Hon’ble Dr. Dhananjaya Yeshwant Chandrachud, C.J.—This reference before the Full Bench has been occasioned by a referring order of a Division Bench of this Court dated 11 February 2011.

2. The issue which falls for consideration arises out of the provisions of the U.P. Intermediate Education Act, 1921 (Act of 1921) and the regulations framed in Chapter III governing conditions of service. Since pure questions of law have been framed for the decision of the Full Bench, it would not be necessary for the Court to dwell on the facts of the individual cases. However, to indicate the broad contours of the controversy, a brief reference to the issues as raised in one of the petitions would be in order.

3. In Writ Petition No. 49945 of 2004, the petitioner was appointed as a Daftari on 6 October 1990 in a recognized and aided Intermediate College. On 31 August 2004, a post of Assistant Clerk fell vacant. The Authorized Controller, who was then in the management of the College, promoted the petitioner treating him to be senior in service to the fifth respondent. The petitioner was treated as senior to the fifth respondent on the basis that he had been appointed as a Daftari in a higher grade and pay scale though it is not in dispute that the fifth respondent had been appointed as a Class IV employee earlier in 1982. On 20 October 2004, the District Inspector of Schools granted financial approval to the appointment of the petitioner in pursuance of which, the petitioner joined as Assistant Clerk on 25 October 2004, a post in which he is continuing. On 12 November 2004, the District Inspector of Schools recalled his earlier order which formed the subject-matter of a challenge under Article 226 of the Constitution.

4. Section 16-G of the Act of 1921 provides that every person employed in a recognised institution shall be governed by such conditions of service as may be prescribed by Regulations and any agreement between the management and such employee insofar as it is inconsistent with the provisions of the Act or with the Regulations shall be void. Among other things, in sub-clause (a) of sub-section (2) of Section 16-G of the Act of 1921, the Regulations may provide for the conditions for promotion and, in sub-clause (b), the scales of pay and payment of salaries. The conditions of service have been prescribed in Chapter III of the Regulations in pursuance of the provisions of Section 16-G of the Act of 1921. Regulation 2 of Chapter III is as follows:

“2. (1) For the purpose of appointments of clerks and Fourth Class employees the minimum educational qualification would be the same as has been fixed from time to time for the equivalent employees of Government Higher Secondary Schools.

(2) Fifty per cent of the total number of sanctioned posts of head clerk and clerks shall be filled among the serving clerks and employees through promotion. If employee possesses prescribed eligibility and he has served continuously for 5 years on his substantive post and his service record is good, then promotion shall be made on the basis of seniority, subject to rejection of the unfit.

If any employee is aggrieved by any decision or order of the management committee in this respect then he can make representation against it to the Inspector within two weeks from the date of such decision or order. Inspector on such representation can make such orders as he thinks fit. Decision of the Inspector would be final and promptly executed by the management.”

5. The post of Daftari in non-Governmental aided secondary institutions was created initially by a Government Order dated 20 November 1977. The post was categorised as a Group-D post by a Government Order dated 10 August 1978. The pay scale admissible to the post was fixed with effect from 1 May 1978 at Rs. 170-225. The pay scale applicable to other Class IV posts continued to be Rs. 165-215. In the year 1975, the Chaturth Varg Karmachari Sewa Niyamawali, 1975 came to be issued. Under rule 6 of thi