JUDGMENT : The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have raised no complaint regarding audio and visual quality. I.A. No. 5058 of 2020 2. This Interlocutory Application has been filed for condoning the delay of 03 days, which has occurred in preferring this appeal. 3. Heard learned counsel appearing for the parties. 4. Having regard to the averments made in this application, we are of the view that the appellants were prevented by sufficient cause from preferring the appeal within the period of limitation. 5. Accordingly, I.A. No. 5058 of 2020 is allowed and delay of 03 days in preferring the appeal is condoned. L.P.A. No. 404 of 2019 6. This intra-court appeal is directed against the order/judgment dated 15.04.2019 passed by learned Single Judge in W.P. (S) No. 4811 of 2014, whereby and whereunder order dated 09.01.2014, by which the claim of the writ petitioner for grant of promotion has been rejected on the ground that as per Bihar (now Jharkhand) Taken Over Elementary Schools Teachers Promotion Rules, 1993 (in short ‘Rules, 1993”) the writ petitioner does not fulfill the eligibility criteria, has been refused to be interfered with by dismissing the writ petition. 7. The brief facts of the case, which are required to be referred herein for proper adjudication of the lis, are as under: The writ petitioner-appellant joined as primary teacher under UNICEF Plan and was given stipend at the rate of Rs. 125.00 per month. During the relevant period, he was holding qualification as B.Sc. untrained, as such he was granted Matric untrained basic pay of Rs. 205.00 per month w.e.f. 01.04.1975. Further, from 01.04.1977 he was granted Matric trained basic pay of Rs. 230.00 per month and from 07.08.1981 he was granted I. Sc. trained basic pay of Rs. 296.00 per month. After obtaining Diploma in Education on 03.03.1983 he was granted B.Sc. trained scale in the basic pay of Rs. 850-1270. Subsequently, from 01.01.1986 he was granted pay-scale of Rs. 1640-2900 after enforcement of pay commission on 03.03.1995 and on completion of 12 years of service he was granted 1st Time Bound Promotion in the pay-scale of Rs. 2000-6500. The Government took a decision vide letter no. trained scale in the basic pay of Rs. 850-1270. Subsequently, from 01.01.1986 he was granted pay-scale of Rs. 1640-2900 after enforcement of pay commission on 03.03.1995 and on completion of 12 years of service he was granted 1st Time Bound Promotion in the pay-scale of Rs. 2000-6500. The Government took a decision vide letter no. 3025 dated 22.11.1995 to the effect that vacancy existing till 31.12.1985 of primary teacher will be filled up on the basis of seniority list prepared prior to 01.01.1986. It is the case of the writ petitioner-appellant that prior to Rules, 1993 direction contained in memo no. 2440 dated 18.12.1984 shall remain in force. The matter of promotion of writ petitioner along with others was agitated before the respondents vide letter no. 21 dated 05.01.2002 by their association, namely, Jharkhand Rajya Prathmik Shikshak Sangh, whereupon, the Regional Education Officer and Block Education Officer, Koderma, Jainagar, Satgawan and Markacho were directed to prepare and furnish the details of teachers working/retired or dead as on 01.01.1986 in the prescribed performa along with service book so that seniority list may be prepared and they may be granted promotion in the higher grade. Pursuant thereto, seniority list till 31.12.1985 of teachers working as B.Sc. trained in Koderma District was prepared but the decision for promotion was not taken, which led the aggrieved to approach this Court by filing writ petition, being W.P. (S) No. 2394 of 2004, through their association, namely, Rajya Prathmic Shikshak Sangh, for issuance of writ in the nature of mandamus commanding upon the respondents to consider and grant promotion with retrospective effect to the teachers in the district of Koderma. The writ Court vide order dated 04.05.2004 disposed of the writ petition with a direction to respondent no. 5 to take appropriate action/decision in accordance with law within a period of three months from the date of receipt of copy of the order on the representation of the writ petitioner, which shall be filed by the members of the petitioner’s association in respect of their claim. Further case of the writ petitioner is that when no decision was taken on the representation of the petitioners’ association, they filed contempt case being Cont. Case (C) No. 335 of 2005 wherein, the Opp. Further case of the writ petitioner is that when no decision was taken on the representation of the petitioners’ association, they filed contempt case being Cont. Case (C) No. 335 of 2005 wherein, the Opp. Parties apprised the Court that out of total number of retired teachers, 250 retired teachers were promoted and case of other retired teachers are under consideration. Hence, the contempt case was dropped vide order dated 14.05.2007 with a direction to the authorities concerned to consider the case of other teachers expeditiously, who were not granted promotion. The writ petitioner has agitated the grievance that in pursuance to the order passed by the writ Court in W.P. (S) No. 2394 of 2004 as also direction as contained in order dated 14.05.2007 passed in Contempt Case (C) No. 335 of 2005, though the name of other persons including the writ petitioner working in the Koderma District was sent for consideration for grant of promotion but in spite of repeated representations before the competent authority no decision was taken and finally the representation was rejected vide order dated 09.01.2014 on the ground that the petitioner is not possessing the requisite eligibility criteria as on the date of consideration of promotion he was not possessing the degree of Post Graduation, which is the minimum educational qualification for grant of promotion to the post of Head Master/Grade 7 as per the Rules, 1993 which provides minimum eligibility criteria of Post Graduation for promotion to the post of Head Master/Grade 7. The said order was challenged before the writ Court by filing W.P. (S) No. 4811 of 2014, which is the subject matter of present intra-court appeal. 8. Mr. Amit Kumar Sinha, learned counsel for the writ petitioner-appellant has submitted that the impugned order is not sustainable in the eye of law as because prior to coming into effect of the Rules, 1993, the Government had come out with an executive instruction as contained in letter no. 3025 dated 22.11.1995 by taking a decision that against the vacancy existing till 31.12.1985, the primary teachers will be promoted on the basis of seniority list prepared prior to 01.01.1986. 3025 dated 22.11.1995 by taking a decision that against the vacancy existing till 31.12.1985, the primary teachers will be promoted on the basis of seniority list prepared prior to 01.01.1986. According to him, it is the case of the writ petitioner-appellant that his case is fit to be considered in pursuance to the Government letter dated 22.11.1995 since his name appear in the seniority list prior to year 1995 but that aspect of the matter has not been taken into consideration by the concerned authority while passing the order which is impugned in the writ petition as also was not considered by the learned Single Judge while disposing of the writ petition, resulting into dismissal of the writ petition. 9. Per contra, Mr. Rahul Saboo, learned counsel for the respondents-State has submitted that there is no infirmity in the impugned order as because the date when the case of the writ petitioner was considered for promotion to the post of Headmaster, new Rule was come into force in the year 1993, namely, Bihar (now Jharkhand) Taken Over Elementary Schools Teachers Promotion Rules, 1993 which provides minimum qualification to hold the post of Headmaster/Grade 7 as Post Graduation and admittedly the writ petitioner-appellant did not possess the qualification as Post Graduation and, therefore, the authority has considered him not eligible to hold the post of Headmaster or Grade 7, and as such the impugned decision dated 09.01.2014 was passed, which does not suffers from infirmity, therefore, the writ Court has rightly not interfered with the impugned order. 10. This Court has heard learned counsel for the parties and on appreciation of rival submissions as also the materials available on record and from the arguments advanced by learned counsel for the parties has found that what is of worth consideration is- “As to whether the decision of the government as contained in letter no. 3025 dated 22.11.1995, by which decision was taken to fill up the vacancies existing till 31.12.1985 of the primary teachers on the basis of seniority list prepared prior to 01.01.1986 against the available vacancies, will prevail upon the Rules framed under proviso to Article 309 of the Constitution of India, namely, Bihar (now Jharkhand) Taken Over Elementary Schools Teachers Promotion Rules, 1993? 11. 11. Before answering this issue, this Court deems it fit and proper to mention here that it is a well settled law that the due date to consider Rule invoked is to be considered by the authority while considering appointment, either direct appointment or appointment through promotion. Reference in the regard be made to the judgment rendered by Hon’ble Apex Court in the case of Deepak Agarwal & Anr. Vs. State of Uttar Pradesh & Ors reported in (2011) 6 SCC 725 , in particular paragraph 26, which reads hereunder as: “26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the “rule in force” on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V. Rangaiah case [ (1983) 3 SCC 284 : 1983 SCC (L&S) 382] lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment. 12. The further settled issue which is relevant to refer herein to answer the aforesaid issue is that the executive instruction cannot supplant Rule, although it can supplement the Rule framed under the proviso to Article 309 of the Constitution of India. Reference in this regard be made to the judgment rendered in the case of Public Service Commission, Uttaranchal Vs. Jagdish Chandra Singh Bora & Anr. reported in (2014) 8 SCC 644 , in particular paragraph 28, which is quoted herein below: 28. However, we find substance in the submission made by Mr C.U. Singh that 2004 clarification would not have the effect of amending the 2003 Rules. Undoubtedly, 2004 clarification is only an executive order. Jagdish Chandra Singh Bora & Anr. reported in (2014) 8 SCC 644 , in particular paragraph 28, which is quoted herein below: 28. However, we find substance in the submission made by Mr C.U. Singh that 2004 clarification would not have the effect of amending the 2003 Rules. Undoubtedly, 2004 clarification is only an executive order. It is settled proposition of law that the executive orders cannot supplant the Rules framed under the proviso to Article 309 of the Constitution of India. Such executive orders/instructions can only supplement the Rules framed under the proviso to Article 309 of the of Mr C.U. Singh that clarification dated 29-4-2004 would not have the effect of superseding, amending or altering the 2003 Rules, it would not be possible to give any relief to the respondents. The criteria under the 2003 Rules govern all future recruitments. We have earlier already concluded that no vested right had accrued to the respondents, the trained apprentices, under the 2001 Rules. We do not accept the submission of Mr C.U. Singh that the claim of the respondents (trained apprentices) would be covered under the 2001 Rules by virtue of the so-called amendment made by the 2003 Rules. We are of the opinion that the High Court committed an error, firstly, in holding that the 2003 Rules are applicable, and secondly, not taking into consideration that all the posts had been filled up by the time the decision had been rendered. (Own emphasis) It is settled proposition of law that the executive order cannot supplant the rule framed under proviso to Article 309 of the Constitution of India, such executive order/instruction can only supplement the rule framed under the proviso to Article 309 of the Constitution of India. 13. It is in the backdrop of these legal position and factual aspects, which is relevant to refer herein, upon which the learned counsel for the writ petitioner-appellant is harping upon and tried to impress upon this Court about the applicability of Government decision as contained in letter no. 3025 dated 22.11.1995, which provides that the available vacancies till 31.12.1985 of the headmasters will be filled up by way of promotion on the basis of seniority list prepared prior to 01.01.1986. 3025 dated 22.11.1995, which provides that the available vacancies till 31.12.1985 of the headmasters will be filled up by way of promotion on the basis of seniority list prepared prior to 01.01.1986. In this regard, it requires to refer herein that prior to the aforesaid Government decision dated 22.11.1995, the State of Bihar has come out with a Rule, namely, Bihar (now Jharkhand) Taken Over Elementary Schools Teachers Promotion Rules, 1993 in exercise of power conferred under proviso to Article 309 of the Constitution of India, Rule 5(4) thereof provides the minimum educational and training qualifications and minimum tenure of service for promotion to grade 7 which says that for promotion to Grade -7 is trained post graduate, in the event to promotion from grade-4 to grade -7 in case of non-availability of teachers in grade-6 and grade -5 minimum five years of service in grade-5, provided trained graduate teachers belonging to S.C and S.T may also be considered for promotion to Grade-7 till 31.03.1995, if trained post-graduate teachers of these categories are not available. 14. Admitted position herein is that the writ petitioner-appellant is claiming parity with one Bibhuti Nath, which according to writ petitioner is junior to him but ignoring his case for promotion, the said Bibhuti Nath was promoted, which prompted the writ petitioner-appellant to approach this Court by filing W.P. (S) No. 4811 of 2014 for redressal of his grievance, as would be evident from the stand taken by the State in the counter affidavit filed in the writ petition wherein it has been stated that the case of the Bibhuti Nath is not in parity with the writ petitioner since the said Bibhuti Nath is having qualification of Post Graduation as such he has been found to be eligible for promotion as he fulfills the minimum educational qualification and training qualification as also the minimum tenure of service, as provided under Rule 5(4) of the Rules, 1993 and, therefore, he has been granted promotion to grade 7 while the writ petitioner does not possess the degree of post graduation rather he is graduate, therefore he was not granted promotion to the post of Grade 7 or Headmaster. The fact about not having the degree of Post Graduation has been admitted by the writ petitioner-appellant herein. The fact about not having the degree of Post Graduation has been admitted by the writ petitioner-appellant herein. The aforesaid stand of the State, according to our considered view, cannot be said to be improper rather it is on the basis of well settled legal position that a candidate is expected to hold a post if eligible under the applicable Rule. Herein, admittedly, the writ petitioner is not having Post Graduation as such he has been found to be ineligible to hold the post while on the other hand, the Bibhuti Nath is having Post Graduation as such he, even though junior to the writ petitioner-appellant, has been found to be eligible and accordingly granted promotion in Grade-7, as such that decision granting promotion to Bibhuti Nath is proper. 15. Further the writ petitioner-appellant’s main grievance is that, since his name has appeared in the seniority list of the year 1985, therefore, his case ought to have been considered but giving go by to the statutory provision as contained in Rule 1993 the aforesaid ground is not tenable in the eye of law for the reason that although government has come out with the circular dated 22.11.1995 that after enactment of the Rules, 1993 in exercise of power conferred under the proviso II to Article 309 of the Constitution of India. According to settled position of law in the case of Public Service Commission, Uttaranchal Vs. Jagdish Chandra Singh Bora & Anr. (supra), referred herein above, the executive instruction cannot supplant the statutory provision as contained as has been said to be provided for giving him benefit of grade 7 or promotion to the post of Headmaster on the basis of executive instruction dated 22.11.1995, which according to our considered view cannot be said to be a tenable ground as because executive instruction cannot be allowed to prevail upon the statutory provision as contained under the provision to Rule 1993, which provides the minimum educational qualification to hold the post of headmaster/grade 7 as post graduation. 16. We have perused the impugned order passed by the learned Single Judge and found therefrom that the learned Single Judge has considered these aspects of the matter and the writ petitioner having not possessed the degree of post graduation, has been held to be not eligible for possessing the post of headmaster/Grade 7, therefore, the same has been declined to be interfered with. Further the case of said Bibhuti Nath has also been taken into consideration and it has been found by the learned Single Judge that the case of the writ petitioner is not at par with the case of said Bibhuti Nath as because the said Bibhuti Nath even though was junior to the writ petitioner but was possessing the minimum educational qualification of Post Graduation as per the provisions of Rule, 1993, therefore, his case has been considered and he has been granted promotion to grade 7. In that view of the matter, the learned Single Judge has rejected the aforesaid ground agitated by the writ petitioner. 17. This Court, therefore, is of the view that the authority, which has passed the impugned order has not committed any error since grant of promotion to the post of Headmaster/Grade 7 has been refused on the ground of not possessing minimum educational qualification by the writ petitioner as per the provision to Rule 1993 and after taking into consideration the aforesaid aspects of the matter the learned Single Judge has refused to interfere with the impugned order, which according to our considered view suffers from no infirmity. 18. In view thereof, the instant appeal lacks merit and is accordingly dismissed.