By the Court.—Heard Sri Shashi Kumar, learned counsel for Babu Ram, Sri Rajesh Kumar Singh, learned counsel for the petitioner Jawahar Lal. Sri V.K. Singh, learned Additional Advocate General assisted by Sri C.K. Rai, learned Standing Counsel for the State respondents. Sri R.K. Tripathi, Advocate, Sri Veer Singh, Advocate, Sri K.C. Vishwakarma and Sri P.N. Saxena, Senior Advocate assisted by Sri Amit Saxena, Advocate for the private respondents.

2. Learned Single Judge, after noticing that there was a conflict between two decisions of this Court, namely Suryanath Ram v. District Inspector of Schools (being Writ Petition No. 41618 of 2001) decided on 7.2.2002, which in turn relied upon another judgment passed in Writ Petition No. 56756 of 2003; Ram Bhajan Singh v. State of U.P. and others, decided on 6.2.2004 viz-a-viz the judgment of the learned Single Judge in the case of Hari Kant Yadav v. Deputy Director of Education, Meerut and others, being Writ Petition No. 28699 of 1995 decided on 8.12.1992, has referred the matter to be heard by a larger bench vide order dated 11.11.2005. Although no question of law has been framed for reference by the learned Single Judge in his order, we, after having heard counsel for the parties and after examining the records, find that the question, which is required to be answered by this Division Bench is as follows :

“As to whether a person appointed on the post of Daftari in a recognized Intermediate College is to be treated as senior to all other Class-IV employees working in the institution irrespective of their length of service or not in the matter of promotion to the post of Clerk (Class-III) ?”

3. For appreciating the issue involved, it would be appropriate to state the facts as they exist on records of Writ Petition No. 1199 of 2003.

4. Rashtriya Inter College, Sherpur, District-Mirzapur is an aided and recognized Intermediate College (hereinafter referred to as institution). The provisions of the U.P. Intermediate Education Act, 1921 as also those of the Regulations framed thereunder and U.P. High School and Intermediate Colleges (Teachers and other Employees) (Payment of Salary) Act, 1971 (hereinafter referred to as ‘Act, 1971’) are fully applicable to the staff of the said institution.

5. Petitioner Jawahar Lal was appointed as Class-IV employee in the said institution on 10.1.1973. Petitioner No. 2 Udai Narain Singh was appointed as Class-IV employee on 24.4.1974. Tara Singh respondent No. 5 was appointed by direct recruitment as Daftari (a post which although in Class-IV cadre, now carries a higher pay scale).

6. On the date of appointment of respondent No. 5 it is alleged that the basic pay scale admissible to the post of Daftari was same as was applicable to other posts in the Class-IV cadre. Subsequently, on the basis of the Government Order dated 10.8.1978, the pay scale of Daftari was enhanced w. e. f. 01st July, 1978. Since 01st July, 1978 the respondent No. 5 is working on a higher pay scale viz-a-viz the petitioner.

7. On 31st July, 2002 a vacancy on the post of Clerk fell vacant in the institution. The vacancy is admittedly within the 50% quota provided for promotion from Class-IV cadre under Regulation 2 of Chapter-III of the Regulations framed under the Intermediate Education Act. Regulation 2 of Chapter-III provides that the criteria for promotion shall be seniority subject to rejection of unfit.

8. Tara Singh respondent No. 5 on the strength of his working in a higher pay scale made a representation to the District Inspector of Schools for promotion on the post of Clerk. The District Inspector of Schools passed an order on 15.10.2001 holding therein that Tara Singh was the senior to all other Class-IV employee, as he was getting higher pay scale, while working as Daftari in comparison to the petitioners, who although appointed prior in point of time but are getting salary in a lower pay scale. On the basis of the order of the District Inspector of Schools, the