Judgment Sarwar Ali, J. 1. In this writ application the petitioner prays for quashing of the orders contained in Annexure-6 and 7 By Annexure-6, dated 21st january, 1977 respondent no.5 has been promoted at the Headmaster of the Harbat Raj High School, Ganpatganj in the district of Saharsa. Annexure 7 is the order of the appellate authority before whom the order under annexure-6 was challenged. The order has passed on 23rd February, 1977. The petitioner further prays that he be recognised as the permanent headmaster of the School. 2. The petitioner joined Harbat Raj High School, Ganpatganj as an assistant teacher on 12th September, 1950. The post of permanent Headmaster fell vacant on 3lst December, 1974. The name of the petitioner was recommended for appointment as Headmaster. The District Education officer by his letter dated 6th August, 1974 asked the managing Commitee to reconsider its recommendation. The Managing Committee reiterated its earlier decision. By letter dated 28th August 1974 the District Education officer accorded his approval to the promotion of the petitioner as the headmaster Incharge of the School in the said letter it was stated that after clarification of the provisions of the Bihar Madhaymik Shikchha Board ordinance, 1974 decision regarding promotion of permanent Headmaster will be taken. The petitioner was asked to appear before the Madhyamik sikchha Board (hereinafter referred fo as the Board) on 12th June, 1976 and he appeared accordingly. By letter 21st April, 1976 the Assistant Secretary of the Board directed that the petitioner would continue as Headmaster incharge until the appointment of the permanent Headmaster. On 12th january, 1977 an order was passed the Secretary of the Board, by which respondent no.5 was promoted as Headmaster of the School. This order which is Annexure-6, was first challenged in CWJC 309/1977. But since the petitioner had not exhausted the alternative remedy the petition was permitted to be withdrawn on 10th February, 1977. On 24th February, 1977 the appellate order (Annexure-7) was passed. These are facts as stated in the writ application. Hence in this writ application both Annexures-6 and 7 are under challenge. 3. Counter-affidavits have been filed on behalf of respondents 2 and 3 as also respondent no.5. In his counter affidavit respondent no.3 has stated that the Managing Committee of the School was not legally and properly constituted. These are facts as stated in the writ application. Hence in this writ application both Annexures-6 and 7 are under challenge. 3. Counter-affidavits have been filed on behalf of respondents 2 and 3 as also respondent no.5. In his counter affidavit respondent no.3 has stated that the Managing Committee of the School was not legally and properly constituted. Some other facts have also been stated which are not necessary to be stated for the disposal of this writ application. In the counter-affidavit filed by respondents 2 and 3 the circumstances in which petitioner was permitted to act as Acting Headmaster, has been stated. Likewise some other facts have also been stated which need not be mentioned in the view that I propose to take in this case. Suffice it to say that both the counter-affidavits support the impugned orders as legal and valid. 4. The contention which has been raised in this case is that Annexure-6 is without jurisdiction as the impugned order has not been made in accordance with law. But before elaborating the contention raised it would be appropriate to state as to how the appointment of respondent no.5 has been made. This has been stated in the counter-affidavit filed on behalf of respondents 2 and 3. It is stated in paragraphs 2 (viii and ix) that after a thorough examination of the case of the eligible candidates for promotion the Board decided to examine the claim of the eligible teachers. Accordingly a notice was given to such teachers to appear before a Subcommittee of the Board on 12th March, 1976. After interviewing the teachers and hearing the representations it recommended that the name of respondent no.5 be forwarded to the Education Service Commission (hereinafter referred to as the commission) for its concurrence to the appointment of respondent no.5 as Headmaster. The Board thereafter sent the list of all the legible teachers of the School to the Commission along with its comment. A penel consisting of five names including that of the petitioner at serial no.1 and that of respondent no.5 at serial no.2 was sent to the Commission with necessary particulars. The Board thereafter sent the list of all the legible teachers of the School to the Commission along with its comment. A penel consisting of five names including that of the petitioner at serial no.1 and that of respondent no.5 at serial no.2 was sent to the Commission with necessary particulars. The Commission after considering the case of all the legible teachers of the school recommended, vide its memo dated 11th january, 1977, the name of respondent no.5 for his absorption as the permanent Headmasterof the school along with the names of teachers recommended for appointment as Headmaster in other schools (Annexure-F to the counter affidavit of respondent nos.2 and 3 ). In accordance with this recommendation Annexure-6 was issued. 5. The Board of Secondary Education came into existence under ordinance 112 under Bihar Madhyamik Sikchha Board Ordinance 112 of 1974. In the aforesaid Ordinance the only method of appointment for the post of Headmasters contemplated was through direct recruitment by the board, on the recommendation of the Commission. Later amendment was made to permit appointment by promotion also. This provision was introduced by the Ordinance promulgated on 8th October, 1973. In the successive Ordinance the same position obtains. Such is the position also under Bihar Act 25 of 1977 which came into force on 21st December, 1976. It would now be necessary to read some of the provisions of the Act (the impugned appointment having been made when the Act was in force ). The four main provisions relating to the appointment of teachers are sections 40 42, 47 and 44. The relevant portions of these sections may be quoted :- "40. Appointment of teachers.- (1) Appointment of Headmasters, teachers or employees other than teachers (including fourth grade employeee) in any Secondary School, other than centrally run schools, shall be made under the provisions of this Act, and not otherwise ).42. Recommendation for appointment of candidates as Headmaster, teacher, etc.-The Board shall, every years, ascertain the number of vacancies ol posts of Headmaster and teachers in all Secondary schools, other than centrally run secondary schools, the state during the academic year just following, and shall request the Commission to recommend names of suitable candidates for appointment as Headmasters and teachers in such schools. If necessary such request may be made during an academic year. If necessary such request may be made during an academic year. While requesting, the Board shall inform the vacant posts of teachers subjectwise to the Commission and shall prescribe requisite qualifications for categories of vacant posts.43. List of candidates.- (1) After receiving requisition, the Commission shall advertise vacancies and after interviewing candidates and after taking other necessary steps in this regard, it shall prepare a list of aforesaid candidates in order of preference and shall send the name to the Board. (2) While sending the list under sub-section (1), the Commission shall prepare and send to the Board the following lists : (a) District-wise list of candidates for promotion and direct recruitment to the post of Headmaster. (3) On receipt of lists of candidates from the Board, the Board shall prepare a separate list for each administrative district. (4) Lists received from the Commission shall be valid in the Board office for one year from the date of receipt, 44. Procedure of appointment.- (1) When a post of Headmaster or teacher falls vacant in any secondary school, other than a centrally run secondary school, the managing committee of that school will send requisition to the Board notifying the same. A copy of the requisition will be sent to the District Education officer concerned. (2) On the basis of requisitions received from Managing Committees or on other basis, the District Education Officer will send to the board full details of vacancies to occur in the District in the next academic year. If, necessary, the District Education officer may send such details to the Board even during a year. (3) The Board shall instruct the District Education Officer-cum-secretary, district Control Committee, to appoint particular candidates, in order of preference from the list received from the Commission and keeping in view the percentage of scheduled castes and scheduled tribes prescribed by the State Government, to the vacant posts. (4) The District Education Officer-cum-Secretary, District Control committee, will make appointments to the vacant posts of Headmaster and teachers according to the order received from the Board. " 6. A perusal of these provisions shows that the general scheme for the appointment of teachers and Headmaster is that a number of vacancies in secondary Schools (other than the centrally run secondary schools) in an academic year has to be ascertained, and action taken for filling up those vacancies in accordance with the provisions made. " 6. A perusal of these provisions shows that the general scheme for the appointment of teachers and Headmaster is that a number of vacancies in secondary Schools (other than the centrally run secondary schools) in an academic year has to be ascertained, and action taken for filling up those vacancies in accordance with the provisions made. But even during an academic year, individual appointments can also be made according to exigencies of the situation. 7. Learned counsel for the petitioner contended that Sec.43 is specific and clear. It requires that the Commission should advertise vacancies and after applications are received interview eligible candidates. Thus issue of advertisement and holding of interview are pre requisites for a valid recommendation by the Commission. In the instant case neither there was advertisement nor interview. The recommendation made by the Commission in the circumstances was not in accordance with the provisions of Sec.43 of the Act. Learned counsel for the respondents contended that the requirement as aforesaid was only directory and not mandatory. Alternatively, section 43 (1) does not apply to appointments by promotion. It was accepted that there is no specific procedure laid down in the Act which has to be followed by the Commission while making recommendation for appointments by promotion. In the circumstances the instructions and directions issued by the State Government in Annexure-10 had to be followed and was followed in view of Sec.63 (1) of the Act. It was further contended that since the Commission was entitled to make recommendation for appointment by promotion it could evolve its own procedure. Such procedure, however, had to be reasonable and not inconsistent with the provisions of the Act. Thus, it was submitted that there was no infirmity in the impugned order of promotion. 8. Section 43 (1), in my opinion, does not deal with cases of promotions. It enjoines the Commission to advertise vacancies. Where appointment by promotion only is under consideration advertisement appears to be incongruous. Appointments in Government service on the recommendation of Service Commissions are now in vogue for over four decades both at the centre and in the States, I do not know of any instance where advertisement have been made where it is contemplated that the appointment will be made by promotion only. The whole concept of the advertisement is out of place in such a situation. The whole concept of the advertisement is out of place in such a situation. It is legitimate, therefore, to hold that when the legislature was requiring the Commission to advertise the vacancies it bad under contemplation direct recruitment and not recruitment through promotion. It is a matter of common knowledge that in direct recruitments advertisement is a must. Not so, so far as promotions are concerned. I would, therefore, as a matter of construction hold that Sec.43 (1) is applicable only to direct recruitments. 9. The power to recommend for appointment by promotion is clearly envisaged under section 43 (2) (a) of the Act. It has, therefore, to be held that the Commission does not travel beyond its power in making recommendation for appointment by promotion. The question, however, remains as to what is the procedure which has to be followed. None of the relevant provision which have already been quoted deal with the procedure or the circumstances in which promotion is to be made. That is why the learned counsel had to rely on Sec.63 (1) of the Act. It is to be observed that the Ordinance 112 of 19y4 envisaged direct recruitment only. In 1976 the concept of appointment by promotion was introduced by section 43 (2) of Ordinance 124 of 1976. Learned counsel for the petitioner says that then or even now there is no indication in the law as to when promotion is to be preferred to direct recruitment. The procedure to be followed while recommending promotion has also not been laid down. These are wide gaps in the law. These gaps are fatal. In my view it is not so. 10. Section 63 (1) of the Act authorises the State Government to issue directions or orders to the Board in relation to its powers and duties which have been enumerated in Sec.16 of the Act. It was in the exercise of this power that Annexure 10 was issued. It states that ordinarily appointment of Headmasters should be made by direct recruitment. But it also lays down an exception. The exception is in relation to such secondary schools where at least five of the teachers fulfil the minimum qualifications required for the post of the Headmaster. It further states that the appointment should be made on the basis of seniority cum-merit and not on mere seniority. But it also lays down an exception. The exception is in relation to such secondary schools where at least five of the teachers fulfil the minimum qualifications required for the post of the Headmaster. It further states that the appointment should be made on the basis of seniority cum-merit and not on mere seniority. Since no specific provisions laying down the occasion or circumstances for appointment by promotion had been laid down in the Act, the State government could, in my view, issue suitable directions under section 63 (1) of the act. It is not in dispute that this Annexure, which has legal force, is applicable to the School in question. I am thus of the view that Annexure-10, which has legal force, lays down the circumstances when recommendation by the Commission for appointment by promotion has to take place. It is not in dispute that the school in question fulfils the conditions. Thus in making the recommendation the Commission followed the guidelines laid down in Annexure-10. Thus the Board acted legally and properly in accepting the recommendation of the Commission made in conformity with annexure-10. 11. Annexure-10 does not deal with the procedure that the Commission has to adopt while considering the question of appointment by promotion. The position that then emerges is that the Commission had undoubtedly power to make recommendation for appointment by promotion, but the procedure to be followed is not specifically mentioned in the Act. This, in my view, will not affect the power of the Commisstion. It must evolve its own procedure. The procedure must be rational and fair. It must not conflict with any of the provision of the Act. What the Commission had done is that it has examined the relevant records of all those (which includes the petitioner)whose name had been forwarded by the Board. It has taken into consideration their seniority and merit. I have already held that Sec.43 (1) is inapplicable to cases of promotion. The procedure adopted was, thus, not in conflict with any of the provisions of the Act. It was not necessary to ask the candidates to appear for personal interview. Taking the totality of the circumstances into consideration, the procedure adopted cannot be said to be unfair or irrational. It has not even been alleged that the Commission did not consider the case of the teachers whose name had been forwarded to the Commission. It was not necessary to ask the candidates to appear for personal interview. Taking the totality of the circumstances into consideration, the procedure adopted cannot be said to be unfair or irrational. It has not even been alleged that the Commission did not consider the case of the teachers whose name had been forwarded to the Commission. If after proper consideration the Commission has made recommendations, the same do not suffer from any illegal infirmity. The Board in accepting the Commissions recommendation has acted as envisaged in the Act. I, therefore, do not find any legal infirmity in the procedure adopted. 12. I am thus of the view that neither Annexure-6 nor Annexure-7 are liable to be quashed. I accordingly dismiss this application but in the circumstances without costs. 13. In this writ application three reliefs have been claimed. They are : (a) that the notification contained in Annexure-8 be quashed ; (b) the respondents be directed to consider the case of petitioners for appointment to the post of Headmaster in accordance with law, and (c) the resolution of the Managing Committee (Annexure-2) relating to the appointment of respondent no.5 as officiating Headmaster be called up and be quashed. 14. At the time of argument no argument was advanced so far as the second and third reliefs are concerned. So far as challenge to Annexure-8 is concerned, it may be stated that the said Annexure has been issued by the state Government in exercise of powers under section 63 (1) of the Act. For the reasons given in C. W. J. C.467/77 the State Government had power to issue order or directions. It is in exercise of this power that Annexure-8 had been issued. Annexure-8 is thus not liable to be quashed. In the view that I have already taken of Sec.43 (1) of the Act it cannot be said that this annexure is in conflict with any provision of the Act. This application is also dismissed but without costs.