K. K. Birla, J.- - (1.) IN all these writ petitions common question arises, they have been heard together and are being disposed of by a common judgment.
(2.) BY these writ petitions, the petitioners seek for a direction for promotion for the post of Head Masters of the Basic Schools. The petitioners in Writ Petitions nos. 21168/87, 19851/87, 21169/87 and 4695/88 are the Assistant teachers in the Junior Basic Schools (Primary Schools) and the petitioners of writ petitions nos. 14093/87 and 19942/87 are teachers in Senior Basic Schools. They were temporarily appointed as Assistant teachers in various Schools on various dates ranging from 1959 to 1960 except Sri Surya Narain Tripathi, one of the petitioners in writ petition no. 13093/87, who was initially appointed on 4-8-52. They were untrained at the time of their appointments. They received training on various dates in the years ranging from 1972 to 1976 except Harihar Prasad one of the petitioners in writ petition no. 19851 of 1987 who received training in 1968 and Sri Badri Prasad Tripathi, petitioner of writ petition no. 4695/88 in 1970 vide Annexure III. For the purpose of these writ petitions it is not necessary to mention the respective dates of appointments or the date of training of these petitioners. All these petitioners have been in continuous service from the date of their appointments. The petitioners of all the writ petitions except writ petition nos. 4695/ 1988 and 19942/87 were serving in the Schools under Zila Parishad Deoria while Sri Badri Prasad Tripathi and Badri Deo Pandey were working in the Schools under the Zila Parishad, Mirzapur. On the enforcement of the U. P. Basic Education Act 1972 (hereinafter referred as the Act) all these petitioners became the teachers of the Board of Basic Education (hereinafter referred as the Board). As mentioned above, the petitioners thereafter under took the training. Later on, the U. P. Basic Education Teachers Services Rules 1981 came into force. Under the Rule 18 the criterion for promotion in respect of any post shall be seniority subject to the rejection of the unfit. The grievance of the petitioners is that those teachers who were appointed subsequently to them have been promoted as Head Masters and many of them have been shown senior to them in the seniority list. The grievance of the some of the petitioners is also that their names have not been shown in the prepared list of seniority. They made representations to the concerned Basic Shiksha Adhikari but of no avail. Sri Harideo Mani Tripathi also filed a writ no. Nil of 1987 Harideo Mani Tripathi v. U. P. Shiksha Allahabad. The Division Bench of this Court passed the order to the effect that we direct the Basic Shiksha Adhikari, respondent no. 2 to dispose of the representation of the petioner and consider his case for promotion as Head Master. This shall be done within a period of 2 months from the date of the production of a certified copy of the order of this Court before the respondent no. 1 by the petitioner. By the order dated 9th October, 1987, the Basic Shiksha Adhikari, Deoria passed the order (Annexure 10 of writ petition no. 21168/87) to the effect that he was appointed as untrained teacher. He received B. T. C. training in 1973. He was given scale of trained teacher since then, the seniority is to be determined from the date of the appointment in a substantive capacity. Therefore, under rule 22 of the Rules 1981 the Basic Shiksha Adhikari held the date of training as the date of appointment of the petitioner are rejected his representation. In case the date of training is taken to be the date of the appointment in the substantive capacity, all these petitioners are not yet senior enough for being promoted as Head Masters. But in case such date of appointment is taken the date of initial appointment as teachers, they should be promoted as such. The main contention is that it is the initial date of appointment as teacher which should be taken as the date of appointment in the substantive capacity and not as the date of training. As mentioned earlier, some of the petitioners are in the Junior Basic Schools (Primary Schools) while some of the petitioners are in Senior Basic Schools (Junior High Schools). It is the common case of the petitioners that their substantive appointment should be taken from the date of their initial appointment irrespective of the fact that they were untrained teachers at that time. According to them, trained and untrained teachers were of the same class i.e. Assistant teachers and after the petitioners have received the training, any disparity between them had come to an end; that there were no rules governing the seniority also and as such now for the purposes of their seniority it is the date of their initial appointment which is relevant. As regards the teachers of the Senior Basic Schools, their further case is that they are special teachers and by the government orders the condition of training had been waived and as such in either case their seniority has to be determined from the date of the initial appointment. On the other hand, the main contention on behalf of the Board is that the eligibility of Primary Schools teachers was the training Certificate as well. On the non-availability of trained teachers untrained teachers could have also been appointed but their scale was less and they were appointed on a fixed pay and formed a different class. The case of the untrained teachers and trained teachers could not be equated. It was only after the training, they got the scale of trained teacher and it is from the date of getting this scale that they shall be deemed to have been substantively appointed on this post.
(3.) FORMERLY the teachers working under the District Boards were governed by the provisions contained in Chapter XI of the District Board Manual. Later on, the teachers came under the control of Zila Parishad. After the enforcement of Uttar Pradesh Basic Education Act 1972 (hereinafter referred as the Act) such teachers became the teachers of the U. P. Board of Basic Education (hereinafter referred as the Board) section 9 (1) of the Act interalia provides that on and from the appointed day every teacher, officer and other employees serving under a local body exclusively in connection with the basic schools (including any supervisory or inspecting staff) immediately before the said day shall be transferred to and become a teacher, officer or other employee of the Board and shall hold office by the same tenure, at the same remuneration and upon the same other terms and conditions of service as he would have held the same, if the Board had not been constituted and shall continue to do so unless and until such tenure, remuneration and other terms and conditions are altered by the rules made by the State Government in that behalf. Thus according to this provision the services of the petitioners stood transferred to the Board. On the same tenure, remuneration and terms and conditions on which they were serving under the Zila Parishads. These conditions etc. were to remain the same unless altered by the rules made by the State Government. Such rules namely, Uttar Pradesh Basic Education (Teachers) Service Rules 1981, were for the first time framed in 1981. They now contain the necessary provisions governing the appointments, confirmation, seniority and promotions etc. Under rule 3, these rules were to apply to all teachers of Local Bodies transferred to the Board under section 9 of the Act. Rule 4 provides for a separate cadre of service for each local area. In view of Rule 18, no untrained teacher can now be appointed as Assistant Master of Junior Basic School. Now the appointment in a substantive capacity is to be on probation for one year u/o 23. The mode of appointment to substantive, temporary and officiating capacity is given in Rule 19. Under Rule 18 the criterion for promotion in respect of any post shall be seniority subject to the rejection of the unfit. Under Rule 22 the seniority of a teacher in a cadre will be determined by the date of his appointment in a substantive capacity. The provisions were not exhaustive prior to the enforcement of these rules. The service of the teachers serving under the District Boards was regulated by the provisions of Chapter XI of the District Boards Manual (hereinafter referred as the Manual). Under these provisions, no person was to be appointed as Assistant Master of a Primary School unless he held a training certificate (Primary Teachers' Certificate) but it was also provided that if no such qualified candidate was available, the Board could appoint teachers with lower qualification. This permitted the appointment of an untrained teacher. But his pay was to be less. It is under this exception that the petitioners were so appointed. It appears that on account of the enforcement of the Act, the petitioners took the training. As pointed earlier the representation of Sri Harideo Mani Tripathi, the petitioner, was rejected by order dated 9th October, 1987 (Annexure 10 of writ petition no. 21168/ 1987) on the grounds that the petitioner has taken training in 1973 and he was given the grade of trained teacher since then, that training was the essential minimum qualification for the appointment as assistant teacher and as such the untrained teachers were treated as temporarily appointed and that the date of substantive appointment is, therefore, date of training.;