JUDGMENT S. Ali Ahmad, J. The prayer under this application under Articles 226 and 227 of the Constitution of India is for quashing the order no. 39742-47, dated 7th November, 1981 (Annexure 3') passed by respondent no.2 the Director, Secondary Education-cum-Special Secretary Education Department. Another prayer that has been made is that the respondents be directed not to interfere with the right of the petitioner to act as incharge Headmaster of the School and also for directing the respondents to consider the case of the petitioner for appointment as the Headmaster of Dwarka Nath High School, Muzaffarpur. 2. Leaving aside the unnecessary details, the relevant fact for the purpose of this application is that the petitioner by virtue of being the senior most Assistant teacher of Dwarka Nath High School, Muzaffarpur was directed to function as Headmaster Incharge with effect from 2.10.1980 by virtue of an order passed by District Education Officer, dated 30.9.1980 (Annexure 2'). Ever since then, the petitioner functioned as Incharge Headmaster until respondent no.5 relieved him by virtue of the order dated 7.11.1981 passed by respondent no.2 which has been marked as Annexure 3' to this application. Admittedly respondent no. 5 was Headmaster of Dineshwar High School, Rajepur Lakhna in the district of Muzaffarpur. The grievance of the petitioner is that respondent no. 5 cannot be brought from another school and made Headmaster of the School of which he was the Headmaster Incharge. According to the petitioner, this was in violation of the circular dated 20th November, 1981, issued by the State Government. This circular, inter alia, states that for vacancy to the post of Headmaster which existed prior to 2.10.1981 shall be filled up by appointing the seniormost Assistant teacher having Post-graduate scale or/selection grade with the school as the unit. The circular further states that for appointment to the post of Headmaster falling vacant after 2.10.1981 the same procedure will apply until a District Cadre of Assistant teachers is finalised. Relying on this circular Mr. Srivastava in support of the application urged that the post of Headmaster fell vacant prior to 2.10.1981 and in fact the petitioner was working as Headmaster Incharge with effect from 2.10.1981 itself. He, therefore, contended that according to the circular the petitioner has a right to function as Headmaster Incharge until an appointment on permanent basis is made. According to him, therefore, the transfer of respondent no. He, therefore, contended that according to the circular the petitioner has a right to function as Headmaster Incharge until an appointment on permanent basis is made. According to him, therefore, the transfer of respondent no. 5 to the School in question was bad, as there was no provision for transferring a teacher from one school to another. Mr. Prabha Shankar Mishra while opposing this application urged that the effect of Sub-Section (2) of Section 4 of the Bihar Non-Government Secondary Schools (Taking over the Management and Control) Ordinance 1980 is that the teachers of the school which have been taken over under the Ordinance became Government servants and as such are controlled by the provisions of the Service Code. Admittedly the two schools were taken over under the aforesaid Ordinance. Therefore Mr. Mishra stated that the transfer of respondent no. 5 to the school in question was valid inasmuch as rule 56 of the Service Code authorised such transfers. In support of this contention Mr. Mishra referred to the decision of Braj Nandan Prasad Vs. State This was a case where the concerned teacher was transferred to fill up a vacancy which occurred after 2nd October, 1981. This was the distinction on facts. There is another factor which has to be kept in mind. Sub-section (3) of section 4 of the Ordinance provides that until the service conditions are framed by making rules under section 15 of the Ordinance, the teachers will be governed by the service conditions which controlled them prior to taking over of the school. Admittedly, prior to the taking over teachers could not be transferred from one school to another school, that means until the rules to the contrary were framed, the services of the teachers were not transferable. This aspect of the matter was not brought to the notice of the learned Judge deciding the aforesaid writ application. 3. For these reasons, in my view, the transfer of respondent no. 5 from Dineshwar High School, Rajepur Lakhna to Dwarka Nath High School, Muzaffarpur as Headmaster is illegal. The order to that effect contained in Annexure - 3' is, therefore, quashed. 4. Having quashed the transfer of respondent no 5 to Dwarka Nath High School, Muzaffarpur, it is needless to say that the petitioner shall continue to function there as Headmaster Incharge until a permanent Headmaster is appointed in accordance with law. The order to that effect contained in Annexure - 3' is, therefore, quashed. 4. Having quashed the transfer of respondent no 5 to Dwarka Nath High School, Muzaffarpur, it is needless to say that the petitioner shall continue to function there as Headmaster Incharge until a permanent Headmaster is appointed in accordance with law. The application is thus allowed to the extent indicated above. Application allowed