The terms and conditions of service of teachers in taken-over schools cannot be altered without framing rules in accordance with Section 7 of the Bihar Non-Government Elementary Schools (Taking Over of Control) Act, 1976.

S.B.Sinha, J.

1. This writ application is directed against an Office Order of the District Superintendent of Education, Rohtas contained in Memo No. 2816, dated 26-6-1982 thereby Shri Ram Narain Singh (respondent No. 5) was sought to be transferred as the Headmaster to the petitioners school in place of petitioner as contained in Annexure-2 to the writ application as also a letter, dated 16-8-1V82, issued by the Deputy Inspector of School, Bikramganj whereby and whereunder the petitioner was directed to hand over charge to the respondent No. 5. The petitioner in this writ application has further prayed for issuance of a writ of or in the nature of mandamus directing the respondent authority to recognise the petitioner as headmaster of Middle School, Chhulkar, Police Station Bikramganj District Rohtas and to pay his salary on the post of the headmaster in the admissible scale of B. A. trained teacher.

2. The facts of the case lie in a very narrow compass and are not much in dispute. The middle school at Chhulkar was established in the year 1970 and the petitioner was appointed allegedly as a founder headmaster therein with effect from 31-8-1970 on temporary basis and on completion of three years of his service he was confirmed by the Managing Committee in the year 1974 by Resolution, dated 16-4-1974.

3. The petitioner has asserted that at the time of his initial appointment he was merely a graduate, but in December, 1973, he passed the B. Ed. Examination. According to the petitioner the Managing Committee of the school had been paying the scale of pay admissible to an untrained teacher from the date of his appointment and after he obtained the B. Ed. degree as mentioned thereinbefore he was being paid the scale pay of a trained graduate. It is admitted that the Governor of Bihar promulgated an Ordinance known as Bihar Non-Government Elementary School (Taking over management and control) Ordinance, 1976, which although was signed by the Government on 3-2-1976, but the same was given retrospective effect and restrospective operation with effect from 1-1-1971. The said ordinance was later on repealed and replaced by a Legislative Act known as Bihar Non-Government Elementary Schools (Taking Over of control) Act, 1976 (Bihar Act No. 30 of 1976) (hereinafter referred to as the Bihar Act of 1976) which also given retrospective operation with effect from 1-1-1971.

4. By reason of the letter, dated 6-3-1981, the Special Secretary to the Government of Bihar in the department of Education Officer, Rohtas directed that the aforementioned school be taken over in terms of Sub-section (4) of Sec.3 of the aforesaid 1976 Act, wherefore a communication was sent to the Secretary of the Managing Committee by the District Superintendent of Education by his Memo No. 457, dated 27-8-1981. In the aforementioned letter, which is contained in Annexure-1 to the writ application, the scale of pay of the petitioner payable to him was shown as matric trained. The petitioner allegedly made a representation against the aforementioned purported arbitrary action on the part of the respondents in September. 1981. By the impugned order, dated 26-6-1981, the respondent No. 5 was transferred as headmaster of the aforementioned school treating the post of headmaster as vacant in Annexure-2 to the writ application. The petitioner again filed a representation on 3-7-1982 as also on 17-8-1982 to the Deputy inspector of School, Bikramganj and District Superintendent of Education, Rohtas respectively. Pursuant to the aforementioned office order, dated 26-6-1982 respondent No. 5 joined the office of the Deputy Inspector of School, Bikramganj, who has directed the petitioner to hand over charge of the Office of the Headmaster. By a letter, dated 16-8-1982 which is contained in Annexure-4 to the writ application.

5. In this case a counter-affidavit has been filed on behalf of the respondent Nos. 3 and 4. In the said counter-affidavit it has been contended that the S