JUDGMENT S.J. Mukhopadhaya, J. - Both the letters patent appeals have been filed against the common impugned judgment dated 7th October, 1994 passed in C.W.J.C. No. 3355 of 1991. It is for the said reason, they were 'heard together and disposed of by this common judgment. 2. Shyam Chandra Jha, appellant of L.P.A. no. 38 of 1995 filed the writ petition C.W.J.C. No. 3355 of 1991. Madan Mohan Mishra, appellant of L.P.A. no. 156 of 1994 was the respondent no. 3 in the said writ petition. The writ petition has been allowed in favour of the appellant, Shyam Chandra Jha. Therein it has been held that said appellant, Shyam Chandra Jha is entitled for computation of period of service from 25.1.1965 to 8.7.1970 rendered in one M.L.M. High School, Bastaul, Katihar, for the purpose of seniority in the other school, namely, Tej Narain High School, Rangra, Bhagalpur. Thereby appellant Shyam Chandra Jha has been declared as senior to the appellant Madan Mohan Mishra in the Tej Narain High School, Rangra, Bhagalpur. An order dated 30.1.1988 (Annexure-1 to the writ petition), by which Madan Mohan Mishra was declared senior to Shyam Chandra Jha, the same has been set aside by learned Single Judge. 3. The brief facts of the case are as follows :- Admittedly, prior to 1980, both M.L.M. High School, Bastaul, Katihar and Tej Narain High School, Rangra, Bhagalpur were separate private management schools. They were completely different as an unit, being under two different management. Shyam Chandra Jha was appointed as an Assistant Teacher in M.L.M. High School, Bastaul, Katihar on 25.1.1965. He was B.A. trained having qualification of B.Ed., Dip-in-Ed. Shri Jha passed MA examination in 1968. On the other hand, Madan Mohan Mishra, after passing B.A. examination, appointed as an Assistant Teacher in Tej Narain High School, Rangra, Bhagalpur on 1.4.1967. While Shri Mishra was so functioning, Shyam Chandra Jha was appointed afresh, as an Assistant Teacher, in the said Tej Narain High School, Rangra, Bhagalpur on 9.7.1970. This is how the two persons were appointed as an Assistant Teacher in the Tej Narain High School, Rangra, Bhagalpur. It is to be taken into note that Tej Narain High School, Rangra, Bhagalpur was established on 1.1.1967 and was granted partial recognition by the Secondary Board on 1.1.1968. Madan Mohan Mishra passed Dip-in-Ed. examination on 18.9.1972 and thereafter he was given trained graduate scale. It is to be taken into note that Tej Narain High School, Rangra, Bhagalpur was established on 1.1.1967 and was granted partial recognition by the Secondary Board on 1.1.1968. Madan Mohan Mishra passed Dip-in-Ed. examination on 18.9.1972 and thereafter he was given trained graduate scale. The permanent headmaster of the Tej Narain High School, Rangra, Bhagalpur retired on 30.6.1974. After retirement of permanent headmaster, no person was appointed as a regular headmaster in the said Tej Narain High School, Rangra, Bhagalpur. All the time, one or other teacher was appointed as an acting headmaster. It was on 11.11.1977, Madan Mohan Mishra was appointed as an acting headmaster of the said Tej Narain High School, Rangra, Bhagalpur. Shyam Chandra Jha represented against the same before the Secondary Board. On such representation, Shyam Chandra Jha was declared senior to Madan Mohan Mishra and was made acting headmaster of the said Tej Narain High School, Rangra, Bhagalpur, by one order dated 6.4.1978. Being aggrieved Madan Mohan Mishra filed a writ petition in this Court C.W.J.C. no. 980 of 1978 challenging the decision dated 6.4.1978, by which Shyam Chandra Jha was declared senior to Madan Mohan Mishra. This Court by its decision dated 17.5.1979 remanded the matter to the Bihar Secondary Board for fresh decision on seniority. Thereafter, when the matter relating to seniority remained pending, Tej Narain High School, Rangra, Bhagalpur was taken over by the State Government on 2.10.1980. The other school, namely, M.L.M. High School, Bastaul, Katihar was also taken over. The scale of pay of trained assistant teachers of High School, prior to 1980 was Rs. 387-600/- The selection grade scale of the said post, at that point of time was Rs. 415-745/-Shyam Chandra Jha was provided with old selection grade scale of Rs. 415-745/-with effect from 1.4.1979. The appellant, Madan Mohan Mishra remained in the basic grade of Rs. 387-600/- It was by one Memo no. 2830-3100 dated 9.2.1982 (Annexure-B/3 to the writ petition), this scale of pay of trained assistant teachers of High School was revised with effect from 1.4.1978. The basic grade was revised to Rs. 415-745/whereas selection grade to Rs. 510-1155/-. It was ordered that all selection grade scale in the old scale of Rs. 415-745/granted after 1.4.1978 shall stand cancelled. It was for the said reason, after 1.4.1978; both the appellants, Madan Mohan Mishra as well as Shyam Chandra Jha received the scale of Rs. The basic grade was revised to Rs. 415-745/whereas selection grade to Rs. 510-1155/-. It was ordered that all selection grade scale in the old scale of Rs. 415-745/granted after 1.4.1978 shall stand cancelled. It was for the said reason, after 1.4.1978; both the appellants, Madan Mohan Mishra as well as Shyam Chandra Jha received the scale of Rs. 415-745/-. But, Shyam Chandra Jha was not provided with the revised selection grade scale of Rs. 510-1155/- with effect from 1.4.1979 that is from the date, he was earlier granted old selection grade scale. Shyam Chandra Jha never choose to challenge the order dated 9.2.1982 (Annexure-B/3). The matter relating to the dispute of seniority vis-a-vis Madan Mohan Mishra and Shyam Chandra Jha was not settled. Shyam Chandra Jha was appointed as an adhoc headmaster of the school of Tej Narain High School, Rangra, Bhagalpur by one order dated 19.3.1983. At this stage, Madan Mohan Mishra again filed another writ petition before this Court, C.W.J.C. no. 1338 of 1983 challenging the order dated 19.3.1983. This Court by one order dated 11.3.1985 disposed of the writ petition C.W.J.C. no. 1338 of 1983 directing the authorities to decide seniority with respect to aforesaid two persons and to fill up the post of headmaster on regular basis. Thereafter one order was issued by respondent-Director, Secondary Education Board on 30.1.1988, Madan Mohan Mishra was declared senior to Shyam Chandra Jha as an Assistant Teacher of Tej Narain High School, Rangra, Bhagalpur; name of Madan Mohan Mishra was forwarded to Vidyalaya Seva Board for regular promotion to the post of headmaster in the said Tej Narain High School, Rangra, Bhagalpur. It was at this stage, Shyam Chandra Jha moved before this Court by filing writ petition C.W.J.C. no. 3355 of 1991 challenging the order dated 30.1.1988 (Annexure-1 to the writ petition). By impugned judgment dated 7.10.1994, the said writ petition C.W.J.C. no. 3355 of 1991 has been allowed by learned single Judge, setting aside the order dated 30.1.1988. As stated above, learned single Judge held that the period of service rendered by Shyam Chandra Jha in M.L.M. High School, Bastaul, Katihar that is 25.1.1965 to 8.7.1970 is to be counted for the purpose of seniority, in Tej Narain High School, Rangra Bhagalpur and thereby declared Shyaf!1 Chandra Jha as senior to Madan Mohan Mishra. Hence the L.P.A. no. 156 of 1994 has been preferred by Madan Mohan Mishra. Hence the L.P.A. no. 156 of 1994 has been preferred by Madan Mohan Mishra. At this stage, one circular of the State Government is to be taken into note, namely, Circular no. 510 dated 20.11.1981. The said circular has been issued under Section 15 of the Non-Government Secondary Schools (Management and Control) Take Over Ordinance, 1980, now an Act. It has been laid down therein that a private school, which was taken over on 2.10.1980, if in such private school, the post of headmaster was lying vacant as on 2.10.1980, then the school should be treated as an independent unit and promotion is to be granted to the post of headmaster from amongst the assistant teachers working in the said school. The relevant provisions relating to such promotion have been shown in paragraphs-3 and 4 of the letter no. 510 dated 20.11.1981, which is quoted hereunder : (English version has been supplied by the appellants) "Promotion to the post of Headmaster shall be made after getting recommendation of school service Board from the erstwhile Asst. Headmaster/Post Graduate and Selection grade teachers on basis of seniority and fitness. In a School where the aforesaid categories of teachers are not available, promotion shall be made from trained graduates on basis of fitness and seniority. Superseding the earlier orders, the basis of seniority for promotion to the post of Headmaster shall be as follows :- (i) In schools where duly appointed Asstt. Head Master is working, he shall be deemed to be the senior-most teacher. (ii) In schools where there is no Asstt. Headmaster, inter se seniority of post-graduate and selection grade teachers shall be reckoned from their date of appointment as Graduate teacher. For promotion to the post of Headmaster, seniority of selection grade teachers shall be determined from the date of their appointments as graduate teacher and to this extent Govt. order no. 587 dt. 28.3.1970 shall be deemed superseded. (iii) Where there will• be no teacher 'of the category as in the aforesaid part (i) and (ii), there the seniority of trained graduate shall be determined on the basis of the date of appointment in the school as graduate teachers. (iv) If date of appointment is same, the seniority shall be determined on basis of higher educational qualification. If educational qualification is also equal then seniority shall be determined on the basis of date of being trained. (iv) If date of appointment is same, the seniority shall be determined on basis of higher educational qualification. If educational qualification is also equal then seniority shall be determined on the basis of date of being trained. If that is also same then on the basis of date of birth and if the date of birth is also same, seniority shall be determined on the basis of teachers' name in Devnagri (Hindi) alphabetical order." It will be evident from the impugned judgment that the learned single Judge has stated that both the appellants (writ petitioner and respondent no. 5 in the writ petition) accepted before the learned single Judge that the paragraph-3 of Circular no. 510 dated 20.11.1981 is applicable in the present case. However, according to the appellant, Shyam Chandra Jha, so far he is concerned, paragraph-4 (ii) of Circular no. 510 dated 20.11.1981 is applicable. Though learned single Judge has given its finding in favour of the appellant, Shyam Chandra Jha, but as the same is based on paragraph-3 of Circular no. 510 dated 20.11.1981 and not on the basis of paragraph-4 (ii) of the circular, and thereby has not taken into account the selection grade promotion of Shyam Chandra Jha, it is for the said reason, the other L.P.A. 410. 38 of 1995 has been filed by Shyam Chandra Jha. 4. Counsel appearing on behalf of the appellant, Madan Mohan Mishra made the following submission :- (A) Shyam Chandra Jha initially having been appointed in a separate private school that is M.L.M. High School, Bastaul, Katihar and thereafter having appointed afresh in Tej Narain High School, Rangara, Bhagalpur on 9.7.1970, earlier period of service from 25.1.1965 to 8.7.1970 rendered in M.L.M. High School, Bastaul, Katihar cannot be counted for the purpose of seniority in Tej Narain High School, Rangara, Bhagalpur. (B) In Tej Narain High School, Rangara, Bhagalpur admittedly Madan Mohan Mishra having been appointed earlier (on 1.4.1967) and Shyam Chandra Jha having been appointed later (9.7.1970), Shyam Chandra Jha cannot be declared senior to Madan Mohan Mishra. (C) Madan Mohan Mishra was rightly declared senior to Shyam Chandra Jha by order dated 30.1.1988 and on the basis of Circular no. 510 dated 20.11.1981, (paragraph-3 therein) Madan Mohan Mishra is entitled for promotion as headmaster of the Tej Narain High School, Rangara, Bhagalpur. (C) Madan Mohan Mishra was rightly declared senior to Shyam Chandra Jha by order dated 30.1.1988 and on the basis of Circular no. 510 dated 20.11.1981, (paragraph-3 therein) Madan Mohan Mishra is entitled for promotion as headmaster of the Tej Narain High School, Rangara, Bhagalpur. And (D) The aforesaid finding having not been given by the learned single Judge and the finding having been given in favour of Shyam Chandra Jha, the impugned judgment is fit to be set aside. 5. On the other hand, the submissions made by the counsel for the appellant, Shyam Chandra Jha are as follows :- (i) In terms with Circular of State Government no. 581 dated 15.1.1982, Circular no. 519 dated 2.7.1983, there being no gap in service of Shyam Chandra Jha, he having joined Tej Narain High School, Rangara, Bhagalpur within 15 days from appointment, the earlier period rendered in M.L.M. High School, Bastaul, Katihar (that is from 25.1.1965 to 8.7.1970) is to be rightly counted in favour of Shyam Chandra Jha and thereby the judgment of the learned single Judge is in consonance with law. (ii) In fact, the case of Shyam Chandra Jha is covered by paragraph-4 (ii) of Circular no. 510 dated 20.11.1981, as he was granted selection grade scale with effect from 1.4.1979, which should have been taken into account by learned single Judge. According to him, Shyam Chandra Jha having granted selection grade scale with effect from 1.4.1979, he is to get preference over Madan Mohan Mishra for promotion to the post of headmaster of Tej Narain High School, Rangara, Bhagalpur. 6. The counsel for Shyam Chandra Jha also challenged the validity of impugned judgment to the extent that the learned single Judge should have declared that the selection grade scale granted to Shyam Chandra Jha with effect from 1.4.1979 was wrongly cancelled by Circular dated 9.2.1982 (Annexure-B/3). At one stage, it was further contended that Circular no. 510 dated 20.11.1981 is illegal, and cannot be stated to be statutory one. 7. According to me, the argument advanced by the counsel for Madan Mohan Mishra is to be accepted. Admittedly both M.L.M. High School, Bastaul, Katihar and Tej Narain High School, Rangara, Bhagalpur were separate private management school prior to 2.10.1980. 510 dated 20.11.1981 is illegal, and cannot be stated to be statutory one. 7. According to me, the argument advanced by the counsel for Madan Mohan Mishra is to be accepted. Admittedly both M.L.M. High School, Bastaul, Katihar and Tej Narain High School, Rangara, Bhagalpur were separate private management school prior to 2.10.1980. The question of determination of seniority vis-a-vis Madan Mohan Mishra and Shyam Chandra Jha only arises, when Shyam Chandra Jha was appointed in Tej Narain High School, Rangara, Bhagalpur on 9.7.1970. It is for the said reason, whatever law relating to seniority as was existing on 9.7.1970 is to be taken into account. Admittedly, there was no specific circular relating to seniority that was existing as on 9.7.1970, both the schools being private school at that point of time. Such being the position, a person, who has been appointed earlier in Tej Narain High School, Rangara, Bhagalpur is to be treated as senior to the person, who has been appointed later. Madan Mohan Mishra having been appointed as an Assistant Teacher much prior to Shyam Chandra Jha in Tej Narain High School, Rangara, Bhagalpur, he is entitled for seniority over Shyam Chandra Jha. So far as circular referred by the counsel for Shyam Chandra Jha, namely, Circular no. 581 dated 15.1.1982 and Circular no. 519 dated 2.7.1983 are concerned they are of no avail, as those circulars were not existing when the question relating to determination of seniority between the persons initially took place (that is 9.7.1970). Thereby counsel for Shyam Chandra Jha cannot derive any benefit out of the aforesaid circular of 1982 and 1983. It is settled law that the seniority of person automatically stands determined on the date he is appointed, on the basis of Rule/Circular as was existing, and subsequent Rule/Circular cannot change such seniority. 8. Apart from the same, admittedly, Shyam Chandra Jha was in different school that is M.L.M. High School, Bastaul, Katihar for the period from 25.1.1965 to 8.7.1970. He was appointed as a fresh assistant teacher in Tej Narain High School, Rangara, Bhagalpur on 9.7.1970. There being fresh appointment and thereby being a break in service, earlier period from 25.1.1965 to 8.7.1970 cannot be counted for determination of seniority of Shyam Chandra Jha as an Assistant Teacher in Tej Narain High School, Rangara, Bhagalpur. I hold that the judgment of learned single Judge to that effect is incorrect. 9. There being fresh appointment and thereby being a break in service, earlier period from 25.1.1965 to 8.7.1970 cannot be counted for determination of seniority of Shyam Chandra Jha as an Assistant Teacher in Tej Narain High School, Rangara, Bhagalpur. I hold that the judgment of learned single Judge to that effect is incorrect. 9. It is also to be taken into note that Tej Narain High School, Rangara, Bhagalpur was established on 1.1.1967. If the said school was established in January, 1967, the question of granting seniority to any of its assistant teacher (including Shyam Chandra Jha) from a date prior to the date of establishment (25.1.1965 herein) does not arise. 10. So far as the contention of the counsel for Shyam Chandra Jha that paragraph-4 (ii) of Circular no. 510 dated 20.11.1981 is applicable is concerned, the same cannot be accepted at this stage. In the writ petition, before single Judge he accepted that paragraph-3 of Circular no. 510 dated 20.11.1981 is applicable. Further, Shyam Chandra Jha accepted that after the issuance of letter dated 9.2.1982, the selection grade which was granted to him was made ineffective. Such being the position, as Shyam Chandra Jha never challenged the letter dated 9.2.1982 (Annexure-B/3), it is not open for him to challenge the same at the appellate stage, that too when Shyam Chandra Jha did not choose to challenge the same in the writ petition. 11. For the reason stated above with due respect, I hold that the impugned judgment dated 7.10.1994 passed in C.W.J.C. no. 3355 of 1991 by learned single Judge does not lay correct principle of law. I further hold that Madan Mohan Mishra is senior to Shyam Chandra Jha and he is eligible for consideration of his case for regular promotion to the post of headmaster in Tej Narain High School, Rangara, Bhagalpur on the basis of paragraph-3 of Circular no. 510 dated 20.11.1981. 12. Accordingly, L.P.A. no. 156 of 1994 is allowed and other L.P.A. no. 38 of 1995 is dismissed. There will be no order as to costs. D.P. Wadhwa, C. J. -I agree.