ORAL ORDER Both these writ applications are taken up together for disposal as the facts and issues are common. 2. The petitioners of C.W.J.C.No.869 of 2013 and those of C.W.J.C.No.1868 of 2013 are teachers in Elementary Schools at Gaya and Muzaffarpur district respectively. The writ petitioners were promoted as Graduate trained teachers w.e.f. 12.11.2012. They seek shifting of their date of promotion as graduate trained teachers to 31.12.2011 from 12.11.2012 and quashing of part of memo no.009/92 dated 11.12.2012 issued under the signature of the Director, Primary Education to the extent it is in conflict with Government notification dated 15.10.2012 (Annexure-6 to C.W.J.C. No.869 of 2013) issued by the Joint Secretary, Education Department by the order of Governor of Bihar. 3. The last relief is founded on the ground that memo dated 11.12.2012 of Director, Primary Education infracts Rule 10 of the Bihar Nationalized Elementary Schools Teachers Promotion Rules, 2011 (hereinafter referred to as ‘the Promotion Rules, 2011”) as well as Government notification dated 15.10.2012 issued by the order of Governor of Bihar. 4. Elaborating their stand, the petitioners state that the government notification dated 15.10.2012 mandates preparation of seniority list on 31.12.20113 of graduate teachers possessing Post Graduate qualification having put in one year in the said category for consideration of promotion to the post of Head Master, as a one time measure in terms of relaxation provided under Rule 10. The petitioners state that memo dated 11.12.2012 of Director, Primary Education, dilutes and infracts notification dated 15.10.2012 as it provides for preparation of seniority list of such Graduate teachers not only on 31.12.2013 but also on 31.12.2012 for grant of one time relaxation. The petitioners’ case is that relaxation is only a one time measure. The petitioners apprehend that if relaxation is given on 31.12.2012 it would not be possible to grant relaxation again on 31.12.2013, as Rule provides one time relaxation only which would prejudice their case. It is relevant to point out that the petitioners were not eligible to be enlisted in the panel on 31.12.2012 for consideration of promotion to the post of Head Master as by then they did not possess the required one year experience as a Graduate teacher even as per relaxation clause. It is relevant to point out that the petitioners were not eligible to be enlisted in the panel on 31.12.2012 for consideration of promotion to the post of Head Master as by then they did not possess the required one year experience as a Graduate teacher even as per relaxation clause. The petitioners submit that the memo dated 11.12.2012 of Director, Primary Education supplants and infracts government notification dated 15.10.2012 issued by the order of Governor of Bihar and thus not sustainable in law. In support of their submissions, the petitioners have relied upon a decision in the case of State of Maharashtra Vs Jagannath K. Karan Dikar, reported in 1989 SC 1133. 5. Before I take up the rival submissions of the parties for adjudication, it would be necessary to notice the relevant facts of the case and provisions of law, particularly Promotion Rules, 2011. 6. The petitioners were appointed as elementary teachers and were matric untrained at the time of their appointment not possessing training certificates. They obtained their training certificates only in 2005 and were promoted in graduate trained scale on 12.11.2012. Though the petitioners have prayed for shifting of date of promotion as graduate trained teachers to 31.12,2011 but in course of hearing they confined themselves to the second relief, with liberty to raise the other prayer at a later occasion, which, latitude is allowed. 7. An Interlocutory Application has been filed on behalf of the petitioners being I.A. No.391 of 201 for staying operation of impugned memo no.842 dated 11.12.2012 issued under signature of Director, Primary Education, whereas some Interlocutory Applications have been filed for being added as Intervener respondents in opposition to the reliefs sought in writ applications. All Interlocutory Applications are also taken up together for disposal. 8. It is relevant to notice that prior to engraftment of Promotion Rules, 2011, the promotions of elementary teachers were regulated by 1993 Promotion Rules. To provide more comprehensive rules of promotion, the Governor of Bihar in exercise of powers conferred under Article 309 of the Constitution, framed Bihar Nationalized Elementary School Promotion Rules, 2011. The Rules, 2011 places the elementary teachers in three categories namely;- (i) Matric trained/Intermediate teacher, (ii) Graduate teacher and (iii) Head Master of Middle School. 9. To provide more comprehensive rules of promotion, the Governor of Bihar in exercise of powers conferred under Article 309 of the Constitution, framed Bihar Nationalized Elementary School Promotion Rules, 2011. The Rules, 2011 places the elementary teachers in three categories namely;- (i) Matric trained/Intermediate teacher, (ii) Graduate teacher and (iii) Head Master of Middle School. 9. One finds from the rules that the post of graduate teacher is promotional post of Matric/Intermediate teachers and the post of Head Master of Middle School in turn is a promotional post for graduate teachers. Rule 3 of Promotion Rules, 2011 is quoted herein below for easy reference:- 3- f’k{kdksa dk xzsM 1& jktdh;d`r izkjafHkd fo|ky;ksa esa dk;Zjr ftyk laoxZ ds f’k{kd fuEufyf[kr xzsM ds gksaxs %& f'k{kdksa dh dksfV f'k{kdksa dk xzsM xzzzsM 3 xzsM 2 xzsM 1 eSfVªd @ bUVj f’k{kd is cS.M --- 2 9300&34800 xzsM is & 4200 is cS.M --- 2 9300&34800 xzsM is & 4600 is cS.M --- 2 9300&34800 xzsM is & 4800 Lukrd f’k{kd is cS.M --- 2 9300&34800 xzsM is & 4600 is cS.M --- 2 9300&34800 xzsM is & 4800 is cS.M --- 2 9300&34800 xzsM is & 5400 e/; fo|ky; ds iz/kkuk/;kid is cS.M --- 2 9300&34800 xzsM is & 4800 is cS.M --- 2 9300&34800 xzsM is & 5400 &&&&& 10. It appears from rule 3 that the initial recruitment of an Assistant teacher in an elementary school, irrespective of higher qualifications, is to be as matric/intermediate teacher in Grade III. Rule 7 talks of progression in the same category. Only on completing required number of years, a matric/ intermediate or a graduate teacher would get progression distinct from promotion, in Grade II first, and then to Grade I. The teachers in Grade II would get a higher Grade Pay compared to Grade III and similarly a teacher in Grade I will get higher Grade Pay then Grade II. The Progression from Grade III to Grade II and then to Grade I in the concerned category is not a promotion under Rules 8 and 9. In other words, if a Matric/Intermediate teacher or a Graduate teacher in their category, gets progression to Grade II & I it would not amount to promotion. A promotion is a lift up to a higher category, whereas progression confers only monetary benefits and is not accompanied with any change of status or category. 11. In other words, if a Matric/Intermediate teacher or a Graduate teacher in their category, gets progression to Grade II & I it would not amount to promotion. A promotion is a lift up to a higher category, whereas progression confers only monetary benefits and is not accompanied with any change of status or category. 11. Rule 8 talks of promotion of a Matric/intermediate teacher into category of a graduate teacher. The Rules states that in case of non-availability of Matric/Intermediate trained teachers in Grade I and II, such trained teachers, who have put in at least 8 years of service in grade III would be considered for promotion in category of graduate teachers against vacancies available. The first promotion of matric/intermediate teachers would be as a graduate teacher in grade III. To reiterate, a teacher in graduate category, would also be entitled to two progressions on completion of required number of years in that category. 12. Rule 9 talks of promotion of a graduate teacher in the rank of Head Master which is quoted herein below:- **9- e/; fo|ky; ds iz/kkuk/;kid ds inksa ij izksUufr %& Lukrd f’k{kdksa ds xzsM I ,oa xzsM II esa LukrdksÙkj ;ksX;rk/kkjh f’k{kdksa rFkk xzsM I ,oa xzsM II esa visf{kr LukrdksÙkj ;ksX;rk/kkjh f’k{kd miyC/k ugha gksus dh n’kk esa xszM III esa U;wure 4 o”kksZ dh lsok iwjh djus okys LukrdksÙkj ;ksX;rk/kkjh f’k{kdksa dks ojh;rk ds vk/kkj ij e/; fo|ky;ksa ds iz/kkuk/;kid ds miyC/k fjDr inks ij izksUufr nsus ij fopkj fd;k tk;sxk A fu;e 8 ,oa fu;e 9 ds v/khu nh x;h izksUufr vf/klwpuk dh frfFk ls rFkk foÙkh; ykHk ;ksxnku dh frfFk ls fn;k tk;sxkA** Rule 9 states that a graduate teacher placed in Grade I and II possessing post graduate qualification can be considered for promotion to the post of Head Master if graduate teachers possessing Post Graduate qualification are not available in Grade I and II, such graduate teachers would also be considered for promotion, who has at least put in four years in Grade III in terms of their seniority. The promotion granted under rules 8 and 9 would take effect from the date of notification, whereas financial benefits would accrue only from the date of joining. 13. The promotion granted under rules 8 and 9 would take effect from the date of notification, whereas financial benefits would accrue only from the date of joining. 13. The post of Head Masters have largely remained vacant much to the detriment of the institutions primarily on account of non-availability of eligible graduate teachers having requisite number of years of experience required under rule 9. The State being cognizant of the situation incorporated Rule 10 enabling one time relaxation of the conditions mentioned in Rule 9 for promotion to the post of Head Master. 14. Rule 10 as a one time measure relaxes the quantum of experience from four years to one year for promotion to post of Head Master from ranks of graduate teachers possessing Post Graduate qualification. As per Rule 11, a separate seniority list is to be prepared for both Science and Arts teachers as existing on 31st December of each year. Rules 10 and Rule 11 are quoted below for reference:- **10- e/; fo|ky;ksa ds iz/kkuk/;kid ds inksa ij izksUufr gsrq lsok & dkykof/k ,oa LukrdksÙkj ;ksX;rk esa ,d ckj (one time) f’kfFkyhdj.k A& ;fn Lukrd f’k{kd ds xszM III esa U;wure 4 o”kksZ dh lsok iwjh djus okys LukrdksÙkj ;ksX;rk/kkjh f’k{kd miyC/k ugha gks rks xszM III esa U;wure ,da o”kZ dh lsok iwjh djus okys LukrdksÙkj ;ksX;rk/kkjh f’k{kdksa dks iz/kkuk/;kid ds in ij izksUufr gsrq dkykof/k esa ,d ckj (one time) f’kfFkyhdj.k foHkkx }kjk fn;k tk ldsxkA blh izdkj LukrdksÙkj ;ksX;rk/kkjh f’k{kd ugha miyC/k gksus ij Lukrd ;ksX;rk/kkjh f’k{kdksa dks iz/kkuk/;kid in ij izksUufr gsrq ;ksX;rk esa ,d ckj (one time) f’kfFkyhdj.k foHkkx }kjk fd;k tk ldsxkA 11- izksUufr gsrq ojh;rk lwph ¼1½ ojh;rk lwph izR;sd o”kZ 31 fnlEcj dks vk/kkj ekudj rS;kj dh tk;sxhA ¼2½ eSfVªd@bUVj izf’kf{kr f’k{kdksa ls Lukrd izf’kf{kr f’k{kdksa esa visf{kr Lukrd ;ksX;rk/kkjh f’k{kdksa dh izksUufr gsrq ojh;rk lwph foKku ,oa dyk f’k{kdksa ds fy, vyx&vyx rs;kj dh tk;sxhA bl lwph esa izksUufr ds fy, xszM I ¼izFke½ rRi’pkr xzsM II f}rh; ,oa blds ckn xzsM III ¼r`rh;½ ds Øe esa visf{kr lsok&dkykof/k j[kus okys Lukrd f’k{kdksa dk uke gksxkA ¼3½ iz/kkuk/;kid ds in ij izksUufr gsrq ojh;rk lwph] Lukrd osrueku esa dk;Zjr LukrdksÙkj ;ksX;rk/kkjh f’k{kdksa ds chp ls rS;kj dh tk;sxhA** 15. In terms of Rule 10, the government issued notification bearing memo no.697 dated 15.10.2012. In terms of Rule 10, the government issued notification bearing memo no.697 dated 15.10.2012. The notification was issued by the Joint Secretary, Education Department (Annexure-6) under the orders of Governor of Bihar. The notification contained two important clauses ¼d½ and ¼[k½ which are quoted herein below for easy reference:- **¼d½ Lukrdksrj ;ksX;rk/kkjh oSls f’k{kd tks 31-12-2013 rd Lukrd osrueku esa U;wure ,d o”kZ dh lsok iwjh dj ysaxs mUgsa e/; fo|ky; ds iz/kkuk/;kid ds in ij izksUufr gsrq izksUufr fu;ekoyh 2011 ds vkyksd esa fopkj fd;k tk,xkA ¼[k½ mi;qZDr *d* ds vuqlkj Lukrdksrj ;ksX;rk/kkjh f’k{kd miyC/k ugha gksus ij Lukrd osrueku es U;wure pkj o”kkZsa rd dk;Zjr Lukrd ;ksX;rk/kkjh f’k{kd dks 31-12-2013 dks ojh;rk lwph ds vk/kkj ij e/; fo|ky; ds iz/kkuk/;kid ds in ij izksUufr gsrq fopkj fd;k tk,xkA** 16. As per clause ¼d½, such graduate teachers possessing Post Graduate qualification who would complete minimum of one year of service on 31.12.2013, would be considered for promotion for the post of Head Master. Clause ¼[k½ states that a graduate teacher not possessing Post Graduate qualification can be considered for promotion, if he has four years of experience in the said category by 31.12.2013 as per their seniority. We are primarily concerned with clause ¼d½ in this case. 17. The Government notification dated 15.10.2012 (Annexure-C) was followed by memo no.0092 dated 11.12.2012 issued by the Director, Primary Education. The salient features of the Department Memo dated 12.12.2012 are as follows:- (i) Promotion as one time relaxation would be made to the post of Head Master only from graduate teachers possessing Post Graduate qualification having put in minimum of one year experience. (ii) The seniority list would be prepared as would be existing on 31.12.2012 of such graduate teachers who have been promoted by December, 2011 by the concerned district. (iii) The seniority list (would be prepared as on 31.12.2013) of such graduate teachers who have been promoted between January 2012 to December, 2012 as graduate teachers by the concerned district. 18. The petitioners are aggrieved by clause 2 of memo dated 11.12.2012. The petitioners state that the said letter in effect would tend to relax the eligibility clause contained in rule 9 for consideration of promotion to the post of Head Master twice in place of only one time relaxation, as provided in rule 10. 18. The petitioners are aggrieved by clause 2 of memo dated 11.12.2012. The petitioners state that the said letter in effect would tend to relax the eligibility clause contained in rule 9 for consideration of promotion to the post of Head Master twice in place of only one time relaxation, as provided in rule 10. The case of the petitioner is that in terms of rule 10 as well as government notification dated 15.10.2012 (Annexure-6), the seniority list as would be existing on 31.12.2013 would be prepared of graduate teachers who have put in minimum of one year experience for promotion to the post of Head Master. 19. Mr. Manik Vedsen, learned counsel for the petitioners states that the memo dated 11.12.2012 issued by the Director, Primary Education infracts government notification dated 15.10.2012 issued by the order of Governor of Bihar and thus would be unsustainable in law. The petitioners argue that a departmental instruction cannot overreach the exclusive orders of the Governor of the State. 20. Counsels for the State submit that the letter dated 11.12.2012 issued by the Department is in clarification of memo dated 15.10.2012 consequent to queries of some District Superintendents of Education. They refute the submission of petitioners that the memo dated 11.12.2012 of Director, Primary Education is in teeth of either government notification dated 15.10.2012 or rule 10 of Promotion Rules, 2011. On the other hand, they assert that the memo dated 11.12.2012 is in consonance with Rules, 2011 and rather gives effect to Rule 11 which mandates preparation of seniority list for promotion every year on 31st December. 21. Intervention applications being I.A. No.1083 of 2013 in C.W.J.C.No.869 of 2013 and I.A. No.994 of 2013 in C.W.J.C. No.1868 of 2013 have been filed by teachers who have been promoted as graduate teachers prior to promotion of petitioners. The intervener states that they were appointed in matric trained scale, and unlike the petitioners, most of them were matric trained at the time of their appointments. Some of them got matric trained scale in view of direction of this Court in L.P.A. No.412 of 2003 (Chandrakant Vs State of Bihar). They state that they have been promoted much earlier to the writ petitioners in graduate trained scale. Some of them got matric trained scale in view of direction of this Court in L.P.A. No.412 of 2003 (Chandrakant Vs State of Bihar). They state that they have been promoted much earlier to the writ petitioners in graduate trained scale. Some of them have even put in more than 4 years as required under rule 9 of Promotion Rules, 2011 which on its own without aid of relaxation provided in Rule 10, makes them eligible for promotion to the post of a Head Master. On the other hand, the petitioners as per Rule 10 would become eligible for consideration for promotion as Head Master only on 31.12.2013 when they would complete minimum of required one year in graduate category. Some of the interveners are entitled to be considered for promotion as Head Master without aid of relaxation of eligibility rigours of Rule 9; others in any case would become entitled for consideration on 31.12.2012 in terms of relaxation clause under Rule 10. They state that they being senior to petitioners are entitled for prior promotions to the post of Head Master in any eventuality. Even if a seniority list is prepared on 31.12.2013, the interveners would rank higher than the petitioners, who got promotions on 12.11.2011 as Graduate Teachers. It would be unfair if they have to wait till such time for preparation of their seniority list till time the petitioners become eligible for consideration for promotion which would not be before 31.12.2013. This would tantamount to keeping the posts of Head Masters vacant though eligible candidates are available. Furthermore, none fulfilling of the posts of Head Master which are vacant in large numbers would be in teeth of direction of this court in case of Ram Nath Prasad Vs State of Bihar (L.P.A.No.985/96) heard analogous with batch cases disposed of on 21.4.2009. 22. It would appear from perusal of Rule 7 state that a matric/intermediate teacher or a under graduate teacher, who has put in 12 years of service, can get first progression in Grade II and after another 12 years in the same category would get progression in Grade I, only then such teacher could come within the zone of consideration for promotion to the post of graduate teacher under Rule 8. 23. 23. As per Rule 8 if vacancy in graduate trained category is available and if teacher possessing graduate qualification is not available in Grade I and II in matric/ Intermediate category, then such teachers can be promoted as a graduate teacher if he has put in 8 years of experience at least in Grade III in matric/intermediate trained category. 24. Similarly under rule 9, the graduate teachers possessing Post Graduate qualification having put in four years of service would come within the zone of consideration for promotion to the post of Head Master, if no such teachers are available in grade II and Grade I of the said category. Many teachers retire much before becoming even eligible for consideration and as such the government thought it appropriate to grant one time relaxation under rule 10. 25. It is evident that Rule 10 relaxes the eligibility rigours of four years of working experience as graduate teacher possessing Post Graduate qualification even in Grade III to one year for promotion to the post of Head Master as even sufficient number of graduate teachers in Grade III with required experience is not available. 26. The petitioners have been promoted to the category of graduate teacher on 12.11.2012. As per relaxation granted under Rule 10, they would become eligible for promotion in December, 2013, Had it not been for the said relaxation, the petitioners would have become eligible only in December, 2016 on completing four years of minimum service in that category under Rule 9. In terms of Rule 10, the government issued notification dated 15.10.2012 providing that such graduate teachers who would complete minimum of one year on 31.12.2013 would be considered for promotion as per seniority list, to be prepared on that date. The petitioners have banked largely on notification dated 15.10.2012. In view of the queries of several District Superintendent of Education, the government issued memo dated 11.12.2012 clarifying the notification dated 15.10.2012. 27. The petitioners state that the memo dated 12.11.2012 is issued by the Director, Primary Education whereas the notification dated 15.10.2011 is by the orders of Governor of Bihar. The petitioners contend that Memo dated 11.12.2012 issued by the Department cannot override or supplant Government notification dated 15.10.2012. 28. There cannot be any dispute as to the proposition of law and I would entirely agree with submissions of Mr. The petitioners contend that Memo dated 11.12.2012 issued by the Department cannot override or supplant Government notification dated 15.10.2012. 28. There cannot be any dispute as to the proposition of law and I would entirely agree with submissions of Mr. Manik Vedsen, learned counsel appearing for the petitioners that Departmental order issued under signature of Director, Primary Education cannot over reach executive order issued under the signature of Jt. Secretary of Education Department, Government of Bihar by the order of Governor of Bihar. In such circumstances, the ratio laid in case of State of Maharashtra (supra) would apply with full force. 29. But the main issue is whether the order dated 11.12.2012 is at variance with government notification dated 15.10.2012 and infracts or dilute the same. It is difficult for me to accept the submission that letter dated 11.12.2012 issued by the Director, Primary Education (Annexure-8) infracts government notification dated 15.10.2012 or Rule 10 of the Promotion Rules, 2011. In fact, memo dated 11.12.2012 issued under signature of respondent no.3 gives fill up to government notification dated 15.10.2012 and Rules 10 and 11 of Promotion Rules, 2011. Rule 10 states that all graduate teachers possessing P.G. Qualification and having put in minimum of one year in that category would be entitled to promotion to the post of Head Master as a one time relaxation. In view of provision of Rule 10, the government vide notification dated 15.10.2012 has fixed the cut off or outer limit as 13.12.2013 for preparation of seniority list of graduate teacher for promotion to post of Head Master as one time measure. 30. The Government in its notification dated 15.10.2012 in terms of Rule 10 decided to grant such benefits to graduate teachers, who would complete one year of service in the said category by 31.12.2013. 31. In my view, the memo dated 11.12.2012 of respondent no.3, the Director, Primary Education, supplements government notification dated 15.10.2012 and Promotion Rules, 2011 which provide for preparation of seniority list of such graduate teachers, who would complete one year in the same category by 31.12.2013. What is circumscribed is grant of relaxation beyond 31.12.2013and preparation of seniority list thereafter for the purposes of consideration of promotion to the post of Head Master. What is circumscribed is grant of relaxation beyond 31.12.2013and preparation of seniority list thereafter for the purposes of consideration of promotion to the post of Head Master. The Government notification dated 15.10.2012 on which the petitioners have heavily relied state that graduate teacher who complete minimum of one year in that category by 31.12.2013 would be entitled to be considered for promotion to Head Master. It is apparent that the date 31.12.2013 prescribes outer limit within which relaxation under Rule 10 is to be given. It does not preclude preparation of seniority list within the outer limit prescribed to give effect to other provisions like Rule 11 which mandates preparation of separate seniority list on 31st December of every year separately for Arts and Science for consideration of promotion. The memo dated 11.12.2011 issued under signature of Director, Primary Education thus does not offend the government notification dated 15.10.2012. In effect, the memo dated 11.12.2012 gives effect to rule 11 of Promotion Rules, 2011 which provide for preparation of seniority list as existing on 31st December of each year. 32. The apprehension of the petitioners that once seniority list is prepared on 31.12.2012 in terms of relaxation under Rule 10, no further seniority list granting such relaxation in terms of the said Rule could be prepared on 31.12.2013 is misconceived. 33. The government notification dated 15.10.2012 (Annexure-6) and Memo dated 11.12.2012 of Director Primary Education have prescribed 31.12.2013 as cut off date for grant of relaxation. The petitioners who are promoted as graduate teachers on 21.11.2012 would in any case would rank below in seniority list vis-a-viz teachers who are promoted earlier, which the interveners are contending and rightly so. 34. As such, it would not be just to restrain the respondents from preparing gradation list of graduate teachers for promotion to the post of Head Master as on 31.12.2012, as the Government Notification dated 15.10.2012 has prescribed outer cut off date as 31.12.2013 and does not restrict or prohibit preparation of such list prior to it. Further more preparation of such list on 31.12.2012 would in no manner prejudice the case of petitioners as they are not eligible to be considered for promotion to the post of Head Master before 31.12.2013. Further more preparation of such list on 31.12.2012 would in no manner prejudice the case of petitioners as they are not eligible to be considered for promotion to the post of Head Master before 31.12.2013. Graduate teachers possessing Post Graduate qualification, who would complete one year of minimum service on 31.12.2013 too would be entitled to one time relaxation in terms of Government notification dated 15.10.2012 (Annexure-12) read with memo no.842 dated 11.12.2012 of Director, Primary Education. 35. With the aforesaid observations and directions, these writ applications stands disposed of.