JUDGMENT Hon’ble Ashok Bhushan, J.—Heard Sri A.P. Tiwari and Sri O. P. Chaurasia learned Counsel appearing for the petitioner and Sri K. Sahi appearing for the respondent No. 6. Learned Standing Counsel appearing for the respondents No. 1, 2 and 3. A counter affidavit has been filed on behalf of respondent No. 6 to which rejoinder affidavit has also been filed by the petitioner. 2. Learned Counsel for the petitioner as well as learned Counsel appearing for the contesting respondent No. 6 submitted that it is not necessary to issue notice to the respondents No. 4 and 5 in view of the fact that they are not directly affected by the impugned order. Both the Counsels have prayed for final disposal of the writ petition. 3. By this writ petition the petitioner has prayed for quashing the order dated 14.5.2007 passed by the Joint Director of Education, Varanasi Region, Varanasi by which the letter of the District Inspector of Schools dated 1.8.2000 has been declared to be illegal and direction has been issued to the respondents to recover the excess salary paid to the petitioner and further the educational certificate of the petitioner be verified by the District Inspector of Schools. 4. Brief facts of the case necessary for deciding the writ petition are : 5. The petitioner was appointed as Assistant Teacher, J.T.C. grade by the Management vide appointment letter dated 15.7.1968. The petitioner claimed fixation of his salary in L. T. grade which request was refused by the District Inspector of Schools vide order dated 3.12.1971. Subsequently in accordance with the Government order dated 3.10.1974 the petitioner’s salary was fixed in L.T. grade with effect from 1.11.1973. The petitioner was thereafter given selection grade of L.T. grade from 1.1.1986 and granted lecturer’s grade from 1.7.1992. The respondent No. 6 Ram Dular Rai was appointed as L.T. grade teacher on 1.11.1971. The petitioner represented to the District Inspector of Schools that he be treated to be appointed in L.T. grade from the initial date of appointment (i.e. from 15th July, 1968). The District Inspector of Schools vide his order dated 1.8.2000 allowed the prayer of the petitioner to treat his appointment in L.T. grade with effect from 15.7.1968 and further on the basis of ten years teaching Inter classes the petitioner was sanctioned the Lecturer’s grade from 1.7.1992. The District Inspector of Schools vide his order dated 1.8.2000 allowed the prayer of the petitioner to treat his appointment in L.T. grade with effect from 15.7.1968 and further on the basis of ten years teaching Inter classes the petitioner was sanctioned the Lecturer’s grade from 1.7.1992. The respondent No. 6 submitted representation before the District Inspector of Schools and the Joint Director of Education against the order of the District Inspector of Schools dated 1.8.2000. In his representation the respondent No. 6’s case was that by allowing L.T. grade to petitioner from 15.7.1968 the seniority of the respondent No. 6 shall be affected hence the said order be set aside. The respondent No. 6 filed writ petition being writ petition No. 39660 of 2006 which was disposed of by this Court vide order dated 26.7.2006 directing the Regional Director of Zone to decide the representation by speaking order. The respondent No. 6 submitted detailed representation on 2.8.2006. in his representation the respondent No. 6 prayed that the order dated 1.8.2000 of the District Inspector of Schools be declared illegal and incorrect fixation of salary of the petitioner be corrected according to the Government order and the certificate of the petitioner of I.G.D. Bombay in original be called and verified. The Joint Director of Education after receiving the representation issued notice to the Management as well as to the petitioner. The petitioner submitted his reply before the Joint Director of Education and the Joint Director of Education after considering reply passed the impugned order dated 14.5.2007. The Joint Director of Education by the impugned order held that the fixation of salary of the petitioner by order dated 1.8.2000 is incorrect. The Joint Director of Education held that the petitioner was entitled for suo motto promotion in C.T. grade and after ten years according to the Government order declaring the C.T. grade as dying cadre, petitioner should have been granted L.T. grade and thereafter after teaching of ten years of higher secondary classes, ought to have been given the L.T. Selection grade. 6. Learned Counsel -for the petitioner challenging the impugned order contended that although the petitioner’s appointment was approved in J. T. C. grade by the District Inspector of Schools but the petitioner’s appointment was made for teaching High School classes and the said appointment ought to have been approved from very beginning as appointment in L.T. grade. 6. Learned Counsel -for the petitioner challenging the impugned order contended that although the petitioner’s appointment was approved in J. T. C. grade by the District Inspector of Schools but the petitioner’s appointment was made for teaching High School classes and the said appointment ought to have been approved from very beginning as appointment in L.T. grade. Learned Counsel for the petitioner submitted that the Principal of the Institution has given the certificate that the petitioner was teaching High School classes. Learned Counsel further contended that the petitioner was entitled for fixation of salary in L.T. grade in accordance with the Government order dated 12.11.1955 and the petitioner represented for grant of L. T. grade in the said Government order but the petitioner was not granted the benefit of fixation of salary in L.T. grade and was given the said benefit only from 1.11.1973. The order passed by the District Inspector of Schools dated 1.8.2000 was justified by the learned Counsel. He further contended that the petitioner fulfils the qualification of appointment of Assistant Teacher in Trained Graduate grade, he having passed diploma in I.G.D. Bombay. Learned Counsel submits that by the impugned order the Joint Director of Education illegally cancelled the fixation order dated 1.8.2000 and has directed for recovery of salary from the petitioner. 7. Sri K. Sahi, learned Counsel appearing for the respondent No. 6 refuting the submissions of the petitioner, contended that the petitioner was not qualified for appointment as teacher in L.T. grade and he was not possessing the qualification for appointment as Trained Graduate Teacher at the time of appointment. Learned Counsel submitted that the petitioner has not passed the Intermediate/High School with “Pravidhik Kala” and he had not passed the I.G.D. Diploma Bombay. The certificate submitted from one D.A.V. College of petitioner having passed I.G.D. Bombay cannot be relied. Since no certificate has been issued by the issuing authority. It is contended that the petitioner was not entitled even for fixation of salary in L.T. grade teacher from 1.11.1973 in view of the Government order dated 3.10.1974. The case of the respondent No. 6 is that at best the petitioner is entitled for fixation of pay in C.T. grade from 1.11.1973 and thereafter was to be treated absorbed in L.T. grade after C.T. grade was declared as dying cadre. The case of the respondent No. 6 is that at best the petitioner is entitled for fixation of pay in C.T. grade from 1.11.1973 and thereafter was to be treated absorbed in L.T. grade after C.T. grade was declared as dying cadre. Learned Counsel for the petitioner submits that there is no error in the order passed by the Joint Director of Education directing correction of fixation of pay of the petitioner and recovery of excess salary. It is further contended that the petitioner was not appointed for teaching High School classes rather the petitioner was appointed to teach junior classes and he did not teach High School classes nor was entitled for fixation of salary in L.T. grade from 1.11.1973. 8. I have considered the submissions of Counsel for the parties and perused the record. 9. The Joint Director of Education in the impugned order has found that the appointment of the petitioner on 15.7.1968 was in J.T.C. grade and the prayer of the petitioner for grant of L.T. grade was rejected by the District Inspector of Schools on 3.12.1971. The Joint Director of Education held that the petitioner was not teaching High School classes from the date of his appointment and was not entitled for the benefit of Government order dated 12.11.1955 of fixation in L.T. grade. The order of the District Inspector of Schools dated 1.8.2000 was held not to be in accordance with law. The Joint Director of Education held that the petitioner who was appointed in J.T.C. grade on 15.7.1968, was entitled for suo motto promotion in C.T. grade after completion of ten years in C.T. grade according to the Government order declaring the C.T. grade as dying cadre, he was required to be absorbed in L.T. grade. The Joint Director of Education also directed for verification of the qualification of the petitioner. From the facts brought on record it is clear that the representation was submitted by the respondent No. 6 after the order dated 1.8.2000 was passed by the District Inspector of Schools by which the petitioner’s appointment was treated to be in L.T. grade from the very inception i.e. 15th July, 1968 and the petitioner’s salary was fixed in Lecturer’s grade from 1.7.1992. The respondent No. 6 had grievance against the said order rightly, since the said order adversely affected the respondent’s seniority in L.T. grade. The respondent No. 6 had grievance against the said order rightly, since the said order adversely affected the respondent’s seniority in L.T. grade. Prior to 1.8.2000 the petitioner’s date of appointment in L.T. grade was treated as 1.11.1973 whereas the date of appointment of the respondent No. 6 in L.T. grade was treated as 1.11.1971 and since the District Inspector of Schools directed to treat the petitioner in-L.T. grade from 15th July, 1968 the respondent No. 6 was adversely affected. With regard to fixation of petitioner’s salary in L.T. grade from 1.11.1973 there does not appear any representation or objection of any one and the payment of salary to the petitioner in L.T. grade was being made from 1.11.1973 without there being any objection. The respondent No. 6 when made representation against the order dated 1.8.2000 he took opportunity to challenge even the fixation of the salary of the petitioner even in L.T. grade from 1.11.1973. The respondent No. 6 had represented against the fixation by the District Inspector of Schools dated 1.8.2000 but while challenging the said fixation it was not open for the respondent No. 6 to even challenge the fixation of the petitioner’s salary in L.T. grade from 1.11.1973 which remained unchallenged. The Joint Director of Education in the impugned order has entertained the challenge with regard to fixation of the petitioner’s salary in L.T. grade from 1.11.1973 also, which should not have been allowed to be reopened after lapse of more than seventeen years. Thus it is not necessary to enter into any issue as to whether the fixation of salary of the petitioner in L.T. grade from 1.11.1973 was correct or not . Suffice it to say that the said fixation ought not to have been allowed to be challenged hence the order of the Joint Director of Education in so far as it reopens the fixation of salary of the petitioner as made on 1.11.1973 in L.T. grade cannot be accepted. 10. Now comes to the submission of the petitioner with regard to fixation of salary of the petitioner by order dated 1.8.2000. By order dated 1.8.2000 the District Inspector of Schools held that from the representation of the petitioner, report of the Principal and the report of the Receiver and other documents it is clear that the petitioner’s appointment was accepted in L.T. grade. By order dated 1.8.2000 the District Inspector of Schools held that from the representation of the petitioner, report of the Principal and the report of the Receiver and other documents it is clear that the petitioner’s appointment was accepted in L.T. grade. There is no dispute that the petitioner’s appointment from 15.7.1968 was approved by the District Inspector of Schools in J.T.C. grade only. Petitioner’s salary was fixed in L.T. grade from 1.11.1973 and was paid accordingly. There is no order of any authority competent as has been referred to by the District Inspector of Schools in the order dated 1.8.2000 by which the petitioner’s initial appointment can be treated to have been made in the LT. grade with effect from 15th July, 1968. The fixation of salary in higher grade in pursuance of the Government orders issued from time to time prescribing condition for fixation of salary in the higher grade is entirely different from challenging the nature of appointment of a teacher from very beginning. The petitioner may have been entitled for fixation of salary in the higher grade in pursuance of the Government orders issued from time to time as his fixation was done from 1.11.1973 in the L.T. grade but there is no basis for coming to a conclusion by the District Inspector of Schools that the petitioner’s appointment be treated in L.T. grade from 15th of July, 1968. Under the provisions of the Uttar Pradesh Intermediate Education Act, 1921 a candidate selected by the Management acquire status of teacher only after approval by the District Inspector of Schools. The approval given by the District Inspector of Schools to the petitioner’s appointment dated 15.7.1968 was in J.T.C. grade. The District Inspector of Schools in the order dated 1.8.2000 observed that the appointment of the petitioner was already accepted in L.T. grade. By which order the said acceptance was given converting the petitioner’s appointment into L.T. grade from J.T.C. grade neither has been mentioned nor explained, thus the District Inspector of Schools completely erred in observing that the petitioner’s appointment was accepted in L.T. grade. The petitioner was appointed in J.T.C. grade on 15.7.1968 and after thirty two years of the said appointment there was no occasion to declare the petitioner being appointed in L.T. grade from 15.7.1968 on the representation made by the petitioner. The petitioner was appointed in J.T.C. grade on 15.7.1968 and after thirty two years of the said appointment there was no occasion to declare the petitioner being appointed in L.T. grade from 15.7.1968 on the representation made by the petitioner. The order dated 1.8.2000 was thus wholly erroneous and the Joint Director of Education has not committed any error in declaring the said order illegal. The Joint Director of Education moreover, by the impugned order has directed for verification of educational qualification of the petitioner. The present is not a case of initiating any proceeding under Section 16-E (10) of the Uttar Pradesh Intermediate Education Act, 1921 for cancelling the appointment. The petitioner was appointed on 15.7.1968 at this stage direction to verify the educational qualification of the petitioner is uncalled for. The direction of the Joint Director of Education of verifying the educational qualification thus also cannot be sustained. The order of the Joint Director of Education thus in so far as it directs for verification of educational qualification and for fixation of salary of the petitioner giving him suo motto promotion in C.T. grade from 1.11.1973 is set aside. It is, however, made clear that the fixation of salary of the petitioner in L.T. grade with effect from 1.11.1973 shall be maintained. The order of Joint Director of Education in so far as it set aside the order of the District Inspector of Schools dated 1.8.2000 is maintained. 11. Reliance has been placed by Counsel for the petitioner on two decisions; (i) Full Bench judgment of this Court in Dr. Asha Saxena v. Smt. S. K. Chaudhari, 1991 UPLBEC 1202 (FB). In the said judgment this Court cosidered the provisions of Chapter III Regulation 3 (1) (bb) and held that the said provision is not retrospective. The Full Bench also held that the long standing seniority cannot be disturbed nor the appointment of a teacher can be cancelled nor any action for cancelling the appointment can be taken under Section 16-E (10) after lapse of seventeen years. The pronouncement made by the Full Bench in the judgment doer not help the petitioner in any manner in so far as he sought declaration his appointment in L.T. grade with effect from 15.7.1968 in the year 2000. Prior to 1.8.2000 the respondent No. 6 was always treated senior to the petitioner. The pronouncement made by the Full Bench in the judgment doer not help the petitioner in any manner in so far as he sought declaration his appointment in L.T. grade with effect from 15.7.1968 in the year 2000. Prior to 1.8.2000 the respondent No. 6 was always treated senior to the petitioner. The respondent having been allowed L.T. grade from 1.11.1971 at which time the petitioner was only in J.T.C. grade. Thus the said judgment does not help the petitioner in any manner. 12. The second judgement relied by the Counsel for the petitioner is (2007) 1 UPLBEC 196, Purshottam Lal Das and others v. State of Bihar and others. In the said case on the basis of the Committee report promotions of the petitioners were declared to be illegal and after reversion recovery of excess amount was directed. The apex Court held that since the petitioners were not at fault and they worked on promotional posts recovery of excess amount cannot be affected by the authorities. The above judgment has no application in the facts of the present case which are clearly distinguishable in the present case. Excess amount, if any, received by the petitioner is on the basis of the petitioners own representation resulting in passing of the order by the District Inspector of Schools dated 1.8.2000. Thus the fixation of the petitioner’s salary was consequent to his own representation and the order passed on such representation has been found to be illegal, the excess payment, if any, can be recovered from the petitioner and further the representation of the petitioner to treat his appointment in L.T. grade from 15th July, 1968 had no basis nor could have been validly allowed by the District Inspector of Schools after lapse of more than thirty two years. The said judgment also does not help the petitioner in the present case. 13. In the result the writ petition is finally decided by issuing following directions: (1) The order of the Joint Director of Education in so far as it declares the order dated 1.8.2000 of the District Inspector of Schools as illegal is affirmed. The order dated 1.8.2000 of the District Inspector of Schools is held to be not in accordance with law. The petitioner cannot be treated to be appointed in L.T. grade with effect from 15th July, 1968. The order dated 1.8.2000 of the District Inspector of Schools is held to be not in accordance with law. The petitioner cannot be treated to be appointed in L.T. grade with effect from 15th July, 1968. (2) The fixation of salary of the petitioner in L.T. grade from 1.11.1973 is maintained. (3) The direction of the Joint Director of Education directing for verification of educational qualification of the petitioner is set aside. (4) The District Inspector of Schools is directed to pass an order fixing the salary of the petitioner in the light of the observations as made above and take consequential action including the recovery of excess salary paid to the petitioner, if any, consequent to fixation by the District Inspector of Schools dated 1.8.2000. The said fixation shall be made by the District Inspector of Schools within a period of two months from the date of production of a certified copy of this order after giving notice to Committee of Management. 14. The writ petition is partly allowed. The order of the Joint Director of Education dated 14.5.2007 is modified to the extent as indicated above. Parties shall bear their own costs. ————