Judgment I.P. Singh, J. This is an application filed under Articles 226 and 227 of the Constitution of India. It is directed against the order as contained in letter no. 266 dated 6.11.1991 (Annexure-1) addressed to District Superintendent of Education issued under the signature of the Director, Primary Education, Government of Bihar (Respondent no. 2) by which he rejected the proposal of respondent no. 2 for regularisation of the services of the petitioner as also for the payment of salary to him for the grounds stated therein. 2. The facts of this case are in a very narrow compass. From the writ application it appears that the petitioner was appointed as assistant teacher in Sri Kunwar Singh Madhaya Vidalaya, Buxer in January, 1979 by the Managing Committee of this school and he was working as such since then. The aforesaid school was founded in the year 1970 by the Managing Committee. In course of time the education authorities of Bhojpur district within which this school was located inspected it several times and it was found that the petitioner was working as an assistant teacher in the said school on the dates of inspection. As a matter of fact petitioner has joined his service on 22.1.1979. Annexure 2 shows that this school was taken over by the Government of Bihar in exercise of powers vested in it under Section 3(4) of the Bihar Non-Government Elementary Schools (Taking Over Management and Control) Act, 1976 (Bihar Act 30 of 1976) (hereinafter called the 'Act'). Along with taking over of the management of this school the services of the teachers working therein (except the services of the petitioner) were also taken over by the Government and the teachers mentioned in Annexure 2 automatically came under the administrative control and jurisdiction of the State of Bihar. 3. The petitioner came to learn that his services were not taken over by the State of Bihar even after taking over of the management of the school on the ground that he was appointed as assistant teacher in the month of January, 1979 and at that time he was un-trained. Having come to learn about it the petitioner represented before the authorities namely, Director Primary Education, District Superintendent of Education as also the District Development Commissioner, Bhojpur for approving his services. Having come to learn about it the petitioner represented before the authorities namely, Director Primary Education, District Superintendent of Education as also the District Development Commissioner, Bhojpur for approving his services. The Deputy Development Commissioner through his letter (Annexure 3) asked the District Superintendent of Education, Bhojpur to dispose of the representation of the petitioner. On the receipt of Annexure 3 the District Superintendent of Education, Bhojpur directed the Area Education Officer, Bhojpur to inspect the school and to submit his report. The Area Education Officer, Buxer inspected the school and reported that the appointment of the petitioner by the Managing Committee as an assistant teacher in the school was genuine and the petitioner was working as such to the full satisfaction of all concerned. However, he pointed out. that when this school was taken over by the State Government the services of the petitioner could not be transferred to its control on two grounds, namely, (1) that he passed the matriculation examination in the year 1974 and (ii) that he was untrained. He further pointed out that there was no departmental order terminating the services of the petitioner. This report is contained in Annexure 5. On the receipt of Annexure 5 the District Superintendent of Education wrote a letter dated 13.1.1991 (Annexure 6) addressed to Director, Primary Education Government of Bihar in respect of the grievances of the petitioner annexing the inspection report (Annexure 5) for necessary direction in the matter. The Director Primary Education, however, rejected the proposal as contained in Annexures 5 and 6, through the impugned letter dated 6.11.1991 (Annexure 1). It is against this order that the present writ application has been filed. 4. In this petition the petitioner has contended that the aforesaid school was taken over in pursuance of the provisions of the Act. However, Section 4 (2) of the Act clearly provided that the teaching staff of the school were taken over and merged with the State of Bihar on the same terms and conditions on which the teachers were working prior to taking over of the school. By virtue of Section 4 (2) of the Act the services of the employees of the school including the teachers came under the administrative control of the State Government. By virtue of Section 4 (2) of the Act the services of the employees of the school including the teachers came under the administrative control of the State Government. In view of Section 4 (2) of the Act the State Government is bound to take over the services of the petitioner on the same terms and conditions as existed prior to taking over the school. 5. The petitioner has pointed out that prior to taking over on 6th January, 1982 the school in question was run by the Managing Committee. In view of the provisions of Section 4 (2) of the Act the State of Bihar was bound to approve the services of the petitioner from the date of his joining and the petitioner is entitled to get his salary and other fringe benefits from the date of his appointment. Before issuing Annexure 1 terminating the services of the petitioner no opportunity or notice of any kind was given to him for hearing. Under the aforesaid circumstances, the petitioner has prayed that the impugned letter dated 6.11.1991 (Annexure 1) be quashed and the respondent authorities be directed to approve the services of the petitioner and to pay him the necessary salary and other fringe benefits and further be directed not to disturb the petitioner from functioning as assistant teacher in the aforesaid school. 6. On behalf of the respondents a counter affidavit has been filed in which it has been stated that the petitioner was not entitled to regularisation of his service since he was appointed in the year 1978. Also reliance was placed on the order as contained in Memo No. 1167 dated 2.5.1980 to show that untrained teachers not appointed prior to 1.1.1971 were not entitled to be retained in service. This counter affidavit appears to have been filed against the review petition. However, in it briefly stated the above objections have also been taken. A reply to this counter affidavit has been filed on behalf of the petitioner. 7. The parties have been heard at length on the various points involved in this writ application. Before, however, I take them up for consideration I would like to briefly state the various stages of this case which appear to be relevant. 8. From the record it appears that this writ application was filed in this Court on 19.11.1991. 7. The parties have been heard at length on the various points involved in this writ application. Before, however, I take them up for consideration I would like to briefly state the various stages of this case which appear to be relevant. 8. From the record it appears that this writ application was filed in this Court on 19.11.1991. When, however, it came for admission before the Bench it was dismissed by an order dated 29.11.1991. Subsequently a review petition (Civil Review No. 143/91) was filed before the same Bench consisting of S. Roy and N.S. Rao, JJ. By an order dated 13.2.1992 the said Bench allowed the review petition and restored C.W.J.C. No. 8075 of 1991 to file, to be listed for admission. However, in the order dated 13.2.1992 the Bench observed that the decisions in the cases of Krishna Prasad Vs. The State of Bihar & Ors. (1982 PLJR 214) and Smt. Pratibha Singh and another Vs. State of Bihar and others ( 1988 PLJR 646 ) were also perused and in view of the law as laid down in the aforesaid decisions the review application was allowed. On the same day (13.2.1992) by another order S. Roy and N.S. Rao, JJ., constituting the Bench found some conflicting judgments on the point whether a person without holding requisite qualification when appointed as a teacher in a middle school can claim for absorption in the service in view of Section 4(2) of the Act. They accordingly recommended that this case may be placed before a larger Bench in view of conflicting judgments on this point. 9. When the matter was placed before the Hon'ble the Chief Justice, he, by his order dated 21.5.1993 referred the matter to be placed before a regular Division Bench. He further observed that if it was found by the said Division Bench that there are conflicting judgments it will be at liberty to refer this matter to the Chief Justice for referring it to a larger Bench. This is how the matter was again placed before this Division Bench and has been heard and is being disposed of by this judgment. 10. There are some un-disputed facts in this case which have to be taken notice of. According to the petitioner, in January, 1977 Managing Committee of this school appointed him as Assistant teacher and he joined on this post on 22.1.1979. 10. There are some un-disputed facts in this case which have to be taken notice of. According to the petitioner, in January, 1977 Managing Committee of this school appointed him as Assistant teacher and he joined on this post on 22.1.1979. It further appears that this school was established by the Managing Committee in the year 1970 it is not in dispute that on the date of its take over (6.1.1982) the petitioner was working as an assistant teacher in this school. Even before the take over, from time to time, the school was inspected by the competent authorities according to which the petitioner was found to be working as assistant teacher in this school. One such inspection report is Annexure 5. Hence there does not appear to be any dispute in this regard. The other fact that has also to be noticed is that on the date of his appointment on 22.1.1979 the petitioner was untrained. 11. Annexure 2 shows that at the time of its take over on 6.1.1982 this school had 15 teachers under its employment. Out of them, except for no. 1 Shri Bihar Lal, rest of the teachers were untrained and at least 12 of them were simple matriculates. In paragraph 3 of Annexure 2 a direction appears to have been issued to make arrangements for training of the untrained teachers. Obviously in this list the name of the petitioner does not find mention. In its paragraph 2 it has been stated that only the names of those teachers have been mentioned in it who were working in the school prior to 1.1.1971. Since obviously the petitioner is said to have passed his matriculation examination in the year 1974 which was much after 1.1.1971 and was also untrained this may be one of the reasons why his name could not be included in Annexure 2. 12. So far as Annexure 1 which is dated 6.11.1991 is concerned the Director Primary Education, Government of Bihar directed the District Superintendent of Education, Bhojpur not to recognise the services of those untrained teachers who were appointed after 1.1.1971. It was further observed that in such a situation it would be the responsibility of the Secretary of the school to terminate the services of any such teacher. It was further observed that in such a situation it would be the responsibility of the Secretary of the school to terminate the services of any such teacher. It was further observed in its paragraph 2 that since the petitioner was appointed in January, 1979, therefore, there is absolutely no justification for recognising his services and for the payment of salary to him. It is against this Annexure that the present writ application has been filed. 13. As per Annexure 1 this cut-off date of 1.1.1971 has been contained in Government Memo No. 1167 dated 2.5.1980 according to which the services of the untrained teachers appointed after this date were not to be recognised. This brings us to the consideration of the import of the aforesaid memo. 14. This is a letter from the Special Secretary to Government of Bihar, Department of Education addressed to the Director of Primary Education. It also refers to another Government order as contained in letter no. S/140 dated 23.1.80 from the Education Commissioner, Government of Bihar to the Director, Primary Education. From paragraph 2 of this letter it appears that the Government had taken certain decisions with respect to taking over of those non-Government Primary Schools which were not aided by the State Government. Certain categories of such schools have been given in this paragraph. As per paragraph 3 of this letter certain conditions appear to have been imposed before taking over such Non-Government Primary Schools not receiving aid from the State Government. Paragraph 7 ¼?k½ of this letter shows that the services of those teachers who were untrained and were appointed after 1.1.1971 would not be taken over and the responsibility was cast on the Secretary of any such school to terminate the services of any such teacher. It was on the strength of this letter that the service of the present petitioner was not taken over by the State Government as will appear from Annexure 1. It is important to note here that in none of these two letters any reason has been assigned to fix the cut-off date as 1.1.1971 specially when these letters (memos) are themselves dated 23.1.1980 and 2.5.1980 and they have been sought to be applied retrospectively. It is important to note here that in none of these two letters any reason has been assigned to fix the cut-off date as 1.1.1971 specially when these letters (memos) are themselves dated 23.1.1980 and 2.5.1980 and they have been sought to be applied retrospectively. The question in this connection that would naturally arise would be what is the legal force of this letter and how far it can be preferred to the various provisions of the Act? Can this letter override the clear provisions of the Act and will have a binding force? Before answering this question I would now proceed to examine the provisions of the Act which are very clear and un-ambiguous. 15. Section 3 of the Act deals with taking over of Non-Government Elementary Schools by the State Government. There are four categories of such schools. Sub-section (1) provides for taking over of the elementary schools managed by the District Board, Zila Parishad etc. Sub-section (2) relates to the taking over of such aided Elementary Schools the Managing Committees of which have handed over voluntarily the control of the school to the Government. Sub-section (3) provides for taking over those Elementary Schools administered by any public or private undertaking. Now comes sub-section (4) which provides that with regard to taking over of the Elementary Schools other than those mentioned in sub-sections (1) and (3) there shall be a District Committee which will examine the feasibility of taking over of such schools by the State Government. In the present case it appears that on the report of this Committee that the present school was taken over with effect from 6.1.1982. 16. Then I come to Section 4(2) of this Act which is very important. It runs as follows: "(2). Every Officer, teacher or other employee holding any office or post in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of State Government with such designation as the State Government may determine and shall hold office by the same tenure, at the same remuneration and on the terms and conditions of service as he would have held before the taking over of the said school and shall continue to do unless and until such tenure, remuneration, terms and conditions of service are duly altered by the State Government." 17. The language of this sub-section is very clear and explicit and it does not admit of two interpretations. It specifically provides that with effect from taking over every officer, teacher or other employee holding any office or post in the school taken over by the State Government shall be deemed to have been transferred to and become an officer, teacher or employee of the State Government. No other condition has been attached to this sub-section like the appointment of the teacher prior to 1.1.1971 or that he should be a trained teacher. Though this Act was published in Bihar Gazette on 6.2.1976, under the deeming provision it has been stated to come into effect from 1.1.1971. Thus, by a deeming provision this Act has been given retrospective effect. It is important to note here that inspite of this there is no provision under Section 4 (2) of this Act to the effect that untrained teachers appointed prior to 1.1.1971 could alone be taken into Government service. In face of this, what value can be attached to the aforesaid letter no. 1167 dated 2.5.1980 from Special Secretary to the Government addressed to director, Primary Education about which a reference has been made above? Can it be made to over-ride the specific provisions of the Act? It is obvious that the law as enacted by legislature can not be altered by the executive order or by a letter issued from the Government. Any such executive order or letter can not have an over-riding effect on an Act of the legislature. Moreover, though this Act has been given retrospective effect from 1.1.1971, it does not provide that untrained teachers appointed after this date shall not be deemed to have been transferred to the State Government in terms of Section 4 (2). On the other hand Section 4 (2) clearly provides that in consequence of the take over, every teacher holding any office in the school shall become a teacher of the State Government. From Section 3 (4) it will appear that the process of taking over is a continuing process to be given effect to on various dates subsequent to 1.1.1971. Under this circumstance how can it be said that only untrained teachers appointed prior to 1.1.1971 can be taken in Government service? From Section 3 (4) it will appear that the process of taking over is a continuing process to be given effect to on various dates subsequent to 1.1.1971. Under this circumstance how can it be said that only untrained teachers appointed prior to 1.1.1971 can be taken in Government service? Moreover in both the aforesaid letters reference has been made to Section 8 of the Act and it has been stated that the aforesaid Government orders are being issued under Section 8. This brings us to, the consideration of Section 8 of the Act. This section runs as follows- "8. Power to remove difficulties. -If any difficulty arises in giving effect to the provisions of this Act, the State Government may take such action or pass such order as appears to it necessary for the purposes of removing the difficulty." 18. Thus, the scope of Section 8 is very limited and recourse to this Section can only be taken for the purposes of removing any such difficulty. Taking over the services of the teacher already working in the school at the time of take over will not come within the meaning of "difficulty" as mentioned in Section 8. Moreover, Section 4 (2) leaves no room for doubt that all those who were working in the school on the date of take over will automatically become Government servants. On this ground also the aforesaid two Government orders (140 dt. 23.1.80 and 1167 dt. 2.5.80) will have no legal force. 19. A number of decisions have been cited at the Bar and they may briefly be referred to in this connection. 20. The first case referred in this connection is of Chandra Kumar Chakravarty vs. The Deputy Director of School Education ( 1979 BBCJ 378 ). In this decision it has been held that if any person has been working as a teacher at the time of taking over, he automatically becomes an employee of the State Government in terms of sub-section (2) of Section 4 of the Act. This decision supports the case of the petitioner. Similarly in the case of Krishna Prasad vs. The State of Bihar & others (1982 PLJR 214), a Bench of this Court also came to the same conclusion. In the said case it appears that the petitioner was appointed as assistant teacher in the school on 1.7.1971 by its Managing Committee. This decision supports the case of the petitioner. Similarly in the case of Krishna Prasad vs. The State of Bihar & others (1982 PLJR 214), a Bench of this Court also came to the same conclusion. In the said case it appears that the petitioner was appointed as assistant teacher in the school on 1.7.1971 by its Managing Committee. He was also untrained matriculate. The said school was taken over by the State Government on 30.7.1977. The petitioner continued to be an assistant teacher of the said school even thereafter. Ultimately on 1.5.1979 the Director, Primary Education refused to recognise him as a teacher in the said school since he was untrained matriculate and had been appointed after 1.1.1971. The following observation has been made by the Bench- "In our opinion, it is difficult to hold in the circumstances mentioned above, that when the school was taken over, the petitioner was not holding a post of teacher in the said school either factually or in eye of law so as not to derive the statutory benefit of sub-section (2) of Section 4 of becoming an employee of the State Government. On behalf of the petitioner it was rightly pointed out that consequences of taking over have been provided in the statute itself and the court should not easily come to the conclusion, unless adequate materials are produced in a particular case, that a particular employee or teacher who was holding the office or post in the said school was factually or in eye of law not holding that post so as not to derive the benefit of sub-section (2) of Section 4". (emphasis supplied). 21. In the present case it has not been denied that at the time of taking over the petitioner was acting as an assistant teacher in the aforesaid school. In this view of the matter both factually and in the eye of law the petitioner was holding the post of a teacher in the said school at the time of the take over and would be entitled to the benefits of subsection (2) of Section 4 even when his services were not continued after the take over. The fact however, remains that at the time of take over he was both factually and in the eyes of law holding the post of teacher in the said school. The fact however, remains that at the time of take over he was both factually and in the eyes of law holding the post of teacher in the said school. Hence this decision will clearly go to support the case of the petitioner. 22. In the case of Smt. Maya Raman Vs. The State of Bihar & ors. ( 1984 PLJR 328 ) same view has been taken and it was held that if the petitioner was in service on the date of taking over of the school by the State Government then her services must be deemed to have been transferred to and the petitioner deemed to become a teacher of the State Government under Section 4 (2) of the Act and she will continue to be a teacher as before. In this case reliance has been placed on the case of Chandra Kumar Chakravarty (supra) and Krishna Prasad (supra). From the facts of this case it would appear that the petitioner of the said case was untrained matriculate and was appointed as assistant teacher on 2.1.1972. This school was taken over by the State Government with effect from 20.4.1977. Here also a similar order not recognising the services of the petitioner was passed. The said order was quashed. 23. Also reliance has been placed on the case of Smt. Prativa Singh vs. The State of Bihar ( 1988 PLJR 646 ). In this case also reliance has been placed on the case of Chandra Kumar Chakravarty (supra) and Krishna Prasad (supra) and Smt. Maya Raman (supra). In the said case the petitioners were appointed as teachers in untrained matriculate scale on 1.4.74 and 1.1.75 respectively in a middle school. The said school was taken over under the provision of the Act with effect from 26.1.1975 but the names of the petitioners were not included amongst the names of the teachers to be taken as Government servants. It was held that teachers holding the office at the time of take over were entitled to hold office on same terms and conditions as before since State Government had not framed the terms and conditions of the service. 24. Before concluding I would like to mention that as per the order dated 13.2.1992 in Civil Review No. 143/91 the Bench of this Court has referred to two decisions, namely Krishna Prasad vs. The State of Bihar & ors. 24. Before concluding I would like to mention that as per the order dated 13.2.1992 in Civil Review No. 143/91 the Bench of this Court has referred to two decisions, namely Krishna Prasad vs. The State of Bihar & ors. (supra) and Smt. Pratibha Singh and another vs. The State of Bihar and others (supra). Further after allowing the aforesaid civil review petition, by another order of the same date the Bench also held that since there are conflicting judgments on the second point [if a person who has no requisite qualification for being appointed in the middle school was appointed a teacher, whether in view of the language of Section 4 (2) of the Bihar Non-Government Elementary School (Taking Over Management and Control) Act, 1976, can he claim for absorption in the Government services after the school is taken over as the erstwhile managing committee had appointed him], let this case be heard by a larger Bench. 25. However, at the time of hearing no conflicting judgments could be pointed out on this point by the Bar. Moreover in the various decisions referred to in this judgment there does not appear to be any conflict and all of them in clear terms support the case of the petitioner. Under the aforesaid circumstances, there does not appear to be any justification to refer the matter to the Hon'ble the Chief Justice for referring this case to a larger Bench. 26. From the aforesaid decisions it is perfectly clear that there is great merit in the contention of the petitioner and this writ application is fit to be allowed. 27. In the result, the writ petition succeeds and is allowed. The impugned order dated 6.11.1991 of the respondent no. 2, the Director-cum-Additional Secretary, Primary Education, Bihar, is quashed and the respondents are directed to treat the petitioner as teacher of the State Government and pay him salary in accordance with law. 28. The future salary will be paid month to month and arrears of salary will be paid within six months from the date of production of a certified copy of this order on respondent no. 2. 29. The petitioner will be entitled for Rs.2,000/- as costs.