PREM SHANKER SAHAY, J.

1. The petitioner, who is an elected member of the Bihar Legislative Assembly from Sahar Constituency in the district of Bhojpur, has moved this Court questioning the validity of the appointment of respondent No. 6 to the post of Superintending Engineer, Housing Department, by the order of the Board dated 4-11-1980, as contained in Annexure-1, and to call upon him as to why a writ in the nature of quo warranto be not issued directing him to show cause under what authority he was holding that post which was illegal, unjustified and ultra vires of the provisions of the Housing Board Ordinance.

2. In order to appreciate the points, which have been raised on behalf of the petitioner, it will be necessary to state some facts. But it may be stated that many irrelevant facts have been brought on the record of this case by the different parties with the result that the brief runs to about three hundred and fifty pages and I will refer to the relevant facts only from the petition, counter-affidavits and reply thereto and supplementary affidavit filed on behalf of the parties. Housing Board, which is a statutory body, was created under Ordinance No. 119 of 1972 which was notified on 18-8-1972, The Ordinance is being renewed from time to time till it has become an Act now. Under the provisions of the Ordinance many posts, including the post of Superintending Engineer, have been created and under Sec.16 (3) (1) of the Ordinance the Board, with the previous approval of the State Government, may sanction the creation of any post, the maximum scale of which exceed Rs. 1,580.00 per month and for the appointment on such posts consultation with the Public Service Commission has to be made prior to the appointment

3. The respondent No. 6 was working as Executive Engineer Urban Development (Housing Department) in the year 1972. When the Ordinance came into force his services were transferred on 1-9-1972 and he was posted as Executive Engineer, Jamshedpur. On 1-3-1978 he was appointed as Superintending Engineer in charge Ranchi Division but respondent No. 6 could not stay there longer because Sri J.G.P. Sinha, who was earlier holding that post, was asked to continue on that post. On 4-11-1980 the State Government directed the Board to make appointment to the post of Superintending Engineer after consulting the Bihar Public Service Commission; a true copy of the letter has been filed and marked Annexure 2. The Chairman did not act according to the direction of the State Government and issued notification appointing respondent No. 6 on the post of Superintending Engineer with effect from 1-3-1978. Some questions were raised in the Assembly regarding this irregular appointment of respondent No. 6 and reply was given that Public Service Commission will be consulted and all other formalities will be observed with regard to this appointment; a copy of the reply given on the floor of the Assembly has been filed and marked Annexure-3. Thereafter the Government, after examining the position, set aside the order passed by the Chairman, as contained in Annexure-1, under Sec.23 of the Act on 23-6-1981; a copy of the order of the State Government has been filed and marked as Annexure-4. In spite of that, according to the petitioner, the respondent No. 6 was holding that post in collusion with the Chairman of the Housing Board. On 20-7-1981 the State Government recalled its previous order as contained in Annexure-4, a copy of the same has been filed with the counter-affidavit and marked as Annexure-9. This writ application was filed on 17-8-1981 and was admitted. Counter-affidavit has been filed on behalf of the Board in which it is stated that after the creation of the Board in 1972 the services of technical staff of the Housing Department, including that of respondent No. 6, were transferred to the Board on the condition that till new rules were not framed by the Board their service condition will be governed on the same terms a