S.S.SANDHAWALIA, J.

1. In this reference to the Full Bench, the collateral and minor issues now pale into relative insignificance and the salient issue which frontally comes to the fore is - Whether S.8 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976, empowering the State Government to remove difficulties in giving effect to its provisions can be used as a cloak for subordinate legislation and as a substitute for the express rule making power under S.7 of the said Act ?

2. The facts giving rise to the aforesaid pristinely legal issue may be noticed with relative brevity. The petitioner was appointed on the 17th September, 1960 in a primary school and thereafter on the 24th January, 1962 was promoted as a Headmaster of a Middle School. At the material time in the year 1986, he had been transferred as the Headmaster of the middle school, Bijaipur in the district of Gopalganj. It has been averred on behalf of the petitioner that by virtue of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976 (hereinafter called the Act), all primary and middle schools of the State were taken over by the State Government. As a necessary consequence, the services of the petitioner and other employees of such schools stood transferred to the Government. By S.7 of the said Act, power was conferred on the State Government to frame rules for carrying out the purposes of the Act, but it is common ground that despite the passage of eleven years not a single statutory rule under the said Section has been framed.

3. In the writ petition, the case sought to be set up on behalf of the petitioner was that a comprehensive notification vide Memo No. G/M-7-074/76 - Education 4557 dated 15th December, 1976 was purported to be issued under S.8 of the Act. Clause 7 of the said notification made provision for disciplinary proceedings and removal from service and provided that such disciplinary proceedings against the teachers will be taken by the District Superintendent of Education with the approval of the District Education Officer. A copy of the relevant cl.7 is Annexure-2 to the writ petition. It is then the petitioners case that he is a strict disciplinarian and to enforce the same and curb what is described as unauthorised activities and politicking of one Braj Kishore, who was physical teacher of the school at Bijaipur, he made series of complaints against him to the authorities which apparently went unheeded. However, the petitioner suddenly learnt about the impugned order dated 20th August, 1986 (Annexure-1) by which he was placed under suspension. It is averred that on the basis of some vague enquiry conducted by the Block Development Officer of Bijaipur upon a complaint made by the aforesaid Braj Kishore, the Collector of Gopalganj had himself ordered the aforesaid suspension of the petitioner. In compliance therewith the District Superintendent of Education passed the impugned order (Annexure-1) in which itself it is stated that the order is being issued in pursuance to the order of the Collector, Gopalganj.

4. It is the petitioners case that no approval of the order of suspension of the District Superintendent of Education has been given by the District Education Officer as required by the relevant cl.7 of Annexure-2. It is the case that, therefore, the said order is in clear violation of the statutory instructions. Reliance on behalf of the petitioner is sought to be placed of Civil Writ Jurisdiction case No. 5358 of 1984 (Smt. Bela Rani V/s. The State of Bihar) decided on 10th July, 1986.

5. In the counter-affidavit filed on behalf of the respondents, the basic stand taken is that the earlier notification dated 15th December, 1976 (extract whereof is Annexure-2) has been superseded by a subsequent circular Memo No. 3388 dated the 2nd December, 1980 (vide Annexure-A) According to the respondents, by virtue of the said circular the District Magistrate has been made the Chairman of the