ORDER Heard learned counsel for the petitioner and the State. Petitioner seeks direction for his promotion on the post of Headmaster of the High School with effect from 10th of November, 2003, i.e., the date from which juniors to the petitioner had been promoted to such post and also for giving all consequential benefits. 2. The petitioner claims to have been appointed as Assistant Teacher on 01.03.1974 in the Subject of Sanskrit in the Lalit Narayan Mistra High School, Dariyapr, P.O. Belkhara. Apart from the B.A. (Hons.), the petitioner claims to have obtained one year diploma course in Physical Education (D.P.ED) from the Nationalized Health and Physical Education College, Bihar in the session 1974-75. The school was subsequently taken over by the Government in the year 1976 and, thereafter, the petitioner was given M.A. trained pay scale with effect from 30.08.1976 as per the Kothari Pay Revision Commission report. It is also stated that the petitioner has also passed departmental examination in Noting/Drafting in the year 1984 conducted by the Rajbhasa Department of Bihar Government as well as other departmental examinations in the batch 1980-85. Thereafter, vide Annexure-1 dated 17.10.1984, the petitioner was given pay scale of Senior Selection Grade with effect from 01.04.1981 and he also worked an In-charge Headmaster from 22.02.1988 to 18.01.1996 in the concerned school. Thereafter, in the year 1996, the petitioner was transferred to Obra High School, Aurangabad and on 16.06.1999 he was again transferred to Rameshwar High School Bambhai, Jehanabad/Arwal where the petitioner was posted at the time of filing of the writ petition. However, even after specific direction of the District Education Officer, Jehanabad/Arwal, the petitioner was debarred from acting as In-charge Headmaster in the school though he was the seniormost. It is further stated in the writ petition that, in the provisional gradation list of Assistant Teachers of the High Schools, the petitioner was placed at serial no.1106 and at serial no.467A in the gradation list of Magadh Division. In the month of April, 2001 the service book of the petitioner was demanded by Vidyalaya Sewa Board from the District Education Officer, Jehanabad for granting promotion on the post of Headmaster which was sent vide Annexure-2 dated 24.01.2003. The District Education Officer was again asked to send documents showing petitioner’s qualification so that a decision could be taken for his promotion on the post of Headmaster. The District Education Officer was again asked to send documents showing petitioner’s qualification so that a decision could be taken for his promotion on the post of Headmaster. That appears to have been sent vide Annexure-3. Thereafter, again a provisional gradation list of Assistant Teacher was prepared, however, the petitioner was placed at serial no.166 showing all others including the petitioner getting Post Graduate/Senior Selection Grade Scale from 21.05.1974 to 31.03.1978 (Annexure-4). However, it is alleged that vide memo no.2726 dated 10.11.2003, as contained in Annexure-5, issued by the Director, Secondary Education-cum-Special Secretary, Secondary, Primary and Adult Education Department, Bihar, Patna about 155 Assistant Teachers have been promoted to the post of Headmaster ignoring the seniority of the petitioner as per the position in the gradation list as contained in Annexure-4 even though he was fulfilling all the criteria fixed for promotion of Assistant Teachers on the post of Headmaster laid down in Bihar Nationalized Secondary School (Service Condition Rules, 1983. In paragraph no.19 of the writ petition several serial numbers from the gradation list have been shown alleging them to be junior to the petitioner but having been given promotion ignoring his seniority. Thereafter, vide Annexure-8, concurrence of Bihar Public Service Commission, Patna was sought for promotion and names of about 12 teachers were sent including the petitioner also. However, the petitioner was not considered for promotion on the post of Headmaster on the ground that he is having only physical training qualification and is not having either B.Ed. or Dip-in-education. 3. Mr. Rajendra Prasad Singh, learned Senior counsel appearing for the petitioner, has submitted that this issue is no longer res integra as the same has already been decided by a Division Bench of this Court in Kumar Kant Choudhary Vs. District Education Officer, Darbhanga & Ors. { 1979 BBCJ 184 } holding that a physical trained graduate teacher would be fit to be considered for the post of Headmaster and Assistant Headmaster, Secondary School. Learned counsel has also drawn attention of this Court towards the clarification of the Director, Secondary Education-cum-Joint Secretary, Government of Bihar contained in the letter no.6066 dated 24.11.1986 that in view of the aforesaid decision rendered in C.W.J.C. No.724 of 74 and other matters decided by this Court, the State Government had agreed that physical trained teacher would be eligible for consideration for promotion on the post of Headmaster. 4. 4. A counter affidavit has been filed on behalf of the State taking a stand that the petitioner being only physical trained teacher was not eligible to be appointed as Headmaster as the requirement was that such physical trained teachers should also hold B.Ed/Dip-in-Ed degree for that purpose. Learned counsel has also placed reliance upon a decision rendered by a Single Bench of this Court passed in C.W.J.C. No.6947 of 1994 and another analogous matters. It is submitted that this Court while considering the similar issue has held that the teachers having training in physical education but not possessing the requisite certificate of the diploma or degree in education, cannot be considered as trained teachers and, thus, would not be entitled to the scale of trained teachers until they acquire the requisite qualification. Learned counsel has also placed reliance upon a letter bearing memo no.7678 dated 17.03.1983 stating that in view of the decision of this Court rendered in C.W.J.C. No.724 of 1974, the Government had taken a decision that such physical trained teachers who are also holding B.Ed./Dip-in-Ed training could be promoted to the post of Assistant Headmaster or Headmaster. Learned counsel has made endeavor to impress upon this Court that in view of the decision of the Government the petitioner’s case cannot be considered for such promotion as admittedly he is not having any Dip-in-Ed or B.Ed degree. 5. However, so far the decision of this Court rendered in C.W.J.C. No.6947 of 1994 is concerned, the learned Single Judge had explained and distinguished the decision of the Division Bench in Kumar Kant Choudhary (supra) holding that same was given with retrospective effect to the teachers of Secondary School whereas the case under consideration was regarding the teachers of elementary education for which there was specific rule stating that the physical trained teachers would not get salary of trained teachers. It appears from paragraph no.4 of the aforesaid judgment that the case of the respondent State itself was that Circular of 1986, which was being relied upon in that case also, was with respect to the secondary school only and that the same could not be applied in the case of teachers of elementary schools. For better appreciation, relevant passages from the aforesaid judgment are reproduced as under:– “8. For better appreciation, relevant passages from the aforesaid judgment are reproduced as under:– “8. From the above narration of facts it is clear that the secondary schools and the elementary schools do not stand at par. As institutions imparting education they are distinct from such other. The method of teaching is different and so is the staffing pattern. At the primary level, a teacher is supposed to teach all subjects and, therefore, there is no subject-wise appointment. At the secondary level teaching is more specialiation and therefore appointments of teachers are made subject-wise. In secondary schools there are sanctioned posts of teacher in physical education and the prescribed qualification for appointment to that post is diploma or degree in physical education. In elementary schools there is no such sanctioned post.” 14. The Judgment in 1979 BBCJ 184 was rendered in the context of secondary school teacher and so far as the judgment in the case of Jagnandan Singh & Ors. (supra) is concerned, it would appear that no counter affidavit was filed on behalf of the State and the State Counsel conceded before the Court that a physical trained teacher is entitled to the Matric trained scale. The aforementioned aspects of the matter were not brought to the notice of the learned Judge. The judgment was thus passed in ignorance of the relevant provisions, and, therefore, does not have any binding force as a precedent.” 6. From the perusal of the aforesaid passages, it is quite clear that the case of the teachers of secondary schools and elementary schools were distinguished by the learned Judge holding that they cannot stand at par and the decision rendered by the Division Bench in Kumar Kant Choudhary (supra) cannot be applied in the case of the teachers of elementary school. So far 1983 letter as contained in Annexure- B Series is concerned, that stood again clarified vide Annexure-12 dated 24.11.1986. The relevant passage from Annexure 12 is reproduced as under for better appreciation:– **ekuuh; mPp U;k;ky; iVuk ds }kjk lhñ MCywñtsñlhñ la[;k 724/74 esa ;g Hkh fu.kZ; fy;k tk pqdk gS fd 'kkjhfjd izf'kf{kr f'k{kd Hkh izèkkukè;kid in ij fu;qfDr ds fy, fopkj gsrq ;ksX; ekus tk,¡xs A ,slh fLFkfr esa 'kkjhfjd izf'kf{kr f'k{kdksa ds lEcUèk esa bl rjg dk 'kadk mBus dh dksbZ xqatkb'k ugha jg xbZ gSA** 7. In above view of the matter, in my considered opinion, the decision of the Division Bench rendered in Kumar Kant Choudhary (supra) still holds the field as even after coming of 1983 rules, the Government itself has clarified vide Annexure-12, which is a letter dated 24.11.1986, that in view of the decision rendered by the Division Bench as above, the physical trained teachers would also be considered along with other trained teachers. No further decision, direction or clarification of this Court has been brought on record by the State respondents to show that such policy had changed on the relevant date, i.e., 10th of November, 2003. So far 2005 amended rules are concerned, they were brought in existence in the year 2005 and, thus, they cannot be made applicable with retrospective effect to the year 2003 when the petitioner became entitled for his promotion on the post of Headmaster as admittedly his juniors were given promotion vide Annexure-5. The test would be as to whether such promotion granted on 10th of November, 2003 could have been withdrawn by the authority after coming of the amended Rules in 2005? If the answer is in affirmative then 2005 Amendment Rules would be applicable but if the answer is in negative then this rule cannot be held to be applicable. However, in my opinion, the answer can never be in affirmative as it is well settled that promotion already granted cannot be withdrawn by subsequent amendment of the rules. 8. In above view of the matter, this writ application has to succeed and, accordingly, the respondents are directed to take immediate steps for consideration of the promotion of the petitioner to the post of Headmaster of High School with effect from 10th of November, 2003 on the date when admittedly his juniors were granted such promotion with all the consequential benefits. Let such decision be taken within three months from the date of receipt/production of a copy of this order in view of the observations and findings recorded in this order. Accordingly, this writ application stands allowed.