ORDER Heard learned counsel for the parties with regard to the following prayer made in this writ application:- “-------- for granting the promotion to the petitioners from the due date on the post of Head-Master of Middle School in pursuant of Rule framed by State Govt. as contained in Memo No. 940 dated- 1.9.11 by setting aside the memo no. 637 dated 15.10.2012 whereby and whereunder Rules framed by State Govt. has been amended by Executive order.” 2. Learned counsel for the petitioners had initially drawn attention of this Court towards an earlier order of this Court dated 6.2.2013 to contend that the State was required to file its counter affidavit. He has submitted that such counter affidavit having been not filed, learned counsel for the State should be directed to file his counter affidavit. 3. Mr. Tej Bahadur Singh, learned AAG-7, on the other hand, has submitted that on examination of the materials on record, the Government ought to have filed its counter affidavit but, the case can be disposed of even in absence of the counter affidavit, inasmuch as, the issue, relating to impugned order being in teeth of the statutory rule, is a pure question of law in which no improvement can be made by pleadings much less by way of filing counter affidavit. 4. Having regard to the aforesaid stand, this Court has proceeded to hear the matter on merit. 5. Learned counsel for the petitioners has submitted that when in Rule 10 of the fcgkj jktdh;d`r izkjafEHkd fo|ky; f’k{kd izksUufr fu;ekoyh 2011 there was a very specific provision made with regard to relaxation of qualification and the Kalawadhi (minimum period of service) for promotion on the post of Headmaster, the Government was not empowered to make any amendment by way of an executive instruction, which has been done by the impugned order dated 15.10.2012. All the petitioners, who have been already promoted in the B.A. Trained Pay-scale, are Graduate and have also completed one year of service as a Graduate Trained Teacher and, therefore, if the relaxation, as per Rule 10 of the aforesaid Rule, was given to them, they could have been easily promoted on the post of Headmaster specially when a large number of vacancies on the post of Headmaster in West Champaran district is also available. 6. It is this aspect of the matter which has been again explained by Mr. 6. It is this aspect of the matter which has been again explained by Mr. Singh, learned AAG-7 that as a matter of fact, the moment the petitioners accept that they are only B.A. Trained while none of them have the qualification of Post Graduate, the requirement for relaxation in the qualification for the post of Headmaster, would still require them to complete four years of minimum service as a B.A. Trained Teacher. According to Mr. Singh, this very aspect of the matter has been sought to be clarified by the impugned order dated 15.10.2012. In this regard, he has also referred to the provision of Rule 10, which for the sake of convenience and clarity, is quoted hereinbelow:- ^^10- e/; fo|ky;ksa ds iz/kkuk/;kid ds inksa ij izksUufr gsrq lsok& dkykof/k ,oa Lukrdksrj ;ksX;rk esa ^^,d ckj** f’kfFkyhdj.kA& ;fn Lukrd f’k{kd ds xszM&3 esa U;wure 4 o”kksZa dh lsok iwjh djus okys Lukrdksrj ;ksX;rk/kkjh f’k{kd miyC/k ugha gksa rks xzsM&3 esa U;wure ,d o”kZ dh lsok iwjh djus okys Lukrdksrj ;ksX;rk/kkjh f’k{kdksa dks iz/kkuk/;kid ds in ij izksUufr gsrq dkykof/k esa ,d ckj f’kfFkyhdj.k foHkkx }kjk fd;k tk ldsxkA blh izdkj Lukrdksrj ;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 f’kfFkyhdj.k foHkkx }kjk fd;k tk ldsxkA** 7. In the considered opinion of this Court, Rule 10 cannot be read in isolation and if from Rule 3 onwards, the scheme of promotion is examined, it would become clear that there are three grades of teachers who are eligible for promotion in the 2011 Rules. Firstly, Matric/Intermediate Teacher are eligible for promotion on the post of Graduate Trained Teacher and the Graduate Trained Teacher is eligible for promotion on the post of Headmaster. As is well known, no promotion can be made to a Matric/Intermediate Teacher on the post of Graduate Trained Pay-Scale unless he is a Graduate and to that extent, Rule 5 becomes relevant and is quoted hereinbelow:- ^^5- izksUufr dh ‘krsZ & fuEufyf[kr ’krksZ dks iwjk djus ij gh fdlh f’k{kd dh izksUufr ij fopkj fd;k tk ldsxk %& ¼1½ izksUufr ds fy, U;wure fofgr dkykof/k iwjk djrk gks] ¼2½izksUufr fufeRr fu/kkZfjr U;wure ‘kS{kf.kd ,oa iz’kS{kf.kd vgZrk j[krk gks] ¼3½ izksUufr ds fy, miyC/k fjDr inksa ds fo:)] lg fopkj.kh; gks] rFkk ¼4½ mldh lsok larks”ktud gks A** 8. In the light of the aforesaid provision of Rule 5, the promotion to the Matric Trained, Intermediate Trained, Graduate Trained and Headmaster is provided in Rule 7 where by way of financial benefit, it has been laid down that the person concerned working the Matric Trained, Intermediate Trained or Graduate Trained in their basic grade must work for twelve years to get first financial benefit and 24 years for getting second financial benefit. Rule 7, therefore, is with regard to grant of higher pay-scale in the same post. 9. It is however Rule 8, which is actually significant for the purposes of promotion in B.A./B.Sc. Trained Pay Scale Teacher which reads as follows:- ^^8- Lukrd f’k{kd dh dksfV esa izksUufr %& xsM&1 ,oa xszM&2 ds eSfVªd@bUVj izf’kf{kr Lukrd ;ksX;rk/kkjh f’k{kdksa rFkk xzsM&1 ,oa xszM&2 esa visf{kr ;ksX;rk/kkjh f’k{kd miyC/k ugha gksus dh n’kk esa xzsM&3 esa U;wure 8 o”kksZa dh lsok iwjh djus okys Lukrd ;ksX;rk/kkjh f’k{kdksa dh ojh;rk ds vk/kkj ij Lukrd f’k{kdksa dh izksUufr gsrq miyC/k fjDr inksa ij izksUufr ds fy, fopkj fd;k tk;sxkA** 10. Thus, from bare perusal of Rule 8, it becomes clear that for promotion from the Matric Trained teacher to the Graduate Trained pay-scale every person working on the post of Matric/Intermediate Trained Teacher having the qualification of Graduation as also having minimum eight years service in Grade-3 of Matric/Intermediate Teacher will be eligible for promotion on the post of Graduate Trained Teacher i.e. B.A. Trained Pay-Scale. Let it be noted that in this Rule, there is no provision for relaxation. 11. Then comes Rule 9 and it lays down the manner of promotion from among the Graduate Trained Teacher to the post of Headmaster. Rule 9 reads as follows:- ^^9- e/; fo|ky; ds iz/kkuk/;kid ds inksa ij izksUufr & Lukrd f’k{kdksa ds xzsM&1 ,oa xzsM&2 esa visf{kr LukrdksRrj ;ksX;rk/kkjh f’k{kd miyC/k ugha gksus dh n’kk esa] xzsM&3 esa U;wure 4 o”kksZ dh lsok iwjh djus okys LukrdksRrj ;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 inksa ij izksUufr nsus ij fopkj fd;k tk;sxkA fu;e 8 ,oa fu;e 9 ds v/khu nh x;h izksUufr] vf/klwpuk dh frfFk ls rFkk foRrh; ykHk ;ksxnku dh frfFk ls fn;k tk;sxk A** 12. Thus for the first time, the issue of relaxation of minimum period of service is found in Rule 9 and the period of four years is fully explained by clubbing it with the qualification. Therefore, under Rule 9, it has been made clear that in any event, even if a person working in the Graduate Trained Pay-Scale does not have four years of working experience but, is holding the qualification of post Graduate, he will be entitled for consideration for promotion on the post of Head Master, subject to availability of vacancy. It is only, thereafter, that Rule 10, already quoted above in paragraph no. 6 of this judgment, comes into picture wherein the head note says Relaxation of both Kalawadhi and Post Graduation Qualification”. The first sentence, therefore, of Rule 10 provides of two contingencies, namely, if the Graduate Trained Teachers having four years of experience but having qualification of Post Graduation are not available, they shall be given one time relaxation for promotion on the post of Headmaster. The second sentence only says that if the Graduate Trained Teachers having Post Graduation qualification are not available, they could be given relaxation in qualification by way of one time measure. 13. Rule 10 in no event can be read to mean that it also intended to promote the B.A. Trained Teachers having qualification with one year experience to become Headmaster. Rule 9 & 10 read together will leave nothing for speculation that requirement of four years experience for B.A. Trained Teacher having Graduation qualification was absolutely necessary because even for the Post Graduate qualification holder Graduate Teachers, the four years requirement is the normal requirement. Rule 9 & 10 read together will leave nothing for speculation that requirement of four years experience for B.A. Trained Teacher having Graduation qualification was absolutely necessary because even for the Post Graduate qualification holder Graduate Teachers, the four years requirement is the normal requirement. It is this aspect of the matter which has been sought to be clarified by the impugned order, which reads as follows:- ^^fcgkj ljdkj f’k{kk foHkkx] fcgkj] iVukA vf/klwpuk iVuk] fnukad ---------------------------@ la[;k&7@o3&659@92 va’kA---------------------@ fcgkj jktdh;d`r izkjafHkd f’k{kd izksUufr fu;ekoyh 2011 dh dafMdk 10 esa e/; fo|ky; ds iz/kkuk/;kid ds inksa ij izksUufr gsrq lsok&dkykof/k ,oa LukrdksRrj ;ksX;rk esa ,d ckj f’kfFkyhdj.k dk izko/kku fd;k x;k gS] ftlds vUrxZr ;fn Lukrd f’k{kd ds xzsM&3 esa U;wure pkj o”kksZ dh lsok iwjh djus okys LukrdksRrj ;ksX;rk/kkjh f’k{kd miyC/k ugha gks rks xzsM&3 esa U;wure ,d o”kZ dh lsok iwjh djus okys LukrdksRrj ;ksX;rk/kkjh f’k{kdksa dks iz/kkuk/;kid ds in ij izksUufr gsrw dkykof/k esa ,d ckj f’kfFkyhdkj.k f’k{kk foHkkx }kjk fd;k tk ldsxk A blh izdkj LukrdksRrj ;ksX;rk/kkjh f’k{kd miyC/k gksus ij Lukrd ;ksX;rk/kkjh f’k{kdksa dks iz/kkuk/;kid ds in ij izksUufr gsrq ;ksX;rk esa f’kfFkyhdkj.k ,d ckj fd;k tk ldsxk A fu;ekoyh ds mDr izko/kku ds vkyksd esa jkT; ds e/; fo|ky;ksa esa iz/kkuk/;kid ds in dh fjfDr dks izksUufr ls Hkjus gsrq fuEu vkns’k fn;s tkrs gSa %& 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,xk A ¼[k½ mi;qZDr ^d* ds vuqlkj LukrdksRrj ;ksX;rk/kkjh f’k{kd miyC/k ugha gksus ij Lukrd osrueku esa U;wure pkj o”kksZ rd dk;Zjr ¼Lukrd ;ksX;rk/kkjh½ f’k{kd dks 31-12-2013 dh ojh;rk lwph ds vk/kkj ij e/; fo|ky; ds iz/kkuk/;kid ds in ij izksUufr gsrq fopkj fd;k tk,xk A lsok&dkykof/k ,oa ;ksX;rk esa mi;qZDr NqV ,d ckj ds fy, gksxh A izksUufr fu;ekoyh ds ‘ks”k izko/kku ;Fkkor jgsaxs A fcgkj jkT;iky ds vkns’k ls] g0@& ¼ftrsUnz izlkn½ Lak;qDr lfpo Kkikad 697@ fnukad %& 15-10-2012 izfrfyfi%& funs’kd izkFkfed f’k{kk@ lHkh ftyk inkf/kdkjh @ lHkh {ks=h; f’k{kk mi funs’kd@ lHkh ftyk f’k{kk inkf/kdkjh@ lHkh ftyk dk;Zdze inkf/kdkjh ¼LFkkiuk½ @ lHkh dks”kkxkj@ mi dks”kkxkj inkf/kdkjh dks lwpukFkZ ,oa vko’;d dk;kZFkZ izsf”kr A g0@& la;qDr lfpo 15-10-2012** 14. As a matter of fact, it has to be noted that the issue relating to one time relaxation, as notified in the Rule on 1.9.2011, had to be given certain date and that date has been primarily fixed by this notification dated 15.10.2012 by fixing the date of 31.12.2013 to be the date on which a Graduate Teachers having Post Graduation qualification must have completed one year service. In the same way, if a Graduate Trained Teacher having only Graduation qualification would seek relaxation in qualification, that again has to be up to 31.12.2013. This has been the main purpose of clarification issued by the notification dated 15.10.2012 and that becomes very clear from the last sentence that this relaxation is only for the one time. That would mean that the relaxation cannot be given time and again and in fact once only after coming into force of the Rule, such relaxation was to be given. 15. Judged in this view, this Court would not find that the impugned notification in any way would supplant to the statutory provision made in the Rule. By now, it is well settled that though a statutory provision can be supplemented by an executive instruction but, then, it can not be definitely be supplanted. Reading Rule 9 & 10 of the impugned notification, this Court, therefore, is of the considered view that there is nothing in the impugned notification which would in any way supplant the provision of Rule 10. 16. Admittedly, the petitioners have been given promotion in the B.A. Trained Pay-Scale and all of them have completed only around two years service as a Graduate Trained Teacher. For them, their chances of promotion would arise only after completion of four years if by that time vacancy remains and one time measure is already not taken. In other words, if the benefit of exercise of one time relaxation has already been given, Rule 2011 at least cannot be read to mean that such relaxation has to be given to the petitioners also as a matter of right. 17. Thus, for the reasons indicated above, this Court does not find any merit in this application and the same is dismissed.