Narendra Kumar Singh v. State of Bihar — 1985 DIGILAW 96 (PAT)

JUDGMENT : Satya Brata Sanyal, J.-In this writ application the petitioner prays for issuance of a writ of mandamus directing the respondents to treat the petitioner as Headmaster of Gouri Shanker Mahabir Kanya Uchch Vidyalaya, Jail Press Colony, Gaya, and to pay him the salary of Headmaster. 2. The relevant facts of this case are as follows. That a decision was taken by the local people of Gaya to open a Girls' High School in the Jail Press Colony, Gaya, and, for that purpose, a Managing Committee was constituted. The Managing Committee of the school appointed the petitioner as founder Headmaster and an appointment letter to t4at effect was issued by the Secretary of the Committee on 20.2.1982 (Annexure 2'). The petitioner was a Trained Graduate at the time of his appointment as Headmaster of the said school. Prior to that he was an Assistant Teacher in Sahid High School, Gaya, a recognised High School from 1.12.1970. The petitioner joined the instant High School on 12.3.1982. The Government of Bihar appointed a special Board for inspection and report a& to whether the school fulfils the requirements for take over under the Bihar Non-Government Secondary School (Taking over of Management and Control) Act (hereinafter to be referred to as 'the Act'). On 5.4.l982, the members of the special Board visited the school and a report was submitted to the Director, Secondary Education, Government of Bihar. The special Board accepted the fact that the petitioner is the Headmaster of the school which would be apparent from Annexure 3' of the petition. The report of the special Board was considered by respondent nos. 1 and 2 granting recognition of the school as well as taking over of the management and control of the school with immediate effect. But, in the said notification it is said that the petitioner has been shown as an Assistant Teacher of the school A copy of the said notification is marked as Annexure 1'. 3. The petitioners case is that he was never appointed as an Assistant Teacher by the Managing Committee. He was appointed as a Headmaster and when the school was taken over his services as Headmaster would be automatically transferred to the State Government under section 4(2) of the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Ordinance, 1980. 3. The petitioners case is that he was never appointed as an Assistant Teacher by the Managing Committee. He was appointed as a Headmaster and when the school was taken over his services as Headmaster would be automatically transferred to the State Government under section 4(2) of the Bihar Non-Government Secondary Schools (Taking over of Management and Control) Ordinance, 1980. Section 4(2) does not empower the State Government to demote the petitioner beyond changing the designation. Change of designation cannot mean demotion of a person and it will not include change in the status of a person beyond describing a particular post by a different name. Mr. Rajendra Prasad Singh contended that in view of the provisions of section 4(2) and (3) of the Act the petitioner will be deemed to be the Headmaster whose services stood transferred to the State Government on the date of the take over of the school that is, 15.10.1982. The terms and conditions of his service are also guaranteed under section 4(3) of the Act inasmuch as it shall continue to be the same as it was before the taking over of management and control of the school the alteration, if any, could be, according to the learned counsel, by making of rules as required under section 15 of the Act and/or section 10(9). The petitioner, therefore, should be treated as Headmaster and ought to be paid the salary enjoined to the office of Headmaster of the institution. Learned counsel contended that the right to change designation cannot affect the status of the petitioner by treating the petitioner as an Assistant• Teacher as it amounts to his demotion from his previous appointment as the Headmaster of the school. This, learned counsel submits, is impermissible in law. 4. The case of the respondents, on the other band, as it appears from the counter-affidavit, is that the school was recognised from 12.10.1980 and there is no provision under the Act for approving the founder Headmaster as the Headmaster in this school. On the contrary, Government Circular No. 852 dated 21.12.1982 provided that the posting of Headmaster in, such schools will be done on the basis of-seniority list and, according to the service condition rules giving of approval to the founder Headmaster will affect the seniority of other teachers working in this school. On the contrary, Government Circular No. 852 dated 21.12.1982 provided that the posting of Headmaster in, such schools will be done on the basis of-seniority list and, according to the service condition rules giving of approval to the founder Headmaster will affect the seniority of other teachers working in this school. It is further submitted that the provision for founder Headmaster is only with respect to schools which have been recognised before 2.10.1980 and those nationalised on 2.10.1980. It is further submitted that recognition and approval of teachers in a school after 2.10.1980 is done on the basis of section 3(3) of the Act. It is further stated that there is no question of demotion in view of the Government Circular No. 852 dated 21.12.1982 and the Service Condition Rules, 1983 that the post of Headmaster since 2.10.1980 will be filled up on the basis of gradation list. The rules provide that 80% of the posts will be filled up by promotion from the seniority list and 20% by direct recruitment with the consent of the School Service Condition Rules. 5. A supplementary counter-affidavit has also been filed. It has been stated therein that the Secretary of the school in question applied for a permission to establish the school and further informed that the said school has been established by the villagers on 2.10.1978. On 24.11.1960, the Director, Bihar Secondary Education Board, was requested to grant approval to the establishment. Thereafter a spot enquiry was conducted on 14.9.1981 and a report was forwarded by the District Education Officer along with the District Inspectors of Schools and, in the said report, the petitioner is not noticed as one of the teachers. Finally permission for establishment of the school was granted imposing certain conditions which, inter alia, provided that there shall not be any untrained teachers and that no untrained teachers shall be appointed in future and that it was also laid d own that the school shall abide by the terms and conditions of the regulations for establishment of the school to be prepared by the Directorate. It is contended that the permission for establishment of the school was granted under section 3(3) of the Ordinance. It is contended that the permission for establishment of the school was granted under section 3(3) of the Ordinance. On 25.1.1982, the Secretary of the school informed the District Education Officer, Gaya, that he is ready to abide by the terms and conditions and thereafter the District Education Officer sent his report vide letter no. 131 dated 25.7.1982 informing the Directorate that the school in question was ready to abide by the terms and conditions as and when laid down by the Government for Its permanent recognition and take over. After the grant of the permission for establishment of the school, the District Education Officer again inspected the school on 18.2.1982 and recommended for taking over of the school. In the said report, the name of the petitioner does not fall in the list of the teachers. This was followed by another inspection when the petitioner has been noticed as a teacher of the said school. It is said that the petitioner was appointed as a Headmaster after the grant of permission to establish the school. It is submitted that the appointment of Headmaster after the permission for establishment of the school by the Government must conform to certain procedure laid down by Government ORDER :No. 129 dated 30.11.6: -See A Compendium to important ORDER :s and circulars on Bihar Secondary Education, page 644. Paragraph 3(ix) provides the qualifications required for the appointment of a Headmaster and his appointment can only be effected on the recommendation of the Shiksha Seva Board whereupon he will be appointed by the State Government. This procedure was not followed. Therefore, the appointment of the petitioner is stricken by the vices of statutory violation. It is further submitted that the statutory committee which finally examined, the matter, according to condition no. 5 of the said ORDER :129 dated 30.11.81, did not find the petitioner duly appointed as Headmaster and, therefore, his services were not taken over as Headmaster but only as Assistant Teacher. 6. Mr. Jagannath Jha contended that the JUDGMENT :s hitherto rendered by several Courts omitted to consider the provisions of section 3(3) as also ORDER :129 dated 30.11.81 and the Bihar High Schools (Conditions of Service) Rules 1972 framed under the Bihar High Schools (Control of Administration) Act, 1960. 6. Mr. Jagannath Jha contended that the JUDGMENT :s hitherto rendered by several Courts omitted to consider the provisions of section 3(3) as also ORDER :129 dated 30.11.81 and the Bihar High Schools (Conditions of Service) Rules 1972 framed under the Bihar High Schools (Control of Administration) Act, 1960. He strongly relied upon the Division Bench JUDGMENT : of this Court in C.W.J.C. No. 3434 of 1983 and another disposed of on the 21st August, 1984, [reported in 1985 PLJR 1110 ] where P. S. Mishra, J. speaking for the Court, refused to issue mandamus because the appointment in the said case did not fulfill the conditions of 1972 Rules. He also relied on the decision in Mahakant Jha v. Special Secretary Education Department, Patna (A.I.R. 1983 Patna 233 : 19&3 PLJR 647) where P. S. Mishra, J., held that if an appointment is made by an authority not empowered to do so then a mandamus cannot be issued for arrears of salary as well as to confirm the appointment as the appointment is stricken by the vice of the statutory violation which cannot be cured by the acts of administrative drifts. Learned counsel further contended that the decision in Yogendra Khan v. The State of Bihar reported in 1983 B.B.C.J. 139 : 1983 PLJR 214 and the various other cases referred to therein would be deemed to have been impliedly overruled by the Division Bench of this Court in C.W.J.C. No. 3434 of 1983. He submits that according to him the Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976 is not pari materia with the Act under consideration. Since under the former Act only control was taken over whereas under the Act management and control both have been taken over. Further, there is nothing like section 3(3) in the 1976 Act. 7. Mr. Rajendra Prasad Singh appearing for the petitioner tried to repel the argument of Mr. Jha by contending ~hat till date every JUDGMENT : of this Court has taken the view that from the plain and exprese language of section 4(2) and 4(3) of the Act, which is prefixed with the words "consequences of taking over management and control", the service of every teacher, Headmaster and other employees ipso jure becomes the employees of the State Government. The State Government has only been empowered to give them such designation as it may determine. The State Government has only been empowered to give them such designation as it may determine. There is no further qualification under section 4(2). He further submitted that the terms and conditions of service can only be altered by the rules framed in accordance with section 15 of the Act; otherwise the terms and conditions of the service shall continue to be the same as it was before take over. He referred to the decision in C. W. J. C. No. 4167 of 1981 decided on 21.2.84 by Ali Ahmad, J., C.W.J.C. No. 2166 of 1982 decided on 17.1.84 by Ali Ahmad, J., C.W.J.C. No. 4059 of 1983 decided on 24.8.84 by B.S. Sinha, J.. L.P.A No. 64 of 1983 decided on 11.1.85 and C.W.J.C, No. 2825 of 1984 decided on 17th September, 1984 by S.K. Jha, J., [reported in 1985 PLJR 11 (NOC)] apart from the decision in Yogendra Khan v. The State of Bihar (1983 B. B.C.J. 139 : 1983 PLJR 214 ) in which case I had occasion to consider the matter. These cases take one and the same view which is sought to be propounded by Mr. Singh. It is, however, true that in none of these cases ORDER :No. 129 of 30.11.81 was considered nor the decision of the Division Bench in C.W.J.C. No. 3434 of 1983 has been referred to. It has also been. contended that the Bihar Non-Government Elementary Schools (Taking over of Control) Act, 1976 is pari materia with the statute under consideration. In this connection learned counsel drew my attention to section 3( 4)(a) of the 1976 Act and contended that the spirit of section 3(3) of the Act is engrafted under section 3(4)(a) of the 1976 Act. Section 4(2) of the 1916 Act engrafts the provisions of section 4(2) and section 4(3) of the present Act. It was, therefore, contended that the decisions rendered with respect to the 1976 Act fully apply to the present case and strong reliance was placed on L.P.A. No. 24 of 1977 decided on 21.2.84 L.P.A. 64/83 decided on 11.1.85 and catena of other decisions with respect to the 1976 Act. Mr. Singh further submitted that ORDER :129 dated 30.11.81 is ultra vires inasmuch as the said ORDER :does not purport to be rule framed either under section 9 or under section 15 of the Act. Mr. Singh further submitted that ORDER :129 dated 30.11.81 is ultra vires inasmuch as the said ORDER :does not purport to be rule framed either under section 9 or under section 15 of the Act. The said ORDER :refers to section 3(3) of the Act. Section 3(3) does not empower the State Government to lay down conditions for grant of permission for establishment of schools. The said section provides for appointment of Headmaster through the Shiksha Seva Board at a time when the school has not been nationalised and still under private management. The power of appointment has "been given under section 10(9) of the Act but the said power of appointment is only with respect to nationalised secondary schools. On the date the petitioner was appointed as Headmaster the school was not nationalised. Therefore, Government ORDER :129 of 30.1.81 can have no application. If the said ORDER :is sought to be implemented and interpreted in the manner suggested it would amount to vary the terms and conditions of service prior to nationalisation and would be in direct conflict with section 4(3) nor the same can be treated as a rule made under the Act because of infringement of the provisions of section 15 of the Act as the said ORDER :has not been placed before the State Legislature [See T. K. Ghosh Academy v. The State (1974 B.B C J. 15)]. Learned counsel also contended that the decision by the Division Bench in C.W.J.C. No. 3434 of 1983 is per curiam and should be ignored because of the decision in T.K Ghosh Academy's case (supra) and Nand Kishore Prasad Mandal v. President, Bihar Secondary Education Board (1977 P.L.J.R. 277) (both Division Bench). 8. I would first discuss whether the law laid down in C.W.J.C. No. 3434 of 1983 by a Division Bench of this Court at all resolves the problem to be decided in this case. It is true that in the said decision some doubts have been expressed with respect, to various decisions of this Court which have taken the view that under section 4 (2) of the Act there is automatic transfer of the services of all the employees including the Headmaster and teachers working in the school from a date prior to the ORDER :of take over as would be apparent from page 15 of the said JUDGMENT :. P.S. Mishra, J, speaking for the Court, expressed a regret that Court's notice was not drawn to the relevant rules i.e. 1972 Rules, made under the Bihar High Schools (Control of Administration) Act, 1960 resulting in the said decisions. According to my Lord the 1972 Rules prescribed certain minimum qualifications for appointment and the same could Dot have been given a go by by the Managing Committee while making the appointment. It was, therefore, observed that if the appointment of teachers is not in accordance with the 1972 Rules the question to take over of the services of illegally appointed teachers does not arise at all and consequently such teachers are not entitled to any salary for the work rendered. The appointment would be deemed to be stricken with the vice of statutory violation. The JUDGMENT : no doubt manifests scholarship and throws considerable light on the mass of Circulars, ORDER :s etc, issued from time to time as also the development and evolution of the entire law on this particular branch but unfortunately my Lord's attention was not drawn. to two earlier Division Bench decisions of this Court, namely, T K. Ghosh Academy's case (supra) and Nand Kishore Prasad Mandal's case (supra), In Nand Kishore Prasad Mandal's case it was held that on repeal of the Bihar High Schools (Control of Administration) Act, 1960 by Bihar Ordinance No. 112 of 1974, Bihar High Schools (Conditions of Service) Rules, 1972 stood automatically repealed and could neither be saved under section 64 (3) of the Act nor under section 27 of the Bihar General Clauses Act. In T.K. Ghosh Academy's case the effectiveness of the 1972 Rules was doubted as the said Rules did not appear to have been laid before the Legislature as required under the Act which was empowered to reject the Rules or to modify the same. This was the requirement under section 8 (3) of the Act. In T.K. Ghosh Academy's case the effectiveness of the 1972 Rules was doubted as the said Rules did not appear to have been laid before the Legislature as required under the Act which was empowered to reject the Rules or to modify the same. This was the requirement under section 8 (3) of the Act. The very foundation of the JUDGMENT : in C.W.J.C. No. 3434 of 1983 being the existence, operative ness and continuance of the 1972 Rules and the said JUDGMENT : having not noticed the two prior Division Bench decisions of this Court, with utmost respect to my Lord Mishra, J, I am constrained to accept the argument of learned counsel for the petitioner that the decision in the said case is per curiam and not binding upon me, Learned counsel has also drawn my attention to a JUDGMENT : of R.C.P. Sinha, J., in C.W.J.C. No.3748 of 1983 decided on 15.1.1985 where after noticing the two earlier Division Bench decisions of this Court my Lord did not accept the contention of the State relying upon C. W. J. C. No. 3434 of 1983. I would have myself referred the case to a Division Bench if I would have entertained any doubt with respect to the case reported in 1977 P.L.J.R. 277. But the said decision has exhaustively dealt with the question and according to me rightly decided the question before if. 9. The next argument of Mr. Jha that the appointment of the petitioner as Headmaster by the Managing Committee on the 20th February, 1982, after permission was granted for establishment of school on 23.1.82 is stricken with the vice of statutory violation, namely ORDER :No. 129 dated 30.11.81 purported to have been made under section 3 (3) of the Act, needs consideration. There is no doubt that if prior to the nationalisation the appointment of the petitioner as Headmaster was required to be made by the Shiksha Seva Board, which was not done in this case, the Court cannot countenance the subversion of the statutory scheme regarding appointment and no mandamus can be issued. 10. The first question, therefore, that arises is (a) what is the scope of section 3(3) of the Act, (b) what is the status of Gazette Notification dated 30.11.81 and (c) whether its violation disentitles to the grant d writ of mandamus. 11. 10. The first question, therefore, that arises is (a) what is the scope of section 3(3) of the Act, (b) what is the status of Gazette Notification dated 30.11.81 and (c) whether its violation disentitles to the grant d writ of mandamus. 11. The scheme of section 3 manifests that under section 3(1) all non-government secondary schools are automatically taken over with effect from the 2nd October, 1980. Section 3 (2) refers to minority or proprietary or autonomous secondary schools which may volunteer for their 'take over subject to their complying and carrying out such conditions as may be laid down for their take over. Section 3(3) deals with the residuary schools not covered by section 3(1) and section 3(2). The only power which has been conferred under section 3(3) is the Government's power to lay down terms and conditions of take over and the Government appreciating the utility of such schools being taken over. The first four lines of the first paragraph of section 3(3) empower the Government to issue notification in the Official Gazette for take over of such schools and on such terms and conditions as the Government may deem proper. The words "such schools" would be those schools who received permission of establishment from the Bihar Secondary Education Board, or those schools which have been imparting Secondary Education have already applied for permission of establishment to the said Board before the date of take over. It is, therefore, manifest that these are the two kinds of schools in relation to which a notification of take over can be made. As to what terms and conditions it can provide for, the clue is supplied by the last two lines of the said paragraph and those are with regard to land, building, furniture, equipments and enrolment. The second-paragraph of the said sub-section (3) envisages constitution of a committee to scrutinise the qualification and suitability of teachers working against 9 posts of the school, one clerk and two ORDER :lies of such school before the promulgation of this Ordinance. Section 2(g) and section 2(h) define "Headmaster" and “Teacher". Curiously, there is no mention of the word "Headmaster" in this sub-section even though under sections 4(2), 4(3), 9, 10(9) and 12 Headmaster and teachers are treated as two separate entities. Section 2(g) and section 2(h) define "Headmaster" and “Teacher". Curiously, there is no mention of the word "Headmaster" in this sub-section even though under sections 4(2), 4(3), 9, 10(9) and 12 Headmaster and teachers are treated as two separate entities. There is no compulsion for take over under section 3(3) unless the utility of such school is proved in the eye of Government. There is also no power to terminate, demote or promote a Headmaster or a teacher or any employee of the school under the said sub-section. If the qualification and suitability of a teacher appeal to the Government, in my opinion, a notification for take over on such terms and conditions as the Government may deem proper with respect to such schools could be issued. I do not find any power of partial take over under the said provisions of the' Act. This, in my opinion, is the scheme of section 3(3) of the Act. I may, however, state here that in this case I am concerned with the Headmaster of the school who was appointed by the Managing Committee prior to its take over and further in the rake over notification (Annexure 1) no terms and conditions for take over have been laid down. 12. Now the question is what is the legal validity of Gazette Notification dated 30.11.81 which had been issued in the purported exercise of power conferred under section 3(2) of the Act. Mr. Jha at the outset contended that the said ORDER :is a rule made under the Act. Section 2(1) defines Rules which have to be made under section 15 of the Act. Admittedly it has not been so done. Section 4(3) envisages that alteration in the service conditions of teachers taken over could be made only by issuance of a rule made in the prescribed manner. Section 9 empowers the State Government to lay down the service condition of the Headmaster, teacher and. Admittedly it has not been so done. Section 4(3) envisages that alteration in the service conditions of teachers taken over could be made only by issuance of a rule made in the prescribed manner. Section 9 empowers the State Government to lay down the service condition of the Headmaster, teacher and. non-teaching staffs of the nationalised secondary schools and the Government has issued a notification in that regard on the 6th of June, 1983-See A Compendium to Important ORDER :s and Circulars On Bihar Secondary Education, page 893 Section 10 constitutes a Board to be called the School Service Board and under section 10(9) the School Service Board can make recommendations for appointment of teachers and for appointment or promotion of Headmasters of nationalized secondary schools to the Director in accordance with the Act and the Rules framed there under. Section 15 lays down the mode of making of the Rules and their placement before each House of the Legislature. I am, therefore, of the opinion that the Gazette Notification dated 30.11.81 cannot be deemed to be rules. Then what is the status of the said Gazette Notification ? To answer this question we have to see first what is laid down by the ORDER :. It lays down the terms and conditions for the purpose of granting permission of establishment of schools, the qualifications of the Headmaster needed and the appointment of tae said Headmaster to be made by the State Government on the recommendation of the Shiksha Seva Board-See A Compendium to Important ORDER :s and Circulars on Bihar Secondary Education, page 644. It also lays down matters with respect to building, fund, fixtures etc. In short, it lays down, that when permission of establishment of school, can be granted, what would be the requirement for, the establishment of school, how the Headmaster of the school has to be appointed and by whom, constitution of the Service Board, requirement of land, building, furniture, funds etc. According to Mr. Jha, after, the Government has granted permission for establishment of the school, even though the school continued t6 be a private institution, the Government through this ORDER :directed that the appointment of the Headmaster roust be made by the Stated Government on the recommendation of the Shiksha Seva Board. According to Mr. Jha, after, the Government has granted permission for establishment of the school, even though the school continued t6 be a private institution, the Government through this ORDER :directed that the appointment of the Headmaster roust be made by the Stated Government on the recommendation of the Shiksha Seva Board. In my opinion, Gazette Notification No. 129 dated 30.11.81 transgresses and goes beyond what, the State Government can lay down under section 3(3) of the Act. Mr. Rejendra Prasad Singh is quite correct in his sub. mission that the appointment of a Headmaster, while the school is still under private management, on the recommendation of the Shiksha Seva Board is contrary to the provisions of section 10(9) of the Act. The argument of Mr. Jha that once the Government has granted permission to establish school to the Managing Committee' the management and. control of the school automatically rest with the Government, even though the school remains a private institution, seems to be devoid of substance. Section 3(3) nowhere confers such power. Notification No. 129 dated 30.11.81 can only survive with respect to the conditions laid down by the said notification with regard to land, building, furniture, equipments and enrolment. I am further of the opinion that the State Government for the guidance of its officers can certainly lay down some guidelines for the State functionaries to take a decision whether a school would be taken over or not taken over. But once a notification of take over is made the appointment cannot be questioned because in arriving at the decision for take over the concerned authorities did not abide by the guidance. Notification No. 129 of 30 11.81, in my opinion, has no statutory force and its violation cannot be held to be stricken by the vice of statutory violation, some of the conditions being beyond the Act itself, particularly, with respect to the appointment of the Headmaster. 13. Section 4(2) and (3) is a statutory protection to the Headmaster and every teacher or other employees of the school taken over by the State Government and the statutory protection is that their services shall be deemed to be transferred to the State Government with effect from the take over and their terms and conditions of service can only be altered by the prescribed rules. This is explicit and mandatory. This is explicit and mandatory. Clusters of cases have veered round the interpretation of section 4(3) and section 4(3) of the Act after the decision in Yogendra Khan's case (supra) taking the same view, some of which are C.W.J.C.No. 4059 of 1983 decided on 24.8.84 by B.S. Sinha, J which case related to the Headmaster; C.W.J.C. No. 2166 of 1982 decided on 17.1.84. by Ali Ahmad, J.; C.W.J.C. No. 4227 of 1983 decided on 16.2.84; C.W.J.C. No. 4210 of 1983 decided on 9.12.83 and the .latest decision of this Court in C.W.J.C. No. 2825 of 1984 decided On the 17th September, 1984, (reported in 1985 PLJR 11 (NOC)] where S. K. Jha, J. observed that once a school is taken over it immediately brings into play the provisions of section 4(2) and section 4(3) of the Act and from the plain and express language of the aforesaid statutory provision it is quite clear that from the date .of taking over of the school the services of every teacher, Headmaster or other employees of the school shall be deemed to have been transferred to the State Government with effect from the date of taking over. -In my Lord's opinion ipso jure such teachers and employees become the employees of the State Government. The provisions of section 4(3) of the Act are not hedged in with any other limitation except that the- State Government has been empowered to give them such designation as it may choose. This decision of my Lord reiterates the view taken by me in Yogendra Khan's case (supra). It is needless to mention that a similar view has been taken by two Division Bench of this Court in L.P.A. No. 24 of 1977 decided on 21.284 and L.P.A. No. 64 of 1983 decided on 11.1.85. In this connection I may also refer to a JUDGMENT : of the Supreme Court, in Workmen v. Bharat Coking (1978 B.B.C.J. 63, S.C.) where their Lordships were considering section 17(1) of the Coking Coal Mines Nationalisation Act, 1972, which is similar to that of section 4(2) of the Act and their Lordships held that every person who has been immediately before the appointed day in the employment of a mine, shall become an employee of the Government and continue to do so as laid down in section 17. 14. 14. I may mention here that appointment of the petitioner is prior to the 6th June, 1983, and even prior to the nationalisation of the school. It is not the case of the State Government that the petitioner is unsuitable or unqualified to hold the post of Headmaster. In support of the fact that the petitioner was appointed Headmaster of the school, statements have been made in paragraphs 4 and 5 of the writ petition and this has not been denied in paragraph 3 of the counter-affidavit beyond stating that these are matters of record. On the contrary in paragraph 7 of the supplementary counter-affidavit the State has admitted the fact that the petitioner was appointed as Headmaster prior to the take over of the school. The members of the Special Board accepted the fact that the petitioner was Headmaster and submitted the report. This fact has also been accepted in paragraph 3 of the counter-affidavit. From the counter-affidavit it is not discernible that the petitioner was not found suitable for appointment as Headmaster. On the contrary, the only point urged by Mr. Jha is that since he was not appointed on the recommendation of the Shiksha Seva Board, his appointment as Headmaster is non est and, therefore, •he was shown as an assistant 'teacher. As I have stated earlier, section 3(3) does not confer such a power but only a discretion on the State Government either to take over or not to take over and once the State Government has taken a decision to take over the school, the consequences as laid down in section 4(2) would automatically follow. I refuse to read in section 3(3) the power of the State Government either to remove the Headmaster or to demote him. Section 3(3) bas to be read in conjunction with Section 4 of the Act. The second paragraph of section 3(3) confers power on the State Government to scrutinise the qualification and suitability of teachers and not that of a Headmaster. Headmaster bas been separately treated and it has a distinct position of its own in the scheme of the Act. The petition, therefore, must be allowed. 12. The writ petition accordingly succeeds. Let a writ of mandamus be issued to the respondents to treat the petitioner as Headmaster of the concerned school. Headmaster bas been separately treated and it has a distinct position of its own in the scheme of the Act. The petition, therefore, must be allowed. 12. The writ petition accordingly succeeds. Let a writ of mandamus be issued to the respondents to treat the petitioner as Headmaster of the concerned school. As a necessary corollary it follows that the petitioner must' be paid his legal dues from the date of take over within six months from today. His current salary as admissible to a Headmaster must be paid month by month till such time the terms and conditions of his service are changed in accordance with law. Hearing- fee assessed at Rs. 250/-.