S.S.SANDHAWALIA, J.

1. The two common significant questions in this set of three connected writ petitions, which are of frequent occurrence within this jurisdiction have been referred for adjudication by a larger Bench in the terms following.

"1. Whether the Headmaster of a school before it is taken over under sec. 3(3) of the Act shall be deemed to be a teacher of that school for purpose of examination of his qualification and suitability because there is no specific mention of Headmaster of such school in sec. 3(3)?

2. Whether even the Headmaster of the school taken over under sec. 3(3) shall automatically "become Headmaster of the school after its take over in view of sec. 4(2) without any scrutiny in respect of his qualification and suitability?"

2. The representative matrix of facts, which are admittedly similar, if no identical, may be noticed briefly from C.W.J.C. 1946/84 (Baijnath Singh V/s. The State of Bihar and others) the petitioner began his service career with effect from 1st of March, 1969 as an Assistant Teacher in the Anugrah High School, Aurangabad. The Tapeshwari Kuer High School, Dosma, in the district of Aurangabad, was started in the year 1980 and in pursuance to an advertisement made by the Managing Committee of the said school, the petitioner who was duly qualified was appointed (vide resolution of the Managing Committee No. 6 dated the 15th of March, 1980) as the Headmaster of the aforesaid school and joined the post on the 1st of April, 1980. Meanwhile the management of the school had already applied for permission to establish and such a permission was duly accorded by the Director-cum-Special Secretary, Department of Education (vide his memo No. 28348-51 dated 20th October, 1981). Later Special Board was constituted with the District Education Officer and one another officer to test the feasibility for the grant of permanent recognition to the school The said Board after inspection of the school and complying with the other formalities recommended for the permanent recognition thereof and (vide memo No.11318-27) dated 3rd of April, 1982) the School was given permanent recognition and simultaneously taken over thereby.

3. The primary grievance of the petitioner is that in the aforesaid notification the petitioners status was reduced from Headmaster to that of Assistant Teacher and it was stated that till the appointment of the permanent Headmaster in the school he would act as the Acting Headmaster (vide annexure-2). The petitioner represented against the alleged reduction of his status from Headmaster to that of an Assistant Teacher and Acting Headmaster to the authorities but to no avail. Consequently the present petition has been moved for a writ of mandamus directing the respondents to recognise and approve the services of the petitioner as a Headmaster of the school and fix his emoluments in the scale prescribed for the Headmasters and pay him the arrears of salary as well as the current salary in the said scale.

4. In the counter affidavit filed on behalf of the respondent State, the factual issues are not put in serious controversy. It is, however, the stand that the appointments by the Managing Committees were not valid until they were approved by the Secondary School Service Committee, which was regulated by circulars issued under S.63 of the Bihar Secondary Education Board Act, 1976 . It is the stand that the appointment of the petitioner as Headmaster was not approved by the Service Commission and there was no appointment of the petitioner as Headmaster by the Board of Secondary Education which alone was competent to make appointment to the post of a Headmaster in non-Government Secondary Schools. It has been averred that the mere mentioning of the petitioners name as the Headmaster of the school in the communications does not confer upon him the rights of a Headmaster unless he is duly appointed in accordance with law. In fact, the position taken is that it is not within the compe