Holding

Under Rule 22 of the 1981 Rules, seniority of a teacher is determined by the date of appointment in a substantive capacity as a trained Assistant Teacher, and untrained teachers are a separate class not eligible for promotion to Headmaster; the 1922 Education Manual rules remain in force as they were not repealed by the 1961 Act.

Summary

The petitioners, U.P. Basic Shiksha Parishad, challenged the seniority of a group of teachers who had been appointed as untrained temporary Assistant Teachers between 1959 and 1966 and later obtained training certificates. The teachers argued that their seniority should be counted from the date of their initial appointment, while the Board contended that only the date of appointment as a trained Assistant Teacher in a substantive capacity should determine seniority. The Supreme Court examined the applicability of Rule 22 of the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981, and held that seniority is fixed from the date of substantive appointment as a trained Assistant Teacher, not from the earlier untrained appointment. It further held that untrained teachers constitute a separate class and are not eligible for promotion to Headmaster, which is reserved for trained Assistant Teachers in the higher pay scale. The Court also clarified that the 1922 Education Manual rules were not repealed by Section 274 of the 1961 Act, being continued by Section 270. Consequently, the High Court judgments were set aside and the writ petitions dismissed.

Issues considered

The appropriate date for determining seniority of teachers appointed initially as untrained Assistant Teachers under Rule 22 of the 1981 Rules.
Whether the 1922 Education Manual rules were repealed by Section 274 of the 1961 Act or continued under Section 270.
Eligibility of untrained teachers for promotion to the post of Headmaster.
The effect of Section 9 of the Uttar Pradesh Basic Education Act, 1972 on the service continuity of teachers.

Legislation cited

Subjects

seniorityuntrained teacherstrained teacherspromotionheadmasterservice rulesUttar Pradesh Basic Education ActRule 22education manualstatutory interpretation

Judgment

A U.P. BASIC SHIKSHA PARISHAD AND ANR. ETC. ETC.
v.
HARi DEO MANI TRIPATHI AND ORS. ETC. ETC.

DECEMBER 7, 1992
B
[S.C. AGRAWAL AND YOGESHWAR DAYAL, JJ.)

U.P. Basic Education Act, 1972-Section 9-Uttar Pradesh Basic
Education (Teachers) Service Rules, 1981-Rule 22:-Education Rules in
C Chapter XI of Boards Manual--R.r. 13-A, 14(iii),(e),(f),(g), 15 to 18, 24-A
and 24-B-Appointment as Headmasters-Untrained teachers appointed on
temporary basis as Assistant Teachers, obtaining certificate of training at later
dates-Held, date of their training and not date of initial appointment to be
taken as the date of their substantive appointment as Assistant Teachers-Un-
trained teachers of different class from trained teachers-United Provinces
D District Boards Act 1922-Antarim Zila ParishadAct 1958-Ksltetra Samitis
and Zi/a Parishad Adhiniyam 1961. Section 270.

The respondents were temporarily appointed as untrained Assistant
Teachers in the Junior Basic Schools in U.P. (Primary Schools) between
the years 1959 and 1966. They acquired training between 1972 and 1976,
E and in 2 cases between 1968-69 and in 1970.

The writ petitioners contended before the High Court that the initial
date of appointment as Assistant Teachers and not the date of their
training should be taken as the date of their appointment in the substan-
F tive 'capacity as Assistant Teachers. They contended that trained and
untrained teachers were in the s~me class, i.e., Assistant Teachers; that
after they had received training any disparity between them had come to
an end, and that there being no rules governing seniority, the date of initial
appointment was relevant to determine seniority.

G The case of the respondents in the High Court (appellants in the
Supreme Court) was that the eligibility of primary school teachers was the
training certificate. On non-availability of trained teachers, untrained ·
· teachers could be appointed, but their scale of pay was less and it was a
fixed pay till they were trained and hence they could not be equated with
H -trained teachers.
384
J

U.P.SHIKSHAPARISHAD v. H.D.M. TRIPATHI 385

The High Court relied on Jagdish Narain Shastri v. Basic Shiksha A
Parishad, Etowah & Ors., and held that there was no difference between
trained and untrained teachers, and in the absence of any rule or govern-
ment order, seniority could not have been determined with effect from the
date of training but of the initial appointment. The High Court observed
that the writ petitioners had long uninterrupted and continuous service,
B
and had taken the training before the Uttar Pfadesh Basic Education
(Teachers) Service Rules, 1981 came into force. It recorded the concession
of the writ petitioners that they ·did not want to disturb the Headmasters
already selected, and who were likely to be affected by the refixation of
seniority. Consequently the High Court directed that seniority of the writ
petitioners be fixed afresh and thereafter be considered for promotion, c
while not disturbing the selections/promotions already made.
-)
.. The relevant enactments are the United Provinces District Boards
Act 1922 under which the Education Rules contained in Chapter XI of the
Board's Manual were framed. These Rules survived the enactment of the
Antarim Zila Parishads Act 1958, the Kshetra Samitis and Zila Parishads D
Adhiniyam 1961 and the U.P. Basic Education Act, 1972, till they were
finally replaced by the 1981 Rules.

. In the Supreme Court the respondents submitted that the provisions
of the 1922 Education Manual stood repealed in view of Section 274 of the E
1961 Act.

The undisputed facts noticed by the Supreme Court were that the
respondents were untrained and temporary Assistant Teachers when they
were initially appointed; they received a lower pay than the trained
teachers till they acquired the requisite qualification; they did not chal- F
lenge the seniority or promotions of those appointed as trained teachers
till 1987; no relief was ~laimed against the seniority list filed by Harideo
Mani Tripathi in 1987; and separate lists were maintained of those ap-
pointed on substantive basis as trained teachers and untrained teachers.

Allowing the appeal, the Supreme Court
G

HELD: 1. It is the trained Assistant Teacher alone who was eligible for
promotion to the post of Headmaster. There were three scales of pay even for
trained Assistant Teachers, and it was a trained Assistant Teacher in the
higher scale who was eligible for being promoted as Headmaster. {398-B] H
386 SUPREME COURT REPORTS 11992] SUPP. 3 S.C.R.

A Historically, untrained teachers were employed when trained teac~ers
were not available. They became trained Assistant Teachers only on their
getting the requisite certificate of training and only from that were they
treated as regular Assistant Teachers getting a proper scale of pay. [398-A]

Under Rule 22 of the 1981 Rules, only the date of appointment as
B' trained Assistant 'reacher in a substantive capacity is to be seen and not
the date 'of appointment as untrained Assistant Teacher. [398-C]

. Jagdish Narain Shastri v. Basic Shiksha Paris/tad, Etawah Civil Misc.
Writ Petition No. 10920 of 1986 decided on 7 August, 1986 (All H.C.),
distinguished.
c
Seniority lists were being maintained separately for trained Assis·
tant Teachers and untrained Assistant Teachers. [398-D]

2. Untrained teachers are of different class and cannot rely upon
D service as untrnined Assistant Teachers in the lower grade with the trained
Assistant Teachers drawing higher grade of pay. [398-E]

3. Section 274 of the 1961 Act did not repeal the 1922 Rules contained
in the Manual and they were specifically continued by Section 270 of the
1961 Act. [39S-F)
E
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 5279-
5282/92.

. From the Judgment and Order dated 7.3.91 of the Allahabad High
Court in Civil Misc. Writ Petition Nos. 21168, 19851, 21169 of 1987 and
F 4695 of 1988.

AND
Civil Appeal No. 5278 of 1992.

G From the Judgment and Order dated 4.10.91 of the Allahabad High
Court in Writ Petition No. 6548(SS) of 1991.

M.L. Verma, R.B. Mjsra, K.S. Shukla and V. Singh for the Appel-
lants.

H H.N. Salve, G.M. Tripa.thi, Dinesh Kumar Garg and M.I. Shorawala
U.P. SHIKSHA P ARISHAD v. H.D.M. TRIP ATHI [DAYAL, J.) 387

(For Dhillon & Katiyar Co.) for the Respondents. A
The Judgment of the Court was delivered by

YOGESHWAR DAYAL, J. Special leave granted.

With the consent of learned counsel for the parties the appeals B
themselves were heard and are now being disposed of. The ·relevant
petitions are - SLP(C) Nos. 458, 459, 460 and 463 of 1992 arising out of
a common judgment and order dated 7th March, 1991 passed by the
learned single Judge of the Allahabad High Court in Civil Writ Petitions
No. 21168, 19851, 21169 of 1987 ~d 4695 of 1988 respectively as well as
SLP(C) No. 6145of1992 arising out of a Judgment and Or~er dated 11th C
October, 1991 passed by a Single Judge of the Allahabad High C.ourt in
Writ Petition No. 6548(SS) of 1991.

For facility of reference \ye are dealing with facts arising in SLP(C) No.
458 of 1992. In this matter respondent concerned is Hari Deo ManiTripathi. D
He was appointed an untrained Assistant Teacher on 27th November, 1963
and he obtained the certificate of training on or about 16th August 1973.

In other Civil Appeals the names of the respondents, their dates of
appointment and the dates of their obtaining the certificate of training are
as under: E
Name Date of Date of obtaining
appointment training certificate
Appeal arising out of SLP (C) No. 459/92
1. Dinesh Pande 23.11.1961 11.3.1976
2. Hridayanand Singh 30.8.1960 11.3.1976 F
3. Ram Nakshatra Prakash 16.2.1966 11.7.1976
4. Madan Kishore Singh 7.2.1966 11.3.1976
5. Harihar Singh 18.8.1962 1.3.1%9
Appeal arising out of SLP (C) No. 460/1992 G
1. Hari Prakash '18.3.1974 June 1975
2. Baleswar Singh : 18.3.1964 14.8.1972
3. Smt. Khudaiza Khatoon 20.8.1959 6.8.1976
4. Mohammed Yasin 3.12.1963 6.8.1973
H
388 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A 5. Ram Nagina 14.9.1963 25.5.1975
6. Raj Mangal Singh 2.11.1960 11.3.1976
Appeal arising out of SLP (C) No. 463/1992
~~~~~~~~~~~~

1. Badri Prasad Tripathi j 25.11.1963 1970
B Appeal arising out of SLP (C) No. 6145/1992
1. Ragunandan 29.7.1960 1976
....
2. Krishna Gopal 1.8.1961 1970
3. Ram Sharan 27.1.1960 1972
4. ParmanbwarBakhav Singh 10.6.1962 1976
c 5. Vishwambhar Nath 8.8.1962 1976

All the respondents in the aforesaid appeals were appointed as
untrained .Assistant Teachers in the Junior Basic Schools in Uttar Pradesh
(Primar:y Schools) between the years 1959 to 1966. There is no dispute
D about the fact that they were temporarily appoint:ed and were untrained at
the time of their appointments.

During the years 1987-1988, the petitioners in the High Court
• (respondents in the present appeals) filed writ petitions. They inter alia
E stated the date of their initial appointments as teachers in Basic Schools in
Di~trict Deoria, which were under the Zila Parishad in the State of Uttar
Pradesh, except Gauri Prasad Tripathi, sole respondent in Civil Appeal
arising out of SLP (C) No. 463 of 1992. Who was appointed as Assistant
Teacher in Basic School in Mirzapur District in Uttar Pradesh.

F It was stated in the writ petition that in 1972 U.P. Basic Education
Act (for short '1972 Act') came into force wbereunder the U.P. Bo¥d of
Basic Education (for short 'the Board') was constituted. It was also stated
that as per Section 9 of the 1972 Act all the teachers working under the
Zila Parishad became teachers under the Board and were deemed to be
G in the service of the Board.

Some additional facts in the case of Hari Deo Mani Tripathi, may
also be noticed at this stage.

. This respondent earlier ftled a writ petition in 1987 which had been
H disposed of by the Division Bench of the Allahabad High Court whereby
U.P.SHIKSHAPARISHAD v. H.D.M. TRIPATHI [DAYAL,J.] 389

the Basic Shiksha Adhikari was directed to dispose of his representation A
and consider his case for promotion as Headmaster. He filed his repre-
sentation which was rejected by the District Basic Shik~ila Adhikari Deoria
on 9th October, 1987, inter a/ia, for the reason that Hari Deo Mani Tripathi
received the required training as teacher in 1973 and that he was appointed
substantively as Assistant Teacher thereafter. it was stated that the un-
trained teachers were appoi~ted as ad- hoc teachers to the post of Assistant
B
Teachers. This decision was communicated to Hari Deo Mani Tripathi vide
letter dated 12th October, 1987. In his writ petition he inter alia had also
challenged this order of the District Basic Shiksha Adhikari Deoria dated
9th October, 1987. The relief of quashing of the said order was in addition
to the other common reliefs claimed by all the respondents in the writ c
petitions before the High Court.

In the writ petitions the respondents herein had prayed for a writ of
mandamus directing the appellants herein not to promote junior teachers
on the post of Headmasters from the list prepared and to give all the D
benefits to the writ petitioners from the date on which they were entitled
to promotion to the post of Headmasters.

·The High Court has noticed that the writ petitioners have been in
continuous service from the date of their initial appointments. The High
Court also noticed that Harideo Mani Tripathi received training and got E
training certificate in 1973. He was given the pay-scale of trained teacher
only thereafter. As noticed earlier the other respondents acquired craining
between 1972 to 1975, except Harihar Singh, who received the training in
1968-69 and Badri Prasad Tripathi and Krishna Gopal who receive training
in 1970. There is no dispute about these facts. F

The main contention of the writ petitioners before the High Court
was that the initial date of their appointment as Assistant Teacher and not
the date of their training should be taken as the date of their appointment
in the substantive capacity as Assistant Teacher. In other words it was
common case that their substantive appointment should be taken from the G
date of their initial appointment, irrespective of the fact that they were
untrained teachers at the time of the initial appointment. It was contended
before the High Court that trained and untrained teachers were of the
same class i.e. Assistant Teachers. It was contended that after they had
received the training any disparity between them had come to an end. They H
390 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A alleged that there were no rules governing the seniority and hence, the date
of their initial appointment was relevant to determine their seniority. The
case of the appellants, who were resp~ndents before 'the High Court, was
that the eligibility of primary schools "teachers was the training certificate
as well as on the non-ayailability of the trained teachers, untrained teachers
could have also been appointed but their scale was less and they were
B appointed on a fixed pay and formed a differ~nt class. The case of
untrained teachers and trained teachers could not be equated. It was only
after the training that they got the scale of trained teachers and it is from
the date of their getting the scale that they shall be deemed to have been
substantively appointed on this post.
c
The learned Judge of the High Court relying up,:in a decision of the
same High Court in Jagdish Narain Shastri v. Basic Shiksha Prishad, Etawah
and others (Civil Misc. Writ Petition No. 10920of1986 decided on August 7,
1986) took the view that there was no difference between the trained and ~-

D untrained teachers ~nd in the absence of any rule or government order, the
seniority could not have been determined with effect from the date of the
training but should have been from the date of the initial appointment. The
High Court held that regardless of training, the trained and untrained
teachers did not form two classes and in tbe opinion of the High Court they
formed a same cadre except that the untrained teachers had the disadvantage
E of lesser pay but the disadvantage came to an end after they took the training.
The High Court further observed that the writ petitioners had long uninter-
rupted and continuous service before the Uttar Pradesh Basic Education
(Teachers) Service Rules, 1981 (for short '1981 Rules') came into force and
had taken the training before the said Rules. It was held that their seniority (
F should be determined from the date of initial appointment and that there was
no justification for holding their substantive appointment from the date of
training. The High Court had also noticed that the persons who had already
been promoted as Headmasters of the Basic Schools and who were likely to be
affecte~ by the re-fixation of the seniority of the writ petitioners, whereby the
G writ petitioners may become senior to the persons who had already been
promoted as Headmasters, had not been impleaded as parties. The High
Court recorded the concession on behalf of the writ petitioners that since they
were interested in getting their promotion and having their seniority fixed,
they did not want to disturb the Headmasters already selected. Consequently
the High Court directed that the seniority of the writ petitioners be fixed
H afresh and thereafter they be considered for promotion and yet the High ~.
U.P.SHIKSHAPARISHAD v. H.D.M. TRIPATIU[DAYAL,J.] 391

Court directed that the selections/promotions already made would not be A
disturbed or affected. ·

Before we deal with the submissions made on behalf of the learned
counsel for the parties, it would be useful to understand the different
enactments and the Rules made thereunder as applicable.
B
In 1922 there was an Act called United Provinces District Boards
Act. 1922. Rules were framed under this Act being the Education Rules
contained in Chapter XI of the Boards Manua~. These Rules were ap-
plicable to the writ petitioners. In 1958, an Act called the 'Antarim Zila
Parishad Act' was enacted. This Act did not repeal the aforesaid Rules in C
Chapter XI of the Boards Manual and no Rules were made under this Act.
In 1958 the 'Antarim Zila Parishad Act' was repealed by the 1961 Act
known as 'Kshetra Samitis & Zila Parishads Atlhiniyam. By virtue of
Section 270 of this Act of 1961, the Rules and Regulations etc. made under
the 1922 Act, which were not inconsistent with the provisions of the 1961
Act, continued to be in force until superseded. No Rules were, however, D
made under the 1961 Act. In 1972 the 'Uttar Pradesh Basic Education Act,
1972' (U.P. Act 34of1972) was enacted and by virtue of Section 9 thereof
the aforesaid Education Rules contained in the Manual continued to apply
to the employees who were transferred to the Board constituted under the
1972 Act on the same terms and conditions tilt they were altered by the E
Rules framed by the State Government in this behalf. The Rules under the
1972 Act were framed in 1981 only.

The relevant Rules regarding the appointment of Assistant Teachers
contained in Chapter XI of the Manual are 13.A, 14(iii) (e), (t), (g), 15,
16, 17, 18, 24.A and 24.B. They read thus: F
"13.A. Specialist teachers, e.g,, teachers of English,
agriculture, rural knowledge and manual training, may be.
appointed as assistant masters in Hinustani middle schools
provided they are certified to be qualified for the post by
the inspector of schools in accordance with departmental G
orders. They shall be paid not less than Rs. 30. per
mensem and not more than Rs. 60 per mensei:n. They shall
be considered for promotion to the headmasterships of
Hindustani middle schools with other assistant masters of
equal length of service in middle schools. H
392 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A 14. Promotions and appointments tp and grade of pay in
middle of primary schools shall be made as follows:

ti)

(ii)
B
(iii) The following. post shall be filled by promotion,
seniority in the board's service being taken into considera-
tion in cases of equal merit :

(a)
c
(b)

(c)

(d)
D
.. ( e) The posts of headmasters in primary schools in the
grade of Rs. 22 per mensem. These posts shall be filled \-
by the promotion of assistant masters in primary schools
in the grade of Rs. 20 mensem.

E (f) The posts of assistant masters on Rs. 20 per mensem.
These posts shall be filled by the promotion of assistant
masters in the grade of Rs. 19 per mensum.

(g) The posts of assistant masters on Rs. 19 per mensem.
These posts shall be filled by the promotion of assistant
F masters in the grade of Rs. 17 per mensem.

15. The board shall not appoint any person as a headmaster
of a primary school who does not hold a certificate from
a normal school or training school. Headmaster of primary
schools shall be graded on the following scale of pay :
G
50 per cent on Rs. 22 per mensem.
30 per cent on Rs. 25 per mensem.
20 per cent on Rs. 30 per mensem.
r
l
H 16. Tlie board shall not appoint ahy person as assistant
,.'
/ U.P. SHIKSHAPARISHAD v. H.D.M. TRIPATHI (DAYAL,J.] 393

master of a primary school or as master in a preparatory A
school who does not hold at least a primary techaers certificate.
Such teachers shall be graded on the following scale of pay:

30 per cent on Rs. 17 per mensem.
50 per cent on Rs. 19 per mensem.
B
20 per cent on Rs. 20 per mensem ..

17. Where no candidate qualified as above is available for
the posts mentioned in rules 13, 15 and 16, the board may
appoint teachers \i,ith lower qualifications, subject to the
approval of the divisional inspector of schools and may c
offer lower rates ofpay : provided that all headmasters shall
recieve the rates of pay as laid down in rule 15, that no
person shall be appointed as assistant master in a middle
Hindustani school w!10 does not hold at least a primary
teachers' certificate, and that no untrained teacher shall D
be appointed as headmaster of a primary school unless he
had put in three years' appr,i>cd service under the board
before Ist March, 1919.

18. Where under the preceding rule an untrained assistant
teacher is appointed by the board his pay shall be Rs. 12-1-14 E
(tweleve rupees rising to fourteen rupees by an annual
increment of one rupee on approved service) per mensem
and shall not exceed Rs. 14 per mensem unless he obtains
a training school certificate, provided that the board may
have higher rates of pay to untrained teachers who had F
put in at least five years' meritorious service under the
board before 1st March, 1919, and may grade such
teachers, after they have put in ten year~' meritorius ser-
vice, from the date of their appointment under the board
and if they have passed the vernacular final examination,
with trained assistant masters in primary schools.

24.A. The board shall depute annually untrained teachers
and candidates to a Government normal school for train-
ing in such numbers and to such normal schools as may
be fixed by the department. H
394 SUPREME COURT REPORTS [1992] SUPP. 3 S.C.R.

A 24.B. District board candidates for admission to Govern-
ment normal schools, Government central training schools
and district board training schools, shall be selected in the
following descending order :

untrained teachers in permanent service whose age
B does not exceed the limit prescribed by Government;

untrained teachers holding temporary or officiating
posts whose age does not exceed the limit prescribed
by Government;

c (c) candidates standing the highest in the list maintained
in accordance with Rule 14.

All such selection shall conform to the orders of
Government about the representation of the various com-
munities [vide rule 22 (l)(i)(d))."
D
It may be noticed from Rule 14 (iii)(e), (f) and (g) that Assistant
Teachers were drawing salary in the grades of Rs. 17 per mensem, Rs. 19
per mensem and Rs. 20 per mensem and they were eligible for being
promoted to the post of Head Master in the grade of Rs. 22 per mensem.

E It is clear from Rule 16 that a person was not eligible to be appointed
as an assistant master of a primary school who does not hold atleast a
primary teachers' certificate and it was these teachers who were given the
grades in the percentage mentioned therein and it was from these Assistant
Teachers, who were to be promoted as contemplated by sub-rules (e), (f)
and (g) of Rule 14 (iii). It is further clear that those persons who did not
F have primary teachers' certificate could, under Rule 18, be appointed by
the Board in the scale of Rs. 12-1-14, the increment being of rupee one on
approved service and the salary could not excer,d Rs. 14 per mensem unless
he obtains the training school's certificate, subject to the other provisions
of Rule 18. Again the Board had to depute untrained teachers to Govern-
.G ment schools for training as per the number to be fixed by the department
and they·were to be selected as provided for in Rule 24.B.
,.
As we have noticed earlier in 1958 'Antarim Zita Parishad Act' was
enacted which did not repeal the aforesaid Education.Rules contained in
Chapter XI of the Manual and no rules were either framed under the
H 'Antarim Zila Parishads Act'. The 1958 Act, as stated earlier, was repealed
U.P.SHIKSHAPARISHAD v. H.D.M. TRIPATHI[DAYAL,J.J 395

by the 1961 Act known as the 'Kshetra Samitis and Zila Parishads A
Adhiniyam'. Section 270 of the 1961 Act reads thus:

"270. Continuati_on of appointments, taxes, budget es-
timates, assessment, etc. - Save as expressly provided by
the provisions ·of this Chapter -
B
(a) any appointment, delegation, notification, notice, tax,
order, direction, scheme, licence, permission, registration,
rnle, bye-law, regulation, form made, issued, imposed or
granted under the United Provinces District Boards Act,
1922 or the Uttar Pradesh Antarim Zila Parishad Act,
1958 or any other law inforce in any local area immediately c
before the appointed date shall, in so far as it is not
inconsistent with the provisions of this Act, continue inforce
until it is superseded by any appointment, delegation,
notification, notice, tax, order, direction, scheme, licence,
permission, registration, rule, bye-law, regulation and
form made, issued, imposed or granted under this Act or D
any other law aforesaid, as the case may be; and

(b) all budget estimates, assessments, valuations, measure-
ments, and divisions made under the United Provinces
District Boards Act, 1922 or the Uttar Pradesh Antarim
Zila Parishad Act, 1958, before the appointed date shall,
E
in so far as they are consistent with the provisions of this
Act, be deemed to have been made under this Act."

The result of this Section was that the aforesaid Rules contained in
Chapter XI of the Boards Manual also continued under the 1961 Act as F
they were not inconsistent with the provisions of 1961 Act. No Rules were
framed under the 1961 Act. Then came the 1972 Act. Under this Act Rules
were framed in 1981 and on the coming into force of 1981 Rules the Rules
of 1922 stood superseded.

By virtue of Section 9 of the 1972 Act old employees became the G
employees of the Board on the same terms and tenure which they were
h!)lding under the Education Manual. Relevant part of Section 9 of the
1972 Act read thus :

"9. Transfer of employees - (1) On and from the appointed
day every teacher, officer and other employees serving H
396 SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.

A under a local body exclusively in connection with basic
schools including any supervisory or inspecting staff, im-
mediately 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 some other terms and condi-
B tions of service as he would have held the same if the
Board had not been constituted and shall continue to do
so unk~ss and until such tenure, remuneration and other
terms and conditions are altered by the rules made by the
State Government in that behalf:
c
Prm~ded that any service rendered under the local
. body by any such teacher, officer or other employee before
the appointed day shall be deemed to the service rendered
under the Board :

D Provided further that the Board may employ any such
teacher, officer or other employee in the discharge of such
functions under this Act as it may think proper and every
such teacher, officer or other employee shall discharge
those functions accordingly."

E At this stage certain important facts need be noticed which are not
in dispute:

(a) That at the time of the initial appointment the writ petitioners
were not qualified for appointment as Assistant Teachers as they did not
have the requisite training certificate and were appointed as untrained
F
Assistant Teachers;

(b) That they were appointed as ad-hoc/temporary Assistant Teachers;

(c) That they received lower pay-scale than the teachers who were
G appqinted on substantive basis having the requisite training certificate;

(d) That till 1987 the respondents did not challenge the seniority or
promotion of persons who have initially been appointed as trained teachers
even though suc;h persons were appointed after the initial appointment of
the writ· petitioners bu.t before the date when the writ petitioners acquired
H the training;
U.P.SHIKSHAPARISHAD v.H.D.M.TRIPATHI[DAYAL,J.] 397

(e) That Hari Deo Mani Tripathi, when he filed the writ petition in A
1987 filed an extract of the seniority list of the teachers of primary school
of the area whose appointments were made between March, 1965 to
December, 1967 but did not challenge the seniority list and no relief was
claimed against the said seniority list;

(f) That separate lists were maintained in respect of the persons B
appointed on substantive basis as trained teachers and those who were
appointed as untrained teachers. Those, who were in the untrained
teachers list were brought on the trained teachers list a,fter they had
obtained the necessary qualification as a trained teacher; and

(g) That higher scale was being given to trained teachers whereas
c
lower pay scale was being given to untrained teachers. Hence only when
they obtained the requisite qualification the untrained teachers started
getting the scale of trained teachers.

Rule 22 of 1981 Rule provides as under :- D
Seniority - (1) The Seniority of a teacher in a cadre shall
be determined by the date of his appointment in a sub-
stantive capacity :

Provided that if two or more persons are appointed on E
the same date their seniority shall be determined accord-
ing to the order in which their names appear in the lists
referred to in Rule 17 or Rule 18, as the case may be.

Note - A candidate selected by direct recruitment may
lose his seniority if he fails to join without valid reasons F
when a vacancy is offered to him. Whether the reasons in
any particular case are valid or not shall be decided by
the Appointing Authority.

(2) The seniority of a teacher who has been transferred
from one Local Area to another in accordance with the G
provisions of Rule 21 shall.be placed at the bottom of the
list of teachers of the corresponding class or category
pertaining to the Local Area to which he has been trans-
ferred, as on the date of orders for transfer are passed.
Such a person shall not be entitled to any compensation." H
398 SUPREME COURT REPORTS (1992] SUPP. 3 S.C.R.

A Histortically, as.we have noticed earlier, untrained Assistant Teachers.
used to be employed when trained teachers were not available and the un-
trained Assistant Teachers became trained Assistant Teachers only on their
getting requisite certificate of training and from that date only they were
treated as regular Assistant Teachers getting the proper scale of pay meant
for them. It is the trained Assistant Teacher who alone was eligible for promo-
B tion to the post of Headmaster. Ther~ were three scales even for trained
Assistant Teachers and it was trained Assistant Teacher in the Higher scale
who was eligible for being promoted as Headmaster. When the 1981 Rules
came into force the writ petitioners had by then become trained Assistant
Teachers and as such under Rule 22 only the date of appointment as trained
C Assistant Teacher in substantive capacity is to be seen and not the date of
appointment as untrained Assistant Teacher.

Reliance by the High Court on the case of Jagdish Narain Shastri
(supra) is not proper as that case related to Assistant Teacher. of Sanskrit
employed uner rule 13.A of the Manual for whom no qualification of
D trained teacher was required and thus the judgment in that case was of nc
avail to the learned Judge in the present case. In the past also the seniority
lists were being maintained separately for trained Assistant Teachers and
untrained Assistant Teachers.

E Thus the respondents, untrained teachers, are Of a different class and
cannot rely upon the service as untrained Assistant Teachers in the lower
grade with the trained Ass~stant Teachers drawing higher grade of pay.

The learned counsel for the writ petitioners/respondents herein sub-
mitted that the provisions contained in 1922 Education Manual stood
F repealed in view of Section 274 of the 1961 Act. This provision does not
repeal the 1922 Rules contained in Manual and the said rules were con-
tinued by specific provisions of Section 270 reproduced earlier.

The result is that the appeals are allowed and the impugned judg-
G ments of the High Court dated 7th March, 1991 passed in Civil Writ
Petition Nos. 21168, 19851, 21169 of 1987 and 4695 of 1988 and dated
4.10.1991 passed in Writ Petition No. 6548(SS) of 1991 are set aside and
the writ petitions are dismissed. Parties are, however, left to bear their own
costs.

U.R. Appeals allowed.