JUDGMENT: Vishwanath Mishra, J. This case has been heard by a Division Bench on a reference made by S. K. Choudhuri, J. on 19.3.1975. 2. This is an application under Articles 226 and 227 of the Constitution of India for issuance of an appropriate writ quashing the appointment of respondent no. 4 as Headmaster of Jag Sah Manilal Sah High School, Kamtaul, district Darbhanga. through an order contained in Annexure 3 to the writ petition and, also for quashing the recommendation made by the adhoc managing committee of the said school for appointment of respondent no. 4 as Headmaster and respondent no. 5 as Assistant Headmaster of the School through Annexure 2 to the writ petition. 3. In the year, 1972 the permanent Headmaster of the school. Shri Sheo Narain Mishra, died whereupon the post of the Headmaster fell vacant. At the relevant time there was an adboc committee of the school consisting of only three members, namely, (1) the president (respondent no. 3), (2) the Secretary (respondent no. 2 and, (3) a member (respondent no. 4). It may be made clear that this respondent no. 4 was on the committee because he was acting as a Headmaster in-charge after the death of the permanent Headmaster. When the vacancies of Headmaster and Assistant Headmaster occurred the ad-hoc managing committee took a decision towards the end of 1973 to fill up the posts by promotion from amongst the teachers of the school. The matter was actually considered by the ad-hoc managing committee on 27.1.1974 wherein the committee decided to recommend respondent no. 4 for the post of Headmaster and respondent no. 5 for the post of Assistant Headmaster, as shown by Annexure 2 to the writ petition. The competent authority namely the District Education Officer. Darbhanga, approved of the appointment of respondent no. 4 as a Headmaster by promotion on 5.3.1974 through Annexure 3 to the writ petition. 4. The petitioner in this writ petition has challenged the aforesaid recommendation and appointment because he considers himself senior to both respondents nos. 4 and 5. The petitioner apart from being a graduate, was trained in physical education. He was, therefore, appointed in the school on 11.7.1969 on the scale available to a trained graduate. Thereafter, he obtained his M. A. degree in the year. 1964 and in 1965 he was given the scale of M. A. trained teacher. 4 and 5. The petitioner apart from being a graduate, was trained in physical education. He was, therefore, appointed in the school on 11.7.1969 on the scale available to a trained graduate. Thereafter, he obtained his M. A. degree in the year. 1964 and in 1965 he was given the scale of M. A. trained teacher. The petitioner also passed the Diploma in Education examination in the year, 1969. As would appear from his petition and reply to counter affidavit, he has been all through teaching various subjects including English, Hindi and Economics in different classes apart from imparting physical training to the students. He was also a class teacher of Class XB for 12 years. 5. In order to show the superiority of his claim the petitioner has also given the qualifications and experience of respondent nos. 4 and 5. Respondent no, 4 was appointed as an Assistant Teacher in the school on 5.8.1957 when he has passed only I. Sc. examination. While working in the school he obtained his B. A. degree in 1966 and Diploma in Education in 1969. He passed his M A. examination only in 1973. Respondent no. 5 was appointed as an Assistant teacher in the school on 19.3.1964. At that time he had already obtained M. A. degree. He also obtained his Diploma in Education only in the year. 1969. 6. When Sri Sheo Narain Mishra, the permanent Headmaster, died in the year 1972 the Sub-divisional Education officer Darbhanga by his letter dated 29.4.1972 addressed to the Secretary (respondent no. 2) declared the petitioner to be the senior most teacher in the school and directed to place him as Headmaster in-charge till the regular appointment for permanent Headmaster was made. That letter may be seen in Annexure 1 to the petition. Respondent no, 2, however, did not act up to that direction, as according to the petitioner, he was harbouring ill will against him. Thereafter, followed tile meeting of the adhoc managing committee III December, 1973 and January, 1974 as mentioned in Paragraph 3 of this Judgment. In the first meeting a decision was taken to fill up the post by promotion and in the second meeting recommendations were made. Thereafter, followed tile meeting of the adhoc managing committee III December, 1973 and January, 1974 as mentioned in Paragraph 3 of this Judgment. In the first meeting a decision was taken to fill up the post by promotion and in the second meeting recommendations were made. The petitioner bas also challenged the proceedings of the meeting held on 27.1.1974, in which the recommendations were made, on the grounds that (a) no 10 days' previous notice of the meetings with agenda was issued or served upon respondent no. 3 (b) the president could not, therefore, attend the meeting. (c) the meeting was attended only by the Secretary, and respondent no. 4 who was himself a candidate for a post, (d) in the meeting recommendation for the post of Assistant Headmaster was also made and (e) only one person was considered for the post of Headmaster and only one person for the post of Assistant Headmaster, ignoring the rule that the committee had to prepare a panel of three suitable Dames for each of the posts. Thus considering himself senior to the Headmaster appointed on the basis of the recommendation of the meeting, which according to him was void abinitio, this writ petition bas been preferred. 7. In this case originally the District Education Officer the Secretary the President and the present Headmaster and the Assistant Teacher recommended for the post of Assistant Headmaster only were impleaded as respondents. During the pendency of the petition the State of Bihar and the Board of Secondary Education were also impleaded as respondent nos.6 and 7, respectively. When the managing committee was substituted by new one the Block Development Officer, Jale, who was made Secretary of the school and the managing commitee of the school through that Block Development Officer were also impleaded as Respondents nos. 8 and 9, respectively. Here it may be menti0ned that one Dip Narain Kuar had filed a petition for permission to intervene as a party respondent under Rub 5 of Chapter XXI-C of the Patna High Court Rules but his prayer was rejected by order no. 18 dated 5.1.1979 for reasons given in the order. 8. Separate counter affidavits have however, been tiled in this case by respondents nos. 2.3.4 and 5. No counter affidavit has been filed by respondent nos. 1 and 6 to 9. 18 dated 5.1.1979 for reasons given in the order. 8. Separate counter affidavits have however, been tiled in this case by respondents nos. 2.3.4 and 5. No counter affidavit has been filed by respondent nos. 1 and 6 to 9. Respondent no 3 has supported the claim of the petitioner in his counter affidavit. Though he is President of the managing committee for the last 20 years as said by him, no notice of the meeting held on 27.1.1974 had been served on him as a result of which he could not join that meeting. According to him the petitioner was the most suitable candidate to be promoted to the post of Headmaster. 9. Respondent no. 2 the then Secretary of the managing committee of the school bas refuted the claims of the petitioner on all the points. The main ground is that tbe petitioner was a physical instructor and not a member of the teaching staff. In this connection he has also said that he (petitioner) was not appointed on permanent basis on 11.7.1960 as claimed by him rather that was a temporary appointment and he was confirmed only on 31.1.1962. It is said that the Government of Bihar had decided to create a post of physical trained graduate for each and every school with the purpose of only imparting physical training to the students and the petitioner was appointed in pursuance of that scheme. Thus be was not one of the teachers of the school. who could have been considered for the post of Headmaster Reference has been made to the petitioner's application dated 13.4.1973 when he bad requested the Secretary to appoint him in the cadre of Assistant Teachers of the School in the Vacancy arising out of the death of Sri Rup Kant Thakur. That prayer was however, rejected vide Annexure A/2 to the counter affidavit. Instance of disobedience has also been mentioned, inasmuch as, the petitioner was not staying in the school hostel as asked by the managing committee. It has been asserted that respondents 4 and 5 only could have been considered for the two posts and the petitioner could not have been considered for any of those posts as he was not qualified for the same under the rules. It has been asserted that respondents 4 and 5 only could have been considered for the two posts and the petitioner could not have been considered for any of those posts as he was not qualified for the same under the rules. The order passed by the Sub-divisional Education Officer asking the petitioner to be put in charge of the past of the Headmaster after the death of the permanent Headmaster is said to be without jurisdiction. So far the meetings of the managing committee are concerned it has been said that the committee has recommend for the appointment of Headmaster and Assistant Headmaster in the meeting held on 22.12.1973 itself but that could not be done and it was, therefore, adjourned to 27.1.1974. The President of the committee (respondent no. 3) is said to have been duly informed which would be borne by the peon book of the school but respondent no. 2, as usual, did not attend the meeting. It is said that respondent no. 4 who was the acting Headmaster of the school was a member of the managing committee, but when the committee was considering the appointment of the permanent Headmaster he (respondent no. 4) was requested to walkout. He, however, joined again when me recommendation for the post of Assistant Headmaster was being considered. The District Education Officer is also said to have found respondent no. 4 to be the senior most teacher of the school. The petitioner's claim to any of the post and consequently his right to file this writ petition are thus challenged. 10. Respondents nos. 4 and 5 who have also tiled counter affidavits have also challenged tile petitioner's claim on the very same points urged by respondent no. 2, Respondent no.4 has also said that while recommending his name a tabular statement of all the teachers bad been sent which would mean that a panel as also there on the points urged at the time of hearing there is nothing more particular in the counter affidavits of respondents nos 4 and 5 to be mentioned here. 11. At the time of argument the point regarding the validity of the meeting of the managing committee in which recommendations for the impugned posts were made was given up. 11. At the time of argument the point regarding the validity of the meeting of the managing committee in which recommendations for the impugned posts were made was given up. The only point mooted was whether the petitioner having been appointed as a physical training Instructor could be considered for the post of Headmaster or Assistant Headmaster and if so whether be bas a right to challenge toe recommendations contained in Annexure 2 and the order of the appointment contained in Annexure 3. 12. The permanent Headmaster of the school died in January. 1972 and the recommendation was made in the year. 1974. Admittedly, therefore the matter would be governed by the Bihar High School (Service Condition) Rules 1972 framed by the State Government in purported exercise of powers under Section 8 (1) of the Bihar High School (Control and Regulation of Administration) Act, 1960. The rules are contained in Rule 4 which has as many as 32 sub rules. For our purposes here we refer to sub-rules (11), (12) and (13) of Rule 4 which are as follows:- ^^4&¼11½ fo|ky; dk iz/kkuk/;kid de ls de izf’kf{kr Lukrd gksxk ftls f’k{kk iz’kklu ;k fdlh fo|ky; ls v/;kiu dk nl o”kksZa dk vuqHko gksA iz/kkuk/;kid ds in ds fy, ij vf/kdfFkr U;wure ;ksX;rk ls mPprj ;ksX;rk okys O;fDr dks izkIr djus dk cjkcj iz;Ru fd;k tkuk pkfg;sA ¼12½ lgk; iz/kkuk/;kid de ls de ,slk izf’kf{kr Lukrd gksxk ftls mPp fo|ky; esa de ls de ik¡p o”kksZa dk v/;kiu vuqHko gks % ¼13½ izkphu ¼dyk lfDy½ lkfgR; ds f’k{kd vkSj laxhr f’k{kd f’kYi f’k{kd] vkfn tSls fo’ks”kK izkIr f’k{kdksa dks NksM+] mPp fo|ky; ds vU; lHkh f’k{kd dh U;wure vgZrk izf’kf{kr Lukrd gksxh( laxhr vkSj f’kYi f’k{kdksa ds ekeys esa in/kkjh ls vko’;d fo’ks”kKh; vgZrk dh vis{kk dh tk;sxh( ‘kjhfjd f’k{kk esa fMIyksek lfgr Lukrd gksuk pkfg, ;k blls de vgZrk okyk ,slk O;fDr ftls ‘kkjhfjd f’k{kk dk izek.k&i= gksA It would appear from sub rule (11) that the minimum qualification for a Headmaster is that he should be trained graduate with at least 10 years experience of teaching in a school or in educational administration (Shiksha Prashikshan. Similarly an Assistant Headmaster should be at least a trained graduate with minimum teaching experience of five years in a high school. Similarly an Assistant Headmaster should be at least a trained graduate with minimum teaching experience of five years in a high school. The first question, therefore, is whether the petitioner can Come within the category of a trained teacher with teaching experience of 10 years or 5 years. According to the contesting respondents the petitioner has been appointed against the post of physical training instructor and as such he cannot be said to have been on the teaching staff of the school, or in other words he cannot be said to have the teaching experience for the stipulated period or for the matter of that any period. In other words it has to be examined if the petitioner can be deemed to have been a teacher of the school or not. Sub-rule (13) throws some light on the point whether a physical training instructor is also a member of the teaching staff, or in order words, a teacher 0f the school or not. The first part of sub-rule (13) says that all teachers except the teacher of classical literature, music craft etc. shall be at least a trained graduate. The second part says that a music teacher and a craft teacher must have specialization in his subject the third part says that" a physical training Instructor" should be either (a) a graduate with a diploma in physical education or (b) at least a person who has a “certificate of physical education. It is thus clear that a physical instructor may be a graduate. Sub-rule (13) seems to divide the teachers into three classes, namely, the general teachers, teachers of music crafts etc. and teachers imparting physical training (physical training instructor) There is no other provision In the rules about a physical training Instructor. There does not appear to be any logic in saying that an instructor should not be a teacher. If a person teaching music and teaching a craft can be considered to be a teacher then there is no reason why a person teaching how to keep fit, should be debarred from being a teacher. If there can be no sound mind without sound body, the importance of physical training can in as case be ignored. Needless to repeat, that no where it has been said that a "Physical training instructor" is not a teacher of the school. If there can be no sound mind without sound body, the importance of physical training can in as case be ignored. Needless to repeat, that no where it has been said that a "Physical training instructor" is not a teacher of the school. Here Itself I may turn to the very scheme of the appointment of a "Physical training instructor which is contained in letter no. 1471 of 27th May 1955 from the secretary to the Government of Bihar, Education Department, to the Director of Public Instructions, Bihar. I would better quote the relevant portion from that letter which is as follows; "-I am directed to say that the state Government have been pleased to arrive at the following decision ;- (1) Every recognised high school should nave one graduate, holding a diploma in physical education, in addition to the two minimum number of posts of trained graduates. For the present there will be no objection to this post being one of the minimum of two posts of graduate teachers in the school, but gradually every school should endeavour to create an additional post of assistant master for physical education and health. This teacher will be in-charge of physical education. Boy scouting, Health, Nutrition etc. and will also teach any other subject, which he may be qualified to teach. (2) A graduate holding a diploma in physical education should be treated as a trained graduate in the matter of salary and emoluments." It appears that when this letter was issued it was Incumbent for a school to have at least two trained graduates. When the state Government took a decision to have a teacher for physical training also, then that obviously meant addition to the minimum strength of trained graduates. This certainly involves the finance of the school, and so the State Government were pleased to give the relief that for some time, one of those two posts of graduate teacher, one could be given to the hand who imparted physical education. The direction that gradually every school had to create an additional post of assistant master for physical education and health also clarifies the position to a great extent. The direction that gradually every school had to create an additional post of assistant master for physical education and health also clarifies the position to a great extent. That the intention of the state Government was to have this teacher on the teaching staff of the school is further clear from the past sentence of paragraph 1 quoted above, wherein it bas been said that the teacher should be qualified to teach. Paragraph 2 quoted above says that he would be treated as a trained graduate for certain purposes. 13. It has been argued on behalf of the respondents that he has to be treated as trained graduate only for the purpose of salary and emolument and not for anything else. I am afraid this interpretation of paragraph 2 was not intended by the state Government. It has not been said that he will not belong to the cadre of assistant masters though he will be an assistant master. Both paragraphs 1 and 2 taken together leave no room for doubt that the person imparting physical education would be a teacher of the school. In the instant case the petitioner besides holding the diploma in physical training has also obtained the diploma in education in the year 1969. Apart from imparting physical education he has also been leaching some subjects such as Hindi, English Economics etc. If is not at all of importance as to 10 which class he has been teaching. Here itself I may refer to one of the applications of petitioner (Annexure A/2 to the counter affidavit tiled by respondent no.2) on which the respondents very much relied. This is an application by the petitioner himself submitted to the secretary of the managing comm1ttee in the year 1975. In this application he said that be has been appointed on the post of physical instruction-trained teacher, and be was also M. A. in Hindi and had been teaching Hindi after the death of one Rup Kant Thakur and, therefore be prayed to transfer him against the post vacated by Sri Rup Kant Thakur. This prayer was rejected by the secretary or the ground that he had been appointed on the post of physical training Instructor and so he could not be appointed in the regular cadre of Assistant Teachers. This prayer was rejected by the secretary or the ground that he had been appointed on the post of physical training Instructor and so he could not be appointed in the regular cadre of Assistant Teachers. Thus through this application the secretary wants to stop the petitioner from claiming to be one on the teaching staff of the school. The petitioner has tried to meet this by saying that the intention of the application was not to transfer him to the teaching staff but to appoint him against the vacancy caused by the death of Sri Rup Kant Thakur for enabling him to teach Hindi in higher classes. Whatever be the case. I do not think this letter by itself can over ride the rules. Assuming for the sake of argument that the contention of respondents is correct, the petitioner bas described himself as a teacher in this application and it cannot, therefore be said that he had ever meant to say that he was not a teacher of the school. If the rules, therefore give him a particular advantage, I am afraid this Annexure A/2 cannot work as estopoel against the petitioner. 14. It would, thus, appear that this petitioner is one of the trained graduate teachers of the school and as such sufficiently qualified to be considered for the post of Headmaster and Assistant Headmaster. 15. The first prayer of the petitioner is to quash the appointment of the Headmaster there is no dispute on the point that the appointment has been made by a competent authority, Respondent no. 4, who has been appointed as Headmaster is definitely senior to him this petitioner was appointed on 11.7.1960, whereas, respondent no. 4 was appointed on 5. 8, 1957 itself Respondent no. 4 took his B.A. degree in 1906 and his diploma in education in 1969. Sub-rule (11) of Rule 4 quoted at page 7 of this judgment only says that the Headmaster should be a trained graduate with at least 10 years of teaching experience. Both respondents 4 and 5, thus, qualify for it but since the petitioner is junior to respondent no. 4 and no illegality has been shown in the appointment of respondent no. 4, no writ can issue at the instance of the petitioner to quash that appointment. 16. Both respondents 4 and 5, thus, qualify for it but since the petitioner is junior to respondent no. 4 and no illegality has been shown in the appointment of respondent no. 4, no writ can issue at the instance of the petitioner to quash that appointment. 16. So far the post of Assistant Head, master is concerned the recommendation of the managing committee is in favour of respondent no.5 who was appointed in the school on 19. 3. 1964. He had already obtained M.A. degree and subsequently he also passed his diploma in education in 1969. It thus appears that the petitioner who was a trained graduate in 1960 itself. (at the time of his appointment) is senior to respondent no.5, and as such he had acquired a right to be considered by the managing committee for the post of Assistant Headmaster. This not having been done, right to challenge the same cannot be denied to him. Of course the Assistant Headmaster has not yet been appointed, but all the same the recommendation itself is against rules. The petitioner has statutory right to be considered for the post of Assistant Headmaster and as such that portion of the recommendation contained in Annexure 2 to the writ petitioner has got to be quashed. 17. In the result the application is allowed in part. The recommendation contained in Annexure 2 only regarding the appointment of Assistant Headmaster, is quashed. It the circumstances of the case the parties will bear their own costs. Application allowed.