Judgment Radha Mohan Prasad, J. In this application initially the petitioner had prayed for quashing of the order of Director, Secondary Education-cum-Joint Secretary as contained in Memo no. 377 dated 30.3.1984 (annexure-4) whereby and where under the Director, Secondary Education (respondent no. 2) in exercise of the power under section 3 of the Bihar Non-Government Secondary School (Management and Take Over) Act, 1981 (hereinafter referred to as 'the Act') appointed 8 teachers, one clerk and two orderly after granting permanent recognition to Dewraha Baba High School. Pach Benia in the district of Siwan (hereinafter referred to as the School). However, in view of the later developments, learned Counsel for the petitioners does not press for quashing of the said notification, but prays that as a vacancy on the post of Physical Training Instructor existed at the relevant time and still exists in the school, the respondents be directed to treat the petitioner as Assistant teacher in the said school and to pay the salary from 30th March, 1984 with other consequential benefits. 2. The short facts are that in December, 1981 the school was established and started functioning from 4.1.82 imparting education up to Secondary Standard under the Management of a Managing Committee, then constituted. On 11.11.82 the petitioner who was B.A. and had done Physical training, was appointed as Asst. Teacher (Physical Training Instructor) vide annexure 1, and joined the said post on 13.11.82. The State Government vide Annexure 2 granted permission for establishment of the school on 18.10.82. On the request of the District Education Officer, the Director (Respondent no. 2) constituted Special Board for inspection and submission of its report in connection with the take over of the school. The said Special Board inspected the School and submitted its detailed report on 13.1.83, a true copy where of has been annexed as annexure 3 to the writ application. Later, the said report was considered by a three men Committee constituted under section 3 (3) of the Act, and vide notification dated 30.3.84 (annexure 4) already referred to above, decided to grant permanent recognition to the school and appointed 8 teachers including one Headmaster, one Assistant and 2 Orderlies in the school on the basis of the aforesaid recommendation of the Special Board It is stated that although the name of the petitioner was included in the list of teachers recommended by the Special Board at sl. no. no. 12, but he was not appointed along with the aforementioned 8 teachers, vide aforesaid notification dated 30th March, 1984 (annexure 4). It is useful to quote here the names recommended by the Special Board upto Serial no. 12 and the names of the persons appointed vide annexure 4. Names recommended by Special Board. 1. Sri Parshuram Singh, Headmaster. 2. ….Abhimanyu Singh, Co-teacher & Asst. Headmaster (English) 3. ….Parshuram Singh, Science teacher (Math. Physics) 4. …Dhrubji Upadhyay, Sanskrit teacher. 5. …Deokumar Singh, Science teacher. (Biology) 6. …Sudhakar Upadhyay, Hindi teacher. 7. …Rajdeo Parbat, Hindi teacher (History teacher) 8. ….Pramod Kumar Choudhary, Economics 9. …Surya Narayan Singh Science teacher. 10. …Yogendra Kumar Singh, History/Social Science teacher. 11. …Hridayeshwar Panday, Geography teacher. 12. ….Harbdeshwar Singh, Physical training. Names of Persons appointed 1. Sri Parshuram Singh, Headmaster. 2. …Abhimanu Singh, Asst. teacher. 3. …Parshuram Singh, Asst. teacher. 4. …Dhrub Ji Upadhyay, Asst. teacher. 5. …Deokumar Singh, Asst. teacher. 6. …Sudhakar Upadhyay, Asst. teacher. 7. …Pramod, Asst. teacher. 8. …Sudeshwar Pandey, Asst. teacher. 9. …Manan Prasad Singh, clerk. 10. …Ramu Prasad, Orderly. 11. …Suryanath Singh, Orderly. 3. In paragraph 11 of the writ application it is stated that one of the aforesaid appointees namely Sri Hrideshwar Pandey, whose name is at sl. 11 in the report of the Special Board, did not join as he had been appointed as Asst. teacher by the School Service Board vide order dated 1.7.83. Thus, according to the petitioner, the name of Sri Pandey at sl. no. 8 (inadvertantly typed as Sudeshwar Pandey instead of Hrideshwar Pandey) was wrongly included in the notification of appointment as contained in annexure 4. It is further contended that at the time of take over of the school, the position of the petitioner was well within the sanctioned strengh. The petitioner claims to have immediately filed a representation before respondent no. 2 on 26.5.84 for redressal of his grievence and requested him to approve his service against the sanctioned unit of physical Instructor. 4. Mr. Ganesh Prasad Singh, learned Counsel for the petitioner has submitted that under sub-section(3) of section 3 of the aforesaid Act, which, at the relevant time was in the form of Ordinance of 1989 the State Government, vide its notification bearing no. 129 dated 30.11.81 framed a rule for adopting the procedure for take over of the School. 4. Mr. Ganesh Prasad Singh, learned Counsel for the petitioner has submitted that under sub-section(3) of section 3 of the aforesaid Act, which, at the relevant time was in the form of Ordinance of 1989 the State Government, vide its notification bearing no. 129 dated 30.11.81 framed a rule for adopting the procedure for take over of the School. It was further submitted that earlier to the aforesaid notification the Government had issued instruction, vide resolution no. 2064 dated 4.10.80 in regard to the policy relating to creating of the post in the non-government secondary school as also in regard to the appointment of teachers is different categories/subjects. The different categories as provided in the said resolution are as follows:- fo”k; f’k{kdksa dh la[;k 1- iz/kkuk/;kid 1- 2- Hkk”kk 3- ¼1 f’k{kd vfuok;Zr% vaxzsth ds gksaxs rFkk ,d laLd`r ds½ 3- xf.kr ,oa foKku 2- 4- ekufodh 3- 5- ¼d½ ‘kkjhfjd f’k{kk 1- ¼dsoy ckyd fo|ky;ksa esa½ vuqns’kd ¼[k½ laxhr f’k{kdk 1- dsoy ckfydk fo|ky;ksa esa 6- vYila[;d f’k{kd 1@11 a5. Learned Counsel submitted that the said Government Resolution has also been noticed in the aforesaid Govt. notification dated 30th November, 1981 which has been held to have statutory force by the Full Bench of this Court in the case of Ram Ballabh Pd. Singh Vs. the State of Bihar and others (1986 P.L.J.R. 373) at para 20. 6. No counter affidavit has been filed on behalf of the respondents although I find from the order shrett of 15.3.91 that at the request of the Counsel appearing on their behalf the matter was adjourned for three weeks to enable him to seek instructions in the matter, and on 12.4.94 the application was admitted for hearing as no counter affidavit had been filed. Further, liberty was given to the learned Counsel for the State to file counter affidavit within one month. Thereafter, the matter was listed for hearing in May, 1994 and lastly it was taken up for hearing on 26.7.84 and concluded on the same day, but no counter affidavit has been filed uptill now. However, Mr. Jha Government Pleader no. 2 today appeared and submitted orally that an the 9 posts of teachers in the school are filled up according to the recommendation of the Special Board and that no vacancy exists in the said school. However, Mr. Jha Government Pleader no. 2 today appeared and submitted orally that an the 9 posts of teachers in the school are filled up according to the recommendation of the Special Board and that no vacancy exists in the said school. In regard to the vacancy which occured due to non-joining of Sri Hrideshwar Pandey, it was submitted by the learned Government Pleader that in his place one Sri Yogerdra Kumar, Whose name is at sl. no. 10 of the report of the Special Board, was appointed by notification no. 81 dated 10. 8. 84 issued by the office of the Director, Secondary Education. It was also submitted by the learn ad Government Pleader that the representation filed by the petitioner is still pending and as and when vacancy would be available the petitioner would be appointed against the said vacancy. 7. In reply, learned Counsel for the petitioner submitted that the aforementioned oral 'submission on facts advanced by the learned Government Pleader cannot be accepted in the absence of any counter affidavit filed on behalf of the respondents. Further, it was submitted that it is not possible for the petitioner to ascertain the correct position right now. However, learned Counsel also submitted that even if it is accepted that the aforesaid Sri Yogendra Kumar Singh was appointed as Assistant Teacher (history) On the vacancy occurring due to non-joining of Sri Hridayeshwar Panday, yet the total number of vacancy filed would come to only 8, whereas, as per the aforementioned Government Resolution, in all there are nine posts sanctioned for appointment of teachers including the Headmaster in a non-Government Secondary School. The petitioner being the next man in the list of the persons recommended by the Special Board was entitled for appointment as Asst. Teacher. 8. The different categories mentioned in the Government resolution dated 4.10.80 for appointment amongst the teaching staff are one Headmaster, three Asst. teachers ill the language, out of whom, one is to be appointed for English subject and one for Sanskrit, two for Mathematics and Science and three for Humanity besides one as physical training instructor (only for Boys school) and one as music teacher (only for girls school) and one teacher is to be appointed from amongst the minority community. Thus, the total number comes to twelve. Thus, the total number comes to twelve. However, in the notification dated 30th November, 81 referred to above, it has further been clarified that the maximum number of teacher in a school shall not exceed 9 including headmaster as has been interpreted in the aforementioned Full Bench decision in the case of Ram Ballabb pd. Singh (supra). 9. From the recommendation of the Special Board (annexure 3) I find that sl. no. 1 is the headmaster and the teachers at sl. nos. 2, 4, 6, are in category 2 i.e. 'language' Sl. nos. 3, 5, and 9 arc in the third category, i.e. 'Math & Science' and sl. nos. 7, 8, 10, 11 and 12 (petitioner) arc in the fourth category. Out of the aforesaid sl. no. 1 has already been appointed against the post of headmaster as in-charge bead-master, and sl. nos. 2 to 6 as Asst. teacher vide notification contained in - annexure 4, and even assuming that sl. no. 10 has also been appointed as per the submission of the learned Government Pleader, still in all only 8 appointments as teacher have been made in the school and the 9th vacancy remained unfilled. 10. So far as the teachers at sl. nos. 7 and 9 of the recommendation of the Special Board, nothing has been brought on the record, nor any submission has been advanced by the learned counsel for the parties as to why they have not been appointed. Thus, I do not wish to express any opinion in regard to their claim if any. Thus the next person in the recommendation for appointment as teaching staff made by the Special Board is the petitioner. 11. Mr. Singh, learned Counsel for the petitioner further submitted that under the Government resolution dated 4th October. 1980 read with the Government notification dated 30th November, 1980 referred to above the only possible interpretation for appointment against the different categories would be that for amongst category 4 (Humanity) one teacher has to be appointed as Physical Training Instructor for Boys school and in the case of girls school one teacher has to be appointed as Music teacher. 1980 read with the Government notification dated 30th November, 1980 referred to above the only possible interpretation for appointment against the different categories would be that for amongst category 4 (Humanity) one teacher has to be appointed as Physical Training Instructor for Boys school and in the case of girls school one teacher has to be appointed as Music teacher. Thus according to the learned Counsel in any event the petitioner who was appointed by the earst-while Managing Committee as Physical Training Instructor in the school, and was the only eligible teacher available for appointment against the said category was entitled for appointment in preference to others and the action of the respondent no. 2 in not appointing the petitioner as Asst. teacher has been arbitrary and contrary to the rules as contained in aforementioned Government resolution and the Government notification dated 30th November 1981. 12. The learned Counsel for the petitioner also submitted that appointment of the Headmaster, in fact will come in the category of ‘language’ as is evident from the letter of D.E.O. Siwan contained in annexure 7, in which against his name, the subject mentioned are Hindi and English. Thus, according to him the appointment of sl. no. 6 Sri Sudhakar Upadhya against Hindi subject would be extra in the category Language and in which case also the petitioner was entitled for preference for appointment as teacher in the school, In reply learned Counsel appearing for the respondents submitted even if the aforementioned submission advanced on behalf of the petitioner is accepted, yet he cannot claim appointment in preference to Sl. nos. 7 and namely, Sri Rajdeo Parbat and Surya Narain Singh, whose names find place above him in the category 'Humanity'. I am unable to accept this submission of the learned Counsel for the respondents. 13. I find from the recommendation of the Special Board that sl. no. 9 was working as teacher in Science subject in the school before its take over and against the name of sl. no. 7 I find that the subject mentioned is Hindi besides History. However, in the absence of the details about them and also, as they are not party in the present writ application, I do not want to express any final opinion in regard to them. 14. However, it is not in dispute that one vacancy of Asst. no. 7 I find that the subject mentioned is Hindi besides History. However, in the absence of the details about them and also, as they are not party in the present writ application, I do not want to express any final opinion in regard to them. 14. However, it is not in dispute that one vacancy of Asst. teacher in the school remains unfilled and there appears to be some substance in the argument made by Mr. Singh, learned counsel for the petitioner that from reading of the Government resolution with the notification referred to above, the only possible interpretation is that from amongst the vacancy against fourth category namely, Humanity one teacher has to be appointed as Physical Training Instructor in the Boys school and Music teacher in the Girls School. 15. Thus, in my opinion, the petitioner in any case was entitled for consideration of his case for appointment as teacher/Physical Training Instructor and the action of respondent no. 2 in not considering his case for the said appointment is arbitrary and violative of the provisions contained in the Government Resolution read with Government Notification referred to above. 16. In the result, the writ application is allowed. The Director (respondent no. 2) is directed to for with consider the case of the petitioner for appointment as Physical Training Instructor in the school and in the event of his appointment as Physical Training Instructor in the school he would be entitled to get all the consequential benefits including seniority etc. except the monetory benefit, with effect from 30th March, 1984. However, in the facts and circumstances of the case, there shall be no order as to costs. Application allowed.