S.S.SANDHAWALIA, J.

1. Does the rationale and the ratio of the Full Bench judgement in Ram Ballabh Prasad Singh V/s. State of Bihar (1986 Pat LJR 373) : (AIR 1986 Pat 218) extend mutatis mutandis to teachers as well under S.3(3), Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981 ? Can a teacher, who was untrained on the date of the report of the Special Board, under S.3(3) of the Act aforesaid, inflexibly claim to be considered and absorbed in Government service on the ground of the subsequent acquisition of the training qualification ? These are the twin significant questions which have come to the fore in this reference to the larger Bench.

2. The facts deserve notice with relative brevity. The petitioner was appointed as an Assistant Teacher by the private Managing Committee of the D. N. High School, Chamhera Rasalpur on 10-2-1979. It would appear that this was even prior to the permission for the establishment of the said school which admittedly was granted under the Bihar Secondary Education Board Act, 1976, on 18-10-1979. It is equally common ground that the said school was not a recognised one. Prior to the taking over of the school under the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981, respondent 2, the Director of Secondary Education, constituted a Special Board including the District Education Officer, Nalanda, for the purpose of inspecting the school. The said Board submitted its report on 10-2-1982. Admittedly even on that date the petitioner had not acquired the teacher straining qualification and his name was thus shown in the report at serial No. 10 as an untrained teacher. It was much later that on the 15th of April, 1982, the petitioner allegedly passed the examination and acquired the diploma in teaching. On the taking over of the school on the 20th of July, 1982, the petitioner, after consideration, was not absorbed in Government service. He unsuccessfully represented against the same and aggrieved by the rejection of the representation the present writ petition was filed on 29-1-1985. Therein, inter alia, it was claimed that by virtue of S.4(2), Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Act, 1981 (hereinafter referred to as the Act) the services of the petitioner ipso jure stood transferred to the State Government. Some grievance was sought to be made on the ground that the respondent State had recognised the services of some untrained teachers as well in some other schools and the petitioner should be afforded the same indulgence.

3. At the threshold stage of admission the Bench noticed some conflict of precedent in the tangled field of the absorption of the school teachers and, therefore, referred the case to a Full Bench and that is how the matter is before us.

4. In the counter-affidavit filed on behalf of respondent 2, it is highlighted that the D.N. High School, Chamhera Rasalpur was merely a proposed school and on the date of the notification dated the 20th of June, 1982 for the take over the services of only such teachers were considered and accepted who were found both qualified and suitable. It is asserted that the petitioner was not a trained graduate on the date of his appointment and was not even eligible to be appointed as a teacher in any recognised school. It is then pointed out that D. N. High School, Chamhera Rasalpur, being not a recognised one, on a consideration the services of seven teachers had been approved for absorption. In the supple-mentary counter-affidavit it has, however, been categorically averred that the very initial appointment of the petitioner in the private school was an invalid one. For the purposes of the establishment of the school and subsequent recognition the Managing Committee of the petitioners school had written to the Bihar Secondary Education Board on 22-1-1979 (vide Annexure-A to the supplementary counter-affidavit) that no untrain