of Headmaster on 17.12.1987 and serial nos. 26 to 37 were promoted on 27.12.1989 as and when vacancy occurred. It has also been contended that the seniority list was prepared in the year 1985-86 containing the name of 57 graduate trained teachers out of which serial nos. 2 to 25 were promoted to the post of Headmaster on 17.12.1987 and serial nos. 26 to 37 were promoted on 27.12.1989 as and when vacancy occurred. In 1991 some vacancy on the post of Head–master occurred. The names at serial 38 to 57 which includes the name of Respondent nos. 5 to 12 were published which is contained in Annexure–2 to the writ application. It has been submitted that the petitioner$ have wrongly contended that only Science teachers have been granted promotion as Annexure–A shall reveal that serial nos. 2 to 17 who were promoted Were Arts graduate trained and similarly serial nos. 24 & 25 were also Arts trained graduate. It has further been contended that the teachers who were earlier appointed under the UNICEF scheme were appointed directly in Intermediate Science trained scale. 13. It is admitted that all the impugned circulars issued prior to 18th December 1984, which is contained in Annexure–6 to C.W.J.C. No. 1239 of 1991 and by reason thereof, the previous circulars stood repealed. By reason of the said circular not only different scales of pay were fixed but also it was directed there by that from 1.4.1981 there would be three separate cadres of teachers drawing scale of pay of Matric trained, Intermediate trained and Graduate trained. It was farther provided therein that the posts of the teachers would consist of three grades as mentioned therein each grade consisting of three scale of pay being basic scale of pay, Junior Selection grade and Senior Selection grade. It has further been provided therein that as the cadre of all the three grades are different each grade shall be taken to be a separate unit and on that basis 20% and 10% of post in the junior selection grade and Senior Selection grade in each grade shall be filled up. It has further been provided that on the basis of the report of satisfactory work, promotion shall be given to the junior selection grade and senior selection grade on the basis of the seniority. 14. It has further been provided that on the basis of the report of satisfactory work, promotion shall be given to the junior selection grade and senior selection grade on the basis of the seniority. 14. The petitioners are admittedly in the cadre of Matric trail1ed teachers, whereas the private respondents prior to their impugned order of promotion have been promoted to the post of Graduate trained teacher scale of pay. Therefore, the petitioners cannot be permitted to contend that they were also entitled to be promoted to the post of Headmaster. It may be mentioned that in terms of the provisions contained in Section 2 of 1976 Act, Elementary Schools has been defined to mean those Schools imparting education from Class I to Class VII. Those primary Schools wherein education is being imparted in Class VIII cannot, therefore, be considered to be Elementary School within the meaning of 1976 Act. It is not in dispute that the private respondents were appointed directly in the scale of pay admissible to Intermediate trained teachers. Their initial appointment was, therefore in a higher scale of pay. 15. Our attention has not been drawn to the provisions of any Act in terms whereof any restriction bas been imposed upon the State of Bihar to appoint a persons directly in the Intermediate scale of pay pursuant to a scheme introduce for the purpose of imparting Science Education to the students. In any event the private respondents had been appointed as far back as in the year 1980-81. The petitioners, therefore, cannot be permitted to question their appointments in the aforementioned scale of pay after such a long lapse of time. If the petitioners cannot be permitted to question the initial appointment of the private respondents fortiorari, it must be held that the private respondents having been initially appointed in the scale of Intermediate teachers and subsequently promoted to the next higher scale of pay, namely, graduate teachers scale of pay belong to a separate cadre and thus they being in a higher cadre were entitled to be considered for promotion to the post of Head–master as the petitioners are not eligible therefore. 16. It is now well known that what cannot be done directly cannot be done indirectly. 16. It is now well known that what cannot be done directly cannot be done indirectly. The petitioners in the name of questioning the promotion of the private respondents to the post of Headmaster on the ground that they are Science teachers cannot be permitted to obtain a relief from this Court that they should be promoted to the post or Intermediate trained teachers scale of pay and graduate trained teachers scale of pay with retrospective effect. In view of the stand taken by the Respondents in the counsel affidavit and as noticed hereinbefore that now there exists as joint gradation list and promotion to the post of Head–master is not being granted on the basis of 50-50 quota of Science and Arts teachers the grievance of the petitioners must be held to be misconceived in the eyes of law. In this connection, our attention has also been drawn to a letter dated 21.3.1990 issued by the Director, Primary Education to the District Superintendent Education Katihar wherein it has been laid down as follows:– foHkkxh; vf/klwpuk la[;k&2440] fnukad 18-12-1984 ds )kjk dkyof/k iwjk djus ij gh ,d dksfV ls nwljs dksfV esa izksUufr iznku djrs gq, iz/kkuk/;kid ds in ij izksUufr nh tk ldrh gSA ,d osrueku ls nwljs osrueku ls lh/kh fu;qfDr djus esa dkyof/k dh ck/;rk ugha jgsaxh Lukrd izf’kf{kr osrueku esa dk;Zjr foKku ,oa dyk lewg ds f’k{kdksa dks lesfdr ojh;rk lwph rS;kj dj ojh;rk ls e/; fo|ky;ksa esa iz/kkuk/;kid ds in ij gqbZ fjfDr ds fo:) izksUufr dk ykHk ns; gSA foKku ,oa dyk lewg ds f’k{kdksa ds fy;s 50 izfr’kr iz/kkuk/;kid ds inks ds vkj{k.k dk dksbZ iz’u ugha mBrk gSA 17. It is now well known by reasons of various decisions of this Court that promotion to a higher scale of pay or a higher post does not dependent upon acquisition of higher qualification by a teacher but the same has to be done by the District Education Establishment Committee keeping in view the eligibility of the candidates their respective positions in the gradation list the existing vacancy and the policy decision of the State of Bihar and other relevant factors The petitioners were, therefore, not entitled to be promoted to the post of Intermediate trained teachers scale of pay, Although there may not be any existing vacancy. As indicated herein before, the petitioners have not questioned in this writ application the validity or otherwise of the appointment of the private respondents nor in view of the lapse or time they can be permitted to do so. Reference in this connection may be made to Roshan Lal & others vs. International Airport Authority of India and others, A.I.R. 1981 Supreme Court 597. In any event, as the petitioners have not questioned the said appointments for a long time, no relief can be granted to the petitioners in view of the gross delay and laches on their part. Reference in this connection may be made to Bhoop Singh vs. Union of India & other, 1992 (3) Supreme Court Cases 136. 18. The only other contention which is required to be taken note of is as to whether the notification dated 18.2.1984 and the other notifications which have been issued by the State of Bihar in purported exercise of its power conferred upon it under Section 8 of 1976 Act arc illegal. 19. It is true that in Krishnadeo Mishra vs. State of Bihar & other, 1987 P.L.J.R. 854, this Court has held that the State had no power to issue the said notification under section 8 of 1976 Act. Our attention has also been drawn to the fact that the Director of Education had issued a notice directing all concerned not to give effect to the notification issued under section 8 of the said Act. It is relevant to mention that the aforementioned point was not raised in the writ application. In any event, once the notification issued by the State have come into force, any employee or the State cannot have any jurisdiction directing withdrawal of the notification. Such an order could only be passed by the State by issuing fresh notification. 20. Further in Smt. Pratibha Singh & another vs. State of Bihar and others, 1988 P.L.J.R. 646, it has been held that the said decision has been rendered per insurium and/or have passed sub silenio inasmuch as therein the provision of Article 162 of the Constitution of India as also the previous Full Bench decision of this Court in Rama Shankar vs. State of Bihar, 1986 P.L.J.R. 323 had not been noticed. 21. 21. This Court in Krishnadeo Mishra vs. State of Bihar, 1987 P.L.J.R. 854 has also not considered the various decisions of the apex Court as also this Court wherein it has been held that if a power exists in the authority having emenaeted from two different sources, wrong labeling or non–mentioning of the provisions of law does not render the order itself invalid. 22. In P. Balakotaiah vs. Union of India and others, A.I.R. 1958 Supreme Court 232, it has been held:– "It is argued that when an authority passes an order which is within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be shown to be within its powers under any other rule & that the validity of an order should be judged on a consideration of its substance and not its form." 23. In J.K. Steel Ltd. vs. Union of India, A.I.R. 1970 Supreme Court 1173, it has been held as follows:– "There is no dispute that the Officer who made the demand was competent to make demands both under rule 9(2) as well as under rule 10. If the exercise of a power can be traced to a legitimate source, the fact that the same was purported to have been exercised under a different power does not vitiate the exercise of the power in question. This is a well settled proposition of law. In this connection reference may usefully be made to the decision of this Court in B. Balakotaiah vs. Union of India and others (1958) S.C.R. 1052 and Afzal Ullah vs. State of U.P. (1964) 4 S.C.R. 991 ." 24. In State of Sikkim vs. Dorjee Tshering Bhutia and others, A.I.R. 1991 Supreme Court 1933 it has been held as follows:– "The fact that the State Government purported to act under Rule 4(3) of the Rules in issuing the impugned notification is of no consequence. When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was labeled under a different provision." Similar view has been taken by the Supreme Court recently in Union of India vs. Khazan Singh, A.I.R. 1992 Supreme Court 1535. When the source of power can be validly traced then the State action in the exercise of such power cannot be struck down on the ground that it was labeled under a different provision." Similar view has been taken by the Supreme Court recently in Union of India vs. Khazan Singh, A.I.R. 1992 Supreme Court 1535. Reference in this connection may also be made to the decision in the case of Rama Sharma vs. Pinki Sharma & others, 1992 (2) P.L.J.R. 722, Smt. Kalawati Tripathi & others vs. Smt. Damayanti Devi & another, A.I.R. 1993 Patna 1 and Durga Pada Banerjee vs. Smt. Sushmita Banerjee 1993 (1) Bihar Law Judgment 313. 25. In this view of the matter, it must be held that the notifications purported to have been issued by the State of Bihar under section 8 of 1976 Act are not invalid as the State has jurisdiction to issue executive instructions under Article 162 of the Constitution of India. Such executive instructions, in absence of any Rule have also got the force of law. I am also of the view that the petitioners having taken advantage of the circular dated 18.12.1984 cannot be permitted to question the same after such a long lapse of time. In any event in my opinion, such a power to fix the scale of pay is within the competence of the State of Bihar and any decision in this regard could be taken by it in exercise of its power under Article 162 of the Constitution of India. 26. In any view of the matter, the petitioner themselves must have been given the higher scale of pay and were granted other benefits by the District Education Establishment Committee. It, therefore, does not lie in the mouth of the petitioners now to contend that the constitution of the District Education Establishment Committees are illegal In my opinion, the petitioners are estopoed and precluded from raising such contention. 27. It is also not a case where there is a stagnation of promotion. The petitioners are entitled to be promoted as and when their turn comes. 28. The petitioners also cannot get any relief in this writ application by invoking the doctrine of equal pay of equal work. In this case the petitioners have questioned promotion of the private respondents to the post of Head–master. The petitioners are entitled to be promoted as and when their turn comes. 28. The petitioners also cannot get any relief in this writ application by invoking the doctrine of equal pay of equal work. In this case the petitioners have questioned promotion of the private respondents to the post of Head–master. Evidently, they have been getting the higher scales of pay whereas the petitioners have been getting a lower scale of pay. 29. It is now well known, where persons are working in different cadre the doctrine of equal pay for equal work cannot have any application. (See–The Secretary, Finance Department & others vs. West Bengal Registration Service Association & others (Judgment Today 1992 (2) S.C. 27). 30. However, before parting with this case, I may observe that the State in its counter affidavit itself has stated that the District Education Establishment Committee had been directed to fill up the vacant post in the higher scale of pay. The petitioners have also filed representations in this regard. We hope and trust that keeping in view the fact that the petitioners have been working for a long time, the State and/or the respective District Education Establishment Committees shall take all possible steps to pass necessary orders with regard to the promotion of the petitioners along with all other eligible candidates to the next higher scales, if the posts are vacant, as early as possible and preferably within a period of two months from the date of receipt of the copy of this order. 31. These applications are dismissed with the aforementioned observations but without any order as to costs. I agree. Application dismissed with observation.