Judgment Radha Mohan Prasad, J. 1. A petition under Articles 226 and 227 of the Constitution of India has been filed on behalf of Md. Nesar Ahmad at flag a praying therein to add him as intervenor-petitioner No.6 in the writ application as his case also stands exactly on identical footing. As there is no opposition to the prayer, the petition at Flag a is allowed and the name of Md. Nesar ahmad is added as intervenor-petitioner No.6. 2. The prayer in this writ application is to declare note attached to clause (Kha) of sub-rule 3 of Rule 5 (Aa) of the Bihar Rajyakrit Mad-hyamic Vidyalaya (Seva Shart)Niyamavali, 1983 (hereinafter referred to as 1983 Niyamavali) ultra vires Articles 311 (2), 14 and 16 (1) of the Constitution of India and thus void, inoperative and consequently to issue direction to the respondents to treat the petitioners as Teachers belonging to the grade of Past-Graduate Trained teachers for the purpose of reckoning seniority. 3. In short, the relevant facts of the case are that initially all the petitioners were appointed as Assistant teachers by the Bihar Secondary education Board (hereinafter referred to as the Board) except petitioners no.1 and 6, namely, Shashi Bhushan sahai and Md. Nesar Ahmad, respectively. Petitioner No.1 was initially appointed as Assistant Teacher on the recommendation of the Bihar Secondary Education Commission by the order of the District Education Officer, Samastipur in Tajpur High school but, in the absence of vacancy in the subject concerned there, he was later posted in Hasopur High School by the Board and petitioner No.6 was initially appointed as Assistant Teacher by the order of the District Education officer, Darbhanga. Petitioners Nos.1 to 6, namelv, Shashi Bhushan Sahai, prashanna Kumar Choudhary, Ganesh mishra, Ram Kumar Thakur, Surendra prasad Thakur and Md. Nesar Ahmad joined as Assistant Teachers on 10.3.1977, 29.11.1975, 20.11.1975, 27.8.1975, 20.10.1976 and 3.1.1978, respectively. After their appointments, they were all given the scale of Post-Graduate Trained Teachers with effect from their respective dates of joining by the Board except petitioner No.6 who got the same with effect from 1.4.1978. The scale of Post-Graduate trained Teacher was changed from Rs.275-500/- to Rs.415-745 and the petitioners were given the same with effect from 1.4.1978. 4. Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Ordinance, 1981 was promulgated which later on was enacted as Bihar Act 33 of 1982. The scale of Post-Graduate trained Teacher was changed from Rs.275-500/- to Rs.415-745 and the petitioners were given the same with effect from 1.4.1978. 4. Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Ordinance, 1981 was promulgated which later on was enacted as Bihar Act 33 of 1982. Under the said enactment, all the non-Government Secondary Schools were taken over by the State Government with effect from 2.10.1980. Under the provisions of the said Act, for the purpose of determining the service condtions of Headmasters, Teachers and Non-teaching Staff, 1983 niyamavali was framed. Under Rule 3 of the 1983 Niyamavali, the Teachers of the said Schools were divided in four grades, namely, (a) Headmaster, (b) Assistant Teacher (Selection grade), (c) Assistant Teacher (Subordinate Grade) and (d) Assistant teacher (Junior Grade ). Under Rule 6 the Headmasters were placed in the state cadre and the Director was made their Disciplinary Authority whereas the Assistant Teachers (Selection and subordiante Grades) were placed in the divisional cadre and the respective regional Deputy Director of Education was made the Disciplinary authority and the cadre of Assistant teachers (Junior Grade) was constituted Districtwise and the respective district Education Officers were made their Disciplinary Authority. Rule 5 deals with the seniority. Rule 5 (A) is the general Rule whereas Rule 5 (Aa)is the special Rule. Under clause (Ka)of sub-rule (3) of Rule 5 (Aa), Assistant Headmasters are to be senior amongst the Assistant Teachers in the subordinate cadre and their seniority is to be determined with effect from their respective dates of appointment against the said post. Under clause (Kha) of sub-rule (3) of Rule 5 (Aa), inter se seniority of those teachers who were appointed by the Managing Committee/board of Secondary Education after following the procedure in Post-Graduate and Selection Grade Scales is to be determined as per the date of order issued in pursuant to the decision of the Managing Committee/board. In case no such order has been issued on account of mistake or being unaware of the Rule, then the date of the resolution relating to appointment is to be treated as the date of the order. At the time of amalgamation of general and Selection Grade scale, their position is to be above the teachers in the Subordinate Grade. In case no such order has been issued on account of mistake or being unaware of the Rule, then the date of the resolution relating to appointment is to be treated as the date of the order. At the time of amalgamation of general and Selection Grade scale, their position is to be above the teachers in the Subordinate Grade. However, the note attached to the said clause provides that those Teachers who were appointed in the Trained graduate Scale on the basis of the panel prepared by the Vidyalaya Sewa board or Commission or the Board and later on were given the scale of post-Graduate Trained Teacher without considering the relative seniority shall not be treated as the teachers belonging to the scale of Post-Graduate trained Teacher, but their salary shall not be affected. 5. The case of the petitioners is that vide Government Resolution No.891 dated 24.3.1967, Two posts of Post-Graduate Trained Teachers were created in every High School for teachers possessing the qualification of post-Graduate and Honours Graduate with training. At the relevant point of time, Non-Government High Schools were independent and were separate units for all purposes. The petitioners were given the Post-Graduate Trained scales after considering their relative seniority in their Schools on the basis of the Rule then in force. Thus, the denial of the benefit arising therefrom under the aforementioned note attached to Clause (Kha) of sub-rule 3 of Rule 5 (Aa) after take over of the school is illegal, arbitrary and violative of Articles 311 (2), 14 and 16 (1) of the constitution of India and also of the principles of natural justice. 6. The case of the respondent state in the counter-affidavit is that vide Government Resolution No.1 dated 4.1.1982, scales of Post-Graduate trained Teachers, Assistant Headmasters, Selection Grade Teachers and the Trained Graduate Teachers were merged into one and 20% of the total strength were made Selection Grade with effect from 1.4.1978 and thus, separate existence of Post-Graduate trained and others do not arise. Further case of the respondent State is that the impugned note has been attached with a view to allow equal and justified benefits to all the teachers who were senior in all respects and also with a view to providing natural justice and to avoid discrimination amongst the Teachers of the nationalised Secondary Schools. 7. Further case of the respondent State is that the impugned note has been attached with a view to allow equal and justified benefits to all the teachers who were senior in all respects and also with a view to providing natural justice and to avoid discrimination amongst the Teachers of the nationalised Secondary Schools. 7. In reply, the petitioners have asserted that they are not claiming the scale as apparently under the impugned note of the Rule, the same have not been adversely affected; rather their claim is in regard to their status for the purpose of seniority and for consequential benefits accruing therefrom. In the supplementary affidavit on behalf of the petitioners it is contended that natural justice is not only to be provided to Teachers appointed by the Board but also to the teachers appointed by the Managing committee. According to the petitioners, the impugned note attached to Clause (Kha) of sub-rule 3 of Rule 5 (Aa) of the Rules illegally and arbitrarily discriminates the petitioners who were initially appointed in the Trained Graduate Scale either by the School Service Board or by the Commission or by the Board ont the basis of the panel and later given the scale of Post-Graduate trained Teacher by the Board with those Teachers who were initially appointed by the Managing Committee in the Trained Graduate Scale and later given the scale of Post-Graduate trained Teachers by the District education Officer even after the petitioners inasmuch as in the case of the petitioners they are not to be treated as Teachers of the Post-Graduate Trained Scale though their salaries have not been affected whereas the status of the Teachers in the aforementioned latter category has not at all been changed. 8. 8. The petitioners by way of examples have also stated that one lakshmi Kant Jha, Assistant Teacher of S. I. K. S. D. Girls High School, ghosh Lane, Samastipur, who was appointed by the Managing Committee of the said School and his date of appointment has been considered to be 14th July, 1977, i. e. , the date of recognition or the School and was given the post-Graduate Trained Scale much after the petitioners by the District education Officer, has been allowed to continue in the category of Post-Graduate Trained Teachers and he has been placed in the final gradation list (Annexure 11 to the supplementary affidavit) at serial No.675 whereas the petitioners have been placed much below in the gradation list at serials no.2474, 2259, 2250, 2181 and 2377, respectively. Several other examples cited in the supplementary affidavit are the cases of Bharat Prasad Yadav, namo Nath Jha and Ram Naresh singh, who have also been given the similar benefit like aforementioned lakshmi Kant Jha and have been placed much above the petitioners at serials No.676, 677 ana 678, respectively. The details about the two sets, as have been mentioned in paragraph 8 of the supplementary affidavit, are as follows: 8_302_BLJ1_1996.htm Persons appointed by the Managing Committee Lakshmi Kant Jha 14.07.1977 675 Bharat Pd. Yadav 13.09.1977 676 Namo Nath Jha 13.09.1977 677 Ram Naresh Singh 10.10.1977 678 Jagarnath Jha 10.10.1977 679 9. The validity of the Bihar nationalised Secondary Schools (Service Conditions) Rules, 1983 was challenged in this Court which came up for consideration earlier before the division Bench in the case of Mateshwar Singh V/s. State of Bihar, 1985 PLJR 416 and later before the Full Bench of this Court in the case of Ram Odar jha V/s. State of Bihar, 1992 (1) PLJR 722. Finally, the validity of the said rule was upheld by the majority judgment of the Full Bench. However, in none of the two cases, the validity of the impugned note atached to sub-rule 3 (Kha) of Rule 5 (Aa) of the Rules came up for consideration. Finally, the validity of the said rule was upheld by the majority judgment of the Full Bench. However, in none of the two cases, the validity of the impugned note atached to sub-rule 3 (Kha) of Rule 5 (Aa) of the Rules came up for consideration. In fact, in the Full Bench case, the only question agitated was that the said Rule is ultra vires the provisions of the Bihar Non-Government Secondary Schools flaking Over of Management and control) Act as the same were not placed before the Two Houses of the legislature for fourteen days continuously as required under Section 15 (2) of the said Act. 10. In the instant case, the petitioners have assailed the validity of the impugned note attached to Clause (Kha) of sub- Rule 3 of Rule 5 (Aa) of 1983 Niyamavali on the ground that they are ultra vires Article 311 of the constitution of India as, by virtue of the same, they have been reduced in rank without any enquiry and any opportunity of hearing. It is also contended that the impugned note is ultra vires Articles 14 and 16 (1) of the Constitution of India, besides being arbitrary inasmuch as under the said provisions, the persons junior to the petitioners have been made senior merely because they were appointed by the Managing Committee and were given scale of Post-Graduate Trained teacher by the District Education Officer, though later than the petitiones, who were given the Post-Graduate trained Scale by the Board considering their inter se seniority in the respective schools which were then separate and independent units. 11. It is contended by the learned counsel for the petitioners that there is no rationale pleaded by the respondents to justify the denial of the benefits of the Post-Graduate Trained scale which the petitioners were given by the competent authority except that, according to the respondents, all teachers like the petitioners were given Post-Graduate Trained Scale by the Board without considering the due seniority. 12. 12. On the other hand, according to the learned Advocate General, the very fact that the petitioners were granted the Post-Graduate Trained scale only after considering the inter se seniority in the respective Schools and not on taking into consideration the senority of other Teachers in the State goes to show that the grant of Post-Graduate Trained Scale to the petitioners was made ignoring the claim of other Teachers in the State who were senior to the petitioners. However, he has not been able to justify the action of the respondents for treating those teachers who were appointed by the Managing Committee and given the scale of Post-Graduate trained Teacher by the District Education Officer though much after the petitioners, in the category of Post-Graduate Trained Teachers and treating the petitioners differently. 13. Undisputedly, all the Nqn-Government Secondary Schools, including the Schools in which the petitioners were working, were taken over by the State Government with effect from 2.10.1980, initially by virtue of the Ordinance of 1981 and finally by virtue of the enactment of Bihar Act 33 of 1982. Further, it is not disputed that the petitioners initially joined their schools as Assistant Teacher and were granted the Post-Graduate trained Scale much before the take over of the Schools by the State government. It is also not disputed that the petitioners were granted the post-Graduate Trained Scale by the competent authority, namely, the board. Admittedly, the salary of the petitioners which they were drawing in the Post-Graduate Trained Scales remained unaffected even after the take over of the Schools and framing of 1983 Niyamavali. Accordingly, I do not find any justification to deny the petitioners of other benefits, including in the matter of seniority and promotion accruing by virtue of the grant of post-Graduate Trained Scale to them since before the take over of the Schools. 14. Even after framing of 1983 niyamavali, the Teachers working in different Schools were treated to the combined and were divided into four grades. The Headmasters were placed in State cadre whereas the Assistant teachers were placed in the Divisional cadre and the Cadre of Assistant teachers (Junior Grade) was constituted District wise. The general principle of merger by now is well settled. The merger in general is grade to grade. The Headmasters were placed in State cadre whereas the Assistant teachers were placed in the Divisional cadre and the Cadre of Assistant teachers (Junior Grade) was constituted District wise. The general principle of merger by now is well settled. The merger in general is grade to grade. There can be no doubt that the government has the power to create a cadre, to split a cadre or to amalgamate two separate cadres into one but there is restriction in the matter of splitting or amalgamation of cadres that it must be done on a rational and reasonable differentia. If a nexus can be found between the act of the State government and the object in view, such a basis for classification can be held to be constitutionally valid, but where there is no nexus found for differentiating between the two sets of people having similar qualification and working in the same grade, the action of the authority must be held to be unconstitutionaland arbitrary. 15. In the case of K. S. Vora and others V/s. State of Gujarat and others 1989 (2) All India Services Law Journal 190, the Supreme Court approved the Gujarat Subordinate Secretariat service (Seniority of Assistants) Rules, 1977, only after considering that the scheme of the Rule protected the rank then held by every member of the service notwithstanding alteration i of seniority on new basis. Rule 4 of the said Rules laid down the principle for determining seniority by providing that seniority of promotees Assistants, inter se, shall be fixed on the basis of their length of service in the joint cadre of clerk-cum-Typist for all departments of the Secretariat as a whole. Thus, the promotion of the Assistants in respective departments before the merger was fully protected though in the matter of determination of their seniority in the merged cadre it was decided that the same shall be fixed on the basis of their length of service in the joint cadre of Clerk-cum-Typist for all departments of the Secretariat as a whole. 16. In the instant case, admittedly, before take over the School and coming into the combined cadre of teachers working in such Schools, the petitioners had already been promoted in the Post-Graduate Trained Scale and since much before 1983 Niyamavali, they have been working in the aforesaid Scale. 16. In the instant case, admittedly, before take over the School and coming into the combined cadre of teachers working in such Schools, the petitioners had already been promoted in the Post-Graduate Trained Scale and since much before 1983 Niyamavali, they have been working in the aforesaid Scale. Thus, even as per the general principle of merger, the seniority of the petitioners was to be fixed vis-a-vis those teachers who were working in the Post-Graduate Trained scale and there could not be any justification not to treat them as Teachers in the category of Post-Graduate trained Scale though their payment of salary in the said scale is continued. 17. In my opinion, it has rightly been contended by the learned Counsel for the petitioners that in not treating the petitioners as the Teachers in the Post-Graduate Trained Scale amounts to reduction in rank, though not in the emoluments drawn by them. I am of the view that though the emoluments which the petitioners were drawing in the Post-Graduate Trained scale have not been affected under the impugned note but certainly there cannot be any doubt that they have been reduced in rank and status and that too without complying with the requirements of article 311 of the Constitution of India as well as the Rules of natural justice. The Supreme Court in the case of E. P. Rayappa V/s. State of tamil Nadu and another, (1974) 4 SCC 3 , in paragraph 89, held that what has to be seen for equivalence is the status and the nature and responsibility of the duties attached to the posts. Merely giving the salary of one post to the other does not make for equivalence. The status of the petitioners, in the facts and circumstances aforementioned, in my opinion, has definitely been- reduced as they have been deprived of the treatment like other teachers in the high category of Post-Graduate Trained Scale. 18. Merely giving the salary of one post to the other does not make for equivalence. The status of the petitioners, in the facts and circumstances aforementioned, in my opinion, has definitely been- reduced as they have been deprived of the treatment like other teachers in the high category of Post-Graduate Trained Scale. 18. Besides this, the impugned note also suffers from the vice of discrimination as is evident from the fact that the persons appointed much after the petitioners in Post-Graduate trained Scales have been placed in the category of Teachers in Post-Graduate trained Scales and above the petitioners in the gradation list merely because they were appointed by the managing Committee and were granted the Post-Graduate Trained scale by the District Education Officer whereas the petitioners were appointed by the Board or by the District Education Officer on the recommendation of the Bihar Secondary Education Commission and were granted the Post-Graduate Trained Scale by the Board. This has been done only by virtue of the impugned note incorporated in 1983 Niyamavali, the validity of which the learned Advocate-General has not been able to support by showing some justification/rationale for the same. 19. Thus, the impugned note attached to Clause (Kha) of sub-rule (3)of Rule 5 (Aa) of 1983 Niyamavali is held ultra vires Articles 311 (2), 14 and 16 (1) of the Constitution of India and thus void, inopertive and direct the respondents to treat the petitioners as teachers in the category of Post-Graduate Trained Teachers and consequently, give them all benefits accruing therefrom, including re-fixation of seniority and promotion. 20. In the result, the writ application is allowed with the aforementioned direction. However, in the facts and circumstances, there shall be no order as to costs. Petition Allowed.