Judgment S. B. Sinha, J. 1. In this application the petitioner has sought for issuance of an appropriate writ for quashing an order contained in Memo no.1703 dated 28-7-1992 whereby her claim for the post of Head Mistress jawhar Kanya Uchch Vidyalaya Jhing Nagar, Bihar Sharif Nalanda, has been rejected and also for issuance of a writ of mandamus commanding upon the respondents to regularise her services as Head Mistress in the aforementioned school. 2. The fact of the matter lies in a very narrow compass. 3. The Jawahar Kanya Uchch Vidyalaya was established in the year 1972. The petitioner was appointed as an Assistant Teacher on 1-1-1972. The said school has been temporarily recognised by the Secondary School examination Board and the permanent recognition was therefor granted on 1-9-1979. The management of the said school in terms of the provisions of the Bihar Non-Government Secondary Education (Taking over of management and control) Act, 1982 has been taken over with effect from 1-9-1979. 4. According to the petitioner, one Smt. Savitri Kutnari was the incharge Headmistress of the said school. The petitioner was therefore directed to act as Acting Headmistress by an order dated 16-8-1980 as contained in Annexure 3 to the writ application. 5. By an order dated 30-12-1980 as contained in Annexure 4 to the writ application, the petitioner was directed to continue to act as Headmistress of the said school till permanent appointment of the Head Mistress is made therein. 6. On or about 6-6-1985 the petitioner filed an application before the respondent No.4 for appointing her on the post of Headmistress of the said school (Annexure 5 ). The District Education Officer, Nalanda also submitted a report to the respondent No.4 recommending the case of the petitioner for appointing her as Acting Headmistress. Thereafter the service records of the petitioner and other eligible teachers were called for which had been sent to the respondent No.3 by the respondent No.2 by his letter dated 22-11-1991 (Annexure 9 ). 7. By reason of the impugned order dated 28-7-1992 as contained in annexure 10 to the writ application the petitioners claim has been rejected. 8. In this case a counter affidavit has beed filed on behalf of the respondents. In the said counter affidavit it has been stated that the school in question was opened and partially recognised from 1-5-1978. 9. By reason of the impugned order dated 28-7-1992 as contained in annexure 10 to the writ application the petitioners claim has been rejected. 8. In this case a counter affidavit has beed filed on behalf of the respondents. In the said counter affidavit it has been stated that the school in question was opened and partially recognised from 1-5-1978. 9. According to the respondents the claim of the petitioner was rejected on the ground that she did not fulfil the criteria for appointment as founder Headmaster as she did not have the requisite experience of seven years from the date of recognition of the said school. 10. Mr. Ram Pravesh Sharma, learned counsel appearing on behalf of the petitioner has raised a short question in support of this application. The learned counsel submitted that the petitioner has been continuing to act as Headmistress incharge of the school in question for a long time and as such there is absolutely no reason as to why her services could not be regularised. 11. The learned counsel in support of this contention has strongly relied upon a decision of the Supreme Court of India in N. S. K. Nayar V/s. Union of India, AIR 1992 SC 1574 . 12. In this case the services of the teaching and non-teaching staff working in the said school had been taken over with effect from 1-9-1979. Admittedly at the material time Shrimati Sabitri Kumari was the Incharge headmistress and she went on leave with effect from 16-8-1980. 13. Although according to the petitioner, the said Srimati Sabitri devi had been placed under suspension it is not known as to what order has been passed in her case in the disciplinary proceeding against her. So long the aforementioned Sabitri Devi services had not been terminated, the post of Headmistress of the said school did not fall vacant. It is, therefore, not a case where the post of Headmaster of the school fall vacant prior to 2-10-1980. In this view of the matter, therefore, the school cannot be treated as an unit for the purpose of appointment to the post of a Headmaster. 14. Bihar Non-Government Secondary Schools (Taking over of management and Control) Ordinance, 1980 (Ordinance No.146 of 1980)was promulgated by the Government on 11th August, 1980. In this view of the matter, therefore, the school cannot be treated as an unit for the purpose of appointment to the post of a Headmaster. 14. Bihar Non-Government Secondary Schools (Taking over of management and Control) Ordinance, 1980 (Ordinance No.146 of 1980)was promulgated by the Government on 11th August, 1980. Clause 21 of this ordinance repeals Act 25 of 1976, and pursuant to Clause 3 (1) thereto, the Non-Government Secondary Schools, subject to certain excepted classes, were nationalised by the Government with effect from 2nd October, 1980. After re-promulgations of the said ordinance containing identical provisions, the same was enacted as Bihar Non-Government Secondary Schools (Taking over of Management and Control) Act, 1981 (Bihar Act 33 of 1982) hereinafter as the Act only ). Sec.4 (3) of the Act, inter alia, provides that except the age of superannuation of the Headmasters, teachers and other employees of the schools taken over by the State Government, which shall be 58 years, other terms and conditions of their service shall continue to be the same as these were the taking over of the management and control of the schools until any alteration is made by the State Government in the prescribed manner. Sec.2 (k) of the Act defines "prescribed" to mean prescribed by the Act or the Rules framed thereunder. The power to frame rules is provided under Sec.15 of the Act. Sec.16 of the Act provides that if any difficulty arises in giving effect to the provisions of the act or the rules framed thereunder, the State Government may pass such order as it appears to be necessary for the purpose of removing the difficulty. Similar were the provisions under the preceding ordinances. 15. The State Government purporting to exercise its power under the provisions of the Act, issued a circular contained in memo No.510 dated 20th November, 1981, in relation to the promotion to the post of Headmaster in the nationalised schools. This circular, inter alia contemplates that in the nationalised secondary schools, the vacant post of the headmasters existing from before the date of nationalisation i. e.2-10-1980 should be filled up by promotion from amongst the teachers of the school in question having the requisite eligibility and fitness treating the school as an independent unit. This circular, inter alia contemplates that in the nationalised secondary schools, the vacant post of the headmasters existing from before the date of nationalisation i. e.2-10-1980 should be filled up by promotion from amongst the teachers of the school in question having the requisite eligibility and fitness treating the school as an independent unit. It also provides that so far as the vacancy while fell on 2-10-1980 or thereafter, the promotion to the post of Headmaster should be made in accordance with the rules after preparing a cadre of the teachers and their seniority list. 16. Pursuant to the powers under Sec.15 of the Act, the State government framed rules, which as stated above, came into force on 26-9-1983. In these rules provisions have been made in respect of filling up of the post of the Headmasters by way of promotion as well as by direct appointment. Rules 3, 4, 6 and 7 are relevant for the purpose of this case. As per Rule 6 (3) there will be a state cadre of Headmaster and under rule 7 (ka) (1), 80% of the vacancies on the post of headmasters are to be filled up by promotion and 20 % by direct appointment, keeping in view the eligibility and the procedures laid down in this regard under the Rules. Under Rule 20 (3), the State Government has been empowered to issue explanation/order by notification, which will be deemed to be part of the rules. Rule 21 of the Rules having some material bearing on the issues involved reads thus: "21. Repeal and saving.-Prior to the enforcement of these Rules, any Rules made on the matters concerning these Rule s by the dissolved Board of Secondary Education or by the State government or any order issued with respect thereto, shall be deemed to have been repealed from the date these rules came in force. (2) Notwithstanding much repeal, anything done or any action taken in exercise of any power conferred by or under the said orders shall be deemed to have done or taken in the exercise of powers conferred by or under these Rules, as if these Rules were in force on the day on which such thing or action was done or taken. " 17. " 17. The State Government, in exercise of its power under Rule 20 (3)of the Rules, issued a notification dated 6th July, 1983, containing its decision that the Government Order No.510 dated 20-11-1981 will remain effective till the disposal of the matters pending for promotion to the post of Headmaster, which had fallen vacant prior to 2-10-1980. As provided under the Rules this Government order has to be deemed to be a part of the Rules, itself. 18. In the above background of the legal provisions and the statutory rules, it has been submitted on behalf of the petitioners that the post of the headmaster, which had fallen vacant even subsequent to the date of nationalisation and prior to the enforcement of the Rules, has to be filled up from amongst the seniormost eligible teacher of the school by treating the school as an independent unit, in view of the above referred Government circular dated 25-7-1977 as modified from time to time. As noticed hereinbefore, the claim of the petitioner is that she should have been regularised in the post of Headmistress as she had been working therein for a long time. 19. It is now well known that in a case where the conditions of service are governed by any statute or statutory rules, regularisation in service by way of absorption would be violative of the said Rules as also Article 309 of the Constitution of India. It is not well known that regularisation cannot be a mode of recruitment. Further no recruitment can be made in contraversion of the provisions of the statutory Rules or Article 16 of the constitution. 20. The question as to whether the petitioner should have been treated to be a founder Headmistress is essentially a question which would depend on its determination as to whether the petitioner fulfils the criteria therefor. 21. The petitioner in the writ application had not been given the details as to when the acquired the necessary requisite qualifications, for the purpose of considering her case as a founder Headmaster in terms of the circular letter dated 20th November, 1981 as contained in Annexure B to the Counter Affidavit. 22. However, it appears in the said counter affidavit the State has not taken into consideration the circular No.1072 dated 9-11-1987, in terms of clause 2 (ga) whereof the Government Order 15 dated 20-11-1981 was amended. 22. However, it appears in the said counter affidavit the State has not taken into consideration the circular No.1072 dated 9-11-1987, in terms of clause 2 (ga) whereof the Government Order 15 dated 20-11-1981 was amended. In our opinion, therefore, the claim of the petitioner should be considered, if the post of headmaster had fallen vacant keeping in view the aforementioned circular letters but subject to an in conformity with the statutory rules of 1983. 23. However, as the post of Headmaster did not fall vacant prior to 2-10-1980, the same can now only be filled up in terms of the provisions of 1983 rules as amended in 1988. 24. The matter relating to filling up of the post of Headmistress of the said school should thus be governed by 1983 Rules and thus the question of regularisation of the petitioner therein does not arise. The said rules have been declared intra vires by a full bench of the court in Ram Adhar Ojha V/s. State of Bihar, 1992 (1) PLJR 722. 25. Keeping in view the statutory provisions, there cannot be any doubt that the matter of promotion of the petitioner who is a teacher in a nationalised Secondary School has to be considered in terms of the aforementioned rules and it is for the appropriate authorities of the State of bihar to take effective steps for filling up of the post by promotion and/or direct appointments in accordance with the statutory provisions as enforced at the time when effective steps had been taken for filling up of those posts. 26. In N. K. S. Nayars case (supra) upon which strong reliance has been placed by Mr. Sharma, there existed statutory rules for filling up of post in the senior time scale in an officiating capacity to hold charge by promoting the members of Telegraph Engineering Service Class II who were on the approval list for promotion to the Junior time scale. Sharma, there existed statutory rules for filling up of post in the senior time scale in an officiating capacity to hold charge by promoting the members of Telegraph Engineering Service Class II who were on the approval list for promotion to the Junior time scale. The Supreme Court, having taken into consideration the scheme of the rules, held that the intention of the framers of the Rule could not that temporary appointment cannot be permitted to go on for 10 to 15 years as appointment for such a long period cannot be considered to be purely temporary/officiating or to be held charge and in that situation it was held that seniority would be counted in case of promotee officers who have worked in S. T. S. for a continuous period of 5 years. 27. The Supreme Court further observed :- "we make it clear that the petitioners or other officers similarly situated who have already retired shall not be entitled to the benefit of this judgment. We further direct that none of the direct recruits who have already been promoted to STS, JAG or sag shall be reverted as a consequence of this judgment, if necessary the Government shall create supernumerary posts in sts, JAG and SAG to accommodate the petitioner and other officer similarly situated. " 28. It is, therefore, clear that decision was rendered upon interpretation of the relevant rules involved in the said case. 29. In this case, this court is concerned with the statutory rules framed under the Act, the scheme whereof is absolutely different. 30. The scheme of the 1983 Rules has been considered by a Bench of this court of which one of us is a member in Satyadeo Prasad Verma V/s. State of Bihar in CWJC No.2390 of 1989. 31. For the reasons aforementioned, no relief can be granted to the petitioner in this application. 32. However, it gcas without saying that the claim of the petitioner appointment in the post of Headmistress should be considered alongwith all gother eligible candidate keeping in view the provisions of 1983 Rules as also the observations made hereinbefore. 33. This application is, therefore, dismissed but without any order as to costs. Application dismissed.