V. M. SAHAI, J. The question that arises for consideration in these writ peti tions is whether services of the petitioners who were appointed as untrained teachers, Junior High School in 1972 and have worked continuously since then, could be deemed to have come to an end after the Institution was upgraded and came on grants-in-aid list because they were not trained teachers on the date of their appointment even though they ac quired the necessary qualification and be came trained teachers during service with permission of the authorities either after up-gradation of the Institution or its com ing on grants-in-aid list in 1978. 2. Shri Krishan Vidyapeeth Uchchatar Madhyamik Vidyalaya, Chirraiya Kot, Mau (in brief Institution), was granted recognition as Junior High School in 1971. On 10-3-1971 the State Govern ment issued an Order Clause 5 of which permitted appointment of untrained teachers in Junior High Schools subject to the condition that the appointee obtained training certificate within five years other wise he would be entitled to the initial salary only. The petitioners were ap pointed as permanent assistant teachers in the Institution after coming into force of this Order in 1971-72. All of them were untrained. Sri Pali Ram Yadav was inter mediate only. Others were graduate or post-graduate. The Institution was granted recognition in 1974, under Sec tion 7 of the U. P Intermediate Act, 1921 (in brief Act), to impart education to High School. But the maintenance grant was sanctioned in 1978. As a consequence of it the Institution came under the purview of U. P High Schools and Intermediate Col leges (Payment of Salaries of Teachers and Other Employees) Act, 1971 (in brief Salaries Act ). Till 1978 there was no dis pute. But after the provisions of Salaries Act became applicable the salaries of petitioners was stopped. Sri Pali Ram Yadav filed Writ Petition No. 7068 of 1978, before this Court, in which on 8- 2-1979 a stay Order was passed directing payment of salary to the petitioner. In compliance of the Order the salary of the petitioner was paid and he continued. Bus it appeals as a result on filing of the writ petition the management referred the dispute about payment of his salary to the District In specter of Schools (in brief DIGS) who the his order dated 1-12-1980 held that the petitioner was entitled to trained LT grade. Bus it appeals as a result on filing of the writ petition the management referred the dispute about payment of his salary to the District In specter of Schools (in brief DIGS) who the his order dated 1-12-1980 held that the petitioner was entitled to trained LT grade. But this Order was recalled on 17-3-1981 and the petitioner was placed in CT grade. And payment of salary was slopped again. The petitioner consequently filed another Writ Petition No. 8743 of 1981 wherein this Court on 6-5-1983, again passed stay Order in favour of the petitioner and salary of the petitioner was paid from June, 1981 to February, 1987. On 4-3-1987 the stay orders passed in both the Writ Petition No. 7068 of 1978 and Writ Petition No. 8743 of 1981 were va cated and the petitions were decided on 12-3-1993, directing the Director of Education (in brief DE) to pass orders in accordance with law with regard to the grievance of the petitioner either himself or though his nominee within a period of three months. The petitioner along with the judgment dated 12-3-1993 made a rep resentation to the DE on 12-4-1993. He nominated Additional Director of Educa tion (Secondary), (in brief ADE) to decide the claim of the petitioner. The ADE called for a report from the DIOS, Mau who submitted his report on 14-12-1993 recommending that orders should be passed with regard to payment of salary of the petitioner. The report has been filed as Annexure 13 to the writ petition. In this report he held the management guilty for not taking steps for absorption of the petitioner under Chapter II, Regulation 4 of the Regulations framed under the Act. But the ADE rejected the claim of the petitioner on 18-2-1994. He held that on the date of appointment in 1972 the petitioner was only intermediate and un trained and his appointment was not ap proved, therefore, he was not eligible to be appointed even in CT grade. And when the Institution was upgraded in 1974 then eleven posts were approved in LT grade and 12 in CT grade in 1975 but manage ment did not absorb the petitioner against it because he was working as unqualified and unapproved teacher. The ADE held that a teacher could be regularised under Regulation 4 of Chapter II as permanent teacher or tempi was qualified and non-absorption c justified. 3. The ADE held that a teacher could be regularised under Regulation 4 of Chapter II as permanent teacher or tempi was qualified and non-absorption c justified. 3. The salary 8166 of 1994 was provisions of pliable. They to had been appoint unit teachers on and 1-7- 71 respect appointment were M. A. when Acharya from S Vishvavidalya. Stained degree of E 1975, 1976, When their salary Writ Petition No 1978. These petit by directing the of Pan Ram Yawl was also rejected were not eligible absorbed. 4. In the court respondents the posed on the being untrained not regular and l without obtain Education neither entitled, Institution was u of salary. It disclaim petitioners was teachers who qualification and appointments titled for absorb Regulation 4 of t up-gradation of School. The rest that it was not services of the pc entitled for any and the writ petitioners was any teacher only if he eligible, therefore, the Pali Ram Yadav was petitioner in Writ No. also stopped after the aries Act became-were untrained. They permanently as -7-72, 1 10-72, 1-10-72 lively. On the date of toner Nos. 1, 3 and 4 :5 petitioner No. 2 was mourning and Sanskrit like in service they ob-bachelor of Education in and 1989 respectively, was stopped they filed 7068, 7069 and 7070 of )n too were disposed of A1 DE to decide as in case Their representation is they being untrained and they could not be-affidavit filed by the aim of petitioners is that the petitioners heir appointment was cy had been appointed g approval of Basic r, therefore, they were absorption when the graded nor for payment led that the grievance of justified as only those ere having requisite eligible and whose re approved were en-ion under Chapter II, Regulations after the he Institution as High indents further claim :essay to terminate the as they were not any under the Salary Attestation filed by the old of any merit. 5. I have heated Shri Ashok Khare learned Counsel for the petitioner in Civil Misc. Writ Pettier No. 8168 and 8166 of 1994 and Shri Namwar Singh for Damodar Yadav in Civil Misc. Writ Petition No. 8166 of 1994 and standing Counsel for the respondents. 5. I have heated Shri Ashok Khare learned Counsel for the petitioner in Civil Misc. Writ Pettier No. 8168 and 8166 of 1994 and Shri Namwar Singh for Damodar Yadav in Civil Misc. Writ Petition No. 8166 of 1994 and standing Counsel for the respondents. The earned Counsel argued that the petitioners having acquired train ing certificate and being graduate were entitled for LT grade and in any case their salaries could not be withheld as their ap pointment was made after 10-3-1971 in accordance with the Government Order permitting Junior High Schools to ap point untrained teachers permanently. The learned Counsel urged that the only restriction was that the untrained teacher was required to obtain training certificate within five years else he was to be paid his initial salary. The learned Counsel pointed out that two of the petitioners in the Writ No. 8166 of 1994 namely, Dhani Ram and Damodar Yadav having obtained their training certificate within five years much before the Institution was brought in the grants-in-aid list they were entitled for absorption in the High School and the remaining were entitled to continue and were entitled to be absorved as and when they obtained their training certificates. The learned Counsel further argued that there was no requirement of obtaining ap proval of the basis education officer at the time of their appointment. In any case Shri Khare argued that the petitioners having worked continuously for more than ten years and their appointment being in ac cordance with law the respondents were not justified in withholding their salary. The learned Standing Counsel supported the impugned orders. 6. I would take up the case of Pati Ram Yadav as he was intermediate only on the date of his appointment and if he is found entitled for absorption and payment of salary then there would not be any dif ficulty of petitioners in Writ No. 8166 of 1994 as on the date of their appointment they were either graduate or post graduate. Pan Ram during service with the permission of the authorities obtained de gree of M. A. (History), M. A. (Sociology) and training certificate from the Govern ment Basic Training College, Lucknow on 16-7-1979. But the question is whether the ADE was justified in recording the finding that Pali Ram was neither eligible nor qualified to be appointed as assistant teacher in 1972. But the question is whether the ADE was justified in recording the finding that Pali Ram was neither eligible nor qualified to be appointed as assistant teacher in 1972. He has given there reasons in support of his finding one that the petitioner was no educationally qualified second he was untrained and the third that his appointment was not approved by the Basic Education Officer. Each reason given by him is either con trary "to the provisions which were ap plicable to Junior High Schools at the time of petitioners appointment or it is against facts. The ADE has not referred to any provisions in the Regulation or Schedule appended to it, which may indicate that the minimum qualification for a assistant teacher in Junior High School was more than intermediate. Even when U. P. Recog nised Basic Schools (Juniors High Schools) (Recruitment and Conditions of Service of Teacher) Rules were enacted In 1978 (in brief Rules 1978) the minimum educational qualification prescribed for appointment as assistant teacher was in termediate only. The petitioner, Pali Ram was thus educationally qualified to be ap pointed as assistant teacher in Junior High School. It may now be examined whether an untrained teacher could 1 e appointed permanently and whether such appoint ment was illegal. Before 10-3-1971 the ser vices of assistant teachers in Junior High Schools were governed by provisions in the Education Code. Chapter V dealt with recognised Junior and Senior Basic Schools. It had two sections A and B. The former dealt with school for boys and lat ter for girls. No qualification was prescribed for an assistant teacher in boys schools. But paragraph 196 in B Section provided that no untrained teacher shall be appointed permanently in a recognized school. This did not apply to boys schools. There was thus no bar on permanent appointment for an untrained teacher in boys schools. Even if it is assumed that the Regulation 196 applied to boys schools the doubt if any stood removed when the State Government issued the Order in 1971. The Order purported to revise the salary of assistant teachers in Junior High Schools but it made obligatory for any untrained teacher appointed after the notification was issued to acquire training certificate within five years of this appoint ment otherwise he would be paid the ini tial salary only. The Order purported to revise the salary of assistant teachers in Junior High Schools but it made obligatory for any untrained teacher appointed after the notification was issued to acquire training certificate within five years of this appoint ment otherwise he would be paid the ini tial salary only. There was thus no restric tion on the management of a Junior School in appointing an untrained teacher permanently. Pali Ram having been ap pointed permanently, as is clear from his appointment order, after the Government Order of 10-3-1971 had been issued his appointment was in accordance with law it was neither irregular nor illegal. Training became essential qualification under Rules, 1978. The appointment of petitioner, however, being prior to it and in accordance with law in force on the date of his appointment it did not suffer from any defect. In Rikh Pal Singh v. District Basic Education Board, Allahabad, 1990 UPLBEC 351, it has been held by this Court that the provisions in 1978 Rules were not retrospective therefore, appoint ment of an untrained teacher prior to these rules could not be terminated. These rules did not in any manner effect the ap pointments made after Government Order of 1971. An untrained teacher, therefore, could be Appointed permanent ly between 1971 and 1978. The appoint ment letters of all the petitioners clearly shows that their appointment was per manent. 7. Coming to the last aspect whether the appointment was bad as it was not approved by the Basic Education Officer the ADE did not point out any rule or Regulation under which an un-aided school was required to appoint a teacher on Junior High School with approval of Basic Education Officer in 1971- 72. 1 may point out that the Junior High School of the Institution came on grants-in-aid list in 1975-76 only. What happened in pur suance of it is mentioned in the report sent by the DIGS on 14-12-1993 to the Deputy Director of Education (in brief DDE ). The report mentioned that in 1974-75, that is immediately before the Institution was brought on maintenance grants list as Junior High School, it had 19 assistant teacher including the petitioner. The report noticed that their names were shown in the Managers return. And their salary etc. , was paid by the management from its own resources. The report mentioned that in 1974-75, that is immediately before the Institution was brought on maintenance grants list as Junior High School, it had 19 assistant teacher including the petitioner. The report noticed that their names were shown in the Managers return. And their salary etc. , was paid by the management from its own resources. The report further mentioned that non- recurring grant used to be paid to the Institution on the expen diture incurred by it. For determining this grant the services of the petitioner were also included. After the Institution was brought on maintenance grants light of Junior High School the pay fixation of the assistant teachers including petitioners was done by the Basic Education Officer and it was approved by the DDE. The report noticed that in consequence of pay fixation the DE sanctioned an amount of Rs. 29206. 60 paisa for being paid to the teacher, including petitioners as a result of revision of pay. Type approval of the Basic Education Officer thus became necessary only after 1975-76. And it was complied as well when pay of (he petitioners was fixed by the Basic Education Officer with ap proval of the DDE: 8. Since the petitioners were ap pointed in accordance with the Govern ment Order issued in 1971 and they were appointed permanently their services could not come to an end except in accord ance with law. Ill is thus clear that the entire claim in thfc counter-affidavit that since the petitioners appointment was not approved by the Basic Education Officer therefore, they half no right appears to be erroneous as on the date of appointment there was no requirement to obtain ap proval of the educational authorities and once the Institution came on maintenance grants list the approval was granted as mentioned early and the petitioners ar rears in consequence of revision was also paid in up stanch of the Order passed by the DE. The continuance of the petitioners, therefore, could not be treated either against law or in surplus of the sanctioned strength as the fault if any was of the respondents. If any appoint ment was made against the post on which the petitioners w0re working and it was approved by the educational authorities then it was irregular and in any case it did not effect the petitioners. 9. If any appoint ment was made against the post on which the petitioners w0re working and it was approved by the educational authorities then it was irregular and in any case it did not effect the petitioners. 9. The question still is whether the petitioners can claim regularization or ab sorption under some other rule or prin ciples. The petitioners were permanent as sistant teacher. The service of a permanent teacher could not be dispensed with nor it could be deemed to have come to an end except in accordance with law. I have al ready mentioned that the petitioners were appointed after the Government Order of 10-3-1971 had been issued. It permitted appointment of are untrained teacher per manently. If such 4 teacher obtained train ing certificate within five years of his ap pointment then h0 was entitled to all the benefits. But if he aid not then his services did not come to in end nor he could be denied his salary. The Institution was recognized as High School in 1974 but it came on grants-fit-aid list in 1978 only. The effect of the grant-in-aid was two fold one that the Institution came under the supervision of the DIOS and other that the provisions of the Salaries Act became ap plicable to it. The controversy, therefore, arose whether the petitioners who had been continuing were entitled to their salary. It was this controversy that gave rise to earlier petitions which have been referred above. I have already indicted that (he appointment of petitioners was per manent and it could not be altered except in accordance with law. Since the petitioners were permanent teachers their services could not be dispensed with nor it could be deemed to have come to an end. The only restriction in 1971 GO being of acquiring training else continuance on the initial salary was complete over looked by the ADE. Two of the petitioners namely, Sri Dhani Ram and Sri Girdhari Yadav acquired their training certificate within five years of their appointment. This was much before 1978 when the grant-in-aid for High School was given to the Institu tion therefore, they were entitled to be absorbed and were eligible to be appointed in High School. 10. Two of the petitioners namely, Sri Dhani Ram and Sri Girdhari Yadav acquired their training certificate within five years of their appointment. This was much before 1978 when the grant-in-aid for High School was given to the Institu tion therefore, they were entitled to be absorbed and were eligible to be appointed in High School. 10. As regards petitioners other than the two, who obtained their training within five years, their services too con tinued to be governed by the Government Order of 1971 under which they were ap pointed permanently. Their services could not be terminated and in fact it was not terminated rather continued and their pay etc. was also fixed in 1976. Since they did not acquire training certificate within five years they continued on the initial salary fixed by the management in consultation with the authorities till they acquired the requisite training. Therefore, for the reasons mentioned earlier they continued after expiry of the five years from the date of their appointment till they acquired training certificate on their salary as fixed by Basic Education Officer. But their ser vices could not be dispensed with nor their salary withheld. The other finding of the ADE that the petitioners could not be absorbed under Regulation 4 of Chapter II of the Regulations framed under the Act as they were untrained also is not correct as the Regulation 4 did not apply. This Regula tion was enforced in 1976. To appreciate it the Regulation is extracted below: 11. Where any Junior High School is recognized as High School under Section 7, a permanent or temporary teacher of such school, possessing the minimum qualifications under Regulation I, shall be deemed to be permanent or temporary teacher, as the case may be, of such High School, provided that the services of a temporary teacher who is not selected for ap pointment in accordance with the provisions of the Act and the Regulations shall be dispensed with alter giving one months notice in that be half or one months pay in lieu of such notice. Explanation.-Nothing in this Regulation shall be construed to mean that High School includes Class I to V. " 12. It is beneficial provisions enacted for the benefit of the teachers working in Junior High School. It applies automat ically on the date the Institution is recog nised as High School. Explanation.-Nothing in this Regulation shall be construed to mean that High School includes Class I to V. " 12. It is beneficial provisions enacted for the benefit of the teachers working in Junior High School. It applies automat ically on the date the Institution is recog nised as High School. The expression, shall be deemed to be permanent or tem porary teacher, makes in clear that it ap plies once only on the date the Institution is upgraded. The Regulation does not apply to an Institution upgraded prior to its coining into force. Since the Institution was upgraded in 1974 the Regulation did not apply to it. 1 may illustrate by taking an example. Suppose the Institution would have been upgraded in 1977. The petitioners being untrained they could not have been absorbed in High School. But they would not have ceased to be teachers of Junior High School. Therefore, they having had been appointed permanently under the Government Order of 1971 their services could come to an end and they could not be deemed to have ceased to be teachers as held by the ADE or has been attempted to be made out in the counter- affidavit. 13. Even if it is assumed as held by the ADE that Regulation 4 of Chapter II ap plied the Order cannot be maintained. Under the Regulation a teacher who was working in the Junior High School was deemed to be appointed permanently or temporarily in the High School provided he was qualified as provided by Regulation 1. Since the petitioners were not trained they could not be appointed permanently or temporarily. Therefore, they were not entitled for automatic absorption in the High School. But that could not result in termination of heir services. It only meant that they could not avail of the benefit which was extended under the Regulations to assistant teachers working in CT grade. The petitioners, therefore, continued as assistant teachers. It was for this reason that they were continued and their pay was fixed by the management and the basic education officer after the Institution came on maintenance grants list of Junior High School in 1975-76. The stand in the counter-affidavit that it was not necessary to pass any Order as their services came to an end automatically is contrary to the rules and terms of their appointment or ders. 14. The stand in the counter-affidavit that it was not necessary to pass any Order as their services came to an end automatically is contrary to the rules and terms of their appointment or ders. 14. There is another reason because of which the Order of the ADE cannot be maintained. The petitioners were ap pointed, in 1972 in accordance with the Government Order of 1971. They have continued since then. They have acquired requisite qualifications with permission of the authorities during service. The initial appointment was neither illegal nor ir regular. In Ram Swarup v. State of Haryana and others, AIR 1978 SC 1536 , it was held by the apex Court that appointment of an employee who did not have five years ex perience as required on the date of ap pointment but continued to work for nine years was not void but only irregular there fore, it did not suffer from any defect. The case of petitioners stands on much better footing. In Smt Shanti Devi Verma v. The Deputy Director of Education, 1982 UPLBEC 365, it was held by this Court that lack of prescribed qualification at the time of appointment if not obtained by fraud then it did not render the appoint ment void and the teacher could obtain necessary qualification after appointment. In Dr. M. S. Midol and another v. S. D. Hildegard and others, 1993 (2) ESC 245, tic appointment of a Principal who did not possess requisite qualification on the date of appointment yet the Director of Educa tion illegally approved the appointment was not interfered by the apex Court after 12 years. The Courts, therefore, have refrained from taking away the bread and butter of a teacher for any defect in his appointment specially when he has worked for long years and was not respon sible for the defect or did not obtain ap pointment by fraud. The petitioners had served the Institution for more than eight years when the dispute about salary was raised. Their appointment was neither il legal nor irregular hand in accordion twenty years when a not only become It was on the other with law. The ADE thus has taken a contrary to law but petitioners are being asked to leave the Institution after serving for more than which is not only quity and justice. 15. Their appointment was neither il legal nor irregular hand in accordion twenty years when a not only become It was on the other with law. The ADE thus has taken a contrary to law but petitioners are being asked to leave the Institution after serving for more than which is not only quity and justice. 15. the petitioners have graduates but they have acquired training certificate as well. In the result these petitions succeed and are allow Additional Director dary dated 18-2-1 Dhani Ram and G acquired necessary years from the date before the college list they were entitle High School. They have been absorbed be paid their salary The orders of the of Education (Secon-94 are quashed. Sri dhari Yadav having intoxicate before five of appointment and me on grants in-aid to be absorbed in the shall be deemed to due date and shall s well after granting adjustment of the amount already paid to in orders passed by them under the in this Court or other. 16. So fare concerned they she initial salary fixed in their training certif. deemed to have beer School on the date training certificate their salary subject amount already paid 17. This Order appointment alread quence of absorption the strength goes b limit then the liability shall be of the manag not come within the It shall be open to steps for increase would not bearers lion of the petitioner the management far Order within two in spector of Schools pliancy of this Or period of two month take appropriate management. 18. The petition to their costs. petitioners are 1 be entitled to the 976 till they acquired cater. They shall be absorbed in the High they acquired their They shall be paid o adjustment of the shall not disturb any made. If as a cones-of these petitioners yond the sanctioned to pay these teacher so long they do sanctioned strength, management to take strength. But that for delaying absorb indicated earlier. If s to comply with this the District In-hall ensure is com er within a further thereafter and shall steps against the leers shall be entitled Petition allowed. .