Judgment Naresh Kumar Sinha, J. 1. The main controversy raised in all these petitions under Articles 226 and 227 of the Constitution of India is whether the resolution dated 29.10.90 of the State Government raising the age of superannuation from 58 to 60 years of Nationalised Elementary Schools/ nationalised Secondary Schools retiring on and after 30.9.89/31.10.89 is applicable to the teachers of the Government Basic Schools/government secondary Schools and in case it is not whether the State can deny its benefit to them without violating Articles 14 and 16 of the Constitution. 2. The petitioners in CWJC No 612/90 and other analogous cases are teachers of Goverment Basic Schools whereas the petitioners of CWJC No.8811/91 and other analogous cases are teachers of Government Secondary schools. Some of the petitioners, though holding the post of teachers, were working on inspecting or supervisory posts. They have prayed for issue of a writ in the nature of mandamus directing and commanding the respondent-State not to retire them on completion of 58 years of age and to allow them to continue in service till they attain the age of 60 years and to pay them the salary and other benefits to which they are entitled. Their case is that after the take over of the non-Government Elementary schools with effect from 1 1 71 by Bihar Non-Government Elementary schools (Taking Over of Control) Act, 1976 and Non-Government Secondary schools with effect from 2 10 80 by Bihar Non-Government Secondary schools (Taking Over of Management and Control) Act, 1981 the teachers of the Nationalised Elementary and Secondary Schools became Government teachers. By virtue of the various circulars/orders/notifications etc. issued by the State Government from time to time, the service conditions of teachers of Government Schools and Nationalised Schools became identical including the age of superannuation which was fixed at 58 years. The State Government concluded two agreements with the Teachers association-one dated 22 9 89 in respect of teachers of Elementary School is and another dated 19 10 89 in respect of teachers of Secondary Schools and one of the terms of agreement was that the age of superannuation of the teachers, would be raised from 58 to 60 years. The State Government concluded two agreements with the Teachers association-one dated 22 9 89 in respect of teachers of Elementary School is and another dated 19 10 89 in respect of teachers of Secondary Schools and one of the terms of agreement was that the age of superannuation of the teachers, would be raised from 58 to 60 years. In implementation of the aforesaid agreements the State Government in the Human Resources development by resolution No.2412 dated 29th October 1990 took a decision that the teachers of Rajkiya Krit Primary Schools who retired on 30.9 89 or thereafter and the teachers of the Rajkiya Krit Secondary Schools who retired on 31 10 89 or thereafter will retire at the age of 60 years The case of teachers of Government Schools in that the two agreements concluded between the State Government and the teachers Association raising the age of retirement applied to teachers of Government Basic Schools and Government secondary Schools also. Their further case is that in case the Government resolution was not so applicable, the State Government cannot deny its benefit to teachers of government Basic and Secondary Schools as that would result in hostile discrimination against the petitioners and would be violative of their right to equality before the law and the equal protection of law as enshrined under article 14 of the Constitution. 3. Some of the teachers of the Government Basic Schools filed writ petitions claiming the benefit of the State Government Resolution dated 29 10 90 raising the age of superannuation from 58 to 60 years and CWJC no.1999/90 filed by Sri Lakshmi Narain Sharma and CWJC No 7891/90 filed by another were allowed by a Division Bench of this Court by order dated 28 1091 passed in CWJC No.1999/90 Against the decision of this court rendered in Lakshmi Narain Sharmas case an appeal was preferred by the State of Bihar by way of Special Leave to the Supreme Court which was dismissed on the ground of delay in filing the same. On the basis of the decision in Lakshmi Narain Sharmas case a number of writ petitions filed by Government teachers were allowed including CWJC No 612/90 nag Narain Singh and Others V/s. State of Bihar and CWJC No 51/92 (Smt )Sushila Lal v State of Bihar The State of Bihar preferred an appeal to the supreme Court against the judgment of this court in CWJC No.612/90 and cwjc No 51/92 and both Civil Appeal No.1844/93 and Civil Appeal no 1845/93 were disposed of by the Supreme Court by a common order dated 4.1.94. While allowing the Civil Appeals and setting aside the order of the high Court and remitting the matter back to the High Court for disposal at an early date their Lordships were pleased to direct that the papers be placed before the learned Chief Justice of this Court to enable him to decide if on account of the decision of the Division Bench in Lakshmi Narain sharmas case he would deem it appropriate to constitute a larger Bench to go into this aspect of the matter. A Division Bench of this Court taking note of all this by an order dated 1 2 94 directed the matter to be placed before the Chief Justice for constituting a larger Bench. The Full Bench was accordingly constituted to hear these cases. The full Bench ordered the listing of all similar cases pending in the court for hearing and directed the parties to file synopsis and paper books containing all relevant papers including the translation of Hindi documents. Ihe petitioners have accordingly filed paper books marked Part I, IV, V and vii and those filed by the respondent-State are marked II, III and VI. 4. Ihe petitioners have accordingly filed paper books marked Part I, IV, V and vii and those filed by the respondent-State are marked II, III and VI. 4. The batch of 33 writ petitions include 22 writ petitions filed by teachers of Government Bisic Schools and 11 filed by teachers of Government secondary Schools While the Director (Primary Education) is one of the respondents in the writ petitions filed by teachers of Government Basic schools, the Director (Secondary Education) is one of the respondents in the writ petitions filed by the teachers of Government Secondary Schools The 22 writ petitions filed by teachers of Government Basic Schools include cwjc Nos 612/90 and 51/92 which had earlier been allowed by this court on the basis of the decision of a Division Bench of this court in Lakshmi narain Sharmas case On appeal to the Supreme Court the decision of this court in the aforesaid two cases was set aside and the matter was remitted to this Court for disposal in the light of the observations made Their lordships of the Supreme Court while remitting the matter to the High court made these observations : "we may mention that expression "nationalised schools" and "takenover Schools" have been used interchangeably. We are concerned with teachers of Primary Schools only and, therefore, in this resolution applies to Primary Teachers, i. e Assistant teachers of Basic Government Schools they would be entitled to retire on completing the age of 60 years in their retirement date falls on September 30, 1980 or thereafter. It however, appears that it was not projected before the High Court that the resolution in question which flows from agreement of 22nd september, 1989 related to only primary teachers of Elementary school taken over by the State Government and not to Assistant teachers of Basic Government Schools. Therefore, the High court was not required to go into this question either in the case of Lakshmi Narain Sharma v The Stute of Bihar and others, (CWJC No 1999 of 1990) on which reliance is placed by the high Court in the present two cases. If this distinction is real, obviously the decisions in Lakshmi Narain Sharmas case would be per incuriam but if it is not no and if the resolution applies also to Assistant Teachers of Basic Government Schools, the decisions rendered by the High Court would be unassailable. It, is. If this distinction is real, obviously the decisions in Lakshmi Narain Sharmas case would be per incuriam but if it is not no and if the resolution applies also to Assistant Teachers of Basic Government Schools, the decisions rendered by the High Court would be unassailable. It, is. therefore, necessary to determine whether the agreement dated september 22, 1989 was confined only to teachers of taken over schools and if yes, whether the resolution of 29th October, 1990 was also confined to teachers-both primary and secondary of taken-over schools Since the High Court has not expressed any opinion in this behalf, presumably because it was not so canvassed before it, we deem it appropriate to remit the matters to the High Court to enable the parties to place all the relevant material in this behalf before the High Court and the high Court thereafter expressing itself on the question whether the agreement of September 22, 1989 and the resalution of october 29, 19w were confined to the teachers of Elementary schools taken over under the 1976 Act. " 5. The fate of these writ petitions largely depends on the answer to the question formulated hereunder :- (1) Whether the agreement dated 22 9 89 between State Government and the Bihar Rajya Prathmik Shikshak Sangh raising the age of retirement of teachers of Primary and Middle Schools from 58 to 60 years with effect from 30 9 89 was in respect of teachers of Nationalised Elementary Schools only or included the teachers of Government Basic Schools also ? (2) Whether the agreement dated 19th October 1989 made between the State Government and the Combined Co-ordination Committee of the teachers and the State employees and officers raising the age of retirement of Secondary Schools teachers from 58 to 60 years with effect from 30 10 89 was confined to teachers of both Nationalised Secondary Schools only or included teachers of Government Secondary Schools also ? (3) Whether the State Government Resolution No.2412 dated 29th october, 1990 that the teachers of Rajkiya Krit Elementary schools who retired on 30 9 89 or there after and the teachers of rajkiya Krit Secondary Schools who retired on 31.10.89 or there after will retire at the age of 60 years was also applicable in the case of teachers of Government Basic Schools and government Secondary School and (4) Whether in the event of the Government Resolution dated 29 10 90 raising the age of retirement from 58 to 60 years being found confined to the teachers of Nationalised Elementary and secondary Schools, the State Government decision not to extend its benefit to teachers of Government Basic and Secondary schools amount to making a hostile discrimination between the teachers of the same class and similarly situated so as to villate the fundamental right of the petitioners under Articles 14 and 16 of the Constitution of India ? 6. While Sri Rajendra Prasad Singh, Sr. Advocate appeared on behalf of all the petitioners, the respondent-State was represented by Sri B. N. Singh, A. A. G I, in the cases filed by the teachers of Government Secondary schools and Sri Chandra Mouli Kumar Prasad, A. A. G. III in the cases filled by leachers of Government Basic Schools. The counter affidavit filed on behalf of the State in C. S J. C. Nos 612/90 and 8811/91 and the papers contained in the paper books filed on behalf of the State were relied upon on behalf of the respondent-State in respect of all the cases The case of the respondent-State in short is that the teachers of Non Government Elementary schools and Non Government Secondary Schools sub-equently takenover by the State Government and now being described as teachers of Nationalised elementary Schools and Nationalised Secondary Schools constitutes a separate class as compared to teachers of Government Basic Schools and government Secondary Schools and that the two categories of teachers belonged to different cadres and are governed by different sets of rules and conditions of service including avenues of promotion. Their further case is that both the agreements dated 22.9.89 are in respect of the teachers of Nationalised Elementary Schools and Nationalised secondary Schools and as the Government School teachers and Nationalised schools teachers constituted two separate categories, it was permissible for the State to prescribe two different age or retirement for them which being based on reasonable classification was not violative of Article 14 of the constitution. 7. Before adverting to the submissions made on behalf of the parties in support of their rival contentions in respect of the questions formulated for answer above, it would be worthwhile to trace the history of nationalisation of Non-Government Elementary Schools and Non-Government secondary Schools in this State. 8. In the State of Bihar School Education has two branches- (i) Primary education and (ii) Secondary education with separate Directorate. Under Primary education there are two types of Schools- (a) Government Basic Schools and (b) Non-Government Elementary Schools. These Elementary schools were of different grades up to Class VIIth. Non-Governmentary Elementary Schools included scbools established and administered by the District Board, Zila Parishad, municipal Board and Patna Municipal Corporation or those administered by a linguistic and religious minority in receipt of government grant as also private schools either recognised by the Government or in receipt of government grant. Assistant Teachers of Government Basic Schools are government servants. Teachers of Non-Government Elementary Schools had to face a lot of problems in respect of their employment and the state Government decided to nationalise those schools. From copies of certain resolutions of the State Government in the Education Department annexed with the supplementary affidavit filed by the petitioner in CWJC No.4577/92 it appears that Hon ble the Chief Ministir of the State made an announcement on the floor of the Legislative Assembly 8 6.72 that all private schools would be converted into government Schools and service conditions of teachers of government Schools would be made applicable to the teachers of Non-Government Schools. The State Government issued resolution No.763 dated 9 2 73 on the subject of conversion of Non-Government Elementary School in the form of Government Elementary Schools and to run them in the form of Nationalised Schools. A decision was taken that except for the schools run by the minorities. The State Government issued resolution No.763 dated 9 2 73 on the subject of conversion of Non-Government Elementary School in the form of Government Elementary Schools and to run them in the form of Nationalised Schools. A decision was taken that except for the schools run by the minorities. TISCO and other such institutions rest of Non-Government Elementary Schools he converted into Government Schools from 1st January 1971 and from the same date teachers working continuously in such Schools be treated as government employees In respect of the schools run by the minorities the decision was to convert them into government schools if those running such schools or their governing Bodies desired it By another Government resolution No.1426 dated 30/31st August, 1974 a decision was taken to fix the age of superannuation of the teachers of Non-Government Elementary Schools appointed from ,st January 1971 as 58 years and to extend to them the facilities available to other government employees. First the Bihar Non-Government Elementary Schools (Taking-over of Control)3rd Ordinance 1975 (Bihar Ordinance No.167 of 1976) and tnen the Bihar non-Government Elementary Schools (Taking Over of Control) Act, 1976 (here in after "takeover Act of 1976") which repealed them provided for the taking over of Non-Government Elementary Schools under State control for better organisation and development of Elementary Education in the State of Bihar. Under section 3 of the Act State Government tookover with effect from 1st January, 1971 the Elementary Schools managed by the District Board, Zilla Parishad, Municipal Board and the patna Municipal Corporation and those opened under the expansion and improvement scheme. Elementary Schools administered by any public or private undertaking were to be taken over by the State Government by publication ot a notification in the official gazette with effect from the date to be specified therein Aided Elementary School the managing Committee of which had banded-over voluntarily the control of the School to the Government was to be taken over by the State Government. With effect from the date to be determined by the District Committee referred to in sub-section (4) of Sec.3 of the Act. The consequences of taking over of the schools as mentioned in Section 4 of the Act are reproduced below ;-"4. With effect from the date to be determined by the District Committee referred to in sub-section (4) of Sec.3 of the Act. The consequences of taking over of the schools as mentioned in Section 4 of the Act are reproduced below ;-"4. Consequences of taking over I (1) All the assets and properties whether movable or immovable owned or possessed by the Schools taken over by the State government under Sec.3 Including lands, buildings, documents, books and registers relating to the schools shall stand transferred to and be deemed to have come into the possession and ownership of the State Government. (2) Every officer teacher or other employee holding any office or post in the school taken over by the State Government shall bo deemed to have been transferred to and become an officer, teacher or employee of the State Government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue to do so unless and untill such tenure remuneration, terms and conditions of service are duly altered by the State Government. (3) The service of employees of local bodies working on deputation in the office of the District Superintendent of education, Sub-divisional Education officer-cum-Municipal education Officer and those working in the education section of Patna Municipal Corporation shall be deemed to have been transferred to and taken over by the Government and such employees shall in case of their opting to Government service, be deemed to have become Government servants with effect from the date of enforcement of this Act. " after the Take-over Act of 1976 the Non-Governmentary Elementary Schools taken over by the State Government are often being described on Nationalised elementary Schools Under Sec.7 of the Act the State Government was empowered to make rules not inconsistent with the Act for carrying out the purposes of the Act and under section 8 it was empowered to take such action or pass such orders as appears to it necessary for removing any difficulty which arose in giving effect to the provisions of the Act. 9. In Secondary Education in the State of Bihar there were two types of Secondary Schools- (i) Government Secondary Schools and (ii) Non-Government Secondary Schools. 9. In Secondary Education in the State of Bihar there were two types of Secondary Schools- (i) Government Secondary Schools and (ii) Non-Government Secondary Schools. Teachers of Government secondary Schools are Government servants being members of subordinate Education Service and are under the control of the director (Secondary Education ). Non-Government Secondary schools included Secondary Schools recognised as such by the bihar Secondary Education Board as also Minority Secondary schools, Proprietory Secondary Schools and Autonomous Secondary Schools. Such schools has been established by private individuals or Societies and their teachers were under private employment. The State Government for better organisation and development of the Secondary Education in the state decided to takeover management and control of Non-Government secondary Schools. With this end in view it promulgated the Bihar Non-Government Secondary Schools (Taking-over of Management and Control)Ordinance on 11.8.80 being Ordinance No 146 of 1980. This Ordinance was replaced by the Bihar Ordinance No.74 of 1981 on 22.4 81 before being converted into the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981 (hereinafter the "takeover Act of 1981" ). By sub-section (1) of Sec.3 of the Act the State Government took over the management and control of all Non-Government Secondary Schools (other than the Minority Secondary Schools based on religion or language and declared as such by the State Government and centrally sponsored, autonomous and Proprietory Secondary Schools recognised by the state Government), recognised permanently, provisionally or partially by the Board of secondary Education with the provision that they would be deemed to have been taken over by the State Government with effect from 2nd October, 1980. By sub-section (2) it was provided that the State Government may by notification in the official gazette from specified date take over the management and control of such recognised minority or proprietary or autonomous Secondary Schools, the Managing Committee, Trust, association or Corporate Body of which voluntarily, make an unconditional offer tc makeover the schools with all moveable or immovable assets and properties owned or possessed by the school which include land, building, documents, books and registers also. A provisions was also made In sub-section (3) that the State Government may by notification in the official gazette take over the management and control of such school and on such terms and conditions as the government may derm proper which have already received permission of the establishment from the Bihar Secondary Education Board or of such schools imparting Secondary Education which have applied for permission of establishment to the said Board immediately before the date of promulgation of this Act and the utility of such schools is proved in the eye of the Government the consequences of taking over the management and control of the non-Government Secondary Schools by the State Government are incorporated in section 4 of the Act and sub-sections (1), (2) and (3) read as follows ;-" (1) All the moveable and immoveable assets and properties owned and possessed by Secondary Schools taken over by the State government under Sec.3 including land, building, documents, books and registers relating to the school, shall stand transferred to the State government and be deemed to have come into the possession and ownership of it. (2) The services of every Headmaster, teacher or other employees of the school taken over by the State Government shall be deemed to have been transferred to the State Government, with effect from the date of taking over of the school and become employees of the State government with such designation as the State government may determine. (3) The age of superannuation of Headmasters, teachers and other employees of the schools taken over by the State government shall be 58 years The other terms and conditions of their services shall continue to be the same as it was before taking over the management and control of the school until any alteration is made therein by the State Government in the prescribed manner. " thus under Sec.4 (2) the Headmaster, teachers and other employees of the school taken over by the State Government became employee of the state Government with effect from the date of takeover of the school with such designation as the State Government may determine Sec.4 (3)provides tbat while their age of superannuation shall be 58 years, the other terms and conditions of their services shall continue to be the same as it was before taking over of the management and control of the school and until such time that any alteration is made therein by the State Government in the prescribed manner. Sec.9 provides that the servict condition of the Headmaster, teachers and non-teaching staff of the Nationalised Secondary School shall be determined by the State Government and Sec.10 empowers the State government by notification in the official gazette to establish the school service Board which shall male recommendations for appointment of teachers and for appointment of promotion of Headmaster of Nationalised secondary School to the Director in accordance with the Act and the Rules framed thereunder. The State Government was given the power to frame rules to carry out the purposes of the Act which were not inconsistent with its provisions under Sec.15 of the Act and under Sec.16 it had the power to remove difficulty which arose in giving effect to the provisions of the Act or Rules made thereunder. 10. Thus certain categories of Non-Government Elementary Schools and Non-Government Secondary Schools taken over by the State government with effect from 1 1 71 to 2 10 80. respectively became Nationalised elementary Schools and Nationalised Secondary Schools with effect from those dates Teachers of Nationalised Elementary Schools and Nationalised secondary Schools though they became employees of the State Government from 1171 and 2 10 80, respectively however, continued to be known as teachers of such Nationalised Schools and not of Government Basic Schools or Government Secondary Schools. 11. Learning to question No (1) formulated for answer, it may be mentioned at the very outset that it is not in dispute that an agreement was reached in between the representatives of the teachers Association and the state Government on 22 9 89 raising the age of retirement of teachers of elementary Schools from 58 to 60 years the terms of which were reduced to writing. The bone of content between the parties is that while the petitioners claim that the Assistant Teachers of Government Basic Schools were also parties to the agreement, the State Government contends that this agreement was concluded with the representatives of the teachers of Nationalised elementary Schools and was, therefore, confined to them. 12. The agreement is in Hindi and contains the signature of the Chief secretary on behalf of the State Government. There was some controversy between the parties with regard to the correctness of the English translation of this agreement produced on behalf of the State Government before the supreme Court The copy of the English translation of the agreement dated 22 9 89 produced by the State Government before the Supreme Court has been filed as Annexure-N/1 to the supplementary affidavit filed by the petitioner in C. W J C.4577/92. As stated in the supplementary affidavit the State Government had annexed it as a translated copy of the agreement after inserting the word "nationalised" in the S L P. filed before the supreme Court against the judgment of this court in Lakshmi Narayan sharmas case. The same translated copy is said to have been filed by the State Government before the Supreme Court in the S. L. P. filed against the judgment of the court in Nag Narain Singhs case (C. W. J. C. No.612/90) Learned counsel for the petitioners even went to the extent of suggesting that the incorrect English translation of the agreement was produced mala fide by the state Government in their zeal to prove that the agreement was concluded with the representatives of the Nationalised Elementary School only. Learned A A. G III while refuting the allegations made has produced the copy of the agreement dated 22.9.89 along with its English translation as annexures-X and Xl, respectively of the paper book (Part II ). There is no dispute between the parties with respect to the correctness of Annexure X. In fact, an identical copy of the agreement is annexed as Annexure-L to the supplementary affidavit of the petitioner in C. W. J. C. No.4577/92. In Annexurc-X/1 the caption of the agreement translated In English reads "agreement between the State and Bihar Rajya Prathmik Shikshak Sangh on the 22nd September, 1989". There is no dispute that this is the correct english translation of the caption of the agreement in Hindi (Annexure-X ). In Annexurc-X/1 the caption of the agreement translated In English reads "agreement between the State and Bihar Rajya Prathmik Shikshak Sangh on the 22nd September, 1989". There is no dispute that this is the correct english translation of the caption of the agreement in Hindi (Annexure-X ). the English translation of the agreement said to have been produced by the state before the Supreme Court already referred to as Annexure-N/1 had a caption reading-"agreement between the Union of Nationalised Elementary School teacher and State Government. " It was stated on behalf of the State-respondent that while the above translation of the caption was not literally true, in substance it was correct for the Bihar Rajya Prathmik Shikshak Sangh respresented the teachers of nationalished Elementary School. In the supplementary affidavit in C. W. J. C. No.4577/92 the petitioner has gone to the extent of standing that there is neither any Association named as Nationalised School Teacher Association nor is there any such agreement with them and that there is only one association named as Bihar State Elementary Teachers Association. Perhaps without saying so in specific terms, an impression was sought to be created that all the teachers teaching in Government Basic Schools or nationalised Elementary Schools being primary teachers they were represented by the one and the only Association, i. e the Bihar State Elementary teachers Association. The petitioners failed to produce any documentary evidence to establish that the Bihar Rajya Prathmik Shikshak Sangh also represented the teachers of the Government Basic Schools. The respondent-State has taken a categorical stand that the teachers of Government Basic school had their own Association known as "buniyadi Vidyalaya Sahayak shiksbak Sangh" and the office bearers of the said Association represent the interests of the teachers of the Basic Schools. In support of the contention that the teachers of Basic Schools were not members of the Bihar Rajya Prathmik Shikshak Sangh (Bihar State Elementary school Teachers Association) learned A. A. G.-III produced a copy of the Articles of the Association of the said body which is registered under the Societies Registration Act The English translation of extract from Rule 7 of the Article of the Association produced in course of hearing described ordinary members of the said Association as male and female teachers of primary School recognised by the State Government. In other words, the teachers of Government Basic School could not be members of the above association. 13. From what has been stated above it follows as a matter of course the agreement dated 22.9.89 was concluded by the State Government with the Bihar Rajya Prathmik Shikshak Sangh which represented the interests of teachers of Nationalised Elementary Schools of the State and not that of teachers of Government Basic Schools. Learned counsel for the petitioners took an alternative plea that even assuming that the "bihar Rajya Prathmik shikshak Sangh" was not a representative body of teachers of Government basic School, certain statements made in some clauses of the said agreement left no room for doubt that the agreement was also applicable in the case of teachers of Government Basic School. In this connection learned counsel referred to clauses 1 and 11 of the agreement dated 22.9 89 the English translation of which read as follows : "1. State Government is in agreement in matter of teachers that the provisions of training, qualification, eligibility of promotion, pay scale and service conditions or Central Government may be made application to that extent. "11. It has been informed by the Association that the superannation age of teachers of Primary and Middle School in Central Government is 60 years. On that basis in accordance with the Central government the superannuation age of teachers of Primary and middle School will be fixed on 60 years by the State Government also. It will be in effect from 30th September, 1989. It was argued that the language as also the expression used in clause 1 left no room for doubt as to its correct interpretation. The State Government in no uncertain terms, it is pointed out, recorded the agreement in the matter of teachers that the provisions of training, qualification, eligibility of promotion, pay scale and service conditions of Central Government may be made applicable to that extent. Likewise under clause 11 the State Government in unequivocal terms subscribed to a term of the agreement that the superannuation age of teachers of Primary and Middle Schools will be fixed at 60 years by the State Government and it will be effect from 30th September, 1989. Likewise under clause 11 the State Government in unequivocal terms subscribed to a term of the agreement that the superannuation age of teachers of Primary and Middle Schools will be fixed at 60 years by the State Government and it will be effect from 30th September, 1989. Learned Counsel argued that neither in clause 1 nor in clause 11 or for that matter anywhere else in the agreement there is anything to suggest that the agreement was confined to teachers of Nationalised Schools. It was contended that the expression used both in clauses 1 and 11 must be deemed to have referred to teachers of both Nationalised Elementary Schools and government Basic School. 14. Learned Addl. A G.-III contested the interpretation being put on the terms of the agreement on behalf of the petitioners. He argued that the agreement read as a whole left no room for doubt that it was confined to teachers of Nationalised Elementary School only. The agreement was signed by the Chief Secretary on behalf of the Government and by the Vice-President, general Secretary and Joint Secretary of the Bihar Rajya prathmik Shikshak Sangh (in short "shikshak Sangh" ). The Shikshak sangh it was pointed out represented only the teachers of Nationalised elementary Schools and not the teachers of Government Basic School. Clause 13 of the agreement provided that the respresentatives of the Shikshak sangh had decided to withdraw the strike continued since 6th September 1989 with immediate effect. It further stipulated that the period of strike shall be adjusted against the work done during vacations teachers of Government Basic School were not on strike like the teachers of Nationalised Elementary Schools, and all this clearly indicated whom the teachers were who were being referred to in different clauses of the agreement. The Shikshak Sangh not being the representative body of the teachers of Government Basic School could take no decision with regard to their service conditions in an agreement with the State Government. Certain stipulations such as these mentioned in clauses 2 to 10 relating to revision of pay scale witk effect from 1.1.86 on the lines of the scale of pay granted by the Central Government as also the provision for abolition of junior/senior selection grade and two time bound promotions were applicable to teachers of Nationalised Elementary Schools only. Certain stipulations such as these mentioned in clauses 2 to 10 relating to revision of pay scale witk effect from 1.1.86 on the lines of the scale of pay granted by the Central Government as also the provision for abolition of junior/senior selection grade and two time bound promotions were applicable to teachers of Nationalised Elementary Schools only. Likewise the stipulations under clause 10 for payment of teaching allowance of Rs.100/- per month with effect from 1 3 89 in accordance with principle implemented by the Central Government was made for teachers of nationalised Elementary School only. It was further contended that the terms incorporated in the aforesaid clauses of the agreement has been duly implemented by the State Government vide Finance Deptt. Resolution No.6022 dated 18th December 1989 on the subject of revision of the scales of pay of teachers of schools takenover (Rajkiyakrit ). It is not in dispute that the scale of pay of teachers of Nationalised or takenover Elementary Schools revised by the aforementioned Resolution were not application in the case of teachers of Government Basic Schools which were revised by Finance deptt. Resolution No.6021 dated 18th December 1989 issued on the subject of revision of the scales of pay of Government employees except teachers of schools takenover (Rajkiyakrit ). 15. Learned counsel for the petitioners in support of his interpretation of the agreement dated 22.9.89 referred to a letter No.2007 dated 18th october 1989 issued by the Additional Commissioner-cum-Special Secretary, human Resources Development Department, Government of Bihar, to all the District Superintendents of Education. An English translation of the letter is Annexure-N to the supplementary affidavit of the petitioner in c. W. J. C.4577/92. The said letter refers to the agreement dated 22.9 89 between the State Government and the representatives of the Bihar State primary Teachers Association and then proceeds to say that the teachers working in Elementary Schools of the State shall not be made to retire forthwith on attaining the age of 58 years on or after 30.9.89. All that the said letter did was to issue an instruction that the salary for the period worked after completion of 58 years of age on or after 30.9 89 shall be kept pending until formal orders were issued by the government in that regard. All that the said letter did was to issue an instruction that the salary for the period worked after completion of 58 years of age on or after 30.9 89 shall be kept pending until formal orders were issued by the government in that regard. It may be noticed that the aforesaid letter was issued within a month of the conclusion of the agreement and almost a year before issue of the Resolution dated 22.10.90 enhancing the age of superannuation from 58 to 60 years. It is true that a copy of the said letter was also directed to be sent to Headmaster/headmistress of Government Primary and middle Schools for information and necessary action vide memo No.5882 dated 23rd October 1989 by the District Superintendent of Education, West champaran, Bettiah, as is evident from Annexure-N. There is nothing therein to suggest that the State Government in their letter dated 18th October 1989 were reading the agreement to suggest that it applied to teachers of Government Basic Schools also. That the district Superintendent of Education of the State had chosen to send a copy to the Headmaster/headmistress of Government Primary and Middle School within his region was of hardly any significance. In any view of the matter the contents of the letter (Annexure-N) has nothing to do with the interpretation of the agreement dated 22.9.89. 16. It is true that the agreement nowhere mentions in specific terms that it was applicable in the case of teachers of Nationalised Elementary schools only. However, for that matter it also does not say in specific terms that it applied to teachers of Government Basic Schools also. The fact remains that the agreement was concluded between the State Government and representatives of the Shikshak Sangh which represented the teachers of Nationalised Elementary Schools only. Almost all the stipulations under different clauses of the agreement related to teachers of Nationalised elementary Schools. One of the terms of the agreement was the calling off of the strike by the Shikshak Sangh continuing from 6th September 1989 and pursuant to which the teachers of Nationalised Elementary Schools had called off the strike It is nobodys case that teachers of Government Basic Schools were also on strike. Thus all the clauses in the agreement were in respect of the teachers of the Nationalised Elementary Schools and not for teachers of Government Basic Schools. Thus all the clauses in the agreement were in respect of the teachers of the Nationalised Elementary Schools and not for teachers of Government Basic Schools. Hence the word-"teacher" occurring anywhere in the agreement including clauses 1 and 11 obviously means teachers of Nationalised Elementary Schools and it can by no stretch of imagination be interpreted to include the teachers of Government Basic Schools. 17. Thus I have no hesitation in coming to the conclusion that the agreement dated 22 9.89 in between the State Government and the Shikshak sangh was in respect of the teachers of Nationalised Elementary Schools only and was not applicable to the teachers of Government Basic Schools. Question No. (1) is answered accordingly against the petitioners and in favour of the respondent-State. 18. Question No. (2) relates to the agreement dated 19.10.89 made between the State Government and the Combined Co-ordination Committee of the teachers and the State employees and officers. Vide paragraph 23 of the agreement certain decisions were taken regarding the Secondary Schools teachers. Clause IV therein provided that similar to the condition of the central Government the age of retirement for Secondary Schools teachers will be 60 years and this will be effective with effect from 31.10.89. The only controversy in between the parties is whether the teachers of the Govern secondary Schools were covered by the said agreement. The case of the petitioners is that they are and the stand of the respondent-State is that they are not. If the agreement is interpreted in favour of the petitioners the State Government would be found to have entered into an agreement to enhance the age of superannuation of teachers of Government Secondary Schools from 58 to 60 years with effect from 31.10.89 also along with the teachers of Nationalised Secondary schools. 19. The stand of the petitioners and the respondent-State is similar to those taken by them while referring to the agreement dated 22 9.89 in between the State Government and the Shiksbak Sangh regarding enhancing the age of superannuation of teachers of Elementary Schools. Learned counsel for the petitioners reiterated his ear Her line of argument and the learned A. A. G.-I after a brief address adopted the argument advanced earlier by the learned A. A. G.-III. Learned counsel for the petitioners reiterated his ear Her line of argument and the learned A. A. G.-I after a brief address adopted the argument advanced earlier by the learned A. A. G.-III. A copy of the agreement dated 22.10 89 is Annexure-3 in the petitioners reply to the counter affidavit filed on behalf of the respondent-State in C. W. J. C. No.8811/91. Its English translation it Annexure-3 in the paper book (Part IV) filed by the petitioners. There is no dispute regarding the correctness of the translated copy as an identical copy produced by the State is available in paper book (Part III ). The agreement was made between the State Government and the Combined co-ordination Committee of the teachers and the State employees and officers (for short "the Combined Co-ornination Committee" ). Some of the paragraphs of the agreement had nothing to do with teachers of the Secondary schools and those paragraphs are not incorporated in the copy of the agreement produced. In that view of the matter what is being referred to as copy of the agreement is strictly speaking only an extract copy On behalf of the petitioners it was pointed out that vide clause (i) of paragraph 23 of the agreement the State Government had expressed its agreement that certain provisions of the Central Government including the training, qualification, pay scales and services conditions etc. as applicable to the secondary School teachers shall be made applicable to them also. Other clauses of the same paragraph including clause (iv) simply stated that age of retirement for Secondary School teachers will be 60 years. In other words it was pointed out that there was nothing in the agreement to show that the agreement was limited to the Secondary School teachers of nationalised Secondary Schools only and Secondary School teachers of government Secondary Schools were not iacluded therein. It was pointed out that even the caption of paragraph 23 which incorporated various clauses taking certain decisions in respect of the Secondary School teachers mentioned in clear and specific terms that the decisions were taken regarding the secondary School teachers. It was pointed out that even the caption of paragraph 23 which incorporated various clauses taking certain decisions in respect of the Secondary School teachers mentioned in clear and specific terms that the decisions were taken regarding the secondary School teachers. Since the agreement was made in respect of the secondary School teachers as specifically mentioned in the various clauses of the agreement, it was pointed out that all Secondary School teachers of the state, i. e. teachers of Nationalised Secondary Schools as also those of government Secondary Schools were included as the beneficiaries under the agreement. 20. The contention put forward on behalf of the respondent-State is that the agreement read as a whole left no room for doubt that it was applicable in the case of teachers of Nationalised Secondary Schools only. Many of the terms of the agreement incorporated under various clauses of paragraph 23 of the agreement were only applicable in the case of teachers of nationalised Secondary Schools and they could by no stretch of imagination be made applicable in the case of teachers of Government Secondary Schools. Thus certain terms of the agreement providing for revision of scale of pay. abolition of junior selection grade and senior selection grade and the facilities of two time bound promotions as contemplated under the agreement were implemented only with regard to the teachers of Nationalised Secondary schools the clause of the agreement which provided for the abolition of the facility of time bound promotion and of promotion to selection grades is mentioned in the Hindi version of the agreement (Annexure-3 in CWJC No.8811/91) but it has been omitted in the English translation of the copy filed by both the petitioners and the State. It is common ground between the parties that the terms of the agreement with regard to revision of pay scale etc. were implemented in respect of teachers of Nationalised Secondary schools by Finance Department Resolution No 6022 dated 18th December, 1989. It is common ground between the parties that the terms of the agreement with regard to revision of pay scale etc. were implemented in respect of teachers of Nationalised Secondary schools by Finance Department Resolution No 6022 dated 18th December, 1989. The terms of the said agreement were not implemented in respect of teachers of Government Secondary Schools which is evident from the finance Departments Resolution No.6021 dated 18th December, 1989, on the subject of revision of scales of pay of Government employees except teachers of Schools takenover (Rajkiyakrit) As will appear from paragraph 25 of the agreement (Hindi copy-Annexure-3) the State Government had also taken a decision for adjusting the period of absence of the teachers who were on strike from 6.9.89 by making provision for doing work during the holidays. It is no bodys case that the teachers of Government Secondary schools like the teachers of Nationalised Secondary Schools were also on strike from 6.9.89. 21. It was argued on behalf of the State that while the agreement was signed by the Chief Secretary on behalf of State, the office bearers of different Associations/federations/organisations constituting the Combined co-ordination Committee had put their signatures on the agreement. No office bearer of the Association/federation/organisation claiming to represent the interest of the teachers of Government Secondary Schools had joined the agreement by putting his signature thereon. The only signatory, as is evident from the copy of the agreement, on behalf of the teachers was Sri Prem Narain Singh, President, Bihar Secondary teachers Association. The contention of the State is that the Bihar Secondary teachers Association was not a representative body of the teachers of of Government Secondary Schools and it represented the interest of only the teachers of Nationalised Secondary Schools. Learned counsel for the petitioners produced the bye-laws of Bihar Madhyamik Shikshak Sangh, 1988, which being in Hindi was translated into English by the Registry of the court and placed on the record. The Bihar Secondary Teachers Association also known by its short title as B. S. T. A. is registered under the Societies Registration Act, 1860. Under clause 2 (a) of the Bye-Laws School is defined to mean such school which imparts education up to the secondary syllabus and which is taken over by the education Department of the State Government or by the dissolved bihar Secondary Education Board. Under clause 2 (a) of the Bye-Laws School is defined to mean such school which imparts education up to the secondary syllabus and which is taken over by the education Department of the State Government or by the dissolved bihar Secondary Education Board. Vide clause 2 (b) teacher means teacher of a school under clauses 2 (a) and vide clause 2 (d) primary member means teaching and non- teaching employees working in the school referred to under clause 2 (a) or clause 4 (b) Clause 4 (a) (b) under Chapter 3 mentions the persons who can be members of the B. S. T. A. and includes members mentioned under clause 2 (d) as also those persons who have served the school mentioned under clause 2 (a) for a minimum of 10 years. Thus the scheme of the Bye-Laws of the B. S. T. A. leaves no room for doubt that the teachers of the Government Secondary Schools are not the primary members of the said Association It thus follows as a matter of course that the B. S. T. A. whose President signed the agreement on its behalf did not represent the interests of the teachers of Government secondary Schools and was not authorised to take a decision In respect of the service condition of such teachers in course of an agreement with the State government. 22. The agreement dated 19.10.89 taken as a whole and considered from all possible aspects is capable of being interpreted in only way, namely that it was in respect of teachers of Nationalised Secondary Schools. As such the particular clause of the agreement which provided for enhancing the age of superannuation of Secondary Schools Teachers from 58 to 60 years with effect from 31.10 89 must be held to be applicable to the teachers of of the Nationalised Secondary Schools only and not to cover the cases of teachers of Government Secondary Schools. Accordingly I hold so. Question No. (2) like question No. (1) is thus decided against the petitioners and in favour of the respondent-State. 23. The State Government issued Resolution No.2412 dated 29th october, 1990 raising the age of superannuation of teachers from 58 to 60 years. Accordingly I hold so. Question No. (2) like question No. (1) is thus decided against the petitioners and in favour of the respondent-State. 23. The State Government issued Resolution No.2412 dated 29th october, 1990 raising the age of superannuation of teachers from 58 to 60 years. For answering question No. (3) it is necessary to find oat whether the resolution is in respect of teachers of Government Basic and Secondary schools also as contended on behalf of the petitioner or is confined to the teachers of Nationalised Elementary and Secondary "schools only as is the stand of the respondent-State ? 24. The Resolution dated 29th October 1990 issued by the Human resources Development Department of the State Government on the subject of fixation of superannuation age limit of teachers of Rajkiyakrit Schools from 58 to 60 years under the signature of special Secretary to the Government is in Hindi and its copy filed by the petitioner in CWJC No.8811/91 is annexure-1. Its English translation filed by the petitioners (paper book part IV-Annexure-I) and the respondent-State (paper book Part II-Annexure X/3) are identical and is reproduced below I- "government of Bihar Human Resources Development Department Resolution sub : Regarding fixation of superannuation age limit of teachers of Rajkiya Krit Schools from 58 years to 60 years. A proposal regarding fixation of superannuation age as 60 years in the light of the demand of Bihar State Primary and secondary Teachers Association and the agreement made on 22.9.89 and 19 10.89 in between the Association and the government regarding the teachers of Rajkiyakrit Schools on the principles of equivalency and the service conditions of teachers as fixed by the Human Resources Development, ministry, Government of India, regarding the teachers who retired on 30.9.89 and 31.10.89 or thereafter respectively was under consideration.2. It has been decided by the Government that in the light of the directions as enforced at present by the Union Government with regard to the teachers, the teachers of Rajkiya krit Primary Schools who retired on 30.9 89 or thereafter and the teachers of Raj Kiya Krit Secondary Schools who retired on 31.10.89 or thereafter will retire at the 60 years of age.3. In this regard it has also been decided by the Government that in future if the superannuation age is changed by the union Government, then what so ever the decision will be taken by the Union Government, the same decision will be implemented with regard to the teachers of the Raj Kiya krit Schools of the State Government.4. This decision will not be implemented with regard to the teachers of Primary/secondary Schools who retired before 30.9 89 and 31.10.89, respectively. Order :- It is ordered that this resolution be published in Bihar gazette for general information and 1000 (one thousand) copies of the same be made available to the Human Resources Development Department, bihar. By order of the Governor of Bihar sd. S. K. Chaudhary 29.10.90 special Secretary to the Govt. Human Resources Development department, Bihar" memo No 7/di-l-0308/89-2412-Patna, dated 29th October, 1990. Copy forwarded to the Government Press, Gulzarbagh, patna, for Publication in the Bihar Gazette. (S. K. Chaudhary)Special Secretary to the Govt. Human Resources Development department, Bihar. " The Resolution in paragraph 1 refers to the demand of the Bihar State primary and Secondary Teachers Association regarding the fixation of superannuation age as also the agreements made on 22.9.89 and 19.1089 between the Association and the Government regarding the teachers of rajkiyakrit Schools, paragraph 2 of the Resolution contains the decision of the State Government in unequivocal terms that the teachers of Rajkiyakrit primary School who retired on 30 9.89 or thereafter and the teachers of rajkiyakrit Secondary Schools who retired on 31.10.89 or thereafter will retire at the age of 60 years. The said decision, as mentioned in the said paragraph, was taken in the light of the directions as enforced at present by the Union Government with regard to the teachers. Paragraph 3 of the Resolution by necessary implication referred to such a decision of the Union Government in the matter of fixation of superannuation age of teachers by referring to the decisions of the State Government that if in future the superannuation age is changed by the Union Government, the same decision will be implemented with regard to the teachers of Rajkiyakrit Schools of the State Government. 25. 25. There was some argument at the Bar as to whether there was in fact any decision or directed of the Government of India as referred to in paragraphs 1 and 2 of the Resolution dated 29.1090 on the basis of which the decision to raise the age of superannuation of teachers was taken. Such a decision of the Union Government is also implicit in para 3 of the Resolution containing the State Government decision that in future if the superannnation age is changed by the Union Government, the same decision will be implemented with regard to the teacher of Rajkiyakrit Schools of the state Government However, no such question could possibly be raised in the present proceeding for the legal validity of the Resolution is not under challenge. As a matter of fact in the present proceeding both the petitioners and the respondent State have placed reliance on the Resolution in question. Otherwise also no such question regarding the legal validity of the Resolution can be raised in the absence of the Teachers Association such as the Shikshak sangh and the Combined Co-ordination Committee which concluded the two agreements with the State Government and pursuant to which the Resolution was issued as they are not parties to the proceeding. 26. The contents of the Resolution dated 29.10.90 leave no room for doubt that the superannuation age of the teachers of only Rajkiyakrit schools, i. e. Nationalised or Takenover Elementary and Secondary Schools was enhanced from 58 to 60 years. Such an intention of the State Government is writ large both in the subject matter of the Resolution as also its paragraphs 2 and 3. There is nothing in the Resolution to suggest bv any stretch of imagination that the decision contained therein was applicable in the case of teachers of Government Basic Schools and Government Secondary schools. Such a view is further strengthened by some notings in file No.7/f.1-308/89 of the State Government on the subject of Central pay and service conditions of Primary teachers which was made available in course of hearing. Such a view is further strengthened by some notings in file No.7/f.1-308/89 of the State Government on the subject of Central pay and service conditions of Primary teachers which was made available in course of hearing. An English translation of extract copy of the notings from the notings dated 28.8 80, 29.8.80 and 30.8 80 at page Nos.23 and 24 of the file it appears that a decision had been taken in a meeting held on 27.8.90 under the Chairmanship of the Chief Minister to raise the age of superannuation of the teachers of Nationalised Schools from 58 to 60 years. A memorandum containing such a proposal was placed for approval of the Chief Minister and the Hon ble the Chief Minister had been pleased to accord his approval by his signature dated 20 v 90. From the notings dated 19 10 90 under the signature of the Joint Secretary, Cabinet Secretariat it is abundantly clear that a memorandum bearing memo No 2253 dated 5 10 90 of the Human Resources Development Department was included under item No 30 regarding the enhancement of age of superannuation of teachers of Nationalised Schools from 58 to 60 years and the same had been approved by the Council of Ministers in the meeting held on 19 10.90 is in accordance with the decision taken by the Cabinet and there is no scope for any argument that the contents of the resolution raising the age of superannuation of teachers of only Nationalised Elementary and secondary Schools are not in accordance with the decision of the State government. 27. From what has been stated above it follows that the Resolution of October 29, 1990 flows from the agreement of September 22, 1989, in so far as it concerns the teachers of Nationalised Elementary Schools and from the agreement of October 22, 1989, in so far it relates to teachers of Nationalised secondary Schools. The Resolution is thus not applicable in the case of teachers of Government Basic and Secondary Schools and I hold so question No (3) is, accordingly, answered against the petitioners and in favour of the respondent-State. 28. The Resolution is thus not applicable in the case of teachers of Government Basic and Secondary Schools and I hold so question No (3) is, accordingly, answered against the petitioners and in favour of the respondent-State. 28. The Supreme Court while setting aside and orders of a learned single Judge in Nag Naratn Singh and others V/s. State of Bihar and others, (CWJC 612/90) and of a Division Bench in Smt Sushila Lal v State of Bihar and others (CWJC 51/92) on appeal preferred by the State Government has remitted the matter to this Court for consideration by a larger Bench on account of the decision of the Division Bench of this Court in Lakxhmi narain Sharma V/s. State of Bihar and others (CWJC 1991/90) In Lakshmi naratn Sharmas case the court had extended the benefit of enhancement of retirement age under the Resolution dated 29-10.90 to the teachers of government Basic Schools also. The Court noticed the agreement between tha State Government and the Elementary and High School Teachers Association with regard to the age of superannuation of such teachers as also the State Government resolution dated 29th October.1990. resolving that for the Primary Teachers who retired after 30th September 1989 the age of superannuation shall be 60 years. Both the petitioners who were teachers of Government Basic Schools were found entitled to superannuate only upon attaining the age of 60 years in view of the aforesaid Resolution of the State Government. The decision was relied upon in allowing several writ petitions with similar reliefs including the two remitted by the Supreme Court. In terms of the order of the Supreme Court "the question whether the agreement of september 22.1989 and the Resolution of October 29, 1990 were confined to the teachers of Elementary Schools takenover under 1976 Act has already been considered in all its aspects and the two agreements dated 34 9 89 and 19.10.89 and the Government Resolution dated 29.10.90 have beta found applicable to the teachers of takenover or Nationalised Elementary and secondary Schools only and not in the case of teachers of Government Basic and Secondary Schools. In the absence of any such plea by the State, the distinction made above that the Resolution in question did not apply in the case of teachers of Government Basic Schools/government Secondary Schools, it appears, was not noticed in Lakshmi Narain Sharmas case. In the absence of any such plea by the State, the distinction made above that the Resolution in question did not apply in the case of teachers of Government Basic Schools/government Secondary Schools, it appears, was not noticed in Lakshmi Narain Sharmas case. The inevitable conclusion is that the Division Bench decision in Lakshmi Narain Sharmas case is per incuriam A similar conclusion has been drawn in a decision of Division Bench of this Court reported in 1993 (2) P. L. J. R 90. 29. Thus in view of the findings already recorded in the light of the directions of the Supreme Court in Civil Appeal Nos 1844 of 1993 and 1845 of.993, both CWJC Nos.612/90 and 51/92 remitted to this Court are found without merit and both deserve to be dismissed 30. Now we turn to Question No (4) in an endeavour to find out the correct answer. Can the State Government refuse to extend benefit of the decision contained in the Resolution dated 29 10 90 enhancing the age of superannuation of teachers of Nationalised Elementary and Secondary schools from 58 to 60 years to the teachers of Government Basic and Secondary schools ? 31. After the issue of the Resolution dated 29 10 90 some teachers of government Basic Schools and Government Secondary Schools filed representations claiming that they should also be allowed to retire at 60 years. Their representations were rejected on the ground that under the Rules they would retire at the age of 58 years To cite one instance the petitioner of CWJC No.8811/91, a Headmaster of Government High School received in order dated 5.1291 (Annexure 2) from the District Education Officer (Respondent No 4) that his representation to remain in service up to the age of 60 years had been rejected. The petitioner pointed out that the teachers of both the Government basic Schools and Nationalised Elementary Schools are all Government servants performing the same nature of duties and having similar conditions of service. They thus belonged to the same class. The petitioner pointed out that the teachers of both the Government basic Schools and Nationalised Elementary Schools are all Government servants performing the same nature of duties and having similar conditions of service. They thus belonged to the same class. The same was true of the teachers of Government Secondary Schools who were all government servant performing essentially the same kind of duties and thus belonged to the same class The age of superannuation of all these teachers both of government Schools and Nationalised Schools being 58 years, the State government cannot be allowed to make an invidious distinction between the two by having two age for retirement, i e 60 years for teachers nationalised Schools and 58 years for teachers of Government Schools. This is being described as a case of hostile discrimination where equals have been treated unequally The decision of the respondent-State not to permit the teachers of Government Schools to serve up to 60 years like the teachers of Nationalised Schools is described as violative of the petitioners fundamental rights to equality and equal protection of the laws under article 14 of the constitution. The petitioer thus pray for issue ot a writ of mandamus to command the State to allow them to serve till the age of 60 years and draw all consequential benefits. 32. The stand of the respondent-State is that the teachers of Nationalised government Schools do not belong to the same class. Even after the takeover by the State Government of the Non-Government Elementary schools with effect from 1 1 71 the teachers of Nationalised Elementary schools and teachers of Government Basic Schools belonged to different cadres governed by separate sets of Rules and having different conditions of service. Likewise the teachers of Non-Government Secondary Schools after takeover by the State Government with effect from 2 10 80 became teachers of Nationalised Secondary Schools and Government servants like teachers of government Secondary Schools but both of them maintained their separate identity and their cadre were never merged into one. Their conditions of service were different and they were governed by separate sets of Rules. Their conditions of service were different and they were governed by separate sets of Rules. Their scales of pay were different and their avenues of promotion were not the same The teachers of the Government Schools and Nationalised schools true did not belong to the same class and even if they did, they constituted different and separate categories and they are being treated differently in the master of fixation of the age of superannuation which was based on reasonable classification and not hostile discrimination No violation of the fundamental rights of the petitioners under Articles 14 and 16 ot the Constitution being involved, they were not entitled to the issue of writ of mandamus to enforce them, contends the respondent-State. 33 It is not in dispute that the syllabus and the courses of study being taught by the teachers in both Government Basic Schools and nationalised Elementary Schools are the same. It thus follows that the teachers irrespective of their appointment either in Government Basic Schools or nationalised Elementary Schools perform exactly the same kind of teaching work, It is also not in dispute that since 1.1 71 the teachers of both Schools are government servants and both are also under the administrative control of the Director (Primary Education ). In the supplementary affidavit of the petitioners in CWJC 4577/92 (Raghunandan Prasad V/s. State of Bihar and others) it is stated that earlier the service conditions of the teachers of Basic Schools were controlled by different circulars issued by the Directorate (since Director of Primary education) For the first time on 11 11.75 vide notification No.2749 the state Government framed service conditions of the teachers of Basic Schools under Article 309 of the Constitution of India. According to the said Rules, it is cor tended, the cadre of the Assistant Teachers of Basic Schools is of divisional level headed by the Regional Deputy Director who is the appointing authority. The petitioner further states that prior to 1975 the service conditions of Assistant Teachers of Basic Schools were governed by different circulars issued by the Directorate (School Education) for all Elementary schools. The petitioner further states that prior to 1975 the service conditions of Assistant Teachers of Basic Schools were governed by different circulars issued by the Directorate (School Education) for all Elementary schools. The Assistant Teacher of Basic Schools in B. A trained scale is promoted to the post of Headmaster of B sic Schools which has been categorised as that of Subordinate Education Service (for short s E S ") The petitioner further contends that in all Elementary Schools the qualifications, duties and pay scales of the Assistant Teachers were the same. Following the takeover of Non-Governmentary Elementary Schools by the Takeover act of 1976 whereafter the teachers of Nationalised Elementary Schools became Government servants, the State Government vide letter No 3905 dated 31 7 78 under the signature of the Education Commissioner issued instructions to transfer the teachers of urban and rural areas treating them as one cadre of teachers. An extract copy of the said letter is Annexure-D to the supplementary affidavit There is nothing in the said letter to suggest that the teachers of urban and rural areas irrespective of the fact whether they belonged to Basic schools or Elementary Schools would be placed in one cadre From the subject-matter of the said letter it appears that it only spoke of treating the cadre of teachers of takenover Elementary Schools of both urban and rural areas to be united for the purpose of transfer In paragraph 19 of the supplementary affidavit it has been specifically stated that the State Government by letter No.300 dated 18 1 79 issued under the signature of the special Secretary to the Government merged the cadre of teachers of takenover Schools with that of the teachers of the Government Schools. An extracted translated copy of the letter is Annexure-E. All that the letter states is that with effect from the date of order the cadre of the teachers of the patna Municipal Corporation shall not be kept separate and shall be deemed to have merged with the teachers of the schools under the control of the District Superintendent of Education. The petitioner, however, contends that after the merger of the cadre of two categories of teachers there is no separate cadres of teachers, such as, the cadre of the teachers of the Nationalised Elementary Schools and the cadre of teachers of Government Basic Schools. The petitioner, however, contends that after the merger of the cadre of two categories of teachers there is no separate cadres of teachers, such as, the cadre of the teachers of the Nationalised Elementary Schools and the cadre of teachers of Government Basic Schools. In other words there is only one cadre of Elementary School teachers under the control of the District Superintendent of Education at the district level and there is only one gradation list of Elementary School teachers in the district and the teachers are transferred from one type of school to another it is further stated that whenever a transfer order has been challenged before the Hon ble Court on the ground that the cadre is separate, the respondent-State themselves have come out with the plea that after nationalisation there is only one cadre now. 34. The petitioners further case in the supplementary affidavit is that after the take over Act of 1976 the teachers of Elementary Schools were given the pay scales which were at par with the pay sciles of the teachers of Government Schools vide different letters of the department issued from time to time. Accordingly following a judgment of this court, the Special Secretary to the Government vide his letter No 2440 dated 4 9 80 granted the same scale of pay to the Headmaster of Nitionalised middle Schools as was being paid to the teachers of Government schools placed in the S. E. S. treating them to be at par an English translated copy of the letter is Annexure-G to the supplementary affidavit. It appears therefrom that the question of granting pay scale and the benefit of selection grade scale to the Headmasters/headmistress of the Nationalised Middle Schools equivalent to the S E S. and pay scale to Matric-trained teachers of Nitionalised Elementary Schools like the Matric-trained teachers of Government Basic School was under consideration before the State Government and the State Government after full consideration had taken the decisions mentioned therein, it appears that the revision in the pay scales etc. on the aforesaid line was made and the revision was effective from 1.4.80. on the aforesaid line was made and the revision was effective from 1.4.80. The petitioner has also referred to notification No 2412 dated 5 11 81 of the State Government in the Department of Education issued under proviso to Article 309 of the constitution of India By the said notification certain Rules were framed under section 8 of the Takeover Act 1976 The Rules framed provided that all new appointments in Basic Schools on the post of Assistant Teacher have to be made bv the District Education Establishment Committee constituted for the Nationalised Elementary Schools and it further provided that such post and teachers posted on it would be of the district cadre of the Nationalised elementary Schools. An extract translated copy of the notification is Annexure-J. It is stated that the aforesaid Rule in statutory Rule which has not so far been amended or superseded and hence it is still in operation. The petitioner has also referred to notification No.1085 dated 30th March, 1984. a translated copy of which is Annexure K. The said notification was issued under lection 8 of the Takeover Act of 1976 with a view to implement certain provisions of the Act. The petitioner contends that thereafter there is no separate identity of the Nationalised and Government Elementary Schools in the district and the teachers are transferred from one school to another. The notification annexure-C, however, only speaks about there being a unified cadre of nationalised Schools situated in rural and urban areas with effect from 1.1.79 and the transfer and posting of teachers to be made within the unified cadre of the district. It also speaks about all appointment and promotion to be made from the approved panel/gradation list as per prescribed procedure. The notification as such does not mention that the cadre of teachers, of both Government Basic Schools and Government Nationalised Schools would be merged into one. It does not support the petitioners averment that after the issue of the notification (Annexure-K) there is no separate identity of the Nationalised and Government Basic Schools In support of the aforesaid contention the petitioner in paragraph 34 of the supplementary affidavit has referred to a Division Bench decision of this Court reported in 1990 P L J. R 41 wherein it had not been held that after nationalisation there was only one cadre. The reference to such a reported decision is an obvious mistake. The reference to such a reported decision is an obvious mistake. Learned counsel for the petitioners in course of the argument has also not referred to any such decision of this court to the aforesaid effect. 35. Learned Counsel for the petitioners stated that teachers of Government basic Schools and Nationalised Elementary Schodls belonged to the same class as there was no distinction whatsoever in between them. Both the categories of teachers performed the same kind of teaching work, were in the same pay scale and had similar avenues of promotion. Both the categories of teachers being government servants and the age of superannuation of the teachers of Nationalised Elementary Schools having been fixed at 58 years like the teachers of Government Basic Schools the State government could not treat them into separate classes or categories for the purpose of tixing the age of retirement and enhancing the age of superannuation of teachers of Nationalised blementary Schools to 60 years without extending similar benefit to the teachers of Government Basic Schools. The aforesaid contention made on behalf of the petitioners have been challenged on behalf of the State. Learned A. A. G. III contended that the teachers of Nationlised Elementary Schools have always been treated as a separate class or category of teachers by the State Government and there was in fact no merger of the cadre of the two categories of teachers 36. On behalf of the respondent-state attention has been invited to rules, Regulations, Notifications and Circulars issued by the State government from time to time in support of the contention that the teachers of government Basic Schools and Nationalised Elementary Schools were always treated as separate class. Copies of certain notifications issed by the State government in this regard have been filed as Annexures and are available along with written submissions in the paper book (Part II) filed by the State. In the counter-affidavit filed on behalf of the respondent-State in C. W j C.970 92 it has been categorically stated that the service conditions and cadre of the teachers are different from those of the teachers of the Nationalised schools. It is pointed out on behalf of the State that the Assistant teachers of Government Basic Schools belong to the Lower subordinate service (for short the "l. S S. " ). It is pointed out on behalf of the State that the Assistant teachers of Government Basic Schools belong to the Lower subordinate service (for short the "l. S S. " ). They cannot be transferred to any taken over schools The State has also constituted another service known as subordinate Education Service which consists of three cadres, namely S. E. S. (Inspection), S. E. S. (Teaching Branch) and S E. S (Female Branch ). The members of the Teaching Branch and Female Branch of the S. E S. are not posted in Basic schools. However, members of the S. E S (Inspecting Branch) are posted as Headmasters of Basic schools and they can also be transferred and posted as Lecturer in Primary Teachers Training College or as Block Education Extension Officer. The appointing authority of the members of the L. S S who are employed as Assistant Teachers in government Basic schools is the Regional Deputy Director of Education. A candidate oossessing Matric trained qualification is eligible for appointment to L S S and for that purpose a panel is prepared of the candidates on the basis of the marks obtained in the Matriculation examination as also in the training. So far as appointment of teachers of Nationalised Elementary Schools is concerned it is made on the basis of the recommendation made by Bihar public Service Commission (for short the "commission" ). For making such recommendations tht Commission conducts written examination and the minimum qualification is only Matric having 45% of marks The appointment to the S. E. S the members of the Inspecting Branch of which are posted as Headmaster of Government Basic School is made by the Director of Primary Education or the secondary Education as the case may be and such appointments aie made on the basis of the recommendation made by the Commission. For making such recommendation the Commission conducts written test and minimum qualification Is B A trained It may be mentioned that the member of the S E- IS serve as teachers in Government Secondary Schools. It is also pointed out that for making appointment of teachers in the takenover or Nationalised Secondary Schools the eligibility Is only of Garduation whereas for appointment to the S E S. and thus becoming a teacher in the government Secondary School the minimum qualification is B. A trained. It is also pointed out that for making appointment of teachers in the takenover or Nationalised Secondary Schools the eligibility Is only of Garduation whereas for appointment to the S E S. and thus becoming a teacher in the government Secondary School the minimum qualification is B. A trained. It is further pointed out that whereas the time scale of teachers of Basic grade of L S S , i e Assistant Teachers of Government Basic Schools is rs 1200-1800, the time scale of teachers of takenover schools is Rs.1200 - 2040. Again whereas the promotional avenue of teachers of L. S S. is in the scale of Rs 1400-2300 and thereafter in the scale of Rs 1500-2750, the two scales of teacher of takenover schools known as senior scale and selection scale are Rs 1400 2600 and Rs 1640-2900. According to the respondent-State 50% post of S E S (Inspection) are filled up from amongst the teachers belonging to L S S Likewise 0% of the vacancies in the Bihar Education service (inspection Branch) ie B. E S class II are filled up by promotion of members of the S. E. S (Inspection Branch) The teachers of Nationalised elementary School or for that matter the Nationalised Secondary Schools are not eligible for such promotion. The teachers belonging to L. S. S. who as already pointed out are posted in Basic Schools can be transferred only within the division as they serve in a divisional cadre whereas the teachers of takenover schools working in Primary school can be transferred only within the district as their cadre is district wise and not divisionwise. 37. It is not denied by the respondent-State that after the takeover act of 1976, the State issued several circulars, notifications and orders with a view to give the same pay scale and other benefits to the teachers of nationalised Elementary Schools as were available to the teachers of gov rnment Basic Schools treating both categories of teachers at par mainly on the consideration that after the Takeover Act both the categories of teachers were now Government servants. The pay scales of teachers of Nationalised Elementary Schools and nationalised Secondary Schools appear to have been revised following inclusion of certain terms to that effect in the agreements dated 22 9 89 and 19 10 89 concluded by the State Government with the Teachers Associations. The pay scales of teachers of Nationalised Elementary Schools and nationalised Secondary Schools appear to have been revised following inclusion of certain terms to that effect in the agreements dated 22 9 89 and 19 10 89 concluded by the State Government with the Teachers Associations. In pursuance of the terms of the agreement calling for such revision of pay scale the State Government had issued a Resolution in the Finance Department dated 18 12 89 prescribing different scales of pay and methed of placement in higher scales such as senior scales and selection scale for teachers of takenover schools. It is not in dispute that following the issue of the Finance Department Resolution dated 18.12.89, the teachers of takenover schools are now drawing pay in different pay scales and which scales are higher to the pay scales available to teachers of Government Schools both Basic (Elementary) and secondary. This is evident from a mere look at the comparative chart of the pay scales furnished by the petitioners in paper book Part VII. It is also not in dispute that in terms of the said Resolution the teachers of takenover schools are no more entitled to the benefit of two time-bound promotions in the service of the advantage of having two selection grades available for promotion. It thus follows that whatever similarly in the pay scales and other promotional avenues available to the teachers of Government Schools and takenover schools existed earlier the same had come to an end following the issue of the Resolution dated 18 12 89 with the revision of pay scales of teachers of takenover schools with effect from 1.1.86. 38. The respondent-State in support or its contention that the teachers of Government Basic Schools and the teachers of Takenover elementary schools are governed by different service conditions have referred to notification No 2749 dated 11th November 1975 issued by the state Government in the Education Department. The said notification had been issued by the Governor of Bihar under proviso to Article 309 of the constitution to regulate the service cadre, appointment, promotion, transfer and other service conditions of Assistant Teachers of Government Basic schools. The Rules framed thereunder are ordinarily being referred to as basic schools Assistant Teachers Rules, 1975. The said notification had been issued by the Governor of Bihar under proviso to Article 309 of the constitution to regulate the service cadre, appointment, promotion, transfer and other service conditions of Assistant Teachers of Government Basic schools. The Rules framed thereunder are ordinarily being referred to as basic schools Assistant Teachers Rules, 1975. Rule 3 (c) defines the cadre as cadre of Assistant Teachers of Government Basic schools of the district and re-organised division of the State under this Rule. The Rules make provision for appointment and promotion which are to be made on the recommendation of the Divisional Committee under the chairmanship of the Regional Deputy Director of Education. The Rules also provide that the teachers shall be transferred in their cadre only So far as teachers of Nationalised Elementary schools were concerned, section 4 (2)of the Takeover Act 1976 provided that they would become teachers of the state Government on the terms and conditions of service as held by them before the takingover of the said school and shall continue to do so unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government. In other words the Takeover Act of 1976 did not provide that as a consequence of the takeover of the school its teacher would be entitled to the remuneration, terms and other conditions of service available to the teachers of Government Basic Schools. As a matter of fact at no point of time the State Government took any decision that the Basic School Assistant teachers Rules, 1975, would apply to the teachers of Takenover Elementary schools Under Sec.7 of the Takeover Act 1976 the State Government was empowered to make rules for carrying out the purposes of the Act under Sec.8 of the State Government had also power to take such order as appeared to it necessary for the purpose of removing any difficulty which arose in giving effect to the provisions of the Act. The State Government from time to time Issued notification under section 8 of the Takeover Act of 1976 and notification No 2412 dated 5.11.81 was one such notification whereby certain Rules were framed. The State Government from time to time Issued notification under section 8 of the Takeover Act of 1976 and notification No 2412 dated 5.11.81 was one such notification whereby certain Rules were framed. By the said notification also issued in the exercise of the powers conferred under proviso to Article 309 of the Constitution a part of Rule 5 of the Basic School assistant Teachers Rules 1975 relating to appointment in Matric trained scale in Government Basic Schools was superseded by providing for that the new appointment in Government Basic Schools in Matric trained scale against vacancies occurring due to creation of new posts and retirement, death and promotion of present teachers shall be, made by the District superintendent of Education from the panel prepared by the District establishment Committee constituted for Nationalised Elementary Schools. The notification further provided that such posts and teachers posted shall be of district cadre of Nationalised Elementary Schedule. Another rule made provision for promotion on new posts of I. A. trained and B A. trained scale allotted sanctioned in Government Basic Schools and old posts available from before in that scale (which are equivalent to grades 5 and 3, respectively of the Nationalised Elementary Schools. The Rule says that the provisions should be the same as incorporated in the Basic School Assistant Teachers Rules of 1975 relating to Government basic Schools hut if amomgst the teachers working in Government Basic schools, teachers possessing requisite qualification are not available for appointment/promotion then on vacant posts appointment/promotion shall be made from the district cadre of Nationalised Elementary Schools following the procedure laid down in notification No 2060 dated 15.9.81 for appointment and promotion of teachers of Nationalised elementary Schools and teachers so appointed/promoted shall be members of the district cadre of the nationalised Elementary School. The contents of the aforesaid notification issued under Sec.8 of the takeover Act of 1976 suggest that the teachers of Government Basic Schools and Nationalised Elementary Schools were being treated separately and with a view to remove certain difficulty in implementing the provisions of the takeover Act of 1976, a provision had been made for making appointment/ promotion to certain posts in the Government Basic Schools from the district cadre of the Nationalised Elementary Schools. In other words, had the cadre of the Government Basic Schools and Nationalised Elementary School been the same, there would have been no necessity for the State Government to issue the notification dated 5 11 81 in exercise of the powers under proviso to article 309 of the Constitution and Sec.8 of the Takeover Act of 1976. It is not open to the petitioner to argue that because a teacher belongging to the cadre of the Nationalised Elementary School was teaching in a government Basic School, the cadre of teachers of Government Basic Schools and Nationalis Elementary Schools had got merged into one. Even while doing so the teachers of both the categories would be governed by the service conditions applicable to the cadre to which they belonged. 39. The respondent State has produced a copy of the notification dated 8th July 1993 of the State Government in the Human Resources Development department published in the Bihar gazette (extraordinary) dated 9th July 1993 and which is Annexure X/6 of the paper book (Part 11 ). By the said notification the State Government in exercise of the powers conferred by proviso to Article 309 of the Constitution of India and consequent upon the implementation of the Central pay scale with effect from 1st january 1986 had made certain Rules for promotion of the teachers of the elementary Schools takenover by the Government. These Rules are called the "bihar Takenover Elementary School Teachers promotion Rules, 1993" and it is deemed to have come into force with effect from 1st January 1986 Learned Counsel for the petitioners took serious objection to the production of the aforesaid notification on the ground that toe notification had been made long after the issue of Resolution dated 29th October 1990 which is the subject-matter of these writ petitions. Such an objection is misconceived for the simple reason that the Rules made under the notification have nothing to do with the merits of the case. Otherwise also under section 7 of the Takenover Act of 1976 the State government had powers to make Rules not inconsistent with the Act for carrying out the purposes of the Act. Such an objection is misconceived for the simple reason that the Rules made under the notification have nothing to do with the merits of the case. Otherwise also under section 7 of the Takenover Act of 1976 the State government had powers to make Rules not inconsistent with the Act for carrying out the purposes of the Act. Ill any view of the matter the "bihar takenover Elementary school Teachers Promotion Rules, 1993" go to show that the State Government had not framed any such Rules in the past aid it supports the contention of the respondent-state that after the taking over of the non-government elementary schools, such matters Including promotion were being governed by be notification, Rules and Circulars and orders issued by the State Government in that regard from time to time including the statutory Rules framed under Article 309 of the Constitution Needless to add that the admitted case of the parties is that the teachers of government basic school are governed by Basic School Assistant Teachers Rules 1975 and the general Rules and Regulations framed by the state for its employees including the Bihar Service Code. 40. Learned counsel for the petitioners argued that it hat been wrongly stated on behalf of the respondent-State that the minimum quailfication for appointment as teacher in a Government Basic School and nationalised Elementary School is not the same According to the respondent-State for appointment of teachers in Nationalised Elementary Schools the Commission conducts an examination and the minimum qualification for appearing in the examination is only Matric having 45% of marks whereas for preparing a panel for appointment as Assistant Teacher in the Government basic School in the L S S. the minimum qualification is Matric trained. In support of his contention learned counsel for the petitioners in course of argument produced a notification of the State Government in the human Resources Development Department dated 5th March 1991 issued under the signature of the Commissioner-cum-Secretary of the Department. According to the said notification the State Government had taken a decision to do away with the requirement of training for the purposes of appointment of teachers. According to the said notification the State Government had taken a decision to do away with the requirement of training for the purposes of appointment of teachers. Since no objection was raised on behalf of the respondent-State with regard to the issue of the aforesaid notification dated 5th March 1991, it follows that in the matter of appointment of teachers the compulsory requirement that the candidate should be trained has been dispensed with. If that be true and I have no reason to disbelieve it, it follows that the minimum qualification for appointment both in the case of Assistant Teacher ot Government Basic School and Nationalised Elementary School would be the same, namely the passing of the Matriculation examination. However, the essential difference will remain as an Assistant Teacher in the Govern ment Basic School is appointed trom a panel prepared on the basis of marks obtained in the Matriculation examination whereas the teachers in the nationalised Elementary Schools are appointed from the list of recommendation made by the Commission and candidates with the minimum qualification, i. e having obtained not less than 45% marks in the Matriculation examination can sit at the written examination conducted by the Commission for the said purpose. 41. It thus follows that teachers of both the Government Basic Schools and the Nationalised Eltmentary School perform exactly the same kind of teaching works. This is so because the syllabus and courses of study taught in the said schools are the same The minimum qualification for appointment of both categories of teachers is also the same, namely that a candidate for such appointment should have the minimum qualification of having passed the Matriculation examination. However, whatever sin ilarly existed in between the two crtegories of teacher ended there. Their modes of appointment were different. They were governed in respect of their service conditions by different sets of Rules. Their pay scales and other avenues of promotion was also different. Whatever parity existed in between the pay scales of both the categories of teachers had ended with issue of notification dated 18.12.89 which provided different scales of pay and avenues of promotion. They were governed in respect of their service conditions by different sets of Rules. Their pay scales and other avenues of promotion was also different. Whatever parity existed in between the pay scales of both the categories of teachers had ended with issue of notification dated 18.12.89 which provided different scales of pay and avenues of promotion. Admittedly while a teacher of Government Basic School belonging to the L. S. S. was eligible to be promoted to the S E. S. and the Headmaster of the government Basic School belonged to the S. E. S. (Inspecting Branch)could also be promoted to the Bihar Education Service Class II, no such avenues of promotion were available to the teacher of Nationalised Elernentary School. A futile attempt was made on behalf of the petitioners to show that the revised pay scales admissible to teacher of Rationalised Elementary School with effect from 1.1.86 vide notification dated 18 12 89 of the State Government were essentially not different with the pay scales available to teachers of government basic schools by another resolution of the State Government issued on that very date. The scheme of revision of pay scales and eliglgibility for being placed in higher pay scales for teachers of nationalised elementary school is altogether different from those available to teachers of government basic school. The basic scale of teacher of the nationalised elementary school is higher than one available to the teacher of Government basic school. While teachers of government basic schools have a number of selection grade posts depending upon certain percentage of the cadre and have the facility of two time bound promotions also, the scheme in the case of teachers of nationalised elementary school is entirely different. While the teachers of nationalised elementary schools do not have the advantage of having selection grade posts or two time bound promotions, provision has been made for their being placed in higher scales of pay known as senior scale and selection scale after completion of 12 years of service in each case. It was pointed out on behalf of the petitioners that while a teacher of the basic school could get his first time-bound promotion after completion of 10 years of service his counterpart could get it after 12 years. It was pointed out on behalf of the petitioners that while a teacher of the basic school could get his first time-bound promotion after completion of 10 years of service his counterpart could get it after 12 years. Likewise the teacher of the basic school would get the second time bound promotion after completion of 25 years of service whereas the teacher of the elementary schools after completing another period of 12 years of service, i. e 24 years in all would get the benefit of being placed in the next higher scale of pay. Learned counsel for the petitioner contended that the difference in the scheme was only of form and not of substance as both the schemes were essentially the same The argument though attractive has no substance, and deserves to be outright rejected. As already noticed earlier, even the pay scales prescribed both time scale and other superior scales are different for the two categories of teachers. 42. As in the case of teachers of primary schools and like the teachers of Government secondly schools, the teachers of non-government secondary schools after their takeover by the State Government with effect from 2.10 80 by the Takeover Act of 1981 are now government servants teaching the same syllabus and courses of study in their schools. Such teachers irrespective of the fact whether they teach in government schools or nationalised schools arc under the administrative control ot the Director (Secondary Education ). Under section 4 (3) of the Takeover Act of 1981 teachers of the takenover secondary schools even after becoming government teachers were to retain the terms and conditions of their services (except in the matter of age of superannuation which was fixed at 58 years) until such time that an alteration was made by the State Government, in the prescribed manner. The petitioner in CWJC 8811/91 in reply to the counter-affidavit filed by the respondent-State has stated that appointment of Assistant Teachers either in government High School is being made on the basis reommendation of the school service board (for short the "board") and in both the cases the Director (secondary education) is the appointing authority. The petitioner in CWJC 8811/91 in reply to the counter-affidavit filed by the respondent-State has stated that appointment of Assistant Teachers either in government High School is being made on the basis reommendation of the school service board (for short the "board") and in both the cases the Director (secondary education) is the appointing authority. In support of his contention the petitioner has enclosed copies of some of the appointment letters as Annexures 4, 5 and 6 On its basis it is contended that appointment of teachers in both types of High Schools which obviously refers to secondary schools are made by the Director (secondary education) from one and same panel prepared and sent by the Board. The petitioners contention further is that similarity between the teachers working in the two types of schools is writ large not only in one respect but in all respects including the made of appointment, authority who is empowered to make appointment, teaching of same syllabus, same courses of study and the students studying in both types of schools appear at the same matriculation Examination conducted by the Bihar School Examination Board. 43. The respondent-State in reply to the reply of the counter -affidavit has stated that the teachers of government secondary schools are members of subordinate education service (S. E. S ) of the State Government and are governed like other State Government employees by the general service condition and Rules framed by the State Gevernment in that behalf. The teachers of nationalised secondary schools are governed by the bihar Nationalised Secondary Schools (Service Condition) Rules, 1993. These Rules have been framed by the State Government under section 9 of the Takeover Act of 1981. It is pointed out that the teachers of nationalised secondary schools are not members of the S. E S. and as such promotional avenues as available to the members of the S E S. are not available to them The geverment made is that the members of the S E. S. are eligible for promotion to Bihar Education Service (Class II ). While admitting the claim of the petitioner that the appointing authority of teachers in both types of schools was the Director (secondary education), the respondent-State claims that while the school service board (Board) has been entrusted with selection of candidates for the posts of teachers in both types of schools, the appointing authority makes the appointment in the two types of schools under separate service conditions/ Rules. Annexure 4 filed by the petitioner is a copy of order dated 26th May 1987 under the signature of the Director (secondary education) making appointment of certain teachers in the S. B. S. (Teaching Branch) and their posting to different Government High schools. By the said Annexure all the 13 teachers appointed to the S E S have been posted in Government high School. The list does not include even one teacher who had been posted in the Nationalised secondary school. Annexures 5 and 6 are copied of notification dated 23 2 89 and 17 1 90 respectively issued under the signature of the Director (secondary Education ). By the said notification a number of teachers were appointed on a temporary basis on posts of teachers in plus two secondary school and posted to different schools including both government secondary schools and Nationalised Secondary schools. These annexures had been filed In support of the petitioners contention that appointments of teachers In both types of schools were being made by the same authority and in the same process and while same of them were posted in government secondary schools others were posted in Nationalised secondary Schools. On its basis an impression was sought to be created that the cadre of teachers in both types of school was one and the same. The respondent-state has contested this petition and has stated that vide annexures S and 6, Lecturers of plus two schools have been appointed against Ex-cadre posts in anticipation of finalising their cadres They are members of neither S E. S. nor of the Nationalised Secondary School teachers cadre. In support of the aforesaid contention reference has been made to the notification making the appointments where it had been made clear that the. appointments were being made against the newly created Ex-cadre posts of lecturers and their cadre will be decided separately. In support of the aforesaid contention reference has been made to the notification making the appointments where it had been made clear that the. appointments were being made against the newly created Ex-cadre posts of lecturers and their cadre will be decided separately. Thus there is qo substance in the petitioners contention that appointment had been made of teachers of both types of school by the same appointing authority on the basis of one common list recommended by the School Service Board. 44. Learned counsel for the petitioners in support of his contention that after the takeover of Non-government secondary schools, the pay scales of teachers of nationalised secondary schools had been brought at par with the scales of pay available to the teachers of government secondary school, has referred to a number of Resolutions of the State Government issued from time to time to bring about such parity in the pay scales. The translated copies of a number such Resolutions have been filed are available in paper book (Part IV ). Reference may be made to Resolution No.2260 dated 30.10.80 of the education Department The Resolution, an extract copy of which is at page 26 of the paper book (Part IV), specifically directs that from the date of nationalisation all Headmasters, Assistant Teachers and non-teaching staff of the Nationalised secondary schools will be given the same scale Of pay approved for the teachers, Principal and non-teaching staff of the government secondary schools. Certain anomalies in the pay scales of the teachers of two types of schools were also removed by Resolution No 9 dated 4.1.82 of the State government in the department of Education. It appears that the pay scale of the State Government employees including the teachers of government schools had been revised with effect from 1 4 81 on the recommendation of the 4th Pay Revision Committee. The State Government by memo No.2372/f dated 26.2.82 (extract copy at page 32 of paper book part IV) took the decision that teachers of Nationalised secondary schools will get the same revised pay scale with effect from 1.4 81 which is admissible to the teachers of government secondary schools as per Finance Department notification No 10770-F, dated 30 12.81. The State Government by memo No.2372/f dated 26.2.82 (extract copy at page 32 of paper book part IV) took the decision that teachers of Nationalised secondary schools will get the same revised pay scale with effect from 1.4 81 which is admissible to the teachers of government secondary schools as per Finance Department notification No 10770-F, dated 30 12.81. The petitioners contention is that where the parity in the pay scale of teachers of both types of schools did not exist, the court had issued necessary direction to the State Government to bring about such parity. In support of this the petitioners have filed a copy of the 3rd interim report of the Pay Anomaly Removal Committee on a reference made by finance Department letter dated 25th May 1990. A copy of the report dated 10 7 99 is Aenexure O to the supplementary affidavit filed by the petitioner in C W. J. C 4577/92. Another copy of the report is available at pages 23-31 of the paper book part I the Committee among various other things took note of the existing parity of Graduate trained teachers of the Nationalised secondary schools with teachers of similar qualification belonging to the S. E S. It also took notice of same direction of the Hon ble Court in the matter of removal of anomaly with respect to the Headmasters of Middle Schools. According to the petitioners the report of the Committee supports their case that a parity bad been brought about in the pay scales of teacher of both types of schools and whenever this parity was disturbed, State Government took steps to remove anomalies in their pay scales. 45. All this has become a part of history. Even when the so-called parity in the pav scales existed, the teachers of both types of schools were being governed by different service conditions. A teacher of government secondary school being member of the S. E S. could be promoted to the bihar education service class II They could be appointed against a member of supervisory and administrative posts. The petitioners while denying that any one of them has been promoted to the Bihar education service do not dispute the claim of the respondent-state that under the Rules such avenues of promotion were available to them. The petitioners while denying that any one of them has been promoted to the Bihar education service do not dispute the claim of the respondent-state that under the Rules such avenues of promotion were available to them. There is no dispute that a teacher of nationalised secondary school not being a member of the S E S. was not eligible, howsoever brilliant he may be fore promotion to the Bihar education service class II. Whatever parity in the pay scales that existed between the teachers of both types of schools atleast since 1.4.81 docs not exist any more, exist. Persuant to the agreements concluded in between the shikshak sangh and the Combined Coordination committee and the State Government on 22.9.89 and 19.1089 the pay scales of teachers of nationalised Primary, Middle, secondary plus two schools have been revised with effect from 1.1.86 vide Finance Department resolution No 6022 F dated 18.12 89. According to schedule-2 at page 8 of the Finance Department Resolution published in the Bihar Gazette (extraordinary) of 19 12 89 the revised pay scale of secondary school teachers with minimum Graduate trained qualification was Rs.1640-2900. The senior scale to which they were entitled to after 12 years was Rs 2000-3500 and selection grade scale after 12 years in the senior scale was fixed at Rs.2200-4000 The revised pay scales for. Headmaster of secondary schools was fixed at Rs.3000-4500. It may be recalled that the pay scales of the state government employees including the teachers of government secondary schools were revised by the Finance Department Resolution No 6021/f dated 18th December 1989 at pages 55-56 of the Resolution published in the Bihar Gazette (extraordinary)of 19 12 89 the pay scale of Rs 1500-2750 was to be the replacement pay scale for the Graduate trained members of the S E S. It may be mentioned that the teachers in government secondary schools are members of the S E. S. The replacement pay scale of Graduate trained headmaster in high school was to be Rs 2000 3800 The selection grade pay scale for S. E S was nxed Rs.1800-3330. It would thus appear that whereas a Graduate trained teacher of the government secondary school was in the pay scale of Rs 1500-2750, the Graduate trained teacher in nationalised secondary school was in the pay scale of Rs.1640-2900 Like wise whereas the headmaster of nationalised secondary school was in the pay scale of Rs 3000 4500, the headmaster in the government high school was in the pay scale of Rs.2000-3000. There was some argument at the par as to whether Headmaster/principal of a government secondary school was a member of the S E 5 or the Bihar education Service (B E S ) class II. The petitioners have denied the state governments claim that the Principal belonged to the B E S class II The petitioner of C H. S. C. No 8811/91, though the headmaster of a government high school is admittedly not a member of the B. E S class II. Assuming that the headmaster of a government secondary school as a member of the S E S. would be drawing pay in the selection gtade of the s. E. S. , the pay scale available to him would be Rs.1800-3300 only. From the Finance Departments Resolution No.6021-F dated 18 12-89 it appears that the Principal of government high school belongs to class II of the B. E. S. and his replacement pay scale is Rs 2200 4000 and petitioners assertion to the contrary is not correct It thus follows that a teacher of a government secondary school who is likely to be promoted to the B E S. class II and is appointed as Principal of the government high school will draw pay in the pay scale of Rs.2200 4000 as Principal whereas the Headmaster of a nationalised school would be drawing pay in tke scale of Rs.3000-4500. However, it needs to be mentioned that if any parity in the pay scales exists, it is in respect of only teachers whose qualifications are Matric (untrained) or less. However, it needs to be mentioned that if any parity in the pay scales exists, it is in respect of only teachers whose qualifications are Matric (untrained) or less. Para 21 of the Resolution No 6022-F dated 18 12 89 in respect of teachers of Nationalised schools specifically provides that the resolution does not apply to teachers whose qualifications are Matric trained or less and they shall have their pay fixed in the replacement scales indicated in Resolution No.6021-F dated 18 12 89 and the provision under the State government for government employees as mentioned in the said Resolution shall apply to them. 46. It appears that not only different pay scales have been prescribed for teacb/rs of both types of secondary schools though they are all government servants, but a substantial chance has been introduced with regard to certain facilities such as time bound promotion and selectfon grade paragraph 13 (vi) of the Finance Deportments Resolution No 6022-F dated 18 12.89 in respect of teachers of nationalised schools specifically provides that the existing facilities of time bound promotion and selection grade shall cease to be applicable. It may be mentioned that facilities of two time bound promotions as also provision for selection grade posts as junior selection grade and senior selection grade are available to the teachers of government necondary schools vide Finance Departments Resolution No 6021 dated 18.12.89. Thus the entire scheme with regard to pay scales and eligibility for promotion to or placement in senior and selection scales for the teachers of two types of secondary schools has been substantially revised and there are new two schemes-one in respect of teachers of government secondary schools and another in respect of teachers of nationlised secondary schools. 47. Thus though the teachers of nationalised secondary schools like the teachers of government secondary schools do exactly the same kind of teaching work and are under the administrative control of the Director (Secondary Education) who is also their appointing authority and appoints both categories of teachers on the recommendation of the school Service board, then like teachers of government secondary schools do not belong to the S. E. S. under the State Government. Their service conditions including the promotional avenues are not governed by the State Government Rules and Regulations which apply to the members of the different services under the State, such as, S. E. S. to which teachers of Government Secondary Schools belong. Their service conditions are instead governed by the Bihar Nationalised Secondary Schools (Service condition) Rules, 1983. Since 1.1 86 their time scale pay as also senior scale pay and selection scale pay are all different than the pay scales available to teachers of Government Secondary Schools. They are also entitled to a teaching allowance of Rs.100/- per month along with the teachers of nationalised Elementary schools which allowance is not payable to the teachers government Basic or secondary schools. Even the procedure laid down for their being placed In higher pay scales is different than that in vogue in the case of other State Government employees including the members of the S E S. and B E. S. (class II ). Since they do not belong to the S. E S they do not have any opportunity to man senior posts, such as, supervisory posts and inspecting posts In the education Department as they are under the Rules not eligible for being considered for promotion to B. E. S. (class II ). Since the teachers of Government secondary schools belong to S E. S. their age of superannuation like other regular services under the State government continue to be 58 years. Perhaps the only exception to this general Rule is in the case of members of the State judicial services for whom the age of superannuation had been fixed at 60 years subject to certain restrictions following a decision of the Apex Court applicable to the judicial officers all over the country. 48. The contentious Issue is whether the teachers of Nationalised elementary and secondary schools and Government Basic and Secondary schools belong to the same class or category so as not to permit any discrimination among them in the matter of fixation of the age of superannuation. Against the aformentioned factual background of conditions of service and other details regarding the teachers of Nationalised schools and Government schools, certain decisions of the Apex Court to which our attention has been drawn to support the rival contentions of the parties may be referred to. 49. Against the aformentioned factual background of conditions of service and other details regarding the teachers of Nationalised schools and Government schools, certain decisions of the Apex Court to which our attention has been drawn to support the rival contentions of the parties may be referred to. 49. Another decision relied upon by the petitioners is Miss Raj Soni v air Officer in-charge Administration, ( AIR 1990 SC 1305 ). In paragraph 12 of the judgment the Apex Court observed as follows :- "even otherwise every institution must frame and follow a uniform rule tor superannuating the employees. The age of superannuation cannot be left to the whims of the employer to enable him to retire different employees at different ages In the absence of any regulation. Bye-laws or policy-decision by the respondent-management regarding the age of superannuation, we accept the contention of the petitioner that prior to the coming into force of the Act and the Rules the management was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers. " the decision is not applicable to the facts of the present case. The Apex court was dealing with the case of the petitioner appointed as a teacher in air Force Central School, Delhi, before the Delhi Education Act, 1973, came into force and which was governed by the Delhi Education Code which provided 63 years the age of superannuation of the school teacher. The writ petition was allowed and the retirement of the petitioner at the age of 58 years quashed mainly on the consideration that the management of the school prior to the coming into force of the Act and the Rules was following the Delhi Education Code which provided 60 years as the age of superannuation for the school teachers In the circumstances the decision is not of much help to the petitioners. Learned counsel also relied on a Division Bench decision of this Court in Teachers Association of Government Engineering Colleges V/s. State of Bihar, 1992 (2) P. L. J. R 742. The prayer of the petitioners who were the teachers Association of the Government Engineering Colleges and Teachers of Bhagalpur Engineering College, Bihar Institute of Technology, Sindri, muzaffarpur Institute of Technology was to have benefits similar to these available to the teachers of the Bihar College of Engineering, Patna, in the matter of retirement age, etc. The prayer of the petitioners who were the teachers Association of the Government Engineering Colleges and Teachers of Bhagalpur Engineering College, Bihar Institute of Technology, Sindri, muzaffarpur Institute of Technology was to have benefits similar to these available to the teachers of the Bihar College of Engineering, Patna, in the matter of retirement age, etc. The writ petitions were allowed on the ground that there was no justification-"as to why the age of superannuation of those teachers who are imparting education in 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 and that 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 Bihar college of Engineering Patna. It appears that the teachers of all the four Engineering Colleges of the state belong to the same category and there was complete absence of any reasonable classification so as to treat the teachers of other three Engineering colleges in the matter of fixing the age of superannuation in a way different from the teachers of the Bihar College of Engineering If appears that the respondent-state did not make out a case that the teachers of all the four Engineering Colleges of the State were mot similarly situated to support any contention that Articles 14 and 16 of the Constitution of India had not been violated in fixing different ages of retirement for them. The decision thus hardly helps the cause of the petitioners. 50 Learned A A G HI contended that on the facts of the case the teachers of Government schools and Nationalised schools belonged to two different classes as categories and that no question of discrimination was involved in having two different ages for their retirement. In support of his contention he relied on a decision of the Apex Court in Air India V/s. Nargesh Meerza and Ors , ( AIR 1981 SC 1829 ). The case involved one of the grievances of the Air Hostesses that though they were members of the Cabin Crew like the Assistant Flight pursuers, they had been discriminated against in the matter fixation of their age of superannuation. The case involved one of the grievances of the Air Hostesses that though they were members of the Cabin Crew like the Assistant Flight pursuers, they had been discriminated against in the matter fixation of their age of superannuation. Their Lordships rejected the argument that both male Pursuers and the Air Hostesses being the members of the same Cabin crew performing identical and similar duties any discrimination made between these two members who are similarly situated is clearly violative of the Article 14 of the constitution of India and held that Air Hostesses, though members of the Cabin Crew, were an entirely separate class governed, by different set of Rules, Regulations and conditions of service and that no discrimination was involved so as to violate Article 14 of the Constitution. In doing so their Lordships applied certain tests laid down for purpose after a detailed analysis and close examination of the cases of the Court starting from 1952 till that date from which, as held by their Lordships, the following propositions emerge i- " (1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terras, leave, etc. are introduced in different or dissmilar posts. Thus, where the class or categories of service are essentially different in purport and spirit, Article 14 cannot be attracted. (2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons-belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such, a classification would not amount to discrimination having a so that in such cases Article 14 will be completely out of the way. (3) Article 14 certainly applies where equals are treated differently without any reasonable basis. (4) Where equals and unequals are treated differently, Article 14 would have no application. (5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to an discrimination or to denial of equality of opportunity. (5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to an discrimination or to denial of equality of opportunity. (6) In order to judge whether a separate category has been carved out oi a class of service, the following circumstances have generally to be examined :- (a) the nature, the mode and the manner of recruitment or a particular category from the very start. (b) the classifications of the particular category. (c) the terms and conditions of service of the members of the category. (d) the nature and character of the posts and promotional avennes. (e) the special attributes that the particular category possess which are not to be found in other classes, and the like. " Learned A. A G. III led emphasis on proposition Nos.5 and 6 and stated that when applied to the facts of the present case it would be evident that the teachers of government schools and elementary schools are to be placed in separate classes. It was also pointed out that through historical reasons the teachers of nationalised schools and government schools had remained in separate categories and separate cadres. At no point of time the cadres of teachers of government basic schools or nationalised elementary schools had been merged into one. Likewise the cadres of teachers of government secondary schools and nationalised secondary schools continued to be separate without even an attempt on the part ot the state government to merge them into one the terms and conditions of service including promotional avenues were also entirely different in the case of teachers of government schools and nationalised schools. 51 In this connection the majority decision of a seven-Judge Constitution bench of the supreme court in Ramlal Wadhwa and another V/s. State of narayana and ors (A. I R.1972 SC 1982) may be referred to It appears that in the then State of Punjab all schools till then run by the local bodies were provincialised on October 1, 1957. 51 In this connection the majority decision of a seven-Judge Constitution bench of the supreme court in Ramlal Wadhwa and another V/s. State of narayana and ors (A. I R.1972 SC 1982) may be referred to It appears that in the then State of Punjab all schools till then run by the local bodies were provincialised on October 1, 1957. All the, schools together with their existing staff were taken over by the state government and it was provided that all the Masters/mistresses of the provincialised schools should be given pay and allowances as were given to their counterpart serving in the government schools. One of the grievances made was that the Rules of 1951 divided Masters who for all practical purposes forced a class into two arbitrary cadres, the State cadre and the provincialised cadre and through their various provisions meted out differential treatment to these appointed after October 1, 1957 by their being treated as belonging to the State cadre. It was argued that there was no rational basis for such classification. Their Lordships after analysing the facts of the case proceeded to observe as follows :- 38. The position which emerges from the aforesaid analysis is that prior to October 1, 1957 the two categories of teachers, these serving in the local bodies schools and those in government schools were distinct. Though the minimum qualifications and scales of pay might have been uniform, there were difference in other matters such as methods of recruitment, retiral benefits, rules for determining seniority, etc. It is also clear that whereas a government school teacher was liable to be transferred to and place throughout the Commissioners division, a Local Body teacher could only be transferred within the territorial limits of that body. Appointments in local bodies schools, no doubt, were made by Inspectors appointed by Government but they could do so only in consultation with the Chairman or President of such a body That was the position also in regard to disciplinary matters. Further, although the prescribed minimum qualifications were the same, in point of fact 50% or more of the local bodies teachers were non-matriculates teachers were also without the qualification of Basic Training as against a few non-matriculates and none without such Basic Training in the government schools. Further, although the prescribed minimum qualifications were the same, in point of fact 50% or more of the local bodies teachers were non-matriculates teachers were also without the qualification of Basic Training as against a few non-matriculates and none without such Basic Training in the government schools. In any event the mere fact that minimum qualifications and scales of pay were the same could not mean, in view of other dissimilar conditions of service, that the two categories of teachers formed one class. Indeed Mr. Tarkunde conceded, as is even otherwise clear, that prior to October 1, 1987 teachers in local bodies and in government schools did not form one class " it was pointed out on behalf of the State that the decision of the Constitution bench of the Apex Court supports the case of the State that the teachers of Government schools and nationalised schools were in separate categories even if minimum qualifications for appointment as teachers in both the categories were the same 52 Learned A A G III referred to a Division Bench decision of this court in Abu Mukarim Md Z Hussain V/s. State of Bihar, 1993 (2) PLJ 1990 whereby a number of writ petition filed by teachers of Government schools belonging to the S E S were dismissed after holding that they were not entitled to the benefit of the Government Resolution dated 29 10 90 which is applicable to the teachers working in the takenover primary and secondary schools alone who formed a distinct class After referring to different aspects of the service conditions of the teachers of Government schools as against these who were working in taken over schools for the purpose of showing that despite the latter becoming Government servants by reason of takeover of the schools they cannot be treated at par with the former for all purposes, their Lordships proceeded to observe as follows :- "the petitioners are Government servants since their very appointment They are subject to different rules, applicable to the other categories of Government servants including Bihar service code, which provides for the age of superannuation at 58 years Unless the relevant rule of the Code is suitably amended, they cannot claim that they should be allowed to continue beyond age 58 years and the Court cannot issue any such direction. So far as the resolution dated 29.10.40 is concerned, in terms, it is applicable to the teachers working in takenover primary and secondnary schools In this application it is not necessary to consider whether the Government could raise the age of retirement in respect of such teachers on the basis of resolution without amending the rule. However, since the teachers working in the taken over schools form a ceparate class as against their counterparts appointed to the Bihar subordinate service under the State Government, they cannot claim parity of status or equal treatment. " 53 There is nothing in common in between the teachers of Government schools and Nationalised Schools except that the minimum qualification for appointment is the same, both perform the same kind of teaching work, are under the administrative control of the same authority and their appointing authority is also the same. There all the similarity ends. They do not belong to the same service. Their cadres are different. Their methods of recruitment are not the same All the appointmeats/promtions are made within the cadre except in a few cases such at against the vacancies occurring in the posts of Matric trained teachers scale and to posts of promotion in i. A. trained scale in Government Basic Schools in the event of non availability of qualified tetchers for such promotion in the Government Basic schools from the pan I prepared for the Nationalised Elementary School teachers and the appointee or the promotee as also the post shall then belong to the cadre of the Nationalised Elementary School teachers. They are not subject to the same service conditions for they are governed by separate sets of Rules and Regulations. Their promotional avenues charter different courses and to crown all this their pay structure and scheme of promotion have no common features The State Government intention to treat the two cadres of teachers of Government Schools and nationalised Schools as separate and distinct is evident from the manner in which the two cadres have been dealt with and preserved even since the takeover of the Non-Government Schools. 54. 54. Examined on the touchstone of the tests laid down by the Supreme court in Air India V/s. Nargesn Meerza (supra) to Judge whether a separate cadre has been carved out of a class of service, the conclusion on the facts of the present case is inescapable that the teachers of Nationalised Elementary school and Nationalised Secondary school constitute a category of their own. Such a category has been considered separately for the sake of revision of pay scales and for providing facilities for being placed in higher scales of pay after completion of a particular period of service and also for being given certain other benefits, such as. teaching allowance. The teachers of Nationalised School prior to takeover were teachers of schools managed by. private individuals or societies and the superannuation age of such teachers then varied from 60 to 62 years. Thus on account of having different attributes and incidents the category of teachers of Nationalised schools became a separate class by itself and no difference or discrimination between such category and the members of the other class, namely teachers of Government Schools would amount to any discrimination or to denial of equal opportunity. The teachers of Government Schools and the teachers of Nationalised schools not being equal, the petitioners cannot claim equal treatment in the matter of fixation of age of superannuation and the classification being based on intelligible differentia it is a reasonable clasification and not hostile one in other words the refusal of the State to extend the benefit of the Resolution dated 29 10.90 enhancing the age of superannuation from 58 to 60 years of the teachers of Government Schools does not amount to denial of the fundamental right of the petitioners under Articles 14 and 16 of the Constitution. 55. To summarise, both the agreements dated 22.9.89 and 19 10.89 were concluded in between the State Government and the Associations representing the interests of teachers of takenover or Nationalised Elementary and Secondary Schools and were confined to them in their application The government Resolution dated 29 10 90 which flowed from the aforesaid agreements was likewise in respect of and confined to teachers of Nationalised schools. The petitioners being teachers of Government Schools belonged to a different class and cannot claim benefit of Resolution dated 29.10.90 which was based on an intelligible differentia by invoking the equality clause under the Constitution. The petitioners being teachers of Government Schools belonged to a different class and cannot claim benefit of Resolution dated 29.10.90 which was based on an intelligible differentia by invoking the equality clause under the Constitution. The petitioners are, therefore, not entitled to the issue of writ of mandamus or any other writ, order or direction to enforce their constitutional rights under Articles 14 and 16 of the Constitution as claimed by them. All these writ petitions have thus no merit and dismissed but without costs. Petition Dismissed.