JUDGMENT D.P. Singh, J.
1. Pleadings are complete and the counsel for the parties agree that the petition may be finally disposed of under the Rules of the Court.
2. Heard counsel for the parties.
3. Majidia Islamia Inter College, Allahabad is a duly recognised and aided college and is also a minority institution under Article 30(1) of the Constitution of India. The petitioner was appointed as an Assistant Teacher in B.T.C. grade on 23.9.1974 in the Institution. Having completed five years of satisfactory service he was given C.T. grade with effect from 24.9.1979 vide approval order of the District Inspector of Schools dated 20.11.1980. The C.T. grade was declared a dying cadre in August, 1989 and several Government orders were issued thereafter granting L.T. grade to certain teachers. It is alleged that in pursuance thereof the petitioner was also granted L.T. grade with effect from 1.1.1986 by a pay fixation order dated 18.11.1989 as the petitioner had completed five years of satisfactory service in the C.T. grade and ten years of over all service as a teacher. It is alleged that this benefit was granted to the petitioner in view of Government order dated 19.10.1989 as amended by another Government order dated 2.12.1989. The petitioner has approached this Court complaining that without any notice or opportunity his pay fixation in the L. T. grade was cancelled by an undated order in February, 1999. This cancellation is under challenge.
4. In the counter-affidavit filed by the District Inspector of Schools, it is alleged that the service of the petitioner rendered in the B.T.C. grade could not be included for calculating ten years of service and since the petitioner had not completed ten years of satisfactory service in the C.T. grade therefore, he was not entitled to the L.T. grade which was granted to him by mistake and when the mistake was detected, it had to be rectified, for which, no notice to the petitioner was required under law. It has also been urged that the petitioner would be entitled to grant of L.T. grade in pursuance of Section 33D of the U. P. Act No. 5 of 1982 which was enforced with effect from 20.4.1998.
5. Learned counsel for the petitioner has urged that his pay fixation in the L.T. grade was made in November, 1989 on the strength of Government order dated 19.10.1989 as amended by the Government order dated 2.12.1990 which provides that any trained graduate who had completed five years of satisfactory service in the C.T. grade and ten years over all service as a teacher, he was entitled to the grant of L.T. grade.
6. It is not in dispute that the petitioner had rendered five years of satisfactory service in the C.T. grade and he had also rendered ten years of over all service as teacher, including in the B.T.C. grade.
7. For testing he argument of the learned counsel for the petitioner it would be necessary to take note of the two Government orders dated 19.10.1989 and 2.12.1990. Relevant part of Government order dated 19.10.1989 reads as follows :
"HASNADESH SANKHYA 3299/15-7-89-1 (136) SHIKSHA ANUBHAG-7 DINANK 11.8.1989 DWARA C.T. GRADE KO DYING CADRE GHOSHIT KAR DIYA GAYA HAI. IS PRAKAR ASHASKIYA SAHAYATA PRAPT UCHATTAR MADHYAMIK VIDYALAYON MAIN C.T. GRADE KA KOI PAD SRIJIT NAHIN KIYA JAYEGA AUR NA KISI ADHAYAPAK KI NIYUKTI KI JAYEGI SHASNADESH SANKHYA VE.AA.2- 1239 10.8-B/89V VE. AA. ANUBHAG-2 DINANK JUNE, 1989 KE BINDU 9 KE ANUSAR MADYAKIT VIDYALAYON KE C.T. GRADE KE AISE ADHAYAPAK JO PRASHIKSHIT SNATAK SNATAKUPADHI KE SATH L.T., B.ED. HO TATHA UNKE DAWARA 10 VARSH KI SANTOSHJANAK SEVA PURI KI JA CHUKI HO UNHE L.T. GRADE DIYA JAYEGA TATHA UNKA WETAN NIRDHARAN UPROKT PRAKRIYA KE ANUSAR L.T. GRADE MAIN KIYA JAYEGA L.T. GRADE MAIN JANE WALE AISE C.T.
GRADE KE SHIKSHAK, WETAN NIRDHARAN KI TITHI KO CHAHE SADHARAN WETANMAN MAIN KARYARAT RAHE HO YA SELECTION GRADE MAIN, UNKA WETAN NIRDHARAN L.T. GRADE KE SADHARAN WETANMAN MAIN KIYA JAYEGA."
8. The aforesaid Government order provides that those graduate teachers who possess the degree of L.T. or B.Ed. and have completed ten years of satisfactory service as a teacher, would be entitled to the grant of L.T. grade. This Government order does not categorize or specify the number of years in different grades, but simply it extends the benefit of L.T. grade on completion of ten years of satisfactory service.
9. Relevant part of Government order dated 2.12.1989 reads as follows :
"SHASNADESH SANKHYA 3299/14-7-894 (136)/89, SHIKSHA ANUBHAG-7 DINANK 21.8.1989 DWARA C.T. GRADE KO DYING CADRE GHOSHIT KAR DIYA GAYA HAL IS PRAKAR ASHASKIYA SAHAYATA PRAPT UCHATTAR MADHYAMIK VIDYALAYON MAIN C.T. GRADE KA KOI PAD SRIJIT NAHIN KIYA JAYEGA AUR NA KISI ADHAYAPAK KI NIYUKTI KI JAYEGI. SHASNADESH SANKHYA K. AA-2- 1239/10-0-B/89, V. V.E. A.A. ANUBHAG-2 DINANK 3.6.1989 KE BINDU KE ANUSAR MADHYAMIK VIDYALAYON KE C.T. GRADE KE AISE ADHAVAPAK JO PRASHIKSHIT SNATAK (SNATAK UPADHI KE SATH L.T./B.ED. ATHAWA C.T. GRADE MAIN PRASHIKSHIT SNATAK JINHON NE IS WETANKRAM MAIN PANCH VARSH KI SEVA PURI KAR LI HO TATHA UNKE DWARA 10 VARSH KI SANTOSHJANAK SEVA PURI KI JA CHUKI HO UNHE L.T. GRADE DIYA JAYEGA TATHA UNKA WETAN NIRDHARAN UPROKT PRAKRIYA KE ANUSAR L.T. GRADE MAIN KIYA JAYEGA. L.T. GRADE MAIN JANE WALE AISE C.T. GRADE MAIN KIS PARKAR JAYEGA L.T. GRADE MAIN JANE WALE AISE C.T. GRADE KE SHIKSHAK, WETEN NIRDHARAN KI TITHI KO CHAHE SADHARAN WETANMAN MAIN KARYARAT RAHE HO YA SELECTION GRADE MAIN, UNKA WETAN NIRDHARAN L.T. GRADE MAIN SADHARAN WETANMAN MAIN KIYA JAYEGA."
10. By this amendment a new category of teachers has also been extended the benefit. It stipulates that any teacher who is a trained graduate and has completed five years of satisfactory service in the C.T. grade and also ten years of over all service as a teacher, he was also to be extended the benefit of L.T. grade. In this Government order, it is specified that out of ten years of service, at least five years should have been rendered by the teacher in the C.T. grade, but it does not either expressly or by necessary implication discard the service rendered in the B.T.C. grade.
11. If both the Government orders are read together it would be evident that the requirement of the latter Government order is that he should have rendered five years service in the C.T. grade and the rest five years in any other grade. There is nothing on record to show that service rendered in the B.T.C grade cannot be taken into account while calculating ten years of service. Judicial notice can be taken of the fact that B.T.C. grade teachers are normally promoted to the C.T. grade, this is also fortified by Regulation 7 (2) (since repealed) of Chapter II of the Regulations framed under U. P. Intermediate Education Act. The contention of the learned standing counsel is that the entire ten years ought to have been in the C.T. grade does not stand to reason. The Government order dated 19.10.1989 did contemplate ten years of service but did not specify the grade in which the service should have been rendered but the latter Government order specifies that five years of such service should be in the C.T. grade. If the intention was to grant benefit only to those teachers who had completed ten years in C.T. grade, there was no difficulty in specifying it in the latter Government order. In my view, the argument of the learned counsel for the petitioner is well founded and has to be accepted.
12. Learned standing counsel has then urged, relying upon Section 33D, that the provision mullifies the effect of the two Government orders. In my view, the Government orders and Section 33D operate at different levels and once the benefit has been extended under the two Government orders, it could not be withdrawn by necessary implication under Section 33D. A perusal of Section 33D shows that the benefit of L.T. grade has been given to other set of C.T. grade teachers who had completed ten years of continuous satisfactory service in that grade. In my view, Section 33D does not apply to the facts and circumstances of the present case.
13. There is yet another aspect of this controversy. The benefit of L.T. grade was extended to the petitioner in November, 1989 while the cancellation was being made in February, 1999, i.e., about ten years later. Assuming that the grade was granted to the petitioner by mistake, even then the petitioner was entitled to notice and opportunity.
14. In view of discussions hereinabove, this petition succeeds and is allowed and the undated refixation order of May, 1999 cancelling the pay fixation order dated 18.11.1989 is hereby quashed. It is further, directed that the petitioner shall continue in the L.T. grade with effect from 1.1.1986. No order as to costs.