ORDER : 1. All these writ applications involving almost an identical main issue, namely, promotion on the post of Headmaster from amongst the physically trained teachers working in the taken over secondary schools, have been heard together and are being disposed of by this order. 2. It would be, however, necessary to take into account the pleadings on record of all these writ applications before the aforesaid common as well as anciliary issues raised therein are considered and decided. C.W.J.C. No. 15869/2007 3. The eleven petitioners in this writ application have assailed the notification dated 24.12.2006 issued by the Deputy Secretary of Human Resources Development Department, whereby and whereunder the clarification has been made that the physical trained teacher are not eligible to be considered for appointment/promotion for the post of Headmaster. 4. At the outset it has to be noted that in C.W.J.C. No. 15869/2007 an intervention application, I.A. No. 425/2012, has been filed on behalf of eleven more teachers, namely, Saroj Kumar, Ram Janaki Mishra, Rajendra Rai, Ram Avtar Singh, Suresh Prasad Singh, Lal Bachcha Singh, Parshuram Singh, Arjun Singh, Nand Singh, Tribhuvan Singh and Manager Chaudhary, with a prayer for their being added as petitioners in C.W.J.C. No. 15869/2007. 5. Though Patna High Court Rules under Chapter XXIC laying down the norms of disposal of the writ application does not evisage addition of any person for being added as writ petitioners, inasmuch as the provision therein contemplates addition of a person seeking intervention only as a respondent to oppose the prayer in this writ application, this Court, taking into account that the intervener applicants themselves have claimed to have their cases identical to eleven petitioners of C.W.J.C. No. 15869/2007, would in the interest of justice allow their prayer in I.A. No. 425 of 2012 with a condition that they would also now be governed by the result of this writ application and will have no liberty to raise the same question afresh independently in a separate proceeding before this Court. 6. The writ petitioners in this writ application have stated that all of them had undergone the course of training of physical education training and have also passed the pescribed examination of such training course, whereafter they were appointed on the post of physical trained teachers in different nationalized High Schools in the pay scale of an Assistant Teacher. 6. The writ petitioners in this writ application have stated that all of them had undergone the course of training of physical education training and have also passed the pescribed examination of such training course, whereafter they were appointed on the post of physical trained teachers in different nationalized High Schools in the pay scale of an Assistant Teacher. In the appointment letter all the trained teachers in physical education including the petitioners were also put under obligation to teach any other subject as may be assigned to them by the Headmaster in addition to their duty as teacher of physical education. 7. It has also been stated that earlier there was some dispute in 1974 with regard to grant of Postgraduate scale as also their promotion on the post of Headmaster to the teachers of Physical Education but the issue was resolved by this Court by a Division Bench Judgment of this Court dated 18.1.1979 in the case of Kumar Kant Choudhary vs. District Education Officer, Darbhanga & Others, 1979 BBCJ 184 , wherein it was held that a graduate having Diploma in physical education should be treated as trained graduate in the matter of salary and emoluments and also eligible for promotion on the post of Assistant, Headmaster and Headmaster in a High School. Reliance has also been placed on an order of a learned Single Judge dated 7.11.1979 in C.W.J.C. No. 1848/1979 wherein the ratio laid down by the Division Bench in the case of Kumar Kant Choudhary (supra) was followed. As a matter of fact the petitioners have proceeded that in view of both the Division Bench Judgment in the case of Kumar Kant Choudhary it has to be necessarily held that the issue promotion/appointment on the post of Headmaster in Nationalized High School for a teacher possessing qualification of training in physical education also stands settled and covered, and a teacher graduate trained in physically education is to be also deemed to be qualified for being promoted on the post of Headmaster in the High School. 8. 8. In this regard strong reliance has also been placed on a communication of the Director, Secondary Education dated 24.11.1986 which according to the petitioners was issued by way of clarification that there should be no line of distinction between general teachers of the High School vis-a-vis the physically trained teachers who in the judgment of this Court in the case of Kumar Kant Choudhary (supra) were held to be entitled for not only grant of pay scale of graduate trained teacher but also eligible for promotion on the post of Headmaster. Thus, on the basis of the judgment of this Court in the case of Kumar Kant Choudhary (supra) as also letter of the Director, Secondary Education, dated 24.11.1986, it has been contended that the impugned order dated 24.12.2006, as contained in Annexure 5, debarring physical trained teachers from being promoted on the post of Headmaster is bad both on fact and in law. In this regard a reference has also been made to an order of the Addl. Secretary of the Education Department dated 17.3.1983 addressed to the Director, Secondary Education that such of the physically trained teachers who also possess the qualification of Diploma in Education/Bachelor of Education would be eligible for appointment/ promotion on the post of Assistant Headmaster/Headmaster in a Nationalized High School and their seniority could be also reckoned alongwith general teachers of the secondary school. 9. It has to be noted that subsequently by filing I.A. No. 398/2009, during the pendency of this writ application the petitioners had sought stay of an order passed by the Regional Deputy Director of Education, Tirhut Division, Muzazffarpur, contained in his letter No. 1084 dated 27.10.2008, whereby and whereunder the District Education Officer, Vaishali was restrained from making Ramnath Singh, a physical trained teacher (PTI) in continuing him as an Acting Headmaster of High School, Pighara and instructions were issued to make a general teacher of the school as its In-charge Headmaster. In the said I.A. No. 398/2009 this Court had passed an interim order directing the respondents that if the petitioners are working as an Assistant Headmaster, they shall not be disturbed from the post simply on the ground that they are having qualification of being a physical trained teacher. 10. In the said I.A. No. 398/2009 this Court had passed an interim order directing the respondents that if the petitioners are working as an Assistant Headmaster, they shall not be disturbed from the post simply on the ground that they are having qualification of being a physical trained teacher. 10. There is no counter affidavit in this case and in absence thereof learned counsel for the State has adopted the counter affidavits filed in the batch of the other writ petitions being heard together. C.W.J.C. No. 13044/2008 11. In this writ application the sole petitioner Gopal Prasad Singh has sought quashing of the order dated 7.7.2008 whereby and whereunder the Director, Secondary Education in the matter of making arrangement of In-charge Headmaster in absence of regular Headmaster in Nationalized Secondary Schools had directed all the Regional Deputy Director of Education of this State to not include the names of such physically trained teachers in the gradation list of graduate trained teachers for their promotion on the post of Headmaster and also not allow continuance of any such physical trained teacher to work as In-charge Headmaster of the High Schools. According to the petitioner, this order was in teeth of the earlier order of the Director, Secondary Education dated 24.11.1986, whereby and whereunder following the judgment of this Court in Kumar Kant Choudhary (supra) it was held that even physically trained teachers would be eligible for being considered for appointment/promotion on the post of Headmaster. The petitioner has also stated that he is not only Postgraduate but also holds a qualification of Diploma in Education and in fact was functioning as the In-charge Headmaster. He has also filed I.A. No. 5327/2008 seeking stay of the impugned order dated 7.7.2008. 12. In this case a counter affidavit has been filed by the respondents in which they have taken the stand that the petitioners are physical trained teachers in the nationalized secondary schools and since they do not possess the prescribed qualification of Bachelor of Education or other qualification as prescribed in Rule 4 of Service Condition Rules, 1983, they are ineligible for promotion on the post of Headmaster of a takeover secondary school. According to the respondents the impugned order dated 7.7.2008 is only a consequential order based on the decision of the State Government contained in letter No. 1628 dated 19.3.2008 laying down those of the teachers possessing qualification of Acharya or Fazil or physical training who have not undergone and successfully completed teachers training course leading to degree or diploma in Education, namely, B.Ed. or Dip-in-Ed. Should neither be placed in the seniority of graduate trained teachers nor should be assigned the work of In-charge Headmaster. C.W.J.C. No. 10940/2009 13. In this case the sole petitioner Krishandeo Pandey working as In-charge Headmaster in High School, Akbarpur has prayed for quashing of Memo No. 468 dated 9.7.2009 passed and issued by the Regional Deputy Director of Education, Magadh Division, Gaya, whereby and whereunder he had recalled his earlier order dated 30.6.2009 authorizing the petitioner to work as In-charge Headmaster of High School, Akbarpur in view of the order of the Director, Secondary Education dated 7.7.2008. According to the petitioner, he was the senior most teacher in the school and as such, he was entitled to work as an In-charge Headmaster, especially when the issue stands settled in the Division Bench Judgment of Kumar Kant Choudhary (supra). 14. In this case also there is no separate counter affidavit and the learned counsel for the State has adopted the counter affidavit filed in C.W.J.C. No. 13044/2008. C.W.J.C. No. 14818/2009 15. In this writ application the three petitioners have sought quashing of the order dated 5.10.2009 passed and issued under the signature of the Principal Secretary of the Department of Human Resources, whereby and whereunder a direction has been given to remove the names of physically trained teachers from the divisional seniority list and prepare a fresh gradation list of the general teachers having qualification of teachers training in education excluding the name of physically trained teachers. A consequential direction has also been sought that the names of the petitioners should not be excluded from the divisional seniority list of general teachers and they should be given all the benefits alike a general teacher of a High School and the respondents should be restrained from taking any coercive steps against such physically trained teachers who are functioning as In-charge Headmaster by virtue of their seniority as shown in 1983 and 1986 combined gradation list. 16. 16. In this case an interim order has been passed on 11.2.2010 staying operation of the impugned order. 17. Subsequently I.A. No. 1992/2010 has been filed on behalf of 26 persons, namely, Nawal Kumar, Ram Kishore Mahto, Vijay Kumar Sharma, Anil Kumar, Kaushal Kishore, Ugra Nath Jha, Lakshmikant Shahi, Ram Sudhar Singh, Sachida Singh, Braj Kishore Pandey, Arumendra Prasad, Arun Kumar, Ram Krishna Prasad Yadav, Umesh Kumar Singh, Harindra Choudhary, Shanta Kumari, Shashi Shekhar Prasad Singh, Arun Kumar Pandey, Shiv Shankar Prasad, Upendra Tiwari, Birendra Kumar Sinha, Umeshwar Singh, Ram Krishna Prasad Singh, Kashi Nath Tripathi @ Kashi Prasad Tripathi, Vidyanand Sinha and Shiv Shankar Mahto, for their being also added as a party to this writ application on the ground that their grievance is similar to the grievance of the writ petitioners of this case and they may also be directly affected by the outcome of the present writ application. 18. Though the Patna High Court Rules under Chapter XXIC does not envisage joining of any person as a petitioner and such a person can only be added as a respondent to the writ application for the purposes of opposing the prayer made in the writ application but then keeping in view that this Court has allowed similar prayer in the first writ application, C.W.J.C. No. 15869/2007, their prayer for being added as the petitioner is also allowed but it is made clear that they too now would be bound by the result of this writ application and they will also have no liberty to raise this issue in a separate proceeding. 19. In this case a counter affidavit has been filed wherein also it has been stated that the petitioners are physical trained teachers who do not possess the requisite qualification for the post of Headmaster as prescribed in Seva Sarta Niyamawali, 1983. It has also been clarified that as the physical trained teachers do not possess the prescribed qualification for promotion on the post of Headmaster and as such, they can also not be assigned the duty of In-charge/ Acting Headmaster. It has also been clarified that as the physical trained teachers do not possess the prescribed qualification for promotion on the post of Headmaster and as such, they can also not be assigned the duty of In-charge/ Acting Headmaster. In this regard reliance has been placed on the letter of the Director, Secondary Education dated 7.7.2008 as also to the earlier order of the State Government dated 17.3.1983 clarifying that only such physical trained teachers having qualification of Degree or Diploma in Education (B.Ed.) or (Dip.-in-Ed.) would be entitled for being considered for the purposes of appointment/ promotion to the post of Headmaster as also for reckoning of their seniority as per the provisions of the Rules of seniority with other general teachers. As with regard to the letter of the Director, Secondary Education dated 24.11.1986 it has been stated that the same was only by way of clarification that the physical trained teachers and the teachers having Acharya and Fazil would be entitled for benefit of selection grade scale but the same in no way can be read also for the purposes of appointment and promotion to the post of Headmaster, inasmuch as that would be contrary to the statutory Rules. 20. Defending the impugned order dated 7.7.2008 the deponent of the counter affidavit has stated that the same has been issued by way of clarification that only teachers possessing qualification of Acharya, Fazil and physical training who do not have the qualification the post of a general teacher of High School could not be treated as a graduate trained teacher and thus they cannot be placed in divisional seniority list of general teachers of the High School. It has also been explained that since the physical trained teachers are not holding qualification made for the post of Headmaster they are also ineligible for becoming In-charge Headmaster. The necessity of drawing a fresh seniority list after excluding such teachers holding qualification of Acharya, Fazil or physical training in the High Schools has also been explained in the light of statutory 1983 Service Condition Rules. The necessity of drawing a fresh seniority list after excluding such teachers holding qualification of Acharya, Fazil or physical training in the High Schools has also been explained in the light of statutory 1983 Service Condition Rules. In this regard reliance has been placed on a judgment of this Court dated 24.6.1995 in C.W.J.C. No. 6947/1994 and C.W.J.C. No. 4603/1994 wherein it was held that the qualification of a physical trained teacher cannot be equated with the qualification of a teacher having a Diploma and/or Degree in Education granted upon completion of Teachers training course and as such, they would not be entitled for the same benefit as was admissible and being extended to the general teachers of secondary schools having teachers training qualification in Education. C.W.J.C. No. 15540/2009 21. In this case the sole petitioner Siyaram Kumar has assailed an order dated 5.10.2009 disposing of an appeal of one Ramashankar Singh, Assistant Teacher of Nationalized High School, Kahar (Arwal), Jehanabad who had assailed the order of the Director, Secondary Education dated 24.4.2009 as with regard to grant of seniority to one Janardan Singh, a physical trained teacher, wherein it was held that the physically trained teacher would not be treated to be a general teacher of the High School till they acquire the qualification of teachers training in Education and the order dated 7.7.2009 passed by Principal Secretary has been reiterated that the physical trained teachers have not to be included in the seniority list of general teachers of the High School nor they have to be made In-charge Headmaster. Though the petitioner is not a party in the aforesaid appeal disposed of by the Principal Secretary by his order dated 7.7.2009 but in view of some general observations made as with regard to physical trained teacher he has assailed the said order and has sought consequential relief of including his name in the seniority list of Selection Grade Teachers of Secondary Schools and also to allow him to continue as In-charge Headmaster. 22. 22. In this regard the petitioner has stated that he holds the qualification of Bachelor of Science as also Diploma in Physical Education and was appointed as a Physical Instructor in the pay scale of Assistant Teacher under the recommendation of Bihar Vidyalaya Seva Board on 8.6.1983 and as such, while continuing as a physical trained teacher in Tapeshwari Kuar High School, Dasawan in the district of Aurangabad since 27.6.1983 he would be entitled to reckon his seniority as a general teacher and now when he is senior most teacher of late Anant High School, Pali Bazar, in the district of Jehanabad where he has also been functioning as In-charge Headmaster in view of the order of the Regional Deputy Director of Education, Magadh Division dated 9.6.2009, he cannot be removed from the post of In-charge Headmaster. 23. In this regard he has also stated that he had separately assailed the order dated 7.7.2008 passed by the State Government as with regard to excluding the names of physically trained teachers from divisional seniority list and also not authorizing such physically trained teachers or teachers holding Acharya and Fazil qualification from functioning on the post of In-charge Headmaster in C.W.J.C. No. 15024/2008 and the said writ application was still pending for disposal. Reference has also been made by him on an order passed by this Court in C.W.J.C. No. 12376/2008 at the instance of one Janardan Singh, similarly situated In-charge Headmaster having physical training qualification and the resultant impugned order dated 5.10.2009 rejecting the case of Janardan Singh which has given apprehension to him that he too would meet the same fate both in the matter of his reckoning of seniority as also in the matter of functioning as In-charge Headmaster. 24. The petitioner has relied on a circular dated 27.5.1955 wherein the Govt. of Bihar had held that a graduate having qualification in Diploma in Education would be treated as a trained graduate in the matter of salary and emoluments. He too has placed reliance on the letter of the Director, Secondary Education dated 24.11.1986 which according to him had stipulated that the physical trained teachers have to be treated as equal to general trained teachers. He too has placed reliance on the letter of the Director, Secondary Education dated 24.11.1986 which according to him had stipulated that the physical trained teachers have to be treated as equal to general trained teachers. He has also mentioned that when earlier 1986 gradation list was being prepared this line of distinction with the physically trained teachers and other teachers having degree or Diploma in Education was not followed and in this regard emphasis has been laid down that the petitioner even as a physical trained teacher was teaching other subjects in the school as stipulated in the terms and conditions of his appointment letter. 25. In this case also a counter affidavit has been filed wherein an identical stand has been taken as in C.W.J.C. No. 14818/2009 and thus, would need no repetition. C.W.J.C. No. 1234/2010 26. In this case eight petitioners had joined together for seeking a direction to treat them, having qualification of training in Physical Education equal to other trained teachers having qualification of Bachelor in Education or Diploma in Education and also to acquire them seniority alike a general teacher. From the pleadings it would be clear that all the petitioners have completed their training in Physical Education and are working in different schools as mentioned in paragraph 5 of the writ application. They have also placed reliance on the same order dated 24.11.1986 issued by the Director, Secondary Education as has been discussed in the first writ application, C.W.J.C. No. 15869/2007. According to the petitioners, they are also doing same teaching work in different subjects in their respective school as per terms and conditions of their appointment letter and they claim that they have also the qualification for the post of Headmaster as prescribed under Bihar Rajkiyakrit Madhyamik Vidyalaya (Seva Sarta) Niyamawali, 1983 as amended from time to time. According to them, Diploma in Physical Education or Bachelor in Physical Education has to be treated as equivalent to the degree of Bachelor in Education or Diploma in teaching but for no good and valid reason, by an order dated 21.12.2009 the Director, Secondary Education while publishing final gradation list and seeking objection to preparation of final gradation list has excluded the name of all physical trained teacher which is going to adversely affect them in the matter of their promotion on the post of Headmaster. 27. 27. By filing I.A. No. 1290/2010 an interim relief has been sought for staying exercise of preparation of seniority list as also not disturbing the petitioners from their present rank and position. 28. By filing a supplementary affidavit the petitioners have also brought on record the order passed by the Principal Secretary of Human Resources Development Department dated 5.10.2009 in the case of Ramashankar Singh vis-a-vis Janardan Singh which has already noted in C.W.J.C. No. 15540/2009. 29. In this case a counter affidavit has been filed duly sworn by the Deputy Director of Secondary Education wherein it has been stated that the petitioners do not possess the requisite training degree i.e. Bachelor in Education, Diploma in Education, Diploma in Teaching and therefore, they cannot claim promotion to the post of Headmaster. Further reliance has been placed on the order of the State Government dated 7.7.2008 laying down that the teachers possessing qualification of Acharya, Fazil and Training in Physical Education would not be treated to have qualification prescribed for general teacher and as such, they cannot be appointed as Acting Headmaster. In this counter affidavit also reference has been made to the earlier order of the State Government dated 17.3.1983 wherein it was clarified that such of the physical trained teachers, who have the qualification of Diploma in Education/ B.Ed. shall alone be entitled for consideration for the purposes of appointment/ promotion on the post of Headmaster and their seniority could be also counted for the purposes of being included in the senioriry list with the general teachers. 30. The respondents in their counter affidavit have explined that the subsequent letter dated 24.11.1986 issued by the Director, Secondary Education and in this regard it has been stated that the same was only by way of clarification and confined as well as limited to the benefit of grant of selection pay scale even to the teachers having qualification of Acharya, Fazil and Physical Training. According to the deponent, the Deputy Director, the said clarification the letter dated 24.11.1986 was not meant for the purposes of appointment and promotion on the post of Headmaster. According to the deponent, the Deputy Director, the said clarification the letter dated 24.11.1986 was not meant for the purposes of appointment and promotion on the post of Headmaster. By way of abundant caution the Deputy Director in his counter affidavit has also clarified that the service condition of teachers of Nationalized School is other than the service condition of teachers of other Government Schools and the two cannot be compared and in this regard it has been stated that the cadre of teachers of nationalized Secondary School is the divisional cadre and in fact they are not part and parcel of Bihar Subordinate Education Service having a cadre of teachers at the State Level meant exclusively for teachers of Government High Schools. It has, therefore, been also asserted that there can be no parity between the teachers of Nationalized high school and the teachers of other Government Secondary Schools. C.W.J.C. No. 5503/2010 31. In this case the sole petitioner Raghwendra Narayan Rakesh has assailed the order dated 5.10.2009 issued under the signature of Principal Secretary of Department of Human Resources wherein a general direction was given to remove the name of physically trained teacher from the divisional seniority list prepared in between 1983 and 1986 and to prepare a fresh gradation list after excluding the names of physically trained teachers having qualification of Diploma in Physical Education. The petitioner has also prayed for quashing of the order dated 27.1.2010 whereby and whereunder he has been removed from the post of In-charge Headmaster of Bhagwat High School, Sahar Telpa, Arwal and a direction was also given to him to handover charge to one Krishna Sharma, an allegedly junior teacher to the petitioner solely on the ground that the petitioner was a physical trained teacher and did not possess the qualification of general teacher of Bachelor in Education (B.Ed.). 32. From the averments made in the writ application it would be clear that the petitioner also has come out with the same set of facts and harbours under the same impression that the order dated 24.11.1986 issued by the Director, Secondary Education, would be a settler on the issue of a physically trained teachers to be at par with the other teachers of High School both in the matter of grant of pay and emoluments as also seniority and promotion on the post of Headmaster in a High School. He has also referred to the facts of the case of Janardan Singh and Ramashankar Singh which has been noted earlier in C.W.J.C. No. 15540/2009. He has stated that only as a fallout of the order of the Principal Secretary of the Education Department dated 5.10.2009 that the petitioner’s continuation on the post of In-charge Headmaster was discontinued and a junior teacher to him was made In-charge Headmaster by the impugned order dated 27.1.2010. I.A. No. 3626/2010 has been filed by the petitioner for staying of the order dated 27.1.2010 removing the petitioner from the post of Acting Headmaster. 33. Though in this case respondent No. 6, who has been made Acting Headmaster in place of the petitioner has already appeared but no counter affidavit has been filed by him as well as by other official respondents. C.W.J.C. No. 20809/2010 34. In this case the sole petitioner Chandra Kishore Kumar has assailed the order dated 7.12.2010 promoting 701 Assistant Teachers on the post of Headmaster, issued by the Joint Secretary of Human Resources Development Department, which according to him is in violation of the interim order passed by this Court on 11.2.2010 in C.W.J.C. No. 14818/2009. In this regard the petitioner has stated that the order dated 5.10.2009 passed by the Principal Secretary of the Human Resources Development Department directing exclusion of the name of physical trained teachers from the list of divisional seniority list and preparation of fresh gradation list was itself illegal and when the said order was stayed by an interim order dated 11.2.2010 in C.W.J.C. No. 14818/2009, the respondents could not have either finalized the gradation list or could have issued the order of promotion dated 7.12.2010, especially when the Director, Secondary Education in compliance of the aforesaid interim order had also issued consequential order on 19.5.2010 staying the order dated 5.10.2009. 35. In this case a counter affidavit has been filed by the Deputy Director, Secondary Education, wherein it has been stated that the issue of promotion of Assistant Teacher on the post of Headmaster is quite different to preparation of the divisional level gradation list for which only the direction was issued by the Principal Secretary of Education Department in his order dated 5.10.2009. It has also been clarified that the divisional level gradation list as prepared has not been finalized and no notification has been made. It has also been clarified that the divisional level gradation list as prepared has not been finalized and no notification has been made. In this regard reliance has also been placed on Bihar Nationalized Secondary Schools (Service Condition) Modified Rules, 2005 wherein the minimum qualification for the post of Headmaster has been enhanced to Post-graduate degree in Arts, Science and Commerce from any recognized University as well as degree in Education i.e. Bachelor in Education (B.Ed.) or Diploma in Education (Dip-in-Ed.) or Diploma in Technical (Dip-in-Tech.) or Bachelor in Teaching (B.T.) from any recognized University, Board, Government or equivalent training. It has also been stated that the teachers including the petitioner possessing only the qualification of physical training are not eligible for the post of Headmaster in nationalized (taken over) secondary schools. In paragraph 6 it has also been stated that the order of posting of permanent Headmaster of the school in question has been issued from the State Level gradation list, which is not at all related to the interim order dated 11.2.2010 passed in C.W.J.C. No. 14818/2009. 36. In this regard apart from denying the allegation of violation of interim order the respondents have also placed on record the recommendation of Fitment cum Pay Revision Committee constituted by the State Government under the Chairmanship of Hon'ble Mr. Justice S. Sarwar Ali (as his Lordship then was) who had made the following recommendation in Chapter 16 of his report: “16.6.3 In Bihar, for Nationalized Secondary Schools according to the Bihar Nationalized Secondary School (Service Conditions) Rules, 1983, a Headmaster/ Principal can be appointed provided he/she has a Graduation Degree in Arts/ Science/ Commerce and is in possession of B.Ed./ Dip.-in-Teaching/ B.T. or some trained notified as equivalent by the State Government as well as 10 years teaching experience which is relaxable upto 7 years for S.C./ S.T. Ladies and Headmasters of Schools under management of erstwhile private individuals. The Rules also provide that 20% of the posts of Principals will be filled by direct recruitment and 80% by promotion and the cadre of Principals will be for the entire State with the Director, Secondary Education being the controlling officer. Hence, in Bihar Post-graduation is not an essential qualification for appointment as Headmaster/ Principal and this would need to be introduced. Hence, in Bihar Post-graduation is not an essential qualification for appointment as Headmaster/ Principal and this would need to be introduced. Furthermore, direct recruitment to the extent of 66.6% or 50% would have to be made and written examination would need to be invariably organized. 16.6.4 We recommend that rules as discussed in the foregoing paragraphs and what we have already recommended in Chapter 12 of Volume II, Part II should be kept in view and recruitment rules for the post of Principal of Secondary Schools should be laid down. In brief Post-graduation, a written test and interview as well as training and experience should be insisted upon as is prevalent in the Centre.” 37. It has been stated that on the aforesaid recommendation of the Fitment cum Pay Revision Committee the Government had issued Resolution No. 6022 dated 18.12.1989 making the provision that the Department of Human Resources Development should issue detailed order and guidelines in the matter of prescribed qualification, training, requirement and eligibility for recruitment and promotion and crossing of efficiency bars in terms and conditions in force as in the Central Government. It has also been stated that as per recommendation of the Fitment cum Pay Revision Committee suitable amendments were made in Bihar Nationalized Secondary School (Service Conditions) Rules, 1983 by making Bihar Nationalized Secondary Schools (Service Condition) Modified Rules, 2005 laying down the norms of promotion of Assistant Teachers of Nationalized (taken over) Schools to the post of Headmaster/Principal of such High School. It has been clarified that in view of the Modified Rules of 2005 any person including the petitioner, who is not Postgraduate and does not possess the requisite qualification including the prescribed teachers training qualification in education is ineligible for inclusion of his name in divisional cadre list as well as for appointment/ promotion on the post of Headmaster. 38. The deponent in justification of the action of respondents debarring the physical trained teachers from working as an Acting Headmaster has stated that the administrative work of the school cannot be allowed to be discharged by physical trained teachers who in fact do not possess the prescribed qualification of being promoted to the post of Headmaster and as such, is not eligible to become Headmaster. Reliance has also been placed on the earlier clarification issued by the State Government dated 17.3.1983 wherein it was directed that the names of physically trained teachers having the qualification of Diploma in Education or Bachelor in Education alne could be considered for the purposes of their appointment/ promotion to the post of Headmaster and the seniority of only such teachers could be counted on the basis of rules of seniority with other general teacher of High Schools. An explanation has also been given that the letter of the Director, Secondary Education dated 24.11.1986 as with regard to physical trained teachers and the teachers having qualification of Acharya/Fazil qualification for their being made entitled for grant of selection grade which however would not amount to their also becoming eligible for appointment/ promotion on the post of Headmaster/ Principal. 39. It has been clarified by the deponent of the counter affidavit that since the petitioner does not possess the qualification of teachers training degree as prescribed for general Assistant Teachers of the school he is not entitled for appointment/promotion on the post of Headmaster. In this regard paragraphs No. 19 and 20 being relevant is also quoted herein-below: “19. That the physical trained teachers do not possess the qualification of B.Ed. or Dip-in-Ed. or Dip.-in-Teach. or B.T. from any recognized university/board/government or equivalent training degree declared by the State Government as like the general assistant teachers of the school who deserves to be appointed as the Acting Headmaster/ Headmaster on the vacancy/ promotion, as the circumstances permit, under section 4(C) of the Rules which does not include to the physical trained teachers. 20. That vide letter No. 5379 dated 7.7.08, necessary guidelines have been issued whereby it has been clarified that the teachers possessing the qualification of Acharya, Fazil and Physical Training but do not have the general teacher’s qualification cannot be treated at par with graduate trained teachers and so, they cannot be placed in the divisional seniority list of general teachers and accordingly, such teachers are not eligible/entitle for appointment as In-charge Headmasters and further, been directed that the Acharya, Fazil and Physical Trained teachers cannot be included in the gradation list and accordingly, the divisional level gradation list prepared earlier are being modified.” 40. In the background of the aforementioned foundational facts brought on record by the parties in their respective writ applications the core issue on which all other ancillary aspects raised in various writ application can be effectively answered is "as to whether the teachers working in the taken over secondary schools governed by the service conditions framed under Bihar Rajkiyakrit Madhyamik Vidyalaya (Seva Sarta) Niyamawali, 1983 (hereinafter referred to as the Service Condition Rules, 1983) having qualification of being trained in physical education are eligible for being considered for promotion on the post of Headmaster of the High School? Once this main question is decided the rest of the individual grievances relating to either inclusion of the name of the petitioners in the combined gradation list or their being assigned duty of In-charge Headmaster in absence of regular Headmaster as has been raised in all these writ applications being consequential in nature can be easily decided accordingly. 41. In this regard at the outset it has to be mentioned that prior to the year 1980, there were two types of High Schools in this State, namely, Government High Schools and the Nongovernmental High Schools. The teachers in the Governmental High School were appointed by the Government and formed a separate service namely Bihar Sub-ordinate Education Service and for them there was a separate service condition. 42. As with regard to the non-governmental Secondary Schools statutory provisions were made only to regulate its functioning by providing the mode of granting permission of establishment and recognition of there private schools. The Government had only laid down the qualification of teachers of such non-governmental school and the power of appointment was vested in Managing Committee of such schools. 43. In the year 1980 the Governor of Bihar had promulgated an Ordinance for take over of the private recognized High Schools. Subsequently in the year 1981 the legislature had also enacted, Bihar Arajkiya Madhyamik Vidyalaya (Prabandh Awam Niyantran Grahan) Adhiniyam, 1981. Section 9 of 1981 Act had empowered the State Government to frame service conditions and by a notification dated 9.6.1983 the aforementioned Seva Sarta Niyamawali, 1983 was notified. Subsequently in the year 1981 the legislature had also enacted, Bihar Arajkiya Madhyamik Vidyalaya (Prabandh Awam Niyantran Grahan) Adhiniyam, 1981. Section 9 of 1981 Act had empowered the State Government to frame service conditions and by a notification dated 9.6.1983 the aforementioned Seva Sarta Niyamawali, 1983 was notified. In the said Service Condition Rules, 1983 the expression Headmaster has been defined under Rule 2(7) which reads as follows:- ^^2¼7½ **iz/kkuk/;kid** ls vfHkizsr gS l{ke inkf/kdkjh }kjk fo|ky; ds iz/kku ds :i esa fu;qDr f’k{kd pkgsa mldk inuke tks Hkh gksA Seva Sarta Niyamawali, 1983 also defines the expression Shikshak under Rule 2(8) which is also quoted herein-below: ^^2¼8½ **f’k{kd** ls vfHkizsr gS fdlh jktdh;d`r ek/;fed fo|ky; esa f’k{k.k dk;Z ds fy, fu;qDr O;fDr ftlesa iz/kkuk/;kid Hkh lfEefyr gSA** 44. Rule 3 of Service Condition Rules, 1983 classifies and categorizes teachers into four categories which reads as follows: ^^f’k{kd inksa dh Jsf.k;k¡ & jktdh;d`r ek/;fed fo|ky; esa f’k{kdksa dh v/kksfyf[kr Jsf.k;k¡ gksaxhA ¼d½ iz/kkuk/;kid ¼[k½ lgk;d f’k{kd ¼izoj Js.kh½ ¼x½ lgk;d f’k{kd ¼voj Js.kh½ lgk;d iz/kkuk/;kid] LukrdksÙkj osrueku] izoj dksfV ¼15 izfr’kr okys izf’kf{kr Lukrd] ‘kkjhfjd izf’kf{kr Lukrd] vkpk;Z ,oa Qkfty rFkk led{k ;ksX;rk/kkjh f’k{kd½ 18-9-72 ,d fu;qfDr vizf’kf{kr Lukrd ,oa izf’kf{kr Lukrd ds osrueku esa fu;qDr vU; f’k{kd½A ¼?k½ lgk;d f’k{kd ¼duh; Js.kh½ ¼18-9-72 ds ckn fu;qDr vizf’kf{kr Lukrd] ‘kkL=h] vkfye] ¼izf’kf{kr bUVjehfM;sV½ izoj dksfV lfgr] izf’kf{kr eSfVªd ¼izoj dksfV lfgr½ ,oa vU; ;ksX;rk/kkjh f’k{kdA fVIi.kh & jktdh;d`r ek/;fed fo|ky;ksa esa lkekU; lgk;d] f'k{kdks ds lHkh in voj Js.kh esa gksaxsA duh; Js.kh dk dksbZ lkekU; f'k{kd ;fn izf'kf{kr Lukrd dh ;ksX;rk gkfly dj ysrk gS rks og mDr ;ksX;rk dk izkfIr dh frfFk ls voj Js.kh ds f'k{kd dh dksfV esa vk tk;xkA duh; Js.kh ds lkekU; f'k{kd in esa ifjofrZr ekuk tk;xkA** 45. The all important Rule for the purposes of these writ applications is Rule 4 of Service Condition Rules, 1983 as modified in 2005 which lays down qualification for different post including that of the Headmaster, Assistant Teacher (Prawar Shreni), Assistant Teacher (Awar Shreni), Assistant Teacher (Kaniye Shreni) and for the sake of clarity Rule 4 also is quoted herein-below: ^^vgZrk & ¼d½ iz/kkuk/;kid & iz/kkuk/;kid in ij fu;qfDr@ izksUufr ds fy, U;wure vgZrk v/kksfyf[kr gksxh %& ¼1½ ekU;rk izkIr fdlh fo’fo|ky; ls dyk] foKku vFkok okf.kT; esa LukrdksÙkj fMxzhA ¼2½ ekU;rk izkIr fdlh fo’ofo|ky;] jkT; ljdkj }kjk ekU;rk izkIr cksMZ vFkok jkT; ljdkj ds f’k{kk foHkkx }kjk iznÙk ch0 ,M0] fMi0 bu0 ,M0@fMi0 bu0 fVp0@lh0 Vh0 vFkok jkT; ljdkj }kjk ?kksf”kr led{k f’k{kd izf’k{k.k dh ;ksX;rkA ¼3½ ¼v½ lh/kh HkrhZ ds ekeys esa fo?kfVr fcgkj ek/;fed f’k{kk cksMZ ;k jkT; ljdkj }kjk ekU;rk izkIr ek/;fed fo|ky;] jkT; ljdkj }kjk lapkfyr ek/;fed fo|ky; ;k dsUnzh; ljdkj }kjk ekU;rk izkIr cksMZ@laxBu }kjk jkT; ds Hkhrj lapkfyr Lohd`r ek/;fed fo|ky; esa Lukrd gksus ds ckn 10 o”kksZ dk f’k{k.k vuqHko@ijUrq vkfnoklh] gfjtu] efgyk ,oa laLFkkid iz/kkuk/;kidksa ds ekeys esa U;wure 7 o”kksZ dk f’k{k.k vuqHko i;kZIr ekuk tk;xkA fVIi.kh & laLFkkid iz/kkuk/;kid ls vfHkizsr gS ,slk f'k{kd ftldh fu;qfDr 2-10-80 ds iwoZ ekU;rk izkIr fo|ky; esa gqbZ gks rFkk ftudh lsok fo|ky; ds LFkkiukdky ls yxkrkj fcuk dze Hkax ds mDr fo|ky; esa jgh gks rFkk tks izkjaHk ls gh izHkkjh iz/kkuk/;kid in ds fy, fu/kZkfjr 'kS{kf.kd ;ksX;rk ,oa vgZrk j[krk gksA ¼c½ izoj osrueku izkIr dk;Zjr f’k{kdksa esa ls vkilh ojh;rk ds vk/kkj ij f’k{kd iz/kkuk/;kid ds in ij izksUufr ds gdnkj gksaxsA fdUrq izoj osrueku izkIr f”k{kdksa dh vuqiyC/krk dh fLFkfr esa oSls f’k{kd ftUgsa ojh; osrueku izkIr gS vkSj ftudh lsok U;wure chl o”kksZa dh iwjh gks xbZ gS] mUgsa izksUufr nh tk ldsxhA ¼[k½ izoj Js.kh ds lgk;d f’k{kd & lgk;d f’k{kdksa ds dqy inksa ds 20 izfr’kr in izoj Js.kh esa gksaxsA izoj Js.kh ds in voj f’k{kdksa dh izksUufr ls Hkjs tk;saxsA izksUufr ds fy, dkykof/k dk fu/kkZj.k dkfeZd foHkkx ds ijke’kZ ls fd;k tk;xkA ;Fkk&ijUrq 01-01-1986 ls izoj Js.kh esa ubZ izksUufr;ka ugha nh tk;sxhA iwoZ esa izoj Js.kh esa izksUur f’k{kdksa ds **lsok fuo`r gksus vFkok mudh 01-0-1986 ds ckn jkT; ljdkj }kjk le;≤ ij tkjh vkns’kksa ds v/khu ojh; osrueku ,oa izoj osrueku fn;k tk ldsxkA fVIi.kh & fo|ky; esa inLFkkfir izoj Js.kh ds ojh;re f'k{kd@lgk;d iz/kkuk/;kid ds :i esa dk;Z djsaxsA ;fn fdlh fo|ky; esa fdlh le; izoj Js.kh ds dksbZ lgk;d f'k{kd ugha gks rks voj Js.kh ds ojh;re lgk;d iz/kkuk/;kid ds :i esa dk;Z djsaxsA ¼x½ izoj Js.kh ds lgk;d f’k{kd & ¼1½ lkekU; f’k{kd %& ekU;rk izkIr fdlh fo”ofo|ky; ls dyk] foKku vFkok okf.kT; ls Lukrd fMxzhA ¼2½ ekU;rk izkIr fdlh fo”ofo|ky;] jkT; ljdkj }kjk ekU;rk izkIr cksMZ vFkok jkT; ljdkj ds f”k{kk foHkkx }kjk iznÙk ch0 ,M0@fMi bu0 ,M0@fMi0 bu0 Vhp0@lh0 Vh0 vFkok jkT; ljdkj }kjk ?kksf”kr led{k f’k{kd izf’k{k.k dh ;ksX;rkA fVIi.kh & vkfnoklh] gfjtu ,oa efgyk mEehnokj ds ekeys esa izf'k{k.k dh visf{kr ;ksX;rk j[kus okys mEehnokjksa dh vuqiyC/krk dh fLFkfr esa vizf'kf{kr mEehnokjsa dh fu;qfDr fo|ky; lsok cksMZ dh vuq'kalk ij dh tk ldsxhA ,sls vizf'kf{kr mEehnokjksa ds fu;qfDr djus ds iwoZ ;Fkk fofgr jhfr ls jkT; ds nks izeq[k nSfud i=ksa esa in dk foKkiu fd;k tk;sxkA vxj blds mijkUr okafNr dksfV ds vizf'kf{kr mEehnokj ugha miyC/k gksaxs rks izf'kf{kr gfjtu] vkfnoklh ,oa efgyk mEehnokjksa dh vuqiyC/krk dk izek.k i= fo|ky; lsok cksMZ ls izkIr djus ds mijkUr gh ,sls mEehnokjksa dh fu;qfDr dh tk ldsxh vFkok ,slh fu;qfDr dk vuqeksnu fn;k tk ldsxkA ‘kkjhfjd f’k{kk vuqns’kd& ¼1½ ekU;rk izkIr fdlh fo’ofo|ky; ls dyk] foKku vFkok okf.kT; esa Lukrd fMxzhA ¼2½ ekU;rk izkIr fdlh fo’ofo|ky; ;k jkT; ljdkj }kjk ekU;rk izkIr cksMZ vFkok jkT; ljdkj ds f’k{kk foHkkx }kjk iznÙk ‘kkjhfjd f’k{kk esa fMxzh ;k fMIyksek ;k led{k ;ksX;rkA **izkP; f’k{kd** fdlh ekU;rk izkIr fo’ofo|ky; vFkok jkT; ljdkj }kjk ekU;rk izkIr cksMZ@lfefr }kjk iznÙk vkpk;Z ¼lkfgR; vFkok O;kdj.k½ Qkfty ¼vjch vFkok Qkjlh ds fMxzh@fMIyksek rFkk laLd`r@Qkjlh@vjch esa ,e0 ,0@vkulZ esa izf’kf{krA fVIi.kh & vkpk;Z@Qkfty mEehnokjksa dh fu;qfDr ds ekeys esa fdlh ekU;rk izkIr fo'ofo|ky; ;k jkT; ljdkj }kjk ekU;rk izkIr cksMZ vFkok jkT; ljdkj ds f'k{kk foHkkx }kjk iznRr f'k{kd izf'k{k.k fMxzh@fMIyksek izek.k i=/kkjh dks vf/kekU;rk izkIr gksxhA m|ksx f’k{kd& ¼1½ fdlh ekU;rk izkIr fo’ofo|ky; vFkok cksMZ izosf’kdk ¼eSfVªd½ ijh{kksÙkh.kZA ¼2½ fdlh ekU;rk izkIr fo”ofo|ky; vFkok cksMZ@laLFkk ls m|ksx fo”k; esa fMxzh vFkok fMIyksek izkIrA laxhr f’k{kd& ¼1½ fdlh ekU;rk izkIr fo’ofo|ky; vFkok cksMZ ls izosf’kdk ¼eSfVªd½ ijh{kksÙkh.kZ ¼2½ fdlh ekU;rk izkIr fo”ofo|ky; ls laxhr esa Lukrd fMxzh@fMIyksek vFkok mldh led{k ;ksX;rkA yfyr dyk fa’k{kd ¼1½ fdlh ekU;rk izkIr fo’ofo|ky; vFkok cksMZ ls izosf’kdk ¼eSfVªd½ ijh{kksÙkh.kZA ¼2½ fdlh ekU;rk izkIr fo’ofo|ky; ls yfyr dyk esa Lukrd fMxzh@fMIyksek vFkok mldh led{k ;ksX;rkA d`f”k f’k{kd& fdlh ekU;rk izkIr fo’ofo|ky; ls d`f”k LukrdA** 46. Rule 5 of Service Condition Rules, 1983 lays down the manner of reckoning seniority in the cadre of teachers while Rule 6 lays down that the Assistant Teacher (Kaniya Shreni) will have a district cadre, whereas Assistant Teacher of Prawar Shreni and Awar Shreni shall have a divisional cadre and the Headmaster will have a State cadre. Rule 5 of Service Condition Rules, 1983 lays down the manner of reckoning seniority in the cadre of teachers while Rule 6 lays down that the Assistant Teacher (Kaniya Shreni) will have a district cadre, whereas Assistant Teacher of Prawar Shreni and Awar Shreni shall have a divisional cadre and the Headmaster will have a State cadre. Rule 7 lays down the manner of appointment and promotion which again is relevant for the purposes of these writ applications and is quoted herein-below: ^^fu;qfDr] izksUufr ds fu;e ,oa izfdz;k%& ¼1½ ¼d½ ¼1½ iz/kkuk/;kid ds 50 izfr’kr in izksUufr }kjk ,oa 50 izfr’kr in lh/kh fu;qfDr }kjk Hkjs tk;saxsA izksUufr ls Hkjs tkus okys inksa ds fy, vgZrk izkIr f’k{kdksa dh vuqiyC/krk dh fLFkfr esa bl inksa dks lh/ks fu;qDr ls Hkjk tk ldsxkA ¼2½ izeaMh; laoxZ esa iz/kkuk/;kid in dh vgZrk j[kus okys izoj osrueku izkIr f’k{kdksa dh la;qDr ojh;rk lwph funs’kd }kjk laoxksZ ds lEesyu ds fu;e ds vuqlkj rS;kj dh tk;sxhA lkFk gh ojh; osrueku izkIr oSls f’k{kd ftudh lsokof/k U;wure chl o”kksZa dh gks xbZ gS] budh ,d vyx ojh;rk lwph Hkh rS;kj dh tk;sxhA mDr la;qDr ojh;rk lwfp;ksa ls ojh;rk ,oa n{krk ds vk/kkj ij iz/kkuk/;kid in ij izksUufr l{ke izkf/kdkj dh vuq’kalk ij jkT; ljdkj ;k mlds }kjk izkf/kd`r inkf/kdkjh }kjk nh tk;sxhA ¼3½ iz/kkuk/;kid in ij lh/kh fu;qfDr }kjk Hkjh tkus okyh fjfDr;ksa dh lwpuk {ks=h; f’k{kk funs’kd] }kjk funs’kd ¼ek/;fed f’k{kk½ dks Hksth tk;xhA funs’kd ¼ek/;fed f’k{kk½ }kjk lHkh {ks=ksa esa izkIr fjfDr;ksa dh lwpuk lesfdr :i ls f’k{kk lsok dks Hksth tk;sxhA iz/kkuk/;kid in ij fu;qfDr lsok cksMZ dh vuq’kalk ij jkT; ljdkj ;k mlds }kjk izkf/kd`r inkkf/kdkjh }kjk dh tk;sxhA ¼[k½ izoj Js.kh ds f’k{kd & ¼1½ izoj Js.kh ds lHkh in ojh;rk ,oa n{krk ds vk/kkj ij izksUufr }kjk voj Js.kh ds f’k{kdksa ls Hkjs tk;saxsA ¼2½ izoj Js.kh esa f’k{kdksa dh izksUufr {ks=h; f’k{kk funs’kd dh v/;{krk esa xfBr lfefr }kjk dh tk;sxhA lfefr ds v|ksfyf[kr lnL; gksaxs%& ¼d½ {ks=h; f’k{kk funs’kdA ¼[k½ ml {ks= ds {ks=h; mi f’k{kk funs’kdA ¼x½ funs’kd dk ,d izfrfuf/kA fVIi.kh & lfefr dh cSBd esa funs'kd Lo;a gkfly gks ldrs gSaA oSlh ifjfLFkfr esa cSBd ds v/;{k funs'kd gksaxsA fVIi.kh & {ks=h; funs'kd izoj Js.kh dh oRrZeku ,oa vxys 'kS{kf.kd o"kZ dh lEHkkfor fjfDr;ksa dks /;ku esa j[krs gq, voj Js.kh dh ojh;rk lwph ls izksUufr dh lwph rS;kj djsaxs ftlesa miyC/k fjfDr ds yxHkx Ms<+ xq.kk uke gksaxsA mDr lwph ls ojh;rk ds vk/kkj ij izoj Js.kh esa izksUufr nh tk;sxhA izksUufr lwph ,d o"kZ rd izHkkoh jgsxhA ¼x½ voj Js.kh esa f'k{kdksa dh fu;qfDr lh/kh HkrhZ }kjk gksxhA fdlh dSys.Mj o"kZ ls lh/kh fu;qfDr ls Hkjs tkusokys voj Js.kh ds lkekU; f'k{kdksa ds 5 izfr'kr in jktdh;d`r ek/;fed fo|ky;kas esa dk;Zjr fofgr ;ksX;rk ,oa vgZrk izkIr fyfidksa ls ;Fkkfofgr jhfr ls Hkjs tk;sxsA vxj vgZrk izkIr fyfid vizsf{kr la[;k esa miyC/k ugha gksaxs rks vo'ks"k in lkekU; mEehnokjsa ls lh/kh fu;qfDr }kjk Hkjs tk;saxsA fo|ky; lsok cksMZ dh vuq'kalk ij funs'kd }kjk izR;sd izeaMy ds fy, rS;kj dh x;h lwph ls voj Js.kh esa f'k{kdksa dh fu;qfDr funs'kd@{ks=h; funs'kd }kjk dh tk;xhA ¼2½ iz/kkuk/;kid ,oa f’k{kdksa dh fu;qfDr@izksUufr esa vkj{k.k lEcU/kh ljdkj dh uhfr ykxw gksxh ¼ns[ksa dkfeZd foHkkx dh ladYi la[;k 11601 fnukad 20-10-82 ,oa dkfeZd foHkkx dh ladYi la[;k 716 fnukad 20-10-82 ifjf’k”V&1 ,oa 2½A ¼3½ duh; ,oa voj Jsf.k;ksa ds f’k{kdksa dh ojh;rk ls lEcfU/kr fu.kZ; ls izHkkfor f’k{kd ds vfHkosnu ij iqufoZyksdu dh ‘kfDr {ks=h; funs’kd dks gksxhA ¼4½ izoj Js.kh ds f’k{kdksa dh ojh;rk ls lEcfU/kr fu.kZ; ls izHkkfor f’k{kd ds vfHkosnu ij iqufoZyksdu dh ‘kfDr funs’kd dks gksxhA ¼5½ iz/kkuk/;kid dh ojh;rk ds lEcU/k esa izHkkfor iz/kkuk/;kid ds vfHkosnu ij iqfoZyksdu dh ‘kfDr jkT; ljdkj esa gksxhA ¼6½ f’k{kd ij ij fu;qfDr ds fy, mEehnokj dh mez foKkiu ds iapkax o”kZ dh 1 tuojh dks 21 o”kZ ls de ugha gksxhA ljdkjh lsok esa dk;Zjr f’k{kdksa ds fy, mez lhek dk izfrcU/k ugha jgsxkA ¼7½ jktdh;d`r fo|ky; dh ljdkjh lsok esa izfof”V dh vf/kdre lhek jkT; ljdkj fu/kkZfjr djsxhA ¼8½ f’k{kd ds in ls lsok fuo`fÙk dh vk;q 58 o”kZ gksxhA ftudh tUe&frfFk eghus dh igyh rkjh[k ds ckn gksxh os eghus dh vfUre rkjh[k dks fuo`Ùk gksaxsA** (Underlining for emphasis) 47. From a bare perusal of the aforementioned Rules it would be clear that though there are categories of teachers, such as Physical Trained Instructor (P.T.I.), teacher of Ancient Subject (Prachya Shikshak), Industrial Teacher (Udyog Shikshak), Music (Sangeet) Teacher, Teacher of Fine Arts (Lalit Kala Shikshak) and the Agriculture (Krishi) Teacher in addition to the general teachers when Rule 4(Ka) lays down the qualification for appointment/promotion on the post of Headmaster it prescribes that apart from the person being graduate in Arts, Science or Commerce he must have qualification of Teachers' Training Course leading to the degree or diploma including Bachelor of Education (B.Ed.), Diploma in Education (Dip-in-Ed) or Diploma in Teaching (Dip-in-Teach) or certificate of training awarded by any University or a recognized Board by the State Government or an equivalent qualification of Teachers Training Course declared by the State Government. Thus, Rule 4(ka)(2) read with Rule 7(1)(ka)(ii) laying down that the promotion on the post of Headmaster shall be given to such of the Assistant Teachers of Prawar Shreni forming part of divisional cadre who possess the prescribed qualification for the post of Headmaster as laid down in Rule 4 (ka) (1), (2) & (3) would leave nothing for speculation that the petitioners having only qualification of Physical Education Training do not possess the requisite qualification either for being included in divisional seniority list of selection grade teachers and/or for being promoted on the post of Headmaster in the taken over High School. There is no gainsaying that the prescription of qualification of Teachers Training for general teachers is also not the same as that of qualification of Physical Education laid down for the post of Physical Trained Teachers or Instructors. 48. From the scheme of Seva Shart Niyamavali, 1983 it is also abundently clear that the cadre of teachers of general subjects having qualification of Teachers Training by way of completing B.Ed., Dip.-in-Ed. is quite distinct in which there is no place for the other teachers including Physical Trained Instructors or teachers of Ancient subject or teachers of Industries or Music Teacher or teachers of Fine Arts or even teachers of Agriculture unless they too have acquired the qualification of B.Ed. Dip.-in-Ed. and others as mentioned in Rule 4(ka)(2) of the Service Condition Rules, 1983. Dip.-in-Ed. and others as mentioned in Rule 4(ka)(2) of the Service Condition Rules, 1983. The other specialized posts for teaching specific subject with separate prescribed qualification as prescribed in Rule 4 will also leave nothing for speculation that they do not and cannot form part of the cadre of general teachers. The promotion, therefore, being confined only to the members of the divisional cadre of teachers having prescribed qualification for the post of Headmaster, the persons like the petitioners having qualification of Degree or Diploma in Physical Education Training, cannot compare themselves with a general teacher having qualification of Bachelor in Education. 49. Merely because the physical Trained Teachers or other categories of Teachers as have also been provided selection grade pay scale they cannot seek parity with the general teachers with Grant of pay scale either in Junior Selection Grade or Senior Selection Grade is as per pay scale provided in resolution of Finance Department in the light of recommendation of Pay Revision Committee as duly explained by the respondents in their counter affidavit quoted in earlier part of this judgment. It is also well settled that selection grade is essentially the sanction of higher scale of pay in the same category of posts. It is actually sanctioned with the object of providing incentive to the employees having no outlets or very limited outlets for promotion to higher posts. It only carries a higher scale of pay though there is no changes in duty. Reference in this context may usefully be made to the judgment of Apex Court in the case of Lalit Mohan Deb vs. Union of India, AIR 1972 SC 995 wherein explaining this very aspect it has been laid down that whereas a selection grade confers entitlement to higher pay but in the same post whereas a promotional post is a higher post with a higher grade. 50. Mr. 50. Mr. Rajendra Prasad Singh, learned Senior counsel, also did not dispute this settled position but he, however, had tried to rely on the clause of Rule 4(ka)(2) **vFkok jkT; ljdkj }kjk ?kksf”kr led{k f’k{kd izf’k{k.k dh ;ksX;rk** to contend that once this Court in the case of Kumar Kant Choudhary (supra) has already held that the teachers having qualification of Diploma in Physical Education Training are also treated to be equivalent to the other teachers having qualification of Teachers' Training it has to be understood that even the teachers having qualification of Training in Physical Education would also be eligible for consideration for promotion on the post of Headmaster requiring qualification of Teachers Training. This Court, however, would find it difficult to accept the submission for more than one reason. 51. First of all an equivalence of qualification Teachers Training with qualification of Physical Education in term of Rule 4 of 1983 Service Condition Rules has to be notified by the State Government and till date admittedly there is no notification of the State Government which even remotely lays down that the qualification of Training in Physical Education will be equivalent to the qualification of Training in Teachers Training. The reliance placed by the petitioner in C.W.J.C. No. 15540 of 2009 on a circular of the State Government contained in letter of Director of Public Instruction dated 27.5.1955 is also wholly misplaced inasmuch as whatever was said therein did not envisage that the qualification of Teachers Training including Bachelor of Education (B.Ed.) is equivalent to degree or Diploma in Physical Education. That executive instruction was primarily meant for appointment of a physical trained teacher in a non-governmental high school as would be apparent from its relevant portion being quoted herein-below: “I am directed to say that the State Government have been pleased to arrive at the following decisions:- (1) Every recognized high school should have one graduate, holding a diploma in physical education, in addition, to two minimum number of posts of trained graduates. For the present there will be no objection to this post being one of the minimum of two posts of graduate this post being one of the minimum of two posts of graduate teachers in the school, but gradually every school should endeavour to create an additional post of assistant master for the physical education and health. For the present there will be no objection to this post being one of the minimum of two posts of graduate this post being one of the minimum of two posts of graduate teachers in the school, but gradually every school should endeavour to create an additional post of assistant master for the physical education and health. This teacher will be In-charge of physical education, Boy scouting, Health, Nutrition etc. and will also teach any other subject, which he may be qualified to teach. (2) A graduate holding a diploma in physical education should be treated as a trained graduate in the matter of salary and emoluments. (3) Proposals should be submitted for the upgrading of the existing posts of Physical Instructors in Government High Schools in the Lower Division of the Subordinate Educational Service.” 52. In view of above it becomes clear that for nongovernmental recognized school a post of physical trained teacher was sought to be created by the respective Managing Committee of those private schools. Thus, simply because it also said that such physical trained teacher having qualification of graduation and diploma in Physical Education would be eligible for grant of Graduate trained pay scale, the same would not amount to declaration of the State Government that the degree of Teachers' Training such as Bachelor of Education (B.Ed.) was also equivalent to Degree or Diploma in Physical Education. It has to be also kept in mind that at that point of time or in fact even later on there was no similar provision laying down the qualification for appointment or promotion on the post of Headmaster as has been laid down in Rule 4 of Service Regulations, 1983 which specifically lays that a teacher having qualification of Teachers' Training Bachelor in Education (B.Ed.) or its equivalent alone would be eligible for appointment or promotion on the post of Headmaster. 53. Secondly, the reliance on the judgment of the Division Bench of this Court in the case of Kumar Kant Choudhary (supra) by the petitioners is misplaced inasmuch as they have failed to take into account that the writ application of Kumar Kant Choudhary filed in the year 1974 was in altogether set of facts and law. In any event the same did not and in fact could not take into consideration the present statutory provisions contained in Seva Sarta Niyamawali, 1983. In any event the same did not and in fact could not take into consideration the present statutory provisions contained in Seva Sarta Niyamawali, 1983. The aforesaid judgment in the case of Kumar Kant Choudhary was in the context of a period when the High schools were only recognized private schools and there was a limited control of Bihar Secondary Education Board. From the reading of facts of the aforesaid caseit would also become clear that it was in respect of filling up the post of Headmaster of one unit school, namely, Jag Sah Manilal Sah High School in the district of Darbhanga that the decision of the private Managing Committee as with regard to filling up the post of Headmaster on account of vacancy created by the death of regular Headmaster Sheo Narain Mishra had been under consideration of this Court. 54. What, however, would completely distinguish the facts of the present cases is paragraph No. 12 of the aforesaid judgment wherein the relevant Rule 4 of Bihar High School (Service Condition) Rules, 1972 have been quoted for consideration of the question as to whether a teacher having training in Physical Education could be treated as a trained teacher for his promotion on the post of Headmaster. A bare perusal of underlined portion of Rule 4(11) of 1972 Rules reading as follows:- ^^fon~;ky; dk iz/kkuk/;kid de&ls&de ,slk izf’kf{kr Lukrd gksxk ftls f’k{kk iz’kklu ;k fdlh fon~;ky; esa v/;kiu dk nl o”kksZa dk vuqHko gksA iz/kkuk/;kid ds in ds fy, Åij vf/kdfFkr U;wure ;ksX;rk ls mPprj ;ksX;rk okys O;fDr dks izkIr djus dk cjkcj iz;Ru fd;k tkuk pkfg;sA** And its comparison with the underlined portion of the present Rule 4 of Seva Shart Niyamavali 1983 reading as follows:- ^^vgZrk&¼d½ iz/kkuk/;kid&iz/kkuk/;kid in ij fu;qfDr@izksUufr ds fy, U;wure vgZrk v/kksfyf[kr gksxh %& ¼1½ ekU;rk izkIr fdlh fo’ofo|ky; ls dyk] foKku vFkok okf.kT; esa LukrdksÙkj fMxzhA ¼2½ ekU;rk izkIr fdlh fo’ofo|ky;] jkT; ljdkj }kjk ekU;rk izkIr cksMZ vFkok jkT; ljdkj ds f’k{kk foHkkx }kjk iznÙk ch0 ,M0] fMi0 bu0 ,M0@fMi0 bu0 fVp0@lh0 Vh0 vFkok jkT; ljdkj }kjk ?kksf”kr led{k f’k{kd izf’k{k.k dh ;ksX;rkA Will itself clarify that there is a world of difference in the two qualification laid down for appointment on the post of Headmaster. 55. 55. In fact noticing the aforesaid 1972 Rules the Division Bench of this Court in the light of expression “Prashikshit Snatak” (trained graduate) to have not conveyed the meaning of trained in teachers training education leading only to degree or diploma of B.Ed. or Dip.-in-Ed. in the case of Kumar Kant Chaudhary (supra) had held that once there was an executive instruction dated 27.5.1955 by way of decision of the State Government to also treat a graduate holding a diploma in physical education as a trained graduate, the Managing Committee of the private schools could not have denied promotion of physical training Instructor on the ground that he was not a trained teacher in the school. 56. The 1972 Rules or aforesaid executive instrutions dated 27.5.1955 having however been specifically repealed by Rule 21 of Sewa Sharta Niyamawali, 1983 in the following terms:- ^^fujlu vkSj O;ko`fÙk & bl fu;ekoyh ds izo`Ùk gksus ds iwoZ bl fu;ekoyh fo”k;ksa ij fo?kfVr fcgkj ek/;fed f’k{kk cksMZ vFkok jkT; ljdkj }kjk cuk;h x;h dksbZ fu;ekoyh ;k fuxZr dksbZ vkns’k bl fu;ekoyh ls izo`Ùk gksus dh frfFk ls fujflr ekus tk;saxsA ¼2½ ,sls fujlu ds gksrs gq, Hkh mfYyf[kr vkns’kksa }kjk ;k mlds v/khu ‘kfDr;ksa ds iz;ksx esa fd;k x;k dksbZ dk;Z ;k dh xbZ dksbZ dkjZokbZ bl fu;ekoyh }kjk ;k blds v/khu iznÙk ‘kfDr;ksa ds iz;ksx esa fd;k x;k ;k dh x;h le>h tk;xh ekuksa ;g fu;ekoyh ml fnu izo`Ùk Fkk ftl fnu ,slk dk;Z fd;k x;k Fkk ;k ,slh dkjZokbZ dh xbZ FkhA** In force since 9.6.1983 can now no longer be relied by the petitioners who are admittedly governed by the present Sewa Shart Niyamavali 1983. 57. The law having been changed after nationalisation of private recognized High Schools w.e.f. 2.10.1980 by 1981 Taken Over Act followed by a new service condition prescribing under Rule 4 of Sheva Shart Niyamavali already will leave nothing for speculation that there was altogether different provision in 1972 Rules wherein neither the qualification of Teachers Training including B.Ed. nor any other qualification as specifically prescribed under present Rule 4(ka)(2) had been there. nor any other qualification as specifically prescribed under present Rule 4(ka)(2) had been there. In such a situation, the interpretation of the Division Bench of Rule 4(11) of 1972 Rules in the case of Kumar Kant Chaudhary (supra) cannot be made applicable to the present 1983 Rules inasmuch as it is well settled in law that a judgment rendered in respect of a separate statutes having no paramateria provision, would not govern the case having altogether different statutory provision. Thus, there would be no difficulty in holding that the judgment of the Division Bench in the case of Kumar Kant Choudhary (supra) cannot be made applicable for the purposes of holding that under the present Service Condition Rules, 1983 a teacher having qualification of being trained in Physical Education would also qualify for being considered for promotion on the post of Headmaster in the nationalized high school. 58. Once this Court would reach to this conclusion that the judgment of Kumar Kant Choudhary (Supra) is not applicable to the facts of the present case, there would be no difficulty in also holding that the subsequent judgment dated 7.11.1979 in C.W.J.C. No. 1848/1979 (Lakshman Sharma vs. the State of Bihar & ors.) would also not be applicable for two reasons; firstly that case also was not governed by any statute like present Service Condition Rules, 1983 and secondly that was also delivered on the basis of existing 1972 Rules by following the ratio of Kumar Kant Choudhary (supra). 59. 59. As with regard to the reliance on the letter of the Director, Secondary Education dated 24.11.1986 it has to be stated that first of all same is letter issued by way of a clarification at the level of the Director (and not State Government) who had no power of his own to do so as would be also apparent from the content thereof reading as follows: ^^izs”kd] Jh ,e0 ih0 ‘kqDy funs’kd ¼Hkk0 f’k0½≶&laqDr lfpo] f’k{kk foHkkx] fcgkj] iVukA lsok esa] ftyk f’k{kk inkf/kdkjh] iVukA iVuk] fnukad 24-11-1986A fo”k;%& jktdh;d`r mPp fo|ky;ksa@vYila[;d fo|ky;ksa esa dk;Zjr ‘kkjhfjd izf’kf{kr Lukrd] vkpk;Z ,oa Qkfty f’k{kdksa dks izoj dksfV dk osrueku Lohd`r djus ds lEcU/k esaA egk’k;] mi;qZDr fo”k; ij vkids i=kad 1049 fnukad 30-5-85 ds izlax esa dguk gS fd ‘kkjhfjd izf’kf{kr Lukrd f’k{kd dks jkT; ljdkj ds }kjk lHkh n`f”V ls lkekU; izf’kf{kr f’k{kd ds led{k ekuk x;k gSA ‘kkjhfjd izf’kf{kr f’k{kdksa dks lkekU; izf’kf{kr f’k{kdksa dh Hkkafr izoj dksfV ds osrueku nsus esa dksbZ oS/kkfud vM+pu ugha gSA ekuuh; mPp U;k;ky; iVuk ds }kjk lh0 MCyw0 ts0 lh0 la[;k 1848@79 esa ;g Li”V dj fn;k x;k gS fd ‘kkjhfjd izf’kf{kr LukrdksRrj f’k{kdksa dks izf’kf{kr ,e0 ,0 ds osrueku nsus esa bl vk/kkj ij fd os ‘kkjhfjd izf’kf{kr f’k{kd gSa] lkekU; f’k{kdksa dh dksfV esa Lukrdksrj osrueku nsus esa dksbZ Hksn&Hkko ugha cjrk tk;xkA ekuuh; mPp U;k;ky; iVuk ds }kjk lh0 MCyw0 ts0 lh0 la[;k 724@74 esa ;g Hkh fu.kZ; fy;k tk pqdk gS fd ‘kkjhfjd izf’kf{kr f’k{kd Hkh iz/kkuk/;kid in ij fu;qfDr ds fy;s fopkj gsrq ;ksX; ekus tk;saxsA ,slh fLFkfr esa ‘kkjhfjd izf’kf{kr f’k{kdksa ds lEcU/k esa bl rjg dh ‘kadk mBus dh dksbZ xqatkb’k ugha jg xbZ gSA ‘kkjhfjd izf’kf{kr f’k{kd dks lkekU; f’k{kd dh dksfV esa ljdkj }kjk eku fy;k x;k gSA vr% vU; f’k{kdksa ds lkFk mUgsa Hkh izojdksfV ds osrueku ds fy;s lkekU; :i ls fopkj djuk gSA blesa dksbZ Hksn&Hkkn dh uhfr ugha viukuh gSA tgk¡ rd vkpk;Z ,oa Qkfty ;ksX;rk/kkjh f’k{kdksa dks izojdksfV dk osrueku nsus dk iz’u gSA jkT; ljdkj ds }kjk mUgsa Lukrd izf’kf{kr f’k{kdksa dh dksfV esa j[kdj ojh;rk dk ykHk fn;k x;k gSA bl izdkj bl ykHk ds vk/kkj ij mUgsa Hkh izoj dksfV dk osrueku vuqekU; gks tkrk gSA bu f’k{kdksa dks izoj dksfV dk osrueku nsus ds fy;s izf’k{k.k dh ‘krZ j[kuk ;qfDrlaxr ugha gksxkA fo’oklHkktu ¼,e0 ih0 ‘kqDy½** 60. From a bare reading of the aforesaid letter it would be clear that first of all it was by way of clarification issued by the Director, Secondary Education to his sub-ordinate Officer, District Education Officer, Patna and secondly it had only sought to clarify as with regard to grant of Selection Grade pay scale to the physically trained teachers. As a matter of fact when the Director of Secondary Education has treated two categories of teachers, namely, general trained teachers and physically trained teachers and has made reference to the judgment of Kumar Kant Choudhary (supra) as also Lakshman Sharma (supra) for giving his interpretation, its content must be read in relation to the purpose which was issued. As noted above, it was only with regard to grant of pay scale of Selection Grade and nothing else. 61. Fortunately the author of this letter Dr. M.P. Shukla, now a practicing Advocate in this Court, also appearing in one of these cases, namely, C.W.J.C. No. 13044 of 2008 has frankly conceded that this letter was issued by him while functioning as a Director, Secondary Education in his own independent capacity without there being any order obtained by him from the State Government. In fact this position becomes clear from reading of the letter dated 24.11.1986 wherein there is no Government directive for issuance of such clarification at the level of the Director, Secondary Education. Thus, any such communication made by the Director, Secondary Education in his independent capacity, in absence of any power vested to him under 1983 Rules cannot bind the State Government and the petitioners cannot get any advantage of the said clarificatory letter issued by Dr. M.P. Shukla in capacity of the Director, Secondary Education. 62. This Court, however, must note that there was another executive instruction issued at the Government level on 17.3.1983 which also was issued prior to 9.6.1983 when Seva Sarta Niyamawali, 1983 was notified. M.P. Shukla in capacity of the Director, Secondary Education. 62. This Court, however, must note that there was another executive instruction issued at the Government level on 17.3.1983 which also was issued prior to 9.6.1983 when Seva Sarta Niyamawali, 1983 was notified. In the said circular which was pertaining to 1972 Rules and Rule 4(11) thereof in particular, the State Government after the judgment of the Division Bench in the case of Kumar Kant Choudhary (supra) had taken the following decision:- ^^izs”kd] Jh ,l0 ,e0 gluSu] ljdkj ds vij lfpo] f’k{kk foHkkx] fcgkj lsok esa] funs’kd ¼ek0 f’k0½ lg vij lfpo] f’k{kk foHkkx] fcgkj iVuk] fnukad 17-3-1983 fo”k;%& ‘kkjhfjd izf’kf{kr Lukrd f’k{kd dks lgk;d iz/kkuk/;kid@iz/kkuk/;kid ds in ij izksUur djus ds lEcU/k esaA egk’k;] mi;qZDr fo”k; ds lEcU/k esa dguk gS fd ekuuh; mPp U;k;ky; iVuk dh ;kfpdk la[;k 724@74 }kjk fn;s x;s funsZ’k ds vkyksd esa jkT; ljdkj us ;g fu.kZ; fy;k gS fd ekU;rk izkIr ek/;fed fo|ky; ds ‘kkjhfjd izf’kf{kr Lukrd tks fMi0 bu0 ,M0@ch0 ,M0 dh ;ksX;rk j[krs gksa] dks lgk;d iz/kkuk/;kid@iz/kkuk/;kid ds in ij lkekU; ‘kÙkksZa ds v/khu fu;qDr@izksUufr fd;k tk ldsxkA ,sls f’k{kdksa dh lsok dh ojh;rk dh x.kuk ek/;fed fo|ky; ds vU; lkekU; f’k{kdksa dh ojh;rk ds fu;eksa ds vuqlkj fd;k tk;xkA ¼,l0 ,e0 gluSu½ ljdkj ds vij lfpo] f’k{kk foHkkx] fcgkjA** 63. As would be apparent the State Government on 17.3.1983 had decided that only such teacher having training of Physical Education who had also completed Teachers Training course and had acquired the training of B.Ed. or Diploma in Education, would be entitled for their promotion on the post of Assistant Headmaster/Headmaster which were the two promotional posts in 1972 Rules. It has to be held that even this executive instruction dated 17.3.1983 being prior to 9.6.83 when Sewa Shart Niyamavali having statutory force was notified no longer remains in force. The State Government in the counter affidavit of some the present case as noted above also while explaining the case of the petitioners has explained this aspect and in fact once this is established by any of the petitioners that they also possess the qualification of B.Ed. or its other equivalent qualification as specifically mentioned in Rule 4(ka)(2) of Seva Sarta Niyamawali, 1983, they by virtue of the 1983 Rule itself would become eligible for consideration for the post of Headmaster. or its other equivalent qualification as specifically mentioned in Rule 4(ka)(2) of Seva Sarta Niyamawali, 1983, they by virtue of the 1983 Rule itself would become eligible for consideration for the post of Headmaster. Thus, even the letter dated 17.3.1983 in no way would improve the case of the present petitioners who do not possess the qualification of Teachers Training as specifically prescribed for the post of Headmaster under Rule 4 of Service Condition Rules, 1983. 64. As a matter of fact the respondents have rightly placed reliance on an unreported judgment of this Court in the case of Binod Kumar Singh vs. the State of Bihar & ors. In C.W.J.C. No. 6947/1994 wherein though the case relating to Primary School Teachers was decided in the matter of grant of equivalent pay scale to the teachers having training qualification in Physical Education but then clear a difference between such training of Physical Education vis-a-vis the teachers training course leading to B.Ed. degree was explained in following words: “The term training in the context connotes qualification of degree or diploma in Education, called teachers training, and the term trained means a person who has successfully completed the teacher's training course and has got the certificate (B.T./T.T. granted by the Bihar School Examination Board at the Primary Level) or Diploma/ Degree (Dip. in Ed./B.Ed./M.Ed. granted by the University). Some confusion appears to have arisen as physical training (a loose expression for physical education) is sometimes understood as skin to teachers training, which is not correct. Physical Education and Education are two different subjects. Teachers training is a specialized professional course with emphasis on methodological aspects of teaching.” 65. In view of above, the petitioners cannot be heard to say that they are also trained teachers having equivalent qualification as prescribed under Rule 4(ka)(2) of Service Condition Rules, 1983 and it has to be, therefore, necessarily held that the teachers like the petitioners in Physical Education or Physical Trained Instructors do not possess the requisite qualification of teachers training in education and as such, are not entitled for being considered for promotion on the post of Headmaster. 66. 66. In the light of the main question having been answered there would be no difficulty in holding that the consequential orders issued by the Director, Secondary Education dated 7.7.2008 as assailed in C.W.J.C. No. 10340/2009 as with regard to exclusion of teachers of Ancient subject or physical trained teachers from the divisional gradation list of general teachers. Once they do not possess the qualification laid down for the post of Headmaster and they are class apart, they cannot be included in a cadre of general teacher. As such, their grievance for being included in the divisional gradation list of general teachers is wholly misconceived and must be rejected. 67. This Court also does not find any error in the order of the Principal Secretary dated 5.10.2009 which has been assailed in C.W.J.C. No. 14818/2009, inasmuch as such an order came to be passed on a matter remitted by this Court to the Director, Secondary Education and its appeal being carried to the Principal Secretary. The Principal Secretary in fact has only held that in absence of qualification, the teachers having training in Physical Education cannot be compared with the teachers of general education and as such, neither they can be included in the gradation list general teachers nor they can be considered for holding the post of Headmaster even on In-charge basis. By holding so the Principal Secretary has only affirmed the settled principle of Service Jurisprudence that even a current charge arrangement or In-charge arrangement can be made only through a person who has the qualification for the post. Since the petitioners do not possess the requisite qualification for the post of Headmaster, i.e. the degree in B.Ed. or any other degree as prescribed under Rule 4(ka)(2), they would also not be entitled for holding the post of In-charge Headmaster. It is the senior most teacher of general category having requisite qualification for the post of Headmaster as laid down in Rule 4 of the Service Condition Rules, 1983 who only can be made even as an In-charge Headmaster. 68. In view of the aforesaid findings this Court does not find any error even in issuance of order of promotion dated 7.12.2010 of the Headmasters as specifically assailed in C.W.J.C. No. 20809 of 2010. 68. In view of the aforesaid findings this Court does not find any error even in issuance of order of promotion dated 7.12.2010 of the Headmasters as specifically assailed in C.W.J.C. No. 20809 of 2010. Such promotion order of the eligible teachers in terms of Rule 4(ka)(2) of the Seva Sarta Niyamawali cannot be held to be bad at the instance of the petitioner who in fact do not possess the prescribed qualification for being promoted on the post of Headmaster. Reference in this context may be usefully made to the judgment of Apex Court in the case of Dr. Umakant Saran vs. State of Bihar & Others, AIR 1973 SC 964 . 69. Such attack on the order of promotion dated 7.12.2010 cannot be sustained even on the alleged ground of violation of interim order of stay dated 11.3.2010 passed in C.W.J.C. No. 14818 of 2009. First of all there was no such restrain on the entire promotion of Headmasters all over Bihar in the order of this Court dated 11.2.2010 in C.W.J.C. No. 14818 of 2009. Additionally this Court would find the only prayer in C.W.J.C. No. 14818 of 2009 was confined to quashing an order of the Principal Secretary dated 5.10.2009 as with regard to mode and manner of preparation of gradation list of general teachers having prescribed qualification of the post of Headmaster. Thus, the stay of that order did not and could not mean that there was a complete ban on the entire promotion on the post of Headmasters all over Bihar. This has also been explained by the respondents in this counter affidavit filed in C.W.J.C. No. 20809 of 2010 in is paragraphs 8, 9 and 10 which is quoted herein-below: “8. That as regard to para-11 to 12 of the instant writ petition, it is humbly submitted that in very compliance of the interim order dated 11.2.2010 passed in C.W.J.C. No. 14818 of 2009 and its analogous cases passed by this Hon'ble Court, the order vide Memo No. 521 dated 5.10.2009 passed by the Principal Secretary has been stayed till further order vide Memo No. 521 dated 5.10.2009 (Annexure 3 of the writ petition). 9. 9. That in reply to para 13 of the instant writ petition, it is humbly submitted that the petitioner is trying to mix up the matter of divisional gradation list with the state level gradation list, only to mislead to the Hon'ble Court as such the promotions of the assistant teachers to the post of Head Masters have been made from the state level gradation list in consonance with the provisions of the Service Condition Rules, 1983 as well as the modified Rules, 2005 and therefore, the impugned order whereby and whereunder the assistant teachers have been promoted and posted as Head Masters in their respective schools, is just and proper. 10. That in reply to para 14 of the instant writ petition, it is respectfully submitted that the respondents have not disobeyed the aforesaid interim order passed in C.W.J.C. No. 14818 of 2009 and its analogous cases and have not invited the wrath of this Hon'ble Court rather the petitioner who tried to mislead this Hon'ble Court by filing the instant writ which is fit to be dismissed in limine on the ground of facts and circumstances stated herein.” 70. In absence of any denial by the petitioners of the aforesaid specific stand of the respondents this Court will have no difficulty in holding that the order of promotion dated 7.12.2010 also does not suffer from any error. 71. This Court also must accept the submissions of learned counsel for the State appearing in these cases who have placed his reliance on an order dated 29.7.2011 in C.W.J.C. No. 1848/2007 (Ram Prasad Ram & Others vs. State of Bihar & Others) wherein an exactly same question as rasied herein had been considered and answered in favour of the respondents. This Court also must accept the submissions of learned counsel for the State appearing in these cases who have placed his reliance on an order dated 29.7.2011 in C.W.J.C. No. 1848/2007 (Ram Prasad Ram & Others vs. State of Bihar & Others) wherein an exactly same question as rasied herein had been considered and answered in favour of the respondents. From the aforesaid order in the case of Ram Prasad Ram (supra) it is found that this Court had held exactly the same as has been recorded herein above but in deference to the submission of the learned counsels for the petitioners who had made much more elaborate submissions and had referred to some more documents by way of evidence as noted in this judgment, it has dealt with those issues again but has reached to the same conclusion that in absence of possessing the prescribed qualification for the post of Headmaster in Rule 4 of Service Condition Rules, 1983, the persons like the petitioners working as Physical Trained Teacher cannot be held eligible for being promoted on the post of Headmaster. This, however, remains a fact that the judgment of this Court in the case of Ram Prasad Ram (supra) has already become final and would be a binding precedent in absence of any contrary judgment on the subject of filling up the post of Headmaster by way of promotion under the Service Condition Rules, 1983 from amongst Assistant Teacher (Physical Education or Physical Training Instructor (P.T.I.). 72. Thus, for the reasons recorded above, this Court does not find any merit in these writ applications and they are, accordingly, dismissed. The interim orders passed in all these cases are also hereby vacated. Any of the petitioner or interveners continuing as Acting or In-charge Headmaster under the protection of interim orders of this Court would therefore also stand automatically reverted back to their original post of Physical Trained Teacher. It is also directed that in future any interim arrangement on the vacant post of Headmaster on either acting or In-charge basis by the Respondents will be made only from amongst the suitable and senior most eligible teacher possessing the prescribed qualification for the post of Headmaster laid down in Seva Sarta Niyamawali, 1983. 73. With the aforesaid observations and directions all these writ applications are dismissed. There would be however no order as to costs.