Judgment S.B.Sinha, J. 1. This writ application is directed against an Office Order of the District Superintendent of Education, Rohtas contained in Memo No. 2816, dated 26-6-1982 thereby Shri Ram Narain Singh (respondent No. 5) was sought to be transferred as the Headmaster to the petitioners school in place of petitioner as contained in Annexure-2 to the writ application as also a letter, dated 16-8-1V82, issued by the Deputy Inspector of School, Bikramganj whereby and whereunder the petitioner was directed to hand over charge to the respondent No. 5. The petitioner in this writ application has further prayed for issuance of a writ of or in the nature of mandamus directing the respondent authority to recognise the petitioner as headmaster of Middle School, Chhulkar, Police Station Bikramganj District Rohtas and to pay his salary on the post of the headmaster in the admissible scale of B. A. trained teacher. 2. The facts of the case lie in a very narrow compass and are not much in dispute. The middle school at Chhulkar was established in the year 1970 and the petitioner was appointed allegedly as a founder headmaster therein with effect from 31-8-1970 on temporary basis and on completion of three years of his service he was confirmed by the Managing Committee in the year 1974 by Resolution, dated 16-4-1974. 3. The petitioner has asserted that at the time of his initial appointment he was merely a graduate, but in December, 1973, he passed the B. Ed. Examination. According to the petitioner the Managing Committee of the school had been paying the scale of pay admissible to an untrained teacher from the date of his appointment and after he obtained the B. Ed. degree as mentioned thereinbefore he was being paid the scale pay of a trained graduate. It is admitted that the Governor of Bihar promulgated an Ordinance known as Bihar Non-Government Elementary School (Taking over management and control) Ordinance, 1976, which although was signed by the Government on 3-2-1976, but the same was given retrospective effect and restrospective operation with effect from 1-1-1971. The said ordinance was later on repealed and replaced by a Legislative Act known as Bihar Non-Government Elementary Schools (Taking Over of control) Act, 1976 (Bihar Act No. 30 of 1976) (hereinafter referred to as the Bihar Act of 1976) which also given retrospective operation with effect from 1-1-1971. 4. The said ordinance was later on repealed and replaced by a Legislative Act known as Bihar Non-Government Elementary Schools (Taking Over of control) Act, 1976 (Bihar Act No. 30 of 1976) (hereinafter referred to as the Bihar Act of 1976) which also given retrospective operation with effect from 1-1-1971. 4. By reason of the letter, dated 6-3-1981, the Special Secretary to the Government of Bihar in the department of Education Officer, Rohtas directed that the aforementioned school be taken over in terms of Sub-section (4) of Sec.3 of the aforesaid 1976 Act, wherefore a communication was sent to the Secretary of the Managing Committee by the District Superintendent of Education by his Memo No. 457, dated 27-8-1981. In the aforementioned letter, which is contained in Annexure-1 to the writ application, the scale of pay of the petitioner payable to him was shown as matric trained. The petitioner allegedly made a representation against the aforementioned purported arbitrary action on the part of the respondents in September. 1981. By the impugned order, dated 26-6-1981, the respondent No. 5 was transferred as headmaster of the aforementioned school treating the post of headmaster as vacant in Annexure-2 to the writ application. The petitioner again filed a representation on 3-7-1982 as also on 17-8-1982 to the Deputy inspector of School, Bikramganj and District Superintendent of Education, Rohtas respectively. Pursuant to the aforementioned office order, dated 26-6-1982 respondent No. 5 joined the office of the Deputy Inspector of School, Bikramganj, who has directed the petitioner to hand over charge of the Office of the Headmaster. By a letter, dated 16-8-1982 which is contained in Annexure-4 to the writ application. 5. In this case a counter-affidavit has been filed on behalf of the respondent Nos. 3 and 4. In the said counter-affidavit it has been contended that the State of Bihar had issued a Notification bearing No. 140, dated 23-1-1980 in purported exercise of its power conferred upon under Section 8 of the said 1976 Act, which was communicated to all concerned by a letter addressed by the Special Secretary of the State of Bihar, Education Department to the Director (Elementary Education), dated 2-5-1980, wherein inter alia the policy relating to conditions of take over of the said school has been laid down. In terms of the said purported policy decision a trained teacher was to get the scale of pay admissible to the trained teacher from the date of taking over of the said school and so far as the untrained teachers are concerned, they would be paid salary as a matric untrained teacher. A copy of the said letter is contained in Annexure-A to the counter-affidavit. 6. Mr. Ganesh Prasad Singh, learned Counsel appearing on behalf of the petitioner at the very outset submitted that the petitioner at this juncture does not want to challenge the order of the authorities transferring the respondent No. 5, but submitted that the impugned order as contained in Annexures-2 and 4 to the writ application are wholly illegal and without jurisdiction in so far as the petitioner has sought to be treated merely as an Assistant teacher and has been given the scale of pay admissible to matric trained teacher. The learned Counsel has further submitted that in terms of Sec.3 of the 1976 Act read with Sub-section 2 of Sec. 4 thereof, the conditions of service of all the teachers were to remain unaffected unless the same are duly altered. It is an admitted position that up till now no rule has yet been framed in terms of Section 7 of the aforementioned 1976 Act. 7. Mr. Ganesh Prasad Singh in this connection has relied upon the following decisions in the case of Chandra Kumar Chakravarty V/s. The Deputy Director of Schools and Ors. 1979 B.B.C.L. 378, and in the case of Krishna Prasad V/s. The State of Bihar 1982 P. L. J. R. 214, as also in the case of Smt. Maya Raman V/s. State of Bihar and Ors. 1984 B.L.J. 651. Mr. Singh developing his arguments submitted that Sec. 4 (2) of the 1976 Act confers a benefit upon the officers, teachers and employee of the taken over school and such benefits can not be taken away by an executive fiat. It has further been submitted that the State of Bihar could not have passed an order laying down that 11 trained teachers shall be getting his salary in the scale of pay admissible to a matric trained teacher irrespective of the fact that he prior to the take over of the school had been getting the scale of pay admissible to a B. A. trained teacher. According to Mr. According to Mr. Singh, the terms and conditions of service of a teacher or other employee of a taken over school can be altered only by taking recourse to the provisions of the Act meaning thereby framing a rule and not otherwise. It has further been contended that as the petitioners was appointed as a Headmaster of the aforementioned school and had been continuing as such, no order could have been passed altering the terms and conditions of service is to be done by reason of Annexure-2 and 4 appended to the writ application. The learned Counsel has further submitted that the purported executive fiat as contained in Annexure to the counter-affidavit having been issued by the State of Bihar in exercise of its power conferred upon it under Section 8 of 1976 Act, the same is ultra-vires as has been held by a Full Bench of this Court in Krishna Deo Mishra V/s. The State of Bihar and Ors. 1987 (35) B. L. J. R. 784. 8. Mr. M. S. Madhup, the learned standing Counsel not appearing on behalf of the respondents on the other hand submitted that in terms of Sec.3 read with Section 4 of the aforementioned 1976 Act, the State had the power to pass necessary direction and import condition for taking over of the said school including the condition that the scale of pay admissible to a trained teacher shall be in the scale of pay payable to a matric trained teacher. According to the learned Counsel the State had the requisite jurisdiction to pass such an order in terms of Section 8 of the aforementioned 1976 Act. The learned standing Counsel has also relied upon a Division Bench decision of this Court in Tarkeshwar Singh V/s. State of Bihar and Ors. 1987 P.L.J.R. 1017 9. In view of the judgment of this Court in Pratibha Singh V/s. State of Bihar C.W.J.C. No. 2159 of 1982 it is not necessary to dwell with the respective contentions in details as the points raised in this writ application have been discussed in details therein. In Pratibha Singhs case it has been held that the Full Bench decision in Krishnadeo Mishras case (supra) is not a binding precedent in view of the several Supreme Court decisions to the contrary. In Pratibha Singhs case it has been held that the Full Bench decision in Krishnadeo Mishras case (supra) is not a binding precedent in view of the several Supreme Court decisions to the contrary. It has further been held in the aforementioned case that although a notification might have been issued wrongly by the State of Bihar in purported exercise of its power conferred upon it under Section 8 of the said Act, and although such an order although might not have been thereunder under some reconception issued, but the same is not invalidated in view of the fact that the State of Bihar had the requisite power to issue such a direction in terms of Article 162 of the Constitution. In the said judgment it has categorically been held that the power of the State of Bihar under Article 162 of the Constitution is absolutely unfettered, but original of course to the other provision of the Constitution. 10. From a perusal of Annexure A to the counter-affidavit, it is evident that the contents thereof are mainly reproduction of the Government order No. 140 dated 23-1-1980. It evidently fulfils all the criteria of Article 162 of the Constitution. From a perusal of the said letter dated 2nd May, 1980 and as contained in Annexure A to the counter-affidavit, there is absolutely no doubt that the same is in tune with the Government decisions taken in that regard. However, by reason of the said Office order, the terms and conditions of a teacher can not be altered to his prejudice unless, the same are duly altered. Evidently, the same has not been done. It must, therefore, be held that in view of the clear and unambiguous under Sec. 4 (2) of the 1976 Act, the tenure, remention and either terms and conditions of. The employees, teachers and other officers of the school which has been taken over in terms of Sec.3 (3) of the 1976 Act would remain unaffected till the same are duly altered. In this connection, the petitioner was bound to be recognised as a Headmaster of the school in question and respondents are further liable to pay the same salary, which was being paid to them till the conditions of service of teachers, officers and other employees of the school are duly altered by them, 11. In this connection, the petitioner was bound to be recognised as a Headmaster of the school in question and respondents are further liable to pay the same salary, which was being paid to them till the conditions of service of teachers, officers and other employees of the school are duly altered by them, 11. In this view of the matter this writ application is allowed and the impugned order as contained in Annexures 2 and 4 of the writ application are hereby quashed to the extent mentioned hereinbefore and the respondents are hereby directed to treat the petitioner as a headmaster and pay to him the salary admissible to B.A. trained teacher in accordance with law unless his conditions are duly altered by the State of Bihar. 12. However, in the facts and circumstances of the case there will be no order as to costs.