S. Narain, J.

This is an application under Articles 226 and. 227 of the Constitution of India for quashing the order dated 13.2.78 of the Deputy Director of Education (School Education), Government of Bihar, respondent no. 1 to the writ petition, a copy of which was forwarded amongst others, to the petitioner by memo dated 24.4.78 and is Annexure 11 to the writ petition, by which the Deputy Director intimated to the petitioner that it was not possible to approve the appointment of the petitioner Shri Chandra Kumar Chakrvarty, an Assistant Teacher, and another teacher of the Rajkiya Madhya Vidyalay, Kidawaipuri Shiksha Kendra (hereinafter called 'the school') and to regard their services as having been nationalised. By the petition it is further prayed that a direction be issued to the respondents to recognise the services of the petitioner from the date of his appointment as a teacher whose services had been nationalised, and direct payment of arrears of salaries due to the petitioner. The District Education Officer, Patna, the Sub-divisional Education Officer Patna Sadar, the District Superintendent of Education Patna and the Headmaster of the school are respondents 2 to 5 respectively to the writ petition.

2. The relevant facts are these. The aforesaid School was an Elementary School managed by a Managing Committee. The School was recognised by the Education Department of the State Government with effect from 1.1.1973. It is, however common ground that the School was not an aided school as it did not receive any grants from the State Government or any local authority. The Managing Committee of the school by its resolution dated 25.11.73 appointed the petitioner formally as a Science Teacher in the School, affirming by that resolution the appointment of the petitioner by the Secretary of the School with effect from 1.10.73. The appointment was against a temporary post. Subsequently, by his order conveyed by Memo dated 23.12.1974 a copy whereof is Annexeure-3 to the writ petition, the Sub-divisional Education Officer, Patna Sadar, respondent No 3 on the basis of the recommendation of the Deputy Inspector of Schools, Patna city approved the appointment of the petitioner and another teacher of the School, subject to the condition that the two teachers would get themselves trained during the next session, It appears from the averment in paragraph 6 of the petition, which has not been controverted-though a counter affidavit purporting to be on behalf of the State of Bihar has been filed, that on 23.12.74 in accordance with the Elementary Schools Nationalisation Scheme, the School was taken over with effect from the date of recognition and, thereafter, payments of the teachers and other members of the staff of the school, except in the case of the petitioner and one more teacher began to be made by the State Government. As the salary of the petitioner was not paid the petitioner filed representation s to the Deputy Administrator, Patna Municipal Corporation, the Director of Education and the Education Minister in succession. It appears that in the course of the correspondence that followed the representations, the Sub-divisional Education Officer was asked to explain as to how the petitioners appointment had been approved against a post that had not been created and the Sub-divisional Education Officer stated that the relevant papers had been lost in the 1975 Flood and ultimately the Deputy Director, Education by his Impugned order contained in his letter dated 13.2.78 intimated to the petitioner that his appointment could not be approved and he cannot be regarded as a teacher whose services had been nationalised as his appointment was made against a post which was not sanctioned by the State Government.

3. The case of the petitioner briefly stated, is that the petitioner was a duly appointed teacher working In the school when the management of the School was taken over by the State Government, and therefore, by virtue of th