JUDGMENT : AJAY KUMAR TRIPATHI, J. 1. The State is the appellant in this intra-court appeal against the order, dated 14.12.2012, passed by a Learned Single Judge in C.W.J.C. No. 2635 of 2008. 2. Writ Application was filed by Awadh Bihari Pathak, who is no more and his wife and children are now on record as legal heirs. His grievance raised before the writ court was that even though his juniors had been granted benefit of promotion on the post of Headmaster in the High School at least w.e.f. 10.11.2003, his claim has been ignored and, therefore, there is violation of Article 14 and 16 of the Constitution of India. He demanded a direction upon the State authorities not only to grant him benefit of promotion on the post of Headmaster, but also grant him the consequential benefits thereof. 3. The short facts, which are relevant for the present adjudication, is that way back on 01.03.1974, the erstwhile employee was appointed as an Assistant Teacher in the subject of Sanskrit in what is known as Lalit Narayan Mishra High School, Dariyapur, P.O. - Belkhara in the district of Jehanabad. The employee claimed that besides a B.A. (Hons.) degree from recognized university, he obtained one year diploma in Physical Education (D.P.Ed.) from some institution, known as Nationalized Health and Physical Education College, Bihar. When the appointment of the employee as an Assistant Teacher was made, the school was in the hands of a private managing committee. It came to be taken over by the State only in the year 1976 and thereafter he supposedly earned certain benefits like M.A. trained pay-scale as well as senior selection grade etc. and since he was the senior most teacher of the school he even got an opportunity to work as Incharge Headmaster from 22.02.1988 to 18.01.1996. The erstwhile employee thereafter stood transferred to few other schools. When a provisional gradation list of Assistant Teachers was drawn up of High Schools, his name also figured at serial no. 1106 of the district and at serial no. 467A of the gradation list of Magadh Division. 4. Exercise was initiated for consideration of grant of benefit of promotion to the post of Headmaster. Cases of other Teachers came to be entertained, whereas the erstwhile employee was left out from the zone of consideration and, therefore, he was compelled to file the writ application, seeking a direction. 5. 467A of the gradation list of Magadh Division. 4. Exercise was initiated for consideration of grant of benefit of promotion to the post of Headmaster. Cases of other Teachers came to be entertained, whereas the erstwhile employee was left out from the zone of consideration and, therefore, he was compelled to file the writ application, seeking a direction. 5. An argument was made before the Learned Single Judge that the claim of the petitioner for being considered for promotion on the post of Headmaster is squarely covered by a decision rendered by a Division Bench of this Court in the case of Kumar Kant Choudhary Vrs. District Education Officer, Darbhanga & Ors., reported in 1979 BBCJ 184 . The Division Bench had held that there was no distinction between a Physical Trained Teacher or a B.A. Trained Teacher, because they all fall in the category of a Teacher and, therefore, the bar sought to be created for promotion on the post of Headmaster from the rank of Assistant Teachers was uncalled for. Plea was taken that the Division Bench’s decision squarely covered the case of the writ petitioner. Not only this, it was also pointed out to the Learned Single Judge that some kind of a notification was also issued by the Director, which was brought on record as Annexure – 12 to the writ application, which indicated that in view of the decision rendered in C.W.J.C. No. 724 of 1974, even Physical Trained Teachers would be fit for promotion to the post of Principal. The Division Bench’s decision rendered in the case of Kumar Kant Choudhary (supra) formed the foundation for the Learned Single Judge to allow the writ application and give a direction to the State authorities to grant benefit of promotion to the erstwhile employee, even though he had a one year Diploma in Physical Education. 6. The State decided to prefer the present appeal against the decision of the Learned Single Judge for the reason that the law, so laid down by the Learned Single Judge, relied on the case of Kumar Kant Choudhary (supra), not only lays down a wrong law, but reliance has been placed on a Division Bench’s decision, which has no application whatsoever to the set of facts applicable in the present litigation. 7. 7. The learned Additional Advocate General No. 4, representing the State of Bihar starts his argument by drawing our attention to the decision rendered in the case of Kumar Kant Choudhary (supra). He points out that the decision in the said case was rendered by the Division Bench while considering a set of Rules relating to the year 1972. These Rules governed the schools which were in the hands of private managing committee and were not in the hands of the State Government. The 1972 Rules formed the basis for the Division Bench to say that there is no distinction between a Physical Trained Teacher and a regular Teacher. 8. He submits that after the above decision reported in the year 1979, much had changed. In the year 1976, the State of Bihar decided to take over the private schools in their hands and to standardize the service conditions as well as the conditions for appointment or promotion of such taken-over schools, 1983 Rules was notified by the State Government, which is known as Bihar Nationalized Secondary School (Service Conditions) Rules, 1983. The employee’s averment in the writ application was that the school in question was taken over in the year 1976, therefore, he would be governed by the 1983 Rules, when his claim for consideration for grant of benefit of promotion on the post of Headmaster arose sometime in the year 2003. 9. There seems to be force in the submission of the learned Additional Advocate General 4. On a bare reading of the judgement of the Division Bench rendered in the case of Kumar Kant Choudhary (supra) since 1983 Rules was not in vogue or existence and 1972 Rules formed the basis for interpretation and adjudication of the case of Kumar Kant Choudhary (supra), therefore, reliance by the Learned Single Judge, going by the argument of learned senior counsel, representing the erstwhile employee, was a serious mistake committed by the Learned Single Judge. The basic distinction was not noticed or was pointed out to the Learned Single Judge and, therefore, the error apparent crept into the judgement in allowing the writ application and equating a Physical Trained Diploma holder at par with a regular Teacher. 10. Some litigations have also arisen subsequently. A batch of writ applications came to be considered by a Learned Single Judge with the leading case being that of Jagat Narayan Singh & Ors. 10. Some litigations have also arisen subsequently. A batch of writ applications came to be considered by a Learned Single Judge with the leading case being that of Jagat Narayan Singh & Ors. Vrs. The State of Bihar & Ors., reported in 2016 (2) P.L.J.R. 170 . The issue before the Learned Single Judge in all the writ applications, which fell for consideration was whether the petitioners in those writ applications were entitled to promotion on the post of Headmaster from amongst the Physical Trained Teachers working in the taken over Secondary Schools. The question, which was considered by the Learned Single Judge in the case of Jagat Narayan Singh (supra) is identical to the issue, which has been raised by the erstwhile employee before the writ court against which the present intra-court appeal has arisen. The Court noticed that even in the case of Jagat Narayan Singh (supra), much reliance was placed on the case of Kumar Kant Choudhary (supra) and the Learned Single Judge, therefore, took it upon himself to understand and explain the decision rendered in the case of Kumar Kant Choudhary (supra), who after taking note of all the Rules of 1972 and 1983 as well as the so called executive notification, issued by the Director, had this to hold in the following paragraphs: “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. 56. The 1972 Rules or aforesaid executive instructions 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 ekè;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 ekuks ;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. 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 statute having no pari materia 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. 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 ¼ek0 f'k0½ & lg & la;qDr 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 52 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 oSèkkfud 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;sxkA 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/kkukè;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 gS] 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 Subordinate 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 ¼e0 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/kkukiè;kid@iz/kkukè;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 ekè;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/kkukè;kid@iz/kkukè;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 ekè;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 a clear difference between such training of Physical Education vis-à-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 akin 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.” 11. Having gone through the decision of the Learned Single Judge rendered in the case of Jagat Narayan Singh (supra) we seem to be wholly in agreement with the decision because the Learned Single Judge has taken into consideration the relevant Rules, the so called notifications and has interpreted it in the right perspective. We do not hesitate to add that the case of Kumar Kant Choudhary (supra) is no longer good law and in fact will have no applicability with regard to Physical Trained Teachers after the year 1983. The law laid down in the case of Jagat Narayan Singh (supra) is the correct law and ratio laid down therein, shall squarely cover and govern the claim of Physical Trained Teachers when they demand consideration for promotion to the post of Headmaster or even for consideration for working as an Incharge Headmaster. 12. Since Physical Trained Teachers are class apart, they cannot be equated with regular teachers unless in addition to a Diploma in Physical Education they also acquired degrees or diplomas, which have been talked about in Rule 4 of the 1983 Rules. Any person, who has acquired those degrees mentioned in Rule 4 in addition to DPED will get a right for consideration over a teacher, who claims such benefit only on the basis of a Diploma in Physical Education. He cannot be extended that benefit by giving interpretation to any of the Rules, much less the Division Bench’s decision rendered in the case of Kumar Kant Choudhary (supra). 13. He cannot be extended that benefit by giving interpretation to any of the Rules, much less the Division Bench’s decision rendered in the case of Kumar Kant Choudhary (supra). 13. We, therefore, come to a considered opinion that the decision rendered by the Learned Single Judge in allowing the writ application of the erstwhile employee and extending him the benefit of promotion with mere Diploma in Physical Education was an erroneous decision and is required to be interfered with. 14. In view of the aforesaid facts and circumstances, the impugned order, dated 14.12.2012 is set aside and the appeal is allowed for the reasons noted in earlier part of the order. 15. However, there will be no order as to costs.