By the Court.—This is an appeal against judgement and order dated 3.11.2006 passed by learned Single Judge allowing the writ petition filed by respondent No. 5.

2. The respondent No. 5 has challenged the order passed by District Inspector of Schools dated 24.5.2006 by which order District Inspector of Schools directed that the appellant be given the charge of officiating Principal. The learned Single Judge in his judgement has noted the facts in details which need no repetition in our judgement.

3. A resolution was passed by the Committee of Management on 28.6.2003 appointing respondent No. 5 as officiating Principal. The said resolution was approved and respondent No. 5 started functioning as officiating Principal on 1.7.2003. One teacher who has earlier declined the post of officiating Principal Shri P. N. Mishra filed a writ petition claiming that although he had earlier declined but now he be given charge for the post of Principal. One more relevant facts to be noticed is that the appellant had retired on 30.6.2003 after attaining the age of 60 years, being a national awardee his claim for extension for a further period of two years was forwarded to the State Government which remain pending till September 2003. In September 2003 a decision was taken to give extension of two more years to the appellant. The date of the birth of the appellant is 6.7.1942 and even after extension of age of retirement from 60 to 62 years has attained 64 years on 5.7.2006. After an order of this Court dated 17.4.2006 the respondents have considered the claim of the appellant-respondent No. 5 and one Pratap Narain Mishra who had earlier declined to accept the post. The District Inspector of Schools took the view that appellant being senior to respondent No. 5, the approval earlier granted in favour of respondent No. 5 be cancelled and charge be given to the appellant. The said order was challenged which has been quashed by learned Single Judge by the impugned judgement. Basically the two reasons have been given by learned Single Judge in deciding against the appellant. Firstly, the appellant who is continuing upto 30.6.2007 by virtue of Regulation 21 Chapter III of the U.P. Intermediate Education Act availing the sessions benefit is not entitled to work as officiating Principal, his substantive post being of Lecturer. Secondly, when respondent No. 5 was resolved to be appointed as Principal on 28.6.2003, the appellant had already attaining the age of superannuation on 5.7.2002 and was not even available for consideration, hence there was no error in the appointment given to respondent No. 5 with effect from 1.7.2003.

4. The learned Counsel for the appellant challenging the order contended that the appellant is entitled to continue as officiating Principal till 30.6.2007 and the judgements relied by learned Single Judge were not applicable. He contended that Division Bench judgement relied by learned Single Judge were the judgements pertaining to the Principal of Degree College which are not applicable. He further contends that Division Bench judgement of this Court reported in 2003(2) ESC 956, Raja Ram Chaudhary v. Satya Narain Gupta, although was a case pertaining to an Intermediate College but having been relied on the decision pertaining to Degree College is not a good law and is not applicable in the present case. With regard to another Division Bench judgement reported in 2000 (1) ESC 645, Committee of Management, Jagdish Saran Rajvansi Kanya Inter College and another v. Joint Director of Education, he submits that the said case laid down that during the period when teacher is availing the benefit of session after attaining superannuation he is not entitled for being given in regular appointment on the basis of recommendation of Commission which judgement has no application in the present case.

5. Shri S. P. Pandey, Counsel for the respondent has submitted that the respondent No. 5 was rightly appointed as Principal which order need no