JUDGMENT K.K. Narendran, J. 1. In this Original Petition the first petitioner is the Manager of the B.S.S. U.P. School, Vayyattupuzha and the second petitioner a Hindi teacher in the first petitioner's school. Really, this is a fight between the second petitioner and the 4th respondent for the post of a Hindi teacher in the above school and this Tight which was started in 1967 is yet to end. 2. In the year 1966-67, the first petitioner appointed the 4th respondent as a part-time Hindi teacher in a temporary vacancy in his school from 1st August 1966 to 29th March 1967. Thereafter, the 4th respondent was again appointed in the year 1967-68 in two other temporary vacancies. But none of those appointments were approved by the 1st respondent. Assistant Educational Officer, Pathanamthitta. The 1st respondent forwarded to the first petitioner Ext. P-1 letter dated 11th June 1968 of the 2nd respondent stating that the 4th respondent is not entitled to get permanent exemption from age-limit under G.O. MS. 196/67/Edn., dated 5th May 1967. 3. After receipt of Ext. P-1 letter the first petitioner appointed the second petitioner as part-times Hindi teacher from 1st August 1968 as per Ext. P-2 appointment order dated 1st August 1968. Admittedly, the second petitioner was within the age-limits and was fully qualified for the post. The second petitioner continued in the post in pursuance of Ext. P-2 order which was duly forwarded to the 1st respondent for approval. Then, early in September 1968 the 1st petitioner received Ext. P-3 G.O. dated 30th July 1968 as forwarded by the 1st respondent by his endorsement dated 28th August 1968. By Ext. P-3 the 3rd respondent-State has granted permanent exemption to the 4th respondent from age rules. In pursuance of Ext. P-3, the 1st respondent issued Ext. P-4 communication dated 5th November 1968 to the 4th respondent directing het to approach the first petitioner-Managar. It seems that the 4th respondent made a representation to the 2nd respondent and that has resulted in Ext. P-5 letter dated 3rd January 1969 by which the 2nd respondent informed the 4th respondent that necessary directions were issued to the 1st respondent and the 1st petitioner. Again, on 3rd January 1969 the 2nd respondent issued Ext. P-6 direction to the 1st respondent with a copy to the first petitioner. The direction in Ext. P-5 letter dated 3rd January 1969 by which the 2nd respondent informed the 4th respondent that necessary directions were issued to the 1st respondent and the 1st petitioner. Again, on 3rd January 1969 the 2nd respondent issued Ext. P-6 direction to the 1st respondent with a copy to the first petitioner. The direction in Ext. P-6 is to direct the 1st petitioner to appoint the 4th respondent in the school from 1st August 1968. On receipt of Ext P-6, the 1st respondent issued Ext. P-7 requesting the 1st petitioner to appoint the 4th respondent as teacher in the school from 1st August 1968 and report that matter to his office within seven days. Thereupon, the first petitioner submitted Ext. P-8 representation to the 2nd respondent stating that in view of the non-approval of the 4th respondent's appointment in the previous years he appointed the second petitioner and when he made that appointment he was not aware of Ext. P-3 G.O. It was also requested in Ext. P-8 that Ext. P-6 may be withdrawn and the appointment of the 2nd petitioner be approved. But the 1st respondent by Ext. P-9 letter dated 22nd January 1969 declined approval to Ext. P-2 appointment of the 2nd petitioner. It was also stated in Ext. P-9 that the appointment was not approved because of the directions of the 2nd respondent. Then on 6th March 1969 the 1st petitioner received Ext. P-10 communication from the 2nd respondent rejecting Ext. P-8 representation of the 1st petitioner. In Ext. P-10 the 2nd respondent again directed the 1st petitioner to relieve the 2nd petitioner with retrospective effect from 1st August 1968 and to appoint the 4th respondent. But the 1st petitioner on 17th April 1969 sent Ext. P-11 representation stating that it will not be proper to relieve the 2nd petitioner during the middle of the school year and the claims, if any, of the 4th respondent will be considered in the next academic year. Thereupon, on 17th April 1969 the 2nd respondent issued Ext. P-12 show cause notice to the first petitioner threatening action under rule 7 (1), chapter III of the Kerala Education Rules, 1959. Though the 1st petitioner submitted his explanation, the 2nd respondent by Ext. P-13 order dated 17th June 1969 declared the 1st petitioner unfit to hold the office of the Manager. P-12 show cause notice to the first petitioner threatening action under rule 7 (1), chapter III of the Kerala Education Rules, 1959. Though the 1st petitioner submitted his explanation, the 2nd respondent by Ext. P-13 order dated 17th June 1969 declared the 1st petitioner unfit to hold the office of the Manager. Questioning the above orders of the department the 1st petitioner filed O.P. No. 3311 of 1969. In the above Original Petition the 2nd petitioner who was the 5th respondent contended that she did not file an Original Petition to get her appointment approved because before doing so she received notice in O.P. No. 3311 of 1969 and she bona fide thought that she could raise her contentions in that Original Petition. O.P. No. 3311 of 1969 was disposed of by this court by Ext. P-14 judgment dated 7th July 1972. In Ext. P-14 judgment the validity of the earlier orders of the department was not considered. This court held that in view of the stand taken by the first petitioner-Manager in Exts. P-8 and P-11 pointing out the difficulties to relieve the 4th respondent (5th respondent in that Original Petition) and in view of the assurance of the 1st petitioner that the 4th respondent's case will be considered in the next school year, the imposition of the disqualification by Ext. P-13 order is not justified and hence quashed that order of the 2nd respondent. 4. In the year 1969-70, the 1st petitioner considered the claims of the 4th respondent and decided that the 2nd petitioner has got better claims to be continued in the year 1969-70. As the appointment of the 2nd petitioner was not approved, on 5th September 1972 the 1st petitioner made Ext. P-15 representation to the 1st respondent requesting for approval of the 2nd petitioner's appointment. But the 1st respondent by Ext. P-16 letter dated 25th September 1972 requested the 1st petitioner to forward the appointment order of the 4th respondent for the year 1967-68 along with other relevant papers. To this the first petitioner submitted Ext. P-17 representation dated 26th October 1972 making it clear that Ext. P-16 demand is not tenable and also requesting the 1st respondent to approve the appointment of the second petitioner. By Ext. To this the first petitioner submitted Ext. P-17 representation dated 26th October 1972 making it clear that Ext. P-16 demand is not tenable and also requesting the 1st respondent to approve the appointment of the second petitioner. By Ext. P-18 dated 26th October 1972 also a further request was made to the 1st respondent by the first petitioner to approve the appointment of the 2nd petitioner. The 2nd petitioner also made representations to the 2nd respondent stating that her appointment may be approved. Then, by Ext. P-19 letter dated 1st November 1972 the 2nd respondent informed the 1st petitioner that necessary instructions for the approval of the appointment of the second petitioner were given to the first respondent. But the 1st respondent by Ext. P-20 letter, dated 16th November 1972 informed the first petitioner to forward the appointment order of the 4th respondent in respect of the appointment in 1967-68 and also directed the first petitioner to reinstate the 4th respondent in the school forthwith. By Ext. P-21, dated 3rd May 1973 the 2nd respondent also issued similar instructions to the first petitioner asking him to reinstate the 4th respondent after relieving the second petitioner. These instructions were repeated in Ext. P-22 letter, dated 10th May 1973 of the 1st respondent. The first petitioner replied to Ext. P-22 reiterating his earlier contentions. The 1st respondent on 5th June 1973 also sent a further communication Ext. P-23 to the first petitioner. It is under the above circumstances that the petitioners have approached this court with this Original Petition. 5. One of the contentions raised in the Original Petition is that there is no statement in Ext. P-14 judgment that the 4th respondent will have to be appointed in the year 1969-70. After Ext. P-14, the first petitioner duly considered the claims of the 4th respondent and found that the 4th respondent cannot have any superior claim to that of the second petitioner. As the 4th respondent has no approved service, rules 5 and 51A of chapter XIVA of the Kerala Education Rules have no application. The attempt made to regularise the service of the 4th respondent with retrospective effect by the Government Order, dated 7th April 1970 this has been produced as Ext. R-2 along with the counter-affidavit filed on behalf of respondents 1 to 3) is not proper or legal. Ext. The attempt made to regularise the service of the 4th respondent with retrospective effect by the Government Order, dated 7th April 1970 this has been produced as Ext. R-2 along with the counter-affidavit filed on behalf of respondents 1 to 3) is not proper or legal. Ext. P-3 G.O. has no retrospective effect and no retrospective effect can be given to it by Ext. R-2 G.O. So, Exts. P-3 and R-2 cannot, be of any help to the 4th respondent. The appointment of the second petitioner was made on 1st August 1968 and the first petitioner received Ext. P-3 G.O., dated 30th July 1968 only in September 1968 as communicated by the 1st respondent by his endorsement, dated 28th August 1968. It is not proper to disturb the second petitioner who is fully qualified and is within the age limits. 6. A counter-affidavit has been filed on behalf of respondents 1 to 3. The circumstances which led to the issue of Ext. P-3 G.O. granting permanent exemption to the 4th respondent are stated in detail in the above counter-affidavit. It is admitted in the counter-affidavit that the appointment of the 4th respondent as a part-time Hindi teacher in 1967-68 was not approved since she was overaged then. The contention is that on 1st August 1968 when the first petitioner appointed the second petitioner, the 4th respondent was having a better claim since she was fully qualified with permanent exemption from age rules. A copy of the Government Order G.O. Rt. 2250/70/Edn., dated 7th April 1970 giving retrospective effect to Ext. P-3 G.O. granting exemption to the 4th respondent is produced along with the counter-affidavit as Ext. R-2. The contention in the counter-affidavit is that since permanent exemption from age limit has been granted to the 4th, respondent with retrospective effect she is entitled to have her appointment approved with preferential claim for further appointments. It is also stated that the 4th respondent has claims under rules 5 and 51A of chapter XIVA of the Kerala Education Rules. The appointment of the 4th respondent is yet to be approved. It is also stated that the 4th respondent has claims under rules 5 and 51A of chapter XIVA of the Kerala Education Rules. The appointment of the 4th respondent is yet to be approved. If that be so, I am at a loss to understand how the 4th respondent has acquired claims under rules 5 and 51A of chapter XIVA of the Kerala Education Rules though it is stated in the counter-affidavit that her appointment in 1967-68 has to be treated as approved for all future appointments. It is seen from para 17 of the counter-affidavit that the 4th respondent has been appointed by the first petitioner on 25th July 1973. But it is made clear in the reply affidavit of the petitioner that the above appointment was only provisional and without prejudice to the contentions of the petitioners in the Original Petition and subject to the result of the Original Petition. 7. The petitioners have filed a reply affidavit in answer to the contentions raised in the counter-affidavit filed on behalf of respondents 1 to 3. One of the contentions taken in the reply affidavit is that as respondents 1 and 2 have not filed any counter-affidavit in the case, it is to be taken that no proper counter-affidavit is filed in the case. It is also contended that Ext. R-1 which is the same as Ext. P-3 has no retrospective effect and the 3rd respondent has no power to give it retrospective effect by issuing Ext. R-2. Ext. R-2 cannot be used against the petitioners to affect their vested legal rights. The appointment of the second petitioner is to be approved without reference to Exts. R-1 and R-2. On behalf of respondent No. 3 a rejoinder affidavit also is filed in this case. The contention in the rejoinder affidavit is that the 4th respondent has a preferential claim for appointment and the 4th respondent has to be deemed to have been appointed and that appointment approved earlier than that of the second petitioner. The 4th respondent has not filed any counter-affidavit in this case. But the learned counsel for the 4th respondent has at the time of arguments raised a plea of estoppel by constructive res judicata. 8. The first petitioner has appointed the second petitioner on 1st August 1968. The second petitioner was fully qualified and also was within the age limit. The 4th respondent has not filed any counter-affidavit in this case. But the learned counsel for the 4th respondent has at the time of arguments raised a plea of estoppel by constructive res judicata. 8. The first petitioner has appointed the second petitioner on 1st August 1968. The second petitioner was fully qualified and also was within the age limit. Though the 4th respondent was appointed in the school in the year 1967-68, her appointment was not approved because she was overaged. As long as her appointment is not approved, she cannot have any right to preference for future appointment in the school either under rule 51A or rule 5 of chapter XIVA of the Kerala Education Rules. The mere fact that the 4th respondent worked in the school for some time in 1967-68 cannot by itself make the 4th respondent entitled to claim an appointment in the school. It is true that by Ext. P-3 G.O., dated 30th July 1968 the 3rd respondent exempted the 4th respondent permanently from age limit. But that exemption by itself will not give the 4th respondent any right to claim the post on 1st August 1968. Moreover, Ext. P-3 has no retrospective effect. It is only by Ext. R-2 issued on 7th April 1970 that the 3rd respondent gave retrospective effect to Ext. P-3. I do not think that the 3rd respondent has any power to issue Ext. R-2 to give retrospective effect to Ext. P-3 and thus affect the legal rights of the petitioners in this case. On 1st August 1968 when the first petitioner appointed the 2nd petitioner that appointment was strictly according to the rules in the Kerala Education Rules, 1959 and the 1st respondent cannot decline approval to that appointment. Even if Exts. P-3 and R-2 Government Orders are given effect to, only after the 4th respondent's appointment in 1967-68 is got approved, the 4th respondent will get any right to preference under the rules for appointment in the vacancy in which the second petitioner was appointed on 1st August 1968. By virtue of Exts. P-3 and R-2 the 4th respondent's appointment in 1967-68 can be approved and salary paid to her but that cannot in any way adversely affect the rights of the second petitioner. Moreover, there is no indication in Ext. By virtue of Exts. P-3 and R-2 the 4th respondent's appointment in 1967-68 can be approved and salary paid to her but that cannot in any way adversely affect the rights of the second petitioner. Moreover, there is no indication in Ext. P-14 judgment that the first petitioner gave an undertaking that the 4th respondent will be appointed in the year 1969-70. What is seen from the judgment is that the first petitioner agreed to consider the claims of the 4th respondent in the year 1969-70 and the case of the first petitioner is that since the 4th respondent was not within the age limits she could not be appointed on 1st August 1968 when he appointed the second petitioner. It is also clear from Ext. P-3 that the first petitioner came to know of Ext. P-3 only after 28th August 1968 when the same was forwarded to the first petitioner by the 1st respondent. So, there was nothing wrong on the part of the first petitioner in filling up the vacancy by appointing the second petitioner on 1st August 1968 and it is for the 1st respondent to approve that appointment from 1st August 1968. 9. Counsel for the 4th respondent has contended that the first petitioner is estopped from questioning Exts. P-5, P-6, P-7, P-9 and P-10 orders of the department because the very same orders were questioned by the first petitioner in O.P. No. 3311 of 1969 and this court did not allow the contentions of the first petitioner and quash the above orders. It is true that in this Original Petition also the petitioners question the above orders and, over and above that, Exts. P-16, P-20, P-21, P-22 and P-23 which are orders passed after Ext. P-14 judgment, dated 7th July 1972. Sankey, L. J. in Jaeger Co. Ltd. v. Jaeger 1929, 46 R.P.C. 336 has said as follows: "The best statement of res judicata is probably that to be found in the Digest of the Laws of Evidence by the late Mr. Justice Stephen. P-14 judgment, dated 7th July 1972. Sankey, L. J. in Jaeger Co. Ltd. v. Jaeger 1929, 46 R.P.C. 336 has said as follows: "The best statement of res judicata is probably that to be found in the Digest of the Laws of Evidence by the late Mr. Justice Stephen. He says in the 41st Article: 'Every judgment is conclusive proof as against parties and privies of facts directly in issue in the case, actually decided by the court, and appearing from the judgment itself to be the ground on which it was based; unless evidence was admitted in the action in which the judgment was delivered, which is excluded in the action in which that judgment is intended to be proved.' Now it will be observed that there are three conditions laid down there: the facts (1) directly in issue in the case; and (2) actually decided by the court; and (3) appearing from the judgment itself to be the ground on which it was based. That does not mean the mere formal judgment as drawn up, but the judgment as delivered." In Hoystead v. Taxation Commissioner (1926) A.C. 155 (P.C.) Lord Shaw delivering the judgment of the Judicial Committee said that the principle applies to matters of admission as well as matters of omission which were fundamental to the judgment ultimately pronounced. In Blake v. O. Kelly (1874) 9 I.R. 54 Chatterton, V.C. (Ir) has said that if a plaintiff obtains relief of a certain character on certain aspects of the case, but omits to press for relief of another character on another aspect, a general adverse decision necessarily involves a decision that the plaintiff is not entitled to the latter, any more than to the former, kind of relief. In Sobhag Singh v. Jai Singh A.I.R. 1968 S.C. 1328 it has been said as follows: "All questions which had been expressly decided by the High Court on contest between the parties and other questions which must be deemed by necessary implication to have been decided are res judicata and cannot be reopened." In Union of India v. Nanak Singh A.I.R. 1968 S.C. 1370 it has been said as follows: "Provisions of section 11, C.P.C. are not exclusive with respect to an earlier decision operating as res judicata between the same, parties on the same matter in controversy in a subsequent regular suit, and on the general principle of res judicata, any previous decision on a matter in controversy, decided after full contest or after affording fair opportunity to the parties to prove their case by a court competent to decide it, will operate as res judicata in a subsequent regular suit." In Mysore State Electricity Board v. Bangalore Woollen, Cotton and Silk Mills Ltd. and others A.I.R 1963 S.C. 1128 it has been observed thus: "It is indeed true that what becomes res judicata is the 'matter' which is actually decided and not the reason which leads the court to decide the 'matter'." On the question of the applicability of constructive res judicata to writ petitions tiled under Articles 32 and 226 of the Constitution, the Supreme Court has said in Amalgamated Coal Fields v. Janapada Sabha A.I.R. 1964 S.C. 1013 as follows: "Constructive res judicata which is a special and artificial form of res judicata enacted by section 11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Article 32 or Article 226."� In the above decision it was also held that the general principle of res judicata applies to writ petitions filed under Article 32 or Article 226 of the Constitution. 10. Even though constructive res judicata may not generally be applicable to writ petitions under Articles 32 and 226 of the Constitution, the general principle of res judicata will apply to such proceedings. To succeed in a plea of res judicata the facts directly in issue in the case must have been actually decided by the court in an earlier case between the same parties and from the judgment it must be clear that the decision in that case was actually based on those facts. To succeed in a plea of res judicata the facts directly in issue in the case must have been actually decided by the court in an earlier case between the same parties and from the judgment it must be clear that the decision in that case was actually based on those facts. Though the same facts were directly in issue in the earlier case if the court without deciding those facts disposes of the case by deciding a collateral fact, even if that decision was adverse to the petitioner, a fresh action where the very same facts are directly in issue will not be barred by res judicata. In this case, the earlier decision was not adverse to the petitioners. Though Exts. P-5, P-6, P-7, P-9 and P-10 orders questioned in this Original Petition were also under challenge in the earlier Original Petition, the court, without giving a decision on the points that directly arose for consideration in the case, allowed the Original Petition quashing Ext. P-13 order by which the first petitioner-Manager was disqualified for not implementing the above orders of the department. As the said Original Petition was allowed, the first petitioner did not get an opportunity to test the correctness of the decision in a writ appeal. As the court did not give a decision on the question of the validity of orders Exts. P-5, P-6, P-7, P-9 and P-10 in the earlier judgment it will not operate as res judicata in these proceedings. The 'might' and 'ought' rule also has no application in this case as the first petitioner has in the earlier Original Petition also questioned Exts. P-5, P-6, P-7, P-9 and P-10 orders. So, even if it is taken for granted that constructive res judicata is applicable to writ petitions in this case there is no bar of constructive res judicata. 11. The petitioners are entitled to get the appointment of the second petitioner as part-time Hindi teacher approved from 1st August 1968. By virtue of that appointment the second petitioner is entitled to continue in the staff of the school without interruption as long as a post of Hindi teacher is there in the establisment of the school. The 4th respondent will not have any superior claims over the second petitioner for appointment in the school even when her appointment or appointments in the year 1967-68 are got approved. The 4th respondent will not have any superior claims over the second petitioner for appointment in the school even when her appointment or appointments in the year 1967-68 are got approved. The relief of the second petitioner pending the Original Petition to provide the 4th respondent was wrong. 12. For the reasons stated above, Exts. P-5, P-6, P-7, P-9, P-10, P-16, P-20, P-21, P-22 and P-23 are quashed and the first respondent-Assistant Educational Officer is directed to approve Ext. P-2 appointment of the 2nd petitioner from 1st August 1968 onwards. The Original Petition is allowed. There will be no order as to costs.