JUDGMENT : ANUBHA RAWAT CHOUDHARY, J. 1. Heard Ms. Neha Bhardwaj, learned counsel appearing on behalf of the petitioners. 2. Heard Mr. Manoj Kumar, learned counsel appearing on behalf of the respondents along with Mr. Rakesh Kumar Roy, Advocate. 3. This writ petition has been filed for the following reliefs: (a) For a direction commanding upon the respondents to consider the case of the petitioners for promotion to graduate trained scale (5500-175-9000) inasmuch as a number of similarly situated persons have been promoted by Office Order contained in memo no. 1081 dated 03/05/2010 issued by the respondents 4 and 5 and then promote the petitioners to such scale w.e.f. the date the others have been promoted by this Office Order dated 03/05/2010. (b) To hold and declare that the seniority list which is said to be finally approved by the Regional Deputy Director of Education (RDDE), South Chhotanagpur Division, Ranchi by letter no. 679 dated 19/05/2009 is wholly arbitrary, illegal, unconstitutional and contrary to law to the extent it discriminates among so called Science and Arts teachers inasmuch as all the petitioner were appointed as Assistant Teachers (not as Science or Arts teachers) in pursuance of the merit list prepared by Bihar Public Service Commission (For short “BPSC”) and the recommendation made by it to the State Government for appointment in one or the other districts of existing State of Bihar and therefore, the petitioners cannot be discriminated on the basis of Science or Arts teachers, particularly when neither in the advertisement for such appointment nor in the appointment letters of the petitioners of any appointees it was ever mentioned that they are appointed as Science or Arts teachers. (c) To hold and declare that the action of the respondents in not promoting the petitioners at one hand and promoting others similarly situated persons on the other hand on the ground that the petitioners are not Science graduates, is wholly, arbitrary, illegal and the same is colourable exercise of power by the respondents. (c) To hold and declare that the action of the respondents in not promoting the petitioners at one hand and promoting others similarly situated persons on the other hand on the ground that the petitioners are not Science graduates, is wholly, arbitrary, illegal and the same is colourable exercise of power by the respondents. (d) To direct the respondents to produce the data before this Hon'ble Court as to how many vacancies of Science Teachers were there in the district of Gumla for which advertisement dated 09/10/1991 was issued by the State of Jharkhand in respect of Gumla district and how many teachers out of that were appointed as Science Teachers in pursuance of the said advertisement dated 09/10/1991 published under the signature of Sri Phool Singh, the Director (Primary Education), Bihar, Human Resource Development Department, Patna. (e) For any other appropriate relief/reliefs to which the petitioner is found to be entitled in the facts and circumstances of this case.” Arguments of the Petitioners 4. Learned counsel for the petitioners has submitted that the petitioners are primarily aggrieved by office order contained in Memo No. 1081 dated 03.05.2010 issued by respondent nos.4 and 5, in as much as, similarly situated persons have been promoted by the said office order, but the petitioners have been left out. She submits that the order of promotion relates only to Science Teachers and the petitioners being from Arts background have been left out. 5. Learned counsel for the petitioners submits that as per the advertisement issued on 09.10.1991, the petitioners as well as persons mentioned in the aforesaid Memo No. 1081 dated 03.05.2010 were appointed as Assistant Teachers not as Science or Arts Teachers pursuant to merit list and recommendation made by BPSC to the State government for appointment of teachers in one or the other districts of the then existing State of Bihar. The grievance of the petitioners is that the petitioners cannot be discriminated on the basis of Science or Arts Teachers. 6. Learned counsel for the petitioners has submitted that as per Annexure-8 dated 28.04.2010, different seniority list was to be prepared for Arts and Science Teachers for promotion to Grade IV under the provision of 1993 Rules and specific reference has been made to Rule 7 (2) of the 1993 Rules. 6. Learned counsel for the petitioners has submitted that as per Annexure-8 dated 28.04.2010, different seniority list was to be prepared for Arts and Science Teachers for promotion to Grade IV under the provision of 1993 Rules and specific reference has been made to Rule 7 (2) of the 1993 Rules. Learned counsel has further submitted that the name of the petitioners should also have been included in the seniority list contained in Memo No. 1081 dated 03.05.2010 and the name of the petitioners having not been included, the present writ petition has been filed. Arguments of the Respondents 7. Learned counsel for the respondents, on the other hand has submitted that along with the counter-affidavit, a judgment of the Hon’ble Full Bench passed in L.P.A. No. 985 of 1996 (Ram Nath Prasad Singh vs. State of Bihar and Others) and other analogous cases decided on 21.04.2009 has been annexed and as per the Full Bench decision, the Rules namely Bihar Taken Over Elementary School Teachers Promotion Rules, 1993 (hereinafter referred to as the Rules of 1993) were framed in exercise of power under Article 309 of Constitution of India by notification dated 09.01.1993 made effective from 01.01.1986 and Rule 7 (2) (i) clearly provides that the seniority list will be separately prepared for arts and science teachers. He submits that accordingly the seniority list for the science teachers has been prepared vide Annexure-9. He also submits that the records of the case reflects that a separate seniority list of Arts teachers has also been prepared. The learned counsel submits that the Division Bench judgment passed by Hon’ble Patna High Court decided in the case of Naresh Jha and Another vs. State of Bihar on 03.05.1994 reported in 1994 (2) PLJR 348 was subject matter of consideration before the Hon’ble Full Bench and the judgment of Naresh Jha (supra) reflects that the petitioner of that case was appointed as Assistant Teachers in the Intermediate Trained Scale on different dates and in course of time on 21.12.1990, they were promoted to the graduate trained scale. The learned counsel submits that in the case of Naresh Jha (supra), it was held that there was no record to show that the cadres were created separately for Science and Arts Teachers and therefore the Hon’ble Division Bench had come to a conclusion that there is a joint cadre of Science and Arts Teachers and ordered to prepare a joint gradation list. The said judgment was overruled by the Hon’ble Full Bench by referring to the entire background of appointment of teachers and also the aforesaid Rules of 1993 which was made effective from 01.01.1986. He has referred to Para 8 of the Full Bench judgment. 8. The learned counsel submits that in view of the Full Bench judgment, the petitioners cannot claim to get their names included in the seniority list which has been prepared for Science Teachers and so far as the petitioners are concerned, they are entitled for their inclusion in separate seniority list and consequential promotion pursuant thereto. Rejoinder arguments of the Petitioners 9. Upon this, the learned counsel for the petitioners submits that to the best of her knowledge, the petitioners have not yet been promoted so far and she is not aware about a separate seniority list having been prepared for the Arts teachers like the petitioners in the district of Gumla. She submits that appropriate directions can be issued so that the case of the petitioners can be considered for promotion in terms of 1993 Rules. Findings of this Court 10. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that initially a judgment was passed by Hon’ble Division Bench in the case of Naresh Jha and Others (supra) wherein, it was held that there is no record to show that cadres were created separately for Science and Arts Teachers and consequently the Hon’ble Division Bench came to the conclusion that there is a joint cadre of Science and Arts teachers and ordered to prepare a joint gradation list. The same judgment was referred to Full Bench. The terms of reference is quoted in Para 1 of the said judgment, which is as follows: “In all these cases, the common question to be considered is, whether Science teachers and Arts teachers belonged to two different cadres in the elementary school or not. The same judgment was referred to Full Bench. The terms of reference is quoted in Para 1 of the said judgment, which is as follows: “In all these cases, the common question to be considered is, whether Science teachers and Arts teachers belonged to two different cadres in the elementary school or not. In Naresh Jha and Others vs. State of Bihar and Others, 1994 (2) PLJR 348 , a Division Bench of this Court held that there is no record to show that the cadres were created separately and, therefore, came to the conclusion that there is a joint cadre of science and arts teachers and ordered to prepare a joint gradation list.” 11. The Hon'ble Full Bench in Para 4 has considered the circumstances under which the science teachers were categorized separately and the entire history has been dealt with. The Hon’ble Full Bench has also considered the coming into force of the aforesaid Rules of 1993 framed under Article 309 of the Constitution vide notification dated 09.01.1993 with retrospective effect i.e., from 01.01.1986 which showed that 50% of the total posts were reserved for inter-trained and graduate trained Science teachers alone and that the science teachers have got separate and independent identity. The Hon’ble Full Bench also recorded that the seniority list no. 2 as per the statutory rules has to be prepared separately for Arts and Science teachers for promotion to Grade 4, whereas for seniority list no. 3 which is for promotion to Grade 6, only a consolidated list shall be prepared. It further held that seniority list no. 4 which is for promotion to Grade 7 and 8, is also to be prepared on the basis of combined list. The Hon’ble Full Bench in Para 6 has also referred to the earlier judgments and has recorded that anyway, the notification considered in the said cases were replaced by the Promotion Rules of 1993 and it made a clear distinction between Science teachers and Arts teachers and proposed that two separate seniority lists for Arts and Science teacher shall be prepared for promotion to Grade 4 and the consolidated list has to be created for promotion to Grade 6 to 8. The Hon’ble Full Bench in Para 7 and 8 of the said judgment considered the judgment passed in the case of Naresh Jha (supra) and ultimately held that the direction of the Division Bench in Naresh Jha’s case, without setting aside the valid Promotion Rules of 1993 was not correct. The Hon’ble full bench while deciding the case was conscious of the fact that the Rules of 1993 were made effective from 01.01.1986. Para 7, 8 and 9 of the Hon’ble Full Bench is quoted as under: “7. In Naresh Jha's case (supra), it was held that there is no separate cadre created for Arts and Science teachers. Rule 12 of the Bihar Service Code defines that the cadre means the strength of the service or a part of service sanctioned as a separate unit. Therefore, even though promotion rules had been framed and it referred to separate seniority list, it was held that the classification between Arts and Science was not correct. Therefore, it was held that the classification between Arts and Science teachers, in the absence of creation of a separate cadre is arbitrary. It is pertinent to note that the Bihar Taken over Elementary School Teachers Promotion Rules 1993 was not set aside. In fact, the said Rules were not even challenged. The learned single Judge, while referring the matter, noticed that as per Rule 12 of the Bihar Service Code, cadre means the strength of the service or a part of service sanctioned as a separate unit and, therefore, the view appears to be not correct. Rule 12 itself recognised part of service sanctioned as a separate unit as cadre. We have seen that while filling up the vacancies of Science teachers, the Arts teachers cannot be promoted. But to be promoted as Headmasters, seniority in the higher grade alone need be considered as both Arts and Science teachers working in Grade - 4 will get opportunity for promotion as Headmasters. Date of appointment at the entry level cannot be the criteria for promotion to the post of Headmaster. Teachers working in matric scale cannot over-take teachers working in graduate scale for the purpose of promotion as Headmasters. The earlier Government orders before framing the Rules were approved by this Court in the judgment dated 8.8.1997 in CWJC No. 3475 of 1988 and connected cases and approved by the apex Court. Teachers working in matric scale cannot over-take teachers working in graduate scale for the purpose of promotion as Headmasters. The earlier Government orders before framing the Rules were approved by this Court in the judgment dated 8.8.1997 in CWJC No. 3475 of 1988 and connected cases and approved by the apex Court. In fact, it can be seen that while sanctioning posts, separate scales were given for Arts and Science teachers. It was specifically mentioned that percentage should be maintained for matric trained teachers and graduate trained teachers. Therefore, it is a distinct part/unit of the cadre and there is nothing wrong in having a separate promotion list for Science teachers upto Grade 4. Teachers are required in the schools for teaching Science and they are appointed for that purpose. Both categories will get promotion upto the Grade 4 depending upon the vacancies allotted to the respective category. But after Grade 4, as mentioned in the promotion rule, there can only be a consolidated list. We are of the view that the Promotion Rules 1993 referred above is not unconstitutional. It was not held to be bad in Naresh Jha's case (supra) also. The above judgment is not challenged in any of the writ petitions. The Promotion Rules 1993 was accepted and acted upon in Uma Kant Yahi's case (supra). 8. The learned Advocate General pointed out that in view of the direction of the Division Bench, a consolidated list was prepared without any distinction between Arts and Science teachers and fresh rules were framed (but not implemented) only because of the directions of the Division Bench in Naresh Jha's case (supra) and due to urgency of the matter but subject to the orders of the Court in these cases. In view of the interim order, it has not been finalised. We are of the view that the direction of the Division Bench in Naresh Jha's case (supra), without setting aside the valid Promotion Rules 1993 was not correct. We overrule the same. It is for the Government to make separate lists of qualified teachers for both Science and Arts subjects as per the quota/unit fixed for promotion to Grade 4 and promotions can be made separately depending upon quota fixed for promotion among the Arts and Science teachers. We overrule the same. It is for the Government to make separate lists of qualified teachers for both Science and Arts subjects as per the quota/unit fixed for promotion to Grade 4 and promotions can be made separately depending upon quota fixed for promotion among the Arts and Science teachers. But, after Grade 4, a common seniority list is to be prepared for promotion, so that both Arts and Science teachers could become Headmasters based on such common seniority list as prescribed in the Promotion Rules 1993. 9. In the light of the above, we are of the view that a fresh seniority list has to be prepared in accordance with the Promotion Rules 1993 and the joint seniority list prepared in accordance with the directions of the Division Bench in Naresh Jha's case (supra) and the draft Rules created in 2006 subject to the approval of this Court with regard to promotions cannot be acted upon. We direct the Government to prepare a fresh list and make consequential promotions and transfers according to law. No separate orders are necessary. In view of the interim order of status quo granted, promotions were not made for the last 10 years. In the above circumstances, we direct the Government to make separate seniority lists for promotion to Grade 4 for Arts and Science teachers afresh and thereafter to prepare a consolidated list for promotion as expeditiously as possible. The draft list should be published within three months from the date of receipt of a copy of this judgment and the final seniority list shall be thereafter published and promotions and transfers made in accordance with law.” 12. This Court finds that the petitioners were recruited prior to enactment of the 1993 Rules which was enacted vide notification dated 09.01.1993. The advertisement was prior to the notification dated 09.01.1993, but the appointment was after coming into force of Rules of 1993. It is further not in dispute that Rules of 1993 were made effective from 01.01.1986 and accordingly, this Court is of the considered view that the petitioners are governed by the Rules of 1993, which clearly provides for separate seniority list for Arts and Science teachers. The case of the petitioners is squarely covered by the judgment rendered by the Hon’ble Full Bench. 13. The case of the petitioners is squarely covered by the judgment rendered by the Hon’ble Full Bench. 13. Accordingly, the grievance of the petitioners with regard to seniority list of science teachers as contained in Annexure-9 vide Memo No. 1081 dated 03.05.2010 is misplaced, the petitioners cannot be included in the seniority list prepared for science teachers. However, the fact remains that the petitioners are entitled for inclusion of their name in separate seniority list of Arts teachers, if otherwise found entitled. It further appears that a seniority list for Arts teachers was already in place, but the same has not been brought on record in the present writ records either by the petitioners or by the respondents. It is also important to note that the persons whose name appeared in the seniority list in Annexure-9 have not been made party respondent in the present proceeding nor their appointment letters have been brought on record. 14. Although this Court is not inclined to interfere with the impugned order contained in Memo No. 1081 dated 03.05.2010 dealing with the seniority list of the science teachers but is of the considered view that there can be no reason for not considering the case of the petitioners for promotion in terms of the seniority list of Arts teachers already prepared or if not prepared, the seniority list should be prepared at the earliest. 15. Accordingly, this writ petition is disposed of enabling the petitioners to represent before the respondent no. 4, who shall take appropriate steps so that the surviving grievance of the petitioners, if any, with regard to preparation of the seniority list of Arts teachers and consequent promotion, is taken to a logical end at the earliest in case no promotion has been granted to the petitioners so far. 16. The petitioners may approach respondent no. 4 along with the copy of this order and writ record for redressal of their grievance. Upon such representation, the respondent no. 4 shall take a final call in connection with preparation of seniority list of Arts teachers, if not already prepared, and consider the claim of promotion of the petitioner in accordance with law as per 1993 Rules subject to other conditions being satisfied by the petitioners. The respondent no. 4 shall also take into consideration the other Circulars and decisions of the state government as may be applicable on the petitioners. The respondent no. 4 shall also take into consideration the other Circulars and decisions of the state government as may be applicable on the petitioners. The entire exercise by the Respondent no. 4 should be completed within 6 months from the date of receipt of representation. 17. Pending interlocutory application, if any, stands closed.