Judgment : B.K. Singh 1. THE petitioner, who is a teacher in B.T.C. grade of Shri Hindu Kanya Vidyalaya Intermediate College, Saharanpur has preferred this writ petition seeking a writ in the nature of mandamus to command the respondents 1 and 3 to pay to the petitioner salary in the CT. grade in accordance with the provisions of Regulation 7 (2) of the Regulations contained in Chapter II framed under the U. P. Intermediate Education Act along with all the consequential benefits. Further prayer for declaring the provisions of G.O. dated 4.10.1974 void and inoperative in so far as they are In conflict with the statutory Regulation 7 (3) of the Regulations referred to above has also been made. 2. CERTAIN relevant facts necessary for the disposal of the writ petition may be stated. The petitioner having passed Intermediate Examination in the year 1971 conducted by the U. P. Board of High School and Intermediate Education, Allahabad was appointed as Assistant Teacher in the Institution named above in B.T.C. Grade on 8th, July, 1972. Since then the petitioner is working on the post without any break in service. The petitioner also has In the meantime passed B.A. Examination in the year 1976 and also passed M. A. Examination in Sociology from Meerut University in the year 1979. The petitioner has averred that Shri Hindu Kanya Vidyalaya Intermediate College, Saharanpur (hereafter referred to as the Institution) is a recognised Intermediate College. It is getting maintenance under the grant-in-aid Scheme of the State Government. All its teachers and employees are being paid salary under the provisions of Payment of Salaries Act, 1971. The petitioner has also submitted that the salary bills are being sent by the Management simultaneously and they are being approved by the Regional Inspectress of Girls Schools, Saharanpur. Thereafter in accordance" with the payment of Salaries Act, the salaries are being paid by cheques directly in the bank account of each individual teacher. It has also been averred that whether a teacher belongs to High School Section or Junior High School or the Primary Section of the Institution, the same procedure is laid down in Chapter III of the U. P. Intermediate Education Act, 1921 in respect of any disciplinary proceedings and punishment is applicable. It has also been averred that whether a teacher belongs to High School Section or Junior High School or the Primary Section of the Institution, the same procedure is laid down in Chapter III of the U. P. Intermediate Education Act, 1921 in respect of any disciplinary proceedings and punishment is applicable. The petitioner has then claimed that under Regulation 7 (2) of the Regulations framed under the U. P. Intermediate Education Act, any teacher, who is a trained teacher and who has passed Intermediate Examination and who Is working in J.T.C./B.T.C. for a period of five years, would automatically be promoted in the C.T. Grade by the Committee of Management and thereafter the information of the said promotion has to be given by the Committee of Management to the Inspector/Inspectress of Schools. The petitioner became eligible to be put in C.T. Grade after completing five years in the year 1977. But the petitioner has not been granted the benefit of promotion. In this connection, the petitioner has made several representations, the first of which was submitted to the respondent No. 3 on 10.7.1979. The petitioner also pointed out certain identical cases where the teachers in J.T.C./B.T.C. Grade were upgraded as teachers in C. T. Grade after completing five years service. The petitioner also claimed that in this regard, two Government Orders dated 25.1.1974 and 4.10.1974 were issued. However, he challenged the G.O. dated 4.10.1974 as illegal and void being directly in conflict with the provisions of Regulation 7 (2) of the Regulations contained in Chapter II of the Regulations framed under the U. P. Intermediate Education Act. The petitioner also placed reliance on a Division Bench decision of this Court reported in Smt. Samantika Chatterjee v. Regional Inspectress of Girls Schools, Allahabad and others, 1990 (1) UPLBEC 239, in which this court in respect of an identical matter has allowed the writ petition and granted relief to the petitioner teacher. The petitioner, therefore, has stated that she is entitled to the relief claimed. 3. THE claim of the petitioner has been contested by both the State Government as well as by the Committee of Management who have' filed their counter-affidavits. THE petitioner has also filed rejoinder-affidavits to the allegations contained in the counter-affidavits. The petitioner, therefore, has stated that she is entitled to the relief claimed. 3. THE claim of the petitioner has been contested by both the State Government as well as by the Committee of Management who have' filed their counter-affidavits. THE petitioner has also filed rejoinder-affidavits to the allegations contained in the counter-affidavits. Basically, the claims set up in the counter-affidavits are that the Primary Section of an institution is not covered by the provisions of U. P. Intermediate Education Act and the Regulations framed, if any, under the said Act will not apply. 4. I have heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the Committee of Management as well as the learned standing counsel. The learned counsel for the petitioner has submitted that the Institution is one unit starting from Class I to Class XII. It is being managed by one Committee of Management and the teachers have been recognised to teach in the Institution by the concerned educational authorities. Their salary bills under the Payment of Salaries Act, 1971 are being sent by the Committee of Management to the Regional Inspectress of Schools for sanction and payment. The Institution is on the Grant-in-aid List and the salary is being paid from the proportionate amount of fees charged from the students as well as from the amount received as Grant-in-aid by the State Government. As such, there is no Primary Section or Junior High School. The Institution is to be regarded as one unit and it is governed by the provisions of the Regulations framed under the U. P. Intermediate Education Act. The learned counsel has further pointed out that the provisions of Regulation 7 (2) are not limited only to a section of the teachers. It will equally apply to the teachers working in the J.T.C./B.T.C. Grade in an Institution irrespective of the class assigned to the teachers. In this manner, where a teacher is teaching Primary Section or Classes VI to VIII, the same is immaterial. Placing reliance on the decision of Smt. Samantika Chatterjee (supra), the learned counsel says that this case para materia both on facts as well as on the points of law is equal. In this manner, where a teacher is teaching Primary Section or Classes VI to VIII, the same is immaterial. Placing reliance on the decision of Smt. Samantika Chatterjee (supra), the learned counsel says that this case para materia both on facts as well as on the points of law is equal. A Division Bench of this court has 'interpreted the provisions of Regulation 7 (2) of the Regulations under Chapter II of the Intermediate Education Act and held that the regulation makes no distinction. It will equally apply to all the teachers whether they teach Classes I to V or Classes VI to VIII. The basic requirement is only this that the teachers should possess the necessary educational qualifications and should have taught for five years regularly in the J.T.C. or B.T.C. Grade. The Regulation will give the benefit to all such teachers. The petitioner is identically placed. She had been regularly teaching from 1972. After a lapse of five years, she under the provisions of the said Regulation became entitled to automatic promotion. The same was liable to be granted to the petitioner. But the Committee of Management did not act as is directed under the Regulation. As such, the petitioner is stagnating on the post and getting only the salary of B.T.C. Grade. The learned counsel submits that on the same analogy, as has been found in the case of Smt. Samanlika Chatterjee (supra), the relief is liable to be given to the petitioner by issuing a writ of mandamus. 5. THE learned standing counsel appearing on behalf of the State has emphatically submitted that the petitioner was employed in the Primary Section. According to him, the Primary Section is regulated by the Basic Shiksha Adhikari and it cannot be taken to be part of the Intermediate College. According to the Government order, the benefit of promotion after completion of five years' service cannot, therefore, be granted to the petitioner. THE learned standing counsel further submitted that there is no recognition of the Primary Section as part of the Institution. As regards the payment of salary by the Regional Inspectress of Schools is concerned, the learned standing counsel is of the view that that by itself does not permit the petitioner to be classified as a teacher of the Institution. THE learned standing counsel further submitted that there is no recognition of the Primary Section as part of the Institution. As regards the payment of salary by the Regional Inspectress of Schools is concerned, the learned standing counsel is of the view that that by itself does not permit the petitioner to be classified as a teacher of the Institution. According to him, the petitioner is not covered by the definition of teacher which is not to be found in the Intermediate Education Act. THE learned counsel appearing on behalf of the Committee of Management has also identically submitted that in view of the provisions of Government Order, the benefit of automatic promotion as contemplated in Regulation 7 (2) cannot be granted to the petitioner. 6. I have considered the above submissions of the learned counsel of the parties and gone through the record of the case. I have also perused the Division Bench decision rendered by this court in the case of Smt. Samantika Chatterjee (supra). The Division Bench took a view that: "Last but not the least, Regulation 7 (2) would may now be read :- "Where in an institution any teacher working in the J.T.C./B.T.C. grade has passed Intermediate or an equivalent examination or is a trained graduate and has completed five years service In that grade, he shall be promoted in the C. T. Grade by the Committee of Management and information of such promotion shall be immediately conveyed to the Inspector." It will be remembered that Regulation 7 (2) forms part of Chapter II, which was substituted under the Government Notification dated 7th July, 1976. It may also be noted that the source of the Regulation contained in Chapter II is Section 21 (1) of the U. P. Act 26 of 1975 and this provision has already been quoted above. It opens with a non-obstante clause "notwithstanding". The plain meaning of the provisions of Section 21 (1) of the U. P. Act 26 of 1975 is that in spite of the provisions of the Act, the State Government is empowered to make Regulations with respect tp matters contained in Chapter II. It, therefore, follows that the State Government is empowered to frame regulations inspite of the definition of "Recognised" as contained in Section 2 (d) of the Act. It, therefore, follows that the State Government is empowered to frame regulations inspite of the definition of "Recognised" as contained in Section 2 (d) of the Act. It is also apparent that the "Institution" in the Regulation under reference has to be assigned the meaning as given to that expression in Section 2 (b) of the Act as substituted by Section 2 of the U. P. Act 26 of 1975. We have already extracted the definition above. In the context and setting of Regulation 7 (2), there can be no difficulty in taking the view that a teacher working in J.T.C./B.T.C. grade and assigned the task of taking the primary classes attached to a recognised Intermediate College or Higher Secondary School or High School would be considered to be working in the part of the institution, "as the case may be". That apart, the wordings of Regulation 7 (2) are wide enough to include all the teachers working in the J.T.C./B.T.C. grade in an institution irrespective of the class assigned to them. It makes no difference whether a teacher is allowed to teach students of class V or of classes VI, VII or VIII. The Regulation does not draw any such distinction. Therefore, in any view of the matter, there can be no difficulty in taking the view that the clarification/decision of the State Government as contained in the communication of the Director dated 4th October, 1974, became repugnant to the provisions as contained in Regulation 7 (2). The two cannot co-exist. Consequently, it must be held that the offending portion of the clarification/decision, which affects the petitioner, became ineffective upon the enforcement of Regulation 7 (2)." I am in respectful agreement with the view taken by the Division Bench and I do not see any reason to differ. (sic) this is clear that the petitioner had become entitled to promotion in the year 1977. When she had represented in the year 1979 to the Committee of Management, no action appears to have been taken. In view of the above, I am not in any doubt that the petitioner is entitled to promotion from the date she became entitled to it. 7. When she had represented in the year 1979 to the Committee of Management, no action appears to have been taken. In view of the above, I am not in any doubt that the petitioner is entitled to promotion from the date she became entitled to it. 7. ACCORDINGLY, I issue a direction to the Regional Inspectress of Schools and the Committee of Management to treat the petitioner as having been promoted to the C.T. Grade with effect from the date she completed her five years of service as a teacher and she be paid her emoluments, etc., which would have been payable to her as a teacher in the C. T. Grade with effect from the said date. While computing the amount to be paid to the petitioner, the difference in the pay-scale in the B.T.C. Grade and C. T. Grade would be calculated and paid to her. She would also be entitled to the increment which the petitioner would have got if she had been promoted to the C. T. Grade from the date she completed her five years of service as a teacher. The arrears shall be paid to the petitioner within a period of four months from today. With the directions made above, the writ petition is disposed of.