Aftab Alam, J.:— A privately established Sanskrit school had due recognition granted by the Bihar Sanskrit Education Board under the provisions of the Bihar Sanskrit Education Board Act, 1981. The school in question was taken over and vested in the State of Bihar with effect from 18.12.1989 on coming into force of the Bihar Non Government Sanskrit Schools (taking over of Management and Control) Ordinance, 1989. The consequence of vesting was that the school was taken out of the purview of the Board Act and none of the provisions of this Act remained applicable to this school any longer. However on 18.12.1989, the date of take over, an appeal on a dispute relating to the post of Headmaster of the school was pending before the Special Director (Secondary Education), Bihar (respondent no. 2) who was the officer appointed by the State Government to hear and dispose of the appeal preferred under section 24 of the Board Act. What would be the fate of this appeal? This is the short question that falls for consideration in this writ application. The question assumes importance as in the Take over Act there is neither a saving clause nor any provision dealing with the appeals pending under section 24 of the Board Act.

2. To put the point in its factual context it is to be stated that petitioner no. 2 and respondent no. 7 lay claim to the post of Headmaster of Josni Devi Primary-cum Middle Sanskrit School, Saharsa(‘the school’ for short). The school is said to have been established in 1977 and was granted recognition by the Board under the Board Act on 25.3.1980 One Daya Nand Mishra who had also joined in this application as petitioner no. 1 claimed to be the founder Secretary of the Managing Committee of the School. Petitioner no. 2 is said to have been appointed by the Managing committee as an Assistant teacher on 21.2.1977; he joined the school on 27.2.1977 There appears to have arisen, some time in 1983, a dispute between Daya Nand Mishra and one Din Bandhu Jha when both of them claimed to be the lawful General Secretary of the Managing Committee. The fall out of this was another (subsidiary) dispute relating to the post of Headmaster of the school.

3. In this regard the case of the petitioner no. 2 is that the post of Headmaster fell vacant as the original incumbent to the post went away to some other High School. To fill up the vacancy the Managing Committee on 13.5.83 directed petitioner no. 2, who was the senior most teacher to officiate as Headmaster of the school. Later on, the Managing Committee in its meeting dated 15.12.83 decided to promote the petitioner as Headmaster of the school on a regular basis. The references to the Managing Committee here are, of course to the one having Daya Nand Mishra (petitioner no. 1) as its Secretary. According to petitioner no. 2, the claim of respondent no. 7 was based on some fake documents manufactured by respondent no. 5 behind the back of petitioner no. 1, and by taking in collussion some members of the Managing Committee and the authorities of the Board.

4. The case of respondent no. 7 is simply the converse of the above. According to him respondent no. 5 was made the Secretary of the Managing Committee after the removal of petitioner no. 2 in March, 1983. On 14.5.1983 the Managing Committee (with respondent no. 5 as its Secretary) made respondent no. 7, the Incharge Headmaster of the school. Finally the proper Managing Committee in a validly held meeting on 5.1.1984 decided to promote respondent no. 7 on a regular basis as Headmaster of the school. Respondent no. 7 in his turn describes the documents relied upon by petitioner no. 2 and the meeting of the Managing Committee referred to by him as fake, collusive and invalid.

5. At the material time the school being within the ambit of the Board Act the disputes went upto the Board. (These disputes also formed the subject matter of T.S No. 19/1984 filed by petitioner no. 1 in the Court of Subordinate Judge, Saharsa. It is not necessary, to furnish any further details of the suit as the same is not relevant for a decision on the point involved in this writ petition). The Board vide its memo no. 521 dated 24.1.1985 appears to have accorded temporary approval to respondent no. 5 occupying the position of secretary of the Managing Committee and respondent no. 7 holding the post of Headmaster. The grant of approval was stated to be following an order dated 16.11 1984 passed by the High Court. A true copy of this order is enclosed as Annexure 7 to this writ petition.

6. This order is described by petitioner no. 2 and Daya Nand Mishra as quite unjustified and unwarranted and one that respondents 5 and 7 had been able to obtain by taking in their collusion some officials of the Board. Petitioner no. 2 sought his remedy against the order dated 24.1.1985 by preferring an appeal before Special Director (Secondary Education) under section 24 of the Board Act. However. Daya Nand Mishra in this regard seems to have pursued the matter in the Board where he was successful in getting the tables turned in his favour when the Board issued another order on 30.12.1985 whereby the earlier order dated 24.1.1985 was cancelled and petitioner no. 2, being described as the senior teacher was directed to work on the post of Incharge Headmaster. A true copy of the order dated 30.12.1985 is enclosed as Annexure 9 to the writ petition.

7. Petitioner no. 2, thus having got his relief from the Board itself simply withdrew his appeal pending before the Special Director (Secondary Education).

8. Now in this round it was for respondents 5 and 7 to challenge the Board's order dated 30.12.1985 The first came to the High Court in CWJC No. 192 of 1986. This Court, however, declined to interfere at that stage on the ground that a remedy was available by way of appeal under section 24 of the Board Act. The order of the High Court dated 31.2.86 permitting CWJC No. 192 of 1986 to be withdrawn is at Annexure-10. They then filed an appeal against the Board's order dated 30.12.1986 before the Special Director (Secondary Education). This was registered as Appeal No. 19 of 1986.

9. This appeal appears to have proceeded in a lingering manner and it was only in December, 1989, that an order of stay was passed against the Board's order dated 30.12.1985, the subject matter of the appeal. Before that, the Board vide its order dated 30.12.1987 had given final approval to the promotion of petitioner no. 2 as the Head master of the school.

10. However, finally the appeal of respondents 5 and 7 was allowed by the Special Director (Secondary Education) by his order dated 28.2.90, which comes under challenge in this writ petition. By the impugned order the appellate authority quashed the Board's order dated 30.12.85 whereby petitioner no. 2 was directed to work on the post of Incharge Headmaster of the school.

11. At this state, it is important to note that while the appeal was still pending and before it was finally allowed by the impugned order dated 28.2.1990, the State Government promulgated the Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance, 1989 which came into effect from 18.12.1989 Under section 3 of the this Ordinance 429 Sanskrit schools, including the school in question, were taken over and vested in the State Government with effect from 18.12.1989

12. This Ordinance brought to a premature and undecisive end the fight between Daya Nand Mishra (the original petitioner no. 1) and respondent no. 5 for the office of the Secretary of the Managing Committee of the school: the vesting of the school in the State Government had the effect of putting out of existence the office of Secretary which was till then the subject matter of controversy. Mr. Tara Kant Jha, learned counsel for the petitioners fairly conceded this aspect of the matter at the time of the admission of this case and admitted that petitioner no. 1 (claimant for the office of secretary) did not have any longer the locus standi to maintain this application. Accordingly while admitting this case, a Bench of this Court by order dated 21.8.1990 directed that the name of petitioner no. 1 (Daya Nand Mishra) be deleted from the writ petition.

13. The school notwithstanding its vesing in the State Government cannot do away with the post of Headmaster and hence the dispute between petitioner no. 2 and respondent no. 7 persists. Accordingly, the order of admission kept alive this application on behalf of petitioner no. 2 claimant to the post of Headmaster of the school.

14. Mr. Jha, learned counsel for the petitioner first submitted that the Special Director had grossly and patently erred in allowing the appeal in so far as respondent no. 7 was concerned. According to Mr. Jha respondent no. 7 had withdrawn himself from the appeal and this act was over looked by the appellate authority while passing the impugned order. Mr. Jha submitted that Appeal no. 19 of 1986 was filed before the Special Director on behalf of respondents 5 and 7 and one other person (respondent no. 6). It is asserted on behalf of the petitioner that on 1.12.1989 respondent no. 7 personally appeared before the appellate authority and filed a petition seeking withdrawal of the appeal on his behalf. It is further the case of the petitioner that the appellate authority after hearing all concerned, allowed the petition by his order dated 9.1.1990 and permitted respondent no. 7 to withdraw from the appeal. True copies of the withdrawal petition and order dated 9.1.1990 have been enclosed as Annexures 14 and 15 to this writ petition.

15. These averments are vehemently controverted on behalf of respondent no. 7. He denies having ever withdrawn from the appeal and describes the withdrawal petition and the alleged order dated 9.1.1980 as fake and the product of deceptions and manipulations by the petitioner.

16. I am, however, not inclined to hear the petitioner on this point and to enter into this controversy. This is because a Bench of this court while admitting this application virtually debarred the petitioner from assailing the order of the Special Director on any ground except the one arising from the Take Over Ordinance. The relevant extract from the order of admission dated 21.8.1990 is extracted below;

“This application will be heard on a limited question as to whether in view of the aforesaid Ordinance, the special Director had any jurisdiction to pass the impugned order as contained in Annexure 17 under section 24 of the Bihar Sanskrit Shiksha Board Ordinance, 1981 (Act 31 of 1982).

(emphasis supplied)

17. Entertaining the above mentioned submission of Mr. Jha, would be clearly in teeth of the above quoted order and would indeed expose me to the charge of judicial impropriety. I, therefore, decline to entertain this submission of Mr. Jha.

18. This clears the deck for considering the main question involved in this case.

19. Mr Tara Kant Jha submitted that the vesting of the school in the State Government bad two inter related consequences in terms of sections 3 and 4 of the Take Over Ordinance. First was that with effect from 18.12.1989 the services of the petitioner as the regular and permanent Headmaster of the school stood transferred to the State Government and he became an employee of the State Government with the designation of the Headmaster of the school. The second consequence was that the special Director (Secondary Education) was divested of all authority and jurisdiction to deal with in any manner or to pass any order on Appeal no. 19 of 1986 filed before him under section 24 of the Board Act in other words, the Take Over Act on the one hand not only confirmed petitioner no. 2 on the post of Headmaster of the school bat made him a Government employee with that designation. And on the other hand, it left respondent no. 7 remediless regarding his dispute with petitioner no. 2 over the post of Head-mater of the school.

20. At this stage it will be apposite to take a look at Sections 3 and 4 of the Take Over Ordinance which are in the following terms:

“3. Taking over of Management and control of Non-Government Sanskrit schools by State Government.—(1) With effect from the date of enforcement of this Ordinance 429 Sanskrit schools mentioned in schedule 1 shall vest in the State Government and the State Government shall manage and control thereafter.

(2) All the assets and properties of all the Sanskrit Schools mentioned in sub-section (1) and of the Governing Bodies, Managing Committees incidental thereto whether moveable or immovable including land, buildings, documents books and register, cash balance, reserve fund, capital investment, furniture and fixtures and other things shall, on the date of taking over, stand transferred to and vest in the State Government free from all encumbrances.

4. Effect of taking over the Management end Control—(1) With effect from the date of vesting of Sanskrit Schools mentioned in Schedule 1 under section 3(1) in the State Government, the services of all those teaching and non-teaching employees of the schools mentioned in schedule 1, who have been appointed permanently/temporarily against sanctioned posts in accordance with the prescribed standard, staffing pattern as prescribed by the State Government prior to this Ordinance shall stand transferred to the State Government. He shall be employee of the State Government with whatsoever designation he holds;

Provided that the services of those teaching or non-teaching employees who are in excess of the sanctioned strength or do not possess necessary fitness/qualification shall automatically stand terminated.

(2) Teachers of the Sanskrit schools taken over by the Government shall be entitled to the same pay, allowances and pension etc. as are admissible to teaching and non-teaching employees of the taken over Secondary Schools of Bihar”.

21. Among the 429 Sanskrit schools mentioned in Schedule 1 which vested in the State Government, the school in question also finds a place and is listed as serial no. 215 in the schedule to the Act.

22. Mr. Jha points out that upon vesting, the school ceased to be controlled by the Sanskrit Education Board and went beyond the purview of the Board Act. He further submitted that in the Take Over Ordinance any provision for resolving any disputes such as the present one which might have been pending on the date the school was taken over by the State Government is conspicuous by its absence. Taking advantage of this position Mr. Jha argued that on 18.12.1989 when the Take Over Ordinance came into force, petitioner no. 2 was the Headmaster of the school on the strength of the Board's order dated 50.12 85 (Annexure 9) and 30.12.87 (Annexure 12). Therefore, in terms of section 4 of the Ordinance petitioner no. 2 ipso jure became an employee of the State Government on the designation of the Headmaster of the school. Further, as the Take Over Ordinance did not provide anything for respondent no. 7 to carry on his disputed claim for the post of Headmaster of the school, he must simply be treated as forgotten. After 18.12 89 it was no longer within the authority of the Special Director (Secondary Education), who was a creature of the Board Act to declare and hold that respondent no. 7 and not petitioner no. 2 was the lawful Headmaster. Mr. Jha stated that this position was plainly the result of the legislative development and must, therefore, be accepted by the Court.

23. At this stage, it must be noted to the credit of Mr. Jha that the anomalies to which his submissions would lead were not quite lost upon him. But he boldly asserted, without mincing his words that the anomalies were brought about due to serious commissions in the legislation (i.e, the Take Over Ordinance). He further contended that the courts could not help the situation as the legislative ommissions were so wide and substantial that these could not be reasonably fitted up by any amount of judicial activisim. Mr. Jha finally urged that in case the legislature wished and intended that the controversies such as the present one should abate on the coming into force of the Take Over Act then it was the duty of the courts to see that the legislative intent was given effect to.

24. I am afraid, I am unable to see the legislative intent in the manner convisaged by Mr. Jha. In this connection it is pertinent to remember that although a court cannot supply a real casus omissus, it is equally true that it should not so interpret a statute to create a casus omissus when in reality there is none (see (1977) 4 SCC 608 para 81).

25. In my view, section 4 of the Act cannot be read and understood de hors the question of legitimacy. The provision contained therein does not intend that whosoever is seen, by the sun rising in the morning of December 18, 1989, occupying the chair of the Headmaster would be confirmed as the Headmaster of the school irrespective of the question whether he occupied the chair authorisedly or otherwise. The provision is not intended to confer any right upon a userper or a pretender notwithstanding that such a person was in physical occupation of the post on the relevant date. Legitimacy, to my mind, is the corner stone of all rights and no one can be heard in a court of law to say that the Court must come to his claim or even, though his claim might not be legitimate at all. I am, therefore, very clear in my mind that section 4 of the Act does not speak of mere physical presence but requires lawful and legitimate presence on the date the Ordinance came into force.

26. Once this is clearly understood there would be no difficulty in meeting the remaining part of Mr. Jha's argument. The dispute between petitioner no. 2 and respondent no. 7 regarding the post of the Headmaster of the school arose much before the Take Over Ordinance came into force on 18.12.1989 On 30.12.1985 when the Board gave its decision on this dispute, respondent no. 7 had a vested right of appeal under the law then applicable to the school. In exercise of his statutory right he preferred an appeal which was pending on 18.12.1989 when the Take Over Ordinance came into force. There is no indication in the Take Over Ordinance that it intended to deprive a person of his right of appeal which he had already exercised. It is well known that an appeal is a continuation of the original proceeding. Thus, the order passed in the appeal on 28.2.90 would date back to 30.12.1985 when the Board gave its decision on the dispute and even prior to that when the dispute actually arose in the year 1984-1985. Thus, the import of the appellate order is that on 18.12.89 it was respondent no. 7 and not petitioner no. 2 who was lawfully entitled to occupy the post of Headmaster of the school. As a consequence of this finding it is respondent no. 7 who is entitled to the protection of section 4 of the Act. For the reasons, stated above, I find that there is do infirmity in the appellate order and it does not require any interference by this Court. I further hold that in all cases where such disputes were pending before the Board or the Special Director (Secondary Education) they would be decided by the authorities concerned and the decision of these authorities shall be valid and legally enforceable.

27. I, thus, find no merit in this application and the same is dismissed.

28. In the facts and circumstances of this case, however, there shall be no order as to costs.