JUDGMENT Hon'ble Sudhir Agarwal, J. 1. Heard Sri I.R. Singh in Civil Misc. Writ Petitions No.5776 of 1997, 40491 of 1999, 17401 of 1996 and 23961 of 1996 and Sri A.R. Dwvivedi in writ petitions no. 3248 of 1997 and 11997 of 1997 for the petitioners and learned Standing Counsel, S/Sri Pankaj Misra and R.K. Pandey for the respondents. 2. In all these matters, two teachers of Nagar Palika Inter College, Jaunpur (hereinafter referred to as the ''college') have approached this Court feeling aggrieved by the promotion of contesting respondent Shiva Nand Mishra, who is another teacher in the same College on the post of Lecturer (Hindi). The only question up for consideration is whether Shiva Nand Mishra was qualified for such appointment or not as on 1.7.1995. 3. The only relevant facts necessary for adjudication of the above issued are is that the post of Lecturer (Hindi) fell vacant after retirement of the then Lecturer (Hindi) Sri Suraj Bali Shukla on 30.6.1995. Admittedly, Shivanand Mishra is senior to both the petitioners. The petitioner Om Prakash Yadav was appointed initially as C.T.Grade teacher and thereafter when the C.T. Grade was declared dying cadre, he was given pay scale of L.T. Grade but till 1.7.1995 he was never appointed or promoted as Assistant Teacher, L.T. Grade. Sri Shiva Nand Mishra was appointed as Assistant teacher , L.T. Grade to impart education in Science on 1.9.1970 and passed M.A. in Hindi in 1993. He worked as Assistant Teacher, (L.T. Grade) for almost more than twenty years. He is admittedly senior to Sri Mool Chand Pandey, an Assistant Teacher (L.T. Grade). 4. As per the counsels for the petitioners, requisite qualification for the post of Lecturer (Hindi) is M.A.(Hindi) with B.A. in Sanskrit and five years' experience as such in L.T. Grade. 5. The qualification prescribed for the post of Lecturer (Hindi) in Appendix ''A' item 2 (in reference to Regulation 1 of Chapter 2, prescribing minimum qualifications for appointment of Head Master and Teachers in Private Recognised Higher Secondary Schools) are as under: S.No. Name of the post Educational Training experience Age Desirable qualifi--cation 1. 2 3 4 5 2. Hindi teacher Intermediate for (Classes 11-12) High School (Classes 9-10) 1. M.A. in Hindi and B.A. with Sanskrit or Shashtri Examination Govt. Sanskrit College, Varanasi, now Sampoornand University Varanasi. 2. Desirable training qualification (G.O. No. Ma/4428/15/72/(13)-76 dated 16-3-1971 According to Govt. 2 3 4 5 2. Hindi teacher Intermediate for (Classes 11-12) High School (Classes 9-10) 1. M.A. in Hindi and B.A. with Sanskrit or Shashtri Examination Govt. Sanskrit College, Varanasi, now Sampoornand University Varanasi. 2. Desirable training qualification (G.O. No. Ma/4428/15/72/(13)-76 dated 16-3-1971 According to Govt. Notification No. Ma/4428/15-72(13)-76, dated 16th March, 1979, for teachers appointed prior to 5th April, 1975 for teaching High School classes according to the regulations prevailing at that time, if he possesses other educational qualifications then for them B.A. with Sanskrit shall not be necessary for the purpose of their promotion at the post of Lecturer in Hindi for Intermediate classes. (1) B.A. with Hindi and Sanskrit subject and L.T. or B.T. or B.Ed. or other equivalent degree or diploma in education teaching. Or (2) Sahitya Ratna (2 years course) Hindi Sahitya Sammelan, Prayag in which Sanskrit subject should have been taken as ancient language and refresher course training. Trained 6. My attention was drawn to the Government Order dated 16th March 1977 filed as Annexure 3 to the counter affidavit filed in writ petition no. Or (2) Sahitya Ratna (2 years course) Hindi Sahitya Sammelan, Prayag in which Sanskrit subject should have been taken as ancient language and refresher course training. Trained 6. My attention was drawn to the Government Order dated 16th March 1977 filed as Annexure 3 to the counter affidavit filed in writ petition no. 40491 of 1999 which reads as under: ^^fgUnh v/;kidksa dks laLd`r vfuok;Zrk ls NwV la0ek0@4428@15&7&2 ¼13½ 76 izs"kd] Jh oh0,y0VaMu mi lfpo mRrj izns'k 'kkluA lsok esa] f'k{kk funs'kd] mRrj izns'k] y[kuÅ@ bykgkckn f'k{kk ¼7½ vuqHkkx y[kuÅ% fnukad 16 ekpZ] 1977 fo"k;& ekU;rk izkIr laLFkkvksa esa fgUnh v/;kidksa ds in ij fu;qfDr gsrq dk;Zjr v/;kidksa dks laLd`r dh vfuok;Zrk ls NwVA egksn;] eq>s ;g dgus dk funsZ'k gqvk gS fd jktkKk la0 ek0 @ 7511&15&7&2 ¼13½ @ 76 fnukad 25&4&77 }kjk bUVjehfM;V d{kkvksa ds fgUnh v/;kidksa ds inksa ij izksUufr gsrq mu fgUnh v/;kidksa dks tks rRle; ykxw fofu;eksa ds vuqlkj fnukad 5&11&1975 ds iwoZ gkbZLdwy d{kkvksa ds v/;kiu gsrq fu;qDr fd;s x;s Fks laLd`r ds lkFk ch0,0 mRrh.kZ gksus ds izfrcU/k ls NwV iznku dh x;h FkhA 'kklu us bl fo"k; ij iqu% fopkj fd;k vkSj ;g fu.kZ; fy;k gS fd mi;qZDr iz;kstu gsrq laLd`r dh vfuok;Zrk ls NwV mu leLr v/;kidksa dks iznku District Judge nh tk; tks fnukad 5&4&75 ds iwoZ gkbZLdwy d{kkvksa ds fdlh Hkh fo"k; ds v/;kid in ij fu;qfDr fd;s x;s gksaA 2- vr% jkT;iky egksn; bUVjehfM;V f'k{kk vf/kfu;e dh /kkjk 9 ¼4½ ds vUrxZr izkIr vf/kdkjksa dk iz;ksx District Judge mDr jktkKk la0 ek0@7522&15&7&2 ¼13½ @ 76 fnukad 25&4&77 dk vkaf'kd la'kks/ku djrs gq;s vkns'k iznku djrs gSa fd bUVjehfM;V d{kkvksa ds fdlh fgUnh izoDrk in ij izksUufr gsrq ,sls v/;kidksa ds fy;s] tks fnukad 5&4&75 ds iwoZ gkbZLdwy d{kkvksa ds v/;kiu gsrq rRle; izpfyr fofu;eksa ds vuqlkj fu;qDr fd;s x;s FksA ;fn os fu/kkZfjr 'kSf{kd ,oa vU; vgZrk,Wa j[krs gksa] ch0,0 esa laLd`r fo"k; ls mRrh.kZ gksuk vko';d ugha gksxkA Hkonh;] ch0,y0VaMu milfpoA" 7. In view of the above provisions and facts discussed above, I have to consider first whether Shivanand Misra possessed requisite essential qualification for appointment as Lecturer (Hindi) and secondly whether he possessed experience of five years for such appointment. 8. In view of the above provisions and facts discussed above, I have to consider first whether Shivanand Misra possessed requisite essential qualification for appointment as Lecturer (Hindi) and secondly whether he possessed experience of five years for such appointment. 8. A perusal of Appendix ''A' item 2 makes it clear that essential qualification for appointment as Lecturer (Hindi) is M.A. in Hindi and B.A. with Sanskritor Shashtri Examination Government Sanskrit College, Varanasi now Sampoornand University, Varanasi. However, sub clause 2 thereof which has been substituted by notification dated 9.1.1981 it is provided that teachers appointed prior to 5th April 1975 for teaching High School Classes according to the regulations prevailing at that time , if possess other educational qualifications then for them B.A. with Sanskrit shall not be necessary for the purpose of their promotion at the post of Lecturer in Hindi for Intermediate classes. 9. Paragraph 2 of the Government Order dated 16th March 1977 referred above also shows very clearly that in Hindi irrespective of the subject in which such teacher was imparting education upto High School level if he is appointed prior to 5.4.1975 and possessed qualification as per the regulations prevailing at that time, he would be treated to be qualified even if he does not possess the qualification of B.A. with Sanskrit though earlier this exemption was granted only to those who were teaching Hindi prior to 5.4.1975. (There appears to be a mistake in the date of the Government Order dated 16.3.1977 inasmuch as it is printed as "16th March 1977" but in the first paragraph it refers to another Government Order dated 25.4.1977, meaning thereby that this Government Order is of 16th March 1979 as is referred to in item no. 2 (2) of schedule ''A' quoted above. Since the number of Government Notification of Annexure CA-3 tallies with that mentioned in item no.2(2) of Appendix ''A') 10. This aspect has also been considered by a Single Judge of this Court in Anirudh Pandey Vs. District Inspector of Schools, Deoria and others 1992 AWC 1055 wherein in paragraphs no. 2, 3 and 4 it is said as under: "2. Respondent no. 4 has appeared and filed a counter affidavit in this case. This aspect has also been considered by a Single Judge of this Court in Anirudh Pandey Vs. District Inspector of Schools, Deoria and others 1992 AWC 1055 wherein in paragraphs no. 2, 3 and 4 it is said as under: "2. Respondent no. 4 has appeared and filed a counter affidavit in this case. It is stated in para 3 of the counter affidavit that the petitioner does not possess the prescribed minimum qualification for appointment as Lecturer in Hindi because he had not done B.A. with Sanskrit. It is alleged in para 4 of the counter affidavit that the petitioner never taught Hindi to High School classes and he has been teaching science and Mathematics. A rejoinder affidavit has been filed in which it is alleged that the petitioner is eligible for appointment as Lecturer in Hindi. 3. After hearing learned counsel for the parties I am of the opinion that the contention of the petitioner is correct. The G.O. dated 16.3.1979 no doubt requires Sanskrit as a subject in B.A. for being appointed as Hindi Lecturer but his requirement is not necessary for teacher who has been teaching in the institution before 5.4.75 (as stated in the G.O. dated 16.3.79 itself). Since the petitioner was teaching in the institution since 1970 hence it was not necessary that he should have done B.A. with Sanskrit for being appointed as Hindi Lecturer. Hence he was entitled to be appointed as Lecturer in Hindi. The petitioner being senior most teacher was entitled to be appointed as Lecturer in Hindi in accordance with the amended Rule 9 of the U.P. Secondary Education Service Commission Rules, 1983 vide Yogendra Nath Singh Vs D.I.O.S 1991 UPLBEC 484, Sheo Shankar Lal Vs Chairman, 1990 (1) UPLBEC 335 and Bal Krishan Singh Vs D.I.O.S. 1988 UPLBEC 592. 4. Learned counsel for the respondents argued that the petitioner has never taught Hindi classes and hence he is not eligible for being appointed as Hindi Lecturer. This contention has not force since admittedly the petitioner has done M.A. in Hindi and he is qualified to be appointed as Lecturer in Hindi. 4. Learned counsel for the respondents argued that the petitioner has never taught Hindi classes and hence he is not eligible for being appointed as Hindi Lecturer. This contention has not force since admittedly the petitioner has done M.A. in Hindi and he is qualified to be appointed as Lecturer in Hindi. In fact the point is no larger res integra after the decision of the division bench of this Court in Shiv Shankar Lal's case (supra) where it has been noticed that in the original Rule 9 the requirement for promotion was 5 years teaching experience in the concerned subject, whereas after the 1986 amendment the under lined words have been deleted, and now it is no longer necessary that the teaching experience must be in the concerned subject." 11. In view of the above discussion and the Government Order dated 16th March 1979 (wrongly printed as 16th March 1977) I have no hesitation in holding that the respondent Shiva Nand Mishra did possess requisite education qualification for appointment on the post of Lecturer (Hindi). 12. Now coming to five years' experience, the second aspect of the matter, the submission is that this experience must be after attaining the requisite educational qualification and in the case in hand, since Shiva Nand Misra did M.A. in Hindi in 1993, therefore, he cannot be said to possess five years' experience in view of Single Judge decision of this Court in Smt. Usha Goel Vs. State of U.P. and others 2004(3)ESC 1887. It is no doubt true that the above judgment of the Hon'ble Single Judge supports the submission of the petitioner but unfortunately, it appears that in earlier Division Bench decision of this Court in Sheo Shankar Lal Vs. Chairman, U.P. Secondary Education Service Commission, Allahabad and others (1990) 1 UPLBEC 335 as also the Hon'ble Single Judge in Anirudh Pandey (supra) were not brought to the notice of the Hon'ble Single Judge in Smt. Usha Goel (supra). The Division Bench in Sheo Shankar Lal (supra) after noticing the apparent change in the subsequent statute after omission of the words "in the concerned subject" which exists in U.P. Secondary Education Service Commission Rules 1983 but omitted in the amending Rule 1987, the Court held that omission means that the rule framing authority did not insist upon the possession of experience. Para 4 of the said judgment is reproduced below: "4. Para 4 of the said judgment is reproduced below: "4. Even in 1983 Rules, it was mentioned that vacancy is to be filled by promotion of teachers working in L.T. or C.T. grade, who possess the minimum qualifications and have put in at least five years continuous service as teacher on the date of occurrence of vacancy shall be considered for promotion without having applied for the same. But the amended Rule provides that where any vacancy is to be filled by promotion all teachers working in L.T. or C.T. grade should possess the minimum qualifications and have put at least five years continuous service as teacher on the date of occurrence of the vacancy shall be considered for promotion to the Lecturer or L.T. grade as the case may be, without there having applied for the same. Sub-rule (2) of the earlier rule, as well as the present rules are similar which provides that the criterion for promotion shall be seniority subject to the rejection of unfit. A perusal of the earlier rule as well as the amended rule indicates that while in the earlier rule it was a condition precedent that at least five years continuous service as teacher in the concerned subject was necessary, but the amended Rule 9 provides five years continuous service as teacher on the date of the occurrence of the vacancy. The omission or deletion of the words "in the concerned subject" in the said rule indicate the intention of the rule-making power that a teacher who fulfils the minimum qualifications and have put in at least five years continuous service as teacher on the date of occurrence of the vacancy and is senior will be entitled for promotion. Even if he has not put in at least five years continuous service as a teacher in the concerned subject we cannot substitute or import any other meaning which the rule-making power intended to import. When the rule-making authority itself has deleted the words "in the concerned subject" we cannot import a meaning different to the meaning of the rule-making power. When the rule-making authority itself has deleted the words "in the concerned subject" we cannot import a meaning different to the meaning of the rule-making power. Certainly the omission of the words "in the concerned subject" is deliberate and hence a teacher who possesses the minimum qualification and has in at least five years continuous service as a teacher on the date of occurrence of vacancy and is senior-most according to the seniority list subject to the rejection of unfit is entitled to be appointed as Lecturer. Admittedly the petitioner (Opposite party No. 3) possesses Master's Degree in Hindi Literature and has put in more than five years continuous service as a teacher on the date of occurrence of the vacancy and is the senior-most, hence he is entitled for the promotion even if he has not taught Hindi as a subject in the school. No other mistake apparent on the face of the record or error of law has been pointed out. 13. It has been been followed by the Hon'ble Single Judge in Anirudh Pandey (supra). Both the above decisions appear to have not been brought to the notice of the Hon'ble Single Judge in Smt. Usha Goel (supra). Since the matter is already covered by the Division Bench which is binding on me and the judgment in Smt. Usha Goel is per incuriam. 14. Sri I.R. Singh, learned counsel for the petitioner submitted that after 1986-87 Rules, new Rules were framed in 1995 and except of change of rule number all the things are same and in the new rule earlier Rule 9 has been numbered as Rule 14. There is no distinction between Rule 9 of 1986/87 Rules and Rule 14(1) of 1995 Rules. Therefore, interpretation given by the Division Bench in Sheo Shankar Lal is fully applicable. 15 In view of the above discussion, I feel no hesitation in holding that the contesting respondent Shiva Nand Misra did possess requisite qualification for promotion to the post of Lecturer (Hindi) and his promotion cannot be said to be arbitrary or vitiated in law. 16. All the writ petitions therefore, lack merit and are dismissed. Interim order, if any shall stand vacated. No order as to costs.