Judgment SARWAR ALI, J. 1. In this writ application the petitioner prays for quashing of the order contained in annexure-1 Under this annexure the Director of Secondary Education has transferred and posted respondent No. 7. Basdeo Prasad Jha. as Headmaster of Model High School. Munger. (hereinafter referred to as the School). 2. Sri Jagranath Prasad was the Headmaster of Model High School. He retired, according to the case of the petitioner on 1-10-1980. On his retirement Sri Bishwanath Pd. was appointed as the Acting Headmaster. Unfortunately, he died on- 19-10-1980. Thereafter the District Education Officer appointed the petitioner Sheo Nath Prasad as the Acting Headmaster of the School. According to the assertion of the petitioner the appointment of the Headmaster in a particular School has to be confined to the teachers serving in that School. There pannot be a transfer from one school to another. Hence the action taken in annexure-1 is illegal and fit to be quashed. 3. The case of the respondents is that vacancy in the post of the Headmaster had occurred on 2-10-1980. when the Bihar Non-Government Secondary Schools (Taking Over of Management and Control) Ordinance. 1980 (hereinafter referred to as Ordinance) came into force. By virtue of the Ordinance the Headmasters of all the schools became Government servants. The Bihar Service Code. 1952 applies to them. Rule 56 of the Code empowers the State Government to transfer a Government servant from one Dost to another. It was. therefore, perfectly legal and legitimate for the appropriate authority to transfer respondent No. 7 to Model High School. 4. In suDDort of his contention learned counsel for the betitioner placed reliance on the decision of the State Government contained in annexure-8 bearing No. 510 dt. 20-11-1981. This is a Government order. according to the subiect matter indicated therein, in relation to promotion to the oost of the Headmasters which was vacant Drior to 2-10-1980 in the nationalised school. In the opening para it is stated as follows: "On the above subiect (as mentioned above) I am directed to sav that the matter of preparation of the rules regarding the service conditions of the teachers of the Nationalised Secondary Schools is under consideration of the State Government. In fulfilling all the formalities and giving it the final shape it will apparently take time. In fulfilling all the formalities and giving it the final shape it will apparently take time. Hence keeping in view the order of the Honble High Court for appointment of the Headmasters within a fixed time in the so called vacant post of the Headmasters in many Schools, the State Government. in exercise of the powers vested in it under S. 15 of the Non-Govt. Secondary Schools (Taking Over of Management and Control) Ordinance. 1980 has decided that in the Nationalised Secondary Schools the vacant post of the Headmasters prior to the date of nationalisation i. e. 2-10-1980 should be filled upby promotion amongst the teachers of the High Schools having the requisite qualifications and fitness (for the post) treating each school as an independent unit and on the vacancies caused on 2-10-1980 or thereafter promotion should be made in accordance with the rules after preparing the cadre of the teachers and their seniority list." (Translated from Hindi) 5. Before considering the applicability of this annexure it may be observed that this purports to have been issued in exercise of powers conferred under Sec. 15 of the Ordinance which is as follows: "Power to frame rules- (1) The State Government may make rules not in consistent with the Ordinance for carrying out the purpose of this Ordinance. (2) Every rule made under this section shall be laid as soon as possible after it is made before each house of the State Legislature while it is in Session for the total period of 14 days which may be comprised in one session or in two successive Sessions, and if. before expiry of the session in which it is so laid or the Session immediately following both the Houses agree in making any modification in the rule or both the Houses agree that the rule should not be made. the ruie shall thereafter have effect only in such modified form or be of no effect, as the case mav be. such modification or annulment shall not affect the validity of anything previously done under the rule." In this case it is an admitted position that the conditions as laid down in cl. (2) of Sec. 15 of the Ordinance have not been fulfilled. In this situation annexure-8 cannot be treated to have been issued in exercise of powers under Section 15 of the Ordinance. (2) of Sec. 15 of the Ordinance have not been fulfilled. In this situation annexure-8 cannot be treated to have been issued in exercise of powers under Section 15 of the Ordinance. In my view, however, this instruction has been issued in exercise of power under Sec. 16 of the Ordinance which reads as, follows: "Power to Remove Difficulties. If any difficulty arises in giving effect to the provisions of this Ordinance or rules made thereunder, the State Government may take such action or pass such order as appears to it necessary for the purpose of removing the difficulties." It is well settled that where power exists, the mere fact that it purports to have been exercised under a wrong provision of law does not affect the validity of the power or its efficacy. (See AIR 1958 SC 232 . P. Balakotaiah V/s. Union of India AIR 1964 SC 1223 : Ramchandra Shenoy V/s. Mrs. Hilda AIR 1966 SC 334 : Lekhrai Sathramdas V/s. N. M. Shah). Thus, the mere mention of S. 15 instead of S. 16 could not invalidate the action taken or rob annexure-8 of its binding effect. S. 10 of the Ordinance authorises the School Service Board, inter alia, to make recommendation for appointment or promotion of Headmaster to the Director in accordance with the Ordinance and the rules framed thereunder. In the absence of the recommendation of the Board, ad hoc promotion is permitted only for a period not exceeding six months. Since no rules could be framed for one reason or the other for a sufficiently long time after coming into force of the Ordinance, it was not possible for the Board to make recommendations in accordance with the provisions of Sec. 10 of the Ordinance. The State Government in this situation, thought it proper to issue an order on 20-11-1981. under annexure-8. in exercise of powers under Sec. 16 of the Ordinance. I am. of the view that the contents of annexure-8 lead to the conclusion that it was issued in exercise of power under Sec. 16 of the Ordinance. The first paragraph of annexure-8 in express and unambiguous terms directed that each School would be treated as an independent unit for the purpose of filling up vacancies bv promotion in the posts of Headmasters arising before 2-10-1980. The first paragraph of annexure-8 in express and unambiguous terms directed that each School would be treated as an independent unit for the purpose of filling up vacancies bv promotion in the posts of Headmasters arising before 2-10-1980. The last portion of this paragraph provided that the vacancies arising on or after 2-10-1980 would be filled up in accordance with the rules after the preparation of the gradation list of the teachers. 6. Mr. Thakur Prasad, appearing for the petitioner, referred to several subsequent paragraphs and specially to para 9 of annexure-8 which reads thus: "In the schools, where the teachers having the requisite qualifications are not available, the posts of the Headmasters shall be filled uo bv direct recruitment there." He contended that where a duly qualified teacher is not available for appointment, the appointment has to be made bv direct recruitment. This would apply even to cases where vacancy occurs on and after 2-10-1980. I do not find substance in the contention. The entire procedure detailed from para 2 onwards deals with the filling up of the post of Headmaster bv promotion, where the vacancies arose before 2-10-1980. The ninth paragraph is also dealing with the schools where no qualified teacher is available for being appointed as Headmaster. This paragraph, in my view, is confined to vacancies occurring before 2-10-1980. In the instant case it is clear that the vacancy on the post of Headmaster of the school occurred on the applicability of the Ordinance. Since Sri Jagranath Pd. had already attained the age of superannuation, the vacancy occurred after nationalisation. In this situation the portion of annexure-8 which deals with the appointments of Headmasters before 2-10-1980. or para 9 of the said annexure cannot be of any help to the petitioner. 7. The important question, however, remains to be considered and that is whether, in the state of law as existing on the date of the issue of annexure-1. there could be a transfer of Headmaster of a school to a newly nationalised school. This question was considered bv B. P. Jha. J. in Briinandan Prasad V/s. State of Bihar (1982 B. B. C. J. 284) where reiving on rule 56 of the Bihar Service Code it was held that the transfer was permissible. Contrary view has been taken in Rashunandan Prasad V/s. State (1982 B. B. C. J. 359) by Ali Ahmad. This question was considered bv B. P. Jha. J. in Briinandan Prasad V/s. State of Bihar (1982 B. B. C. J. 284) where reiving on rule 56 of the Bihar Service Code it was held that the transfer was permissible. Contrary view has been taken in Rashunandan Prasad V/s. State (1982 B. B. C. J. 359) by Ali Ahmad. J. The only other case which has been brought to our notice during the course of argument is that Dava Nath Jha V/s. State of Bihar C. W. J. C. No. 1965 of 1981 decided on 1-9-1981 by B. P. Sinha. J. who has also taken the same view as in Raghunandans case. It is because of this conflict that this case has been referred to a Division Bench. 8. It cannot be doubted that the teachers of all the schools, which have been taken over under the Ordinance. are Government servants. After taking over they would be governed bv the laws applicable to the Government servant. R. 56 of the Service Code would, therefore, apply in their cases also unless there is some provision, having statutory force, which directly or bv necessary implication makes R. 56 of the Code inapplicable. This also follows from Section 4 (3) of the Ordinance which specifically states that the Headmasters, teachers, etc. shall become employees of the State Government with such designation as the State Government may determine with effect from the date of taking over of the school. The root question, therefore, that has to be decided is whether there is anv special provision which excludes the applicability of R. 56 of the Code, It is to be observed that according to the well established rule of interpretation if there is anv special provision dealing with a particular situation it excludes the applicability of the general rule. 9. I have alreadv held that annexure 3 has been issued in exercise of powers under Sec 16 of the Ordinance. It has. therefore. statutory effect. The last few lines of the first paragraph of this annexure fwhich have alreadv been quoted) clearly state that where vacancies occur on. 2-10-1980 or thereafter, promotion should be made in accordance with the rules after preparing the cadre of teachers and their seniority list. It necessarily follows that appropriate rules in this regard have to be framed before any promotion to the Dost of Headmaster can take place. 2-10-1980 or thereafter, promotion should be made in accordance with the rules after preparing the cadre of teachers and their seniority list. It necessarily follows that appropriate rules in this regard have to be framed before any promotion to the Dost of Headmaster can take place. Obviously, it has reference to substantive appointment and not an ad hoc arrangement. The manner in which Dosts have to be filled ud on Dromotion have been specifically laid down. This would be frustrated if transfers are permitted from one school to another, thus filling up the posts without Dromotion. I am. therefore, of the view that annexure-8 which, has statutory force, bv necessary implication excludes the applicability of R. 56 of the Bihar Service Code. This is the only way in which the scheme, as envisaged in this annexure. can be effectuated. 10. Even if I be not correct in my view that annexure-8 has statutory force, the position would not be different so far as the power of transfer under R. 56 is concerned. Sec 4 (31 of the Ordinance reads as follows : "The age of superannuation of Headmasters, teachers and other employees of the schools taken over bv the State Government shall be 58 years. The other terms and conditions of their services shall continue to be the same as it was before taking over the management and control of the school until any alteration is made therein by the State Government in. the prescribed manner." Thus if there exist terms and conditions of the service applicable to the Headmasters before taking over management and control of the schools thev shall continue to be applicable until an alteration is made in those terms and conditions by the State Government in the prescribed manner. It is. therefore, necessary to examine whether there were in existence terms and conditions of service in relation to the post of Headmasters which could be applicable in the instant case. Reliance in this connection was placed on the Government Circular No. 2305 dt. 25-7-1977 which appears to have been modified by Instruction. No. 222/79-2800 dt. 29-11-1979. Letter dt. 25-7-1977 lavs down the guideline in relation to appointment/promotion of Headmaster/Assistant Headmasters. In para 4 it. states that till the establishment of the district cadre everv school will be regarded as a unit. Para 7 states the basis of seniority. 25-7-1977 which appears to have been modified by Instruction. No. 222/79-2800 dt. 29-11-1979. Letter dt. 25-7-1977 lavs down the guideline in relation to appointment/promotion of Headmaster/Assistant Headmasters. In para 4 it. states that till the establishment of the district cadre everv school will be regarded as a unit. Para 7 states the basis of seniority. Para 10 deals with, the cases of promotion to the post of Headmaster. It would thus be seen that it specifically deals with the manner of appointment/promotion of Headmasters/ Assistant Headmasters. Bv letter dated 29-11-1979 certain matters were clarified/ modified including those in relation to promotion to the post of Headmasters. These instructions have been held to have been issued in exercise of powers under Sec 63 of the Bihar Act 25 of 1976. Thev have thus statutory force, (see C. W. J. C 467 of 1977 decided on 9-5- 1980 Shoba Kant Das V/s. Special Secretary. Education and C. W. J. C No. 1119 of 1980 decided on 26-11-1981 Keshav Singh V/s. State of Bihar). 11 The expression terms and conditions of service has to be given a wide connotation. Where a law or instruction lavs down as to who are eligible for appointment and the qualification for such appointment, it lavs down the terms and conditions of service. The aforesaid circular lays down in exercise of power under Sec. 63 of the Act 25 of 1976. that each school has to be treated "as a separate unit. The appointment of Headmaster has to be made from amongst eligible teachers of the school. The procedure for appointment has also been laid down These conditions in relation to the appointment of Headmasters would continue to have statutory recognition and enforceability by virtue of Sec. 4 (31 of the Act till such time an alteration is made in the prescribed manner. If the last portion of the last paragraph of annexure-8 be assumed to have, no legal force, the position would, in my opinion, be that each school has to be treated as a unit for the purpose of appointment to the post of headmaster. It necessarily follows that the post of Headmaster cannot be filled up in any other manner, such as transfe from one school to another. The genera powers given under rule 56 of the Bihar Service Code would, therefore, be inapplicable. 12. It necessarily follows that the post of Headmaster cannot be filled up in any other manner, such as transfe from one school to another. The genera powers given under rule 56 of the Bihar Service Code would, therefore, be inapplicable. 12. Sri Ram Chandra Jha contended that the petitioner has no right of appointment as a Headmaster and that he had a mere chance of future appointment. Such a chance could not be treated to be a service condition. He referred to several cases in that context. In the instant case the petitioner is not enforcing a mere chance of appointment. What he contends is that appointments in accordance with the provisions of the Ordinance, have to be confined to a certain class of teachers. Bv superimposing someone contrarv to law. the right of the petitioner and others, who are eligible for appointment to the post is infringed. In my view, the petitioner has a clear locus standi to maintain this writ application provided he could show. and. in mv opinion, he has shown, that the action of the authorities in transferring respondent 7 to the school is not legally justified. 13. I am therefore, of the opinion that the power of transfer under. R. 56 of the Bihar Service Code would, on the state of law as existing on the date of issue of notification under annexure 1 be inapplicable even in relation to posts of Headmaster which have, fallen vacant on or after 2-10-1980. 14. In the result this application is allowed, and annexure 1 is quashed. Till permanent arrangement is made in relation to the post of Headmaster, it would be open to the authorities to either continue the ad hoc arrangement as made before issue of annexure I or make such other ad hoc arrangement as may be permissible in law. LALIT MOHAN SHARMA, J. 15 I agree.