JUDGMENT D.K. Seth, J.
1. The petitioner was appointed as Acting Principal by the Committee of Management on 23.12.1989 after the regular Principal had retired on 30.6.1987 and Sri Karam Singh Manav the senior-most teacher who was appointed as Acting Principal was suspended on 3.12.1989. From Annexure-2 to the writ petition. It appears that the said Sri Karam Singh Manav by his letter, dated 31.12.1989 requested to the Committee of Management to permit him to work as Lecturer in Geography since he did not desire to work as Principal. The order dated 23.12.1989 was challenged in Writ Petition No. 6833 of 1987 connected with Writ Petition No. 23330 at 1990 between Prem Singh Manav v. District Inspector of School, in which the petitioner was figuring as respondent No. 3. The said writ petition was disposed of by a learned single Judge of this Court on 30.4.1991 Inter alia holding that the respondent No. 3 being senior-most Lecturer as mentioned above, is entitled to work as Acting Principal. The order passed by the District Inspector of Schools does not suffer from any infirmity. Mr. Shukla on this background claims that by reason of the said judgment, it appears that the principles laid down in paragraph 13 of the decision in the case of Munishiuar Dutt Pandey v. Ramjeet Tiwari and others, (1997) 1 UPLBEC 1999 is satisfied and as such, this Court should pass an appropriate order declaring the petitioner as deemed to have been appointed in substantive capacity as Principal of this school by reason of Section 33A (1A) of U.P. Secondary Education Services Commission and Selection Boards Act. 1982.
2. Mr. K. R. Singh, the learned standing counsel, on the other hand contends that unless the factual aspects are determined, no order in favour of the petitioner could be passed. Therefore, the District Inspector of Schools should be directed to pass appropriate order in the light of the decision in the case of Munishwar Dutt Pandey.
3. Mr. V. K. Shukla, learned counsel for the petitioner, on the other hand contends in reply that no counter-affidavit has since been filed on behalf of the Commission. Therefore, the facts appear to have been admitted since respondent No. 3, the Committee of Management was also a party to the proceedings.
4. He further contends that the facts have already been determined in the earlier writ petition. It is no more open to this Court to determine the said question since in the earlier decision the Committee of Management as well as the District Inspector of Schools were parties to the proceedings.
5. I have heard both the counsel for the respective parties at length.
6. In the decision in the case of Munishwar Dutt Pandey (supra) in paragraph 13, it was laid down as follows :
"So far as this point is " concerned, a mere look at Section 33A (1) (1A) shows that before it can be pressed in service, the following conditions must be satisfied by the concerned teacher who claims to be regularised thereunder :
(1) A teacher including the Principal as per Section 2 (k) of the Act must have been appointed by promotion on ad hoc basis against a substantive post.
(2) Such appointment must have been made in accordance with paragraph 2 of the First Order of 1981 as amended from lime to time.
(3) He must possess the qualifications prescribed under the Intermediate Education Act, 1921 or might have been exempted from such qualifications.
(4) Regularisation will be with effect from the date of the commencement of the Amending Act of 1991.
(5) Subject to the rider that such teacher should be continuously serving in the Institution from the date of his initial ad hoc appointment till the date of the commencement of the Amending Act of 1991."
7. The said ingredients have been churned out by the provision of Section 33A (1) (1A) of the 1982 Act which reads as follow :
"Regularisation of certain appointments.--(1) Every teacher directly appointed, before the commencement of the Uttar Pradesh. Secondary Education Services Commission and Selection Boards (Amendment) Ordinance, 1985, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order. 1981, as amended from time to time, who possesses the qualifications, prescribed under, or is exempted from such qualifications in accordance with, the provisions of the Intermediate Education Act. 1921, shall with effect from the date of such commencement, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such appointment up to the date of such commencement.
(1A) Every teacher appointed by promotion, on ad hoc basis against a substantive vacancy in accordance with paragraph 2 of the Uttar Pradesh Secondary Education Services Commission (Removal of Difficulties) Order, 1981, as amended from time to time, who possesses the qualifications prescribed under, or is exempted from such qualifications in accordance with the provisions of, the Intermediate Education Act. 1921 shall, with effect from the date of commencement of the Uttar Pradesh Secondary Education Services Commission and Selection Boards (Amendment) Act. 1991, be deemed to have been appointed in a substantive capacity provided such teacher has been continuously serving the institution from the date of such ad hoc appointment to the date of such commencement."
8. From the plain reading of the said section read with paragraph 13 of the said judgment, it appears that in order to claim benefit under Section 33A (1A), a person has to satisfy all these tests. This question was involved in Writ Petition No. 6833 of 1987 connected with Writ Petition No. 23330 of 1990 since decided on 30.4.1991. In the said case admittedly, the District Inspector of Schools and the Committee of Management and Prem Singh Manav, the person claiming to be the Principal overriding the claim of the petitioner were parties and as such the decision would operate as res Judicata with regard to the facts as determined therein between parties thereto. The Committee of Management and District Inspector of Schools are parties to the present proceedings, in view of the decision in the case of Prem Singh Manav (supra), the petitioner therein cannot lay any claim since he has been nonsuited by the said decision. In the said decision, it was held, that the order passed by the District Inspector of Schools approving the appointment of the petitioner pursuant to the resolution dated 23.12.1989 did not suffer from any Infirmity which conclusively determines the existence of the ingredients mentioned in paragraph 13 of the said Judgment in Munishwar Dutt Pandey (supra). This decision was rendered on 30.4.1991. Section 33A (1A) was brought about in the Statute on 21.8.1991. The petitioner admittedly having had an order in his favour in April, 1991 is expected to continue till 21.8.1991 as claimed by the petitioner in the writ petition itself and the fact has not been disputed either by the District Inspector of Schools or the Committee of Management. Therefore, on the commencement of Section 33A (1A) of the said Act. as amended, the petitioner had been continuing. This fact satisfies Clause 5 of the ingredients mentioned in paragraph 13. By reason of the judgment in the case of Prem Singh Manan (supml, Clauses 1, 2 and 3 appear to have been satisfied. Therefore, in terms of Clause 4, he was eligible for regularisation as Principal with effect from 21.8.1991.
9. In that view of the matter, this writ petition succeeds and is allowed. Let a writ of mandamus be issued declaring petitioner to have been appointed on substantive basis, by reason of Section 33A (1A) of the 1992 Act in terms of paragraph 13 of the decision in the case of Munishwar Dutt Pandey (supra), and thus he is entitled to all such benefits as may be admissible in law. By reason of the interim order granted in this writ petition on 26.3.1992, he would be' deemed to have continued and be entitled to claim all such service benefits right from the date namely 21.8.1991 until he retires.
10. This writ petition is allowed to the extent indicated above.
No costs.