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PETITIONER: SMT. MARY OOMMEN

       Vs.

RESPONDENT: MANAGER, M.G.M. HIGH SCHOOL, KURUPPAMPADDY,KERALA & ORS.

DATE OF JUDGMENT25/02/1987

BENCH: KHALID, V. (J) BENCH: KHALID, V. (J) OZA, G.L. (J)

CITATION:  1987 AIR 1163            1987 SCR  (2) 436  1987 SCC  (2) 214        JT 1987 (1)   559  1987 SCALE  (1)437

ACT:     Kerala     Education     Rules--Chapter     XIV(A)--Rule 51(A)--Teacher--Appointment to a permanent vacancy--Scope of Note  appended to section--Whether a teacher who had  worked in a temporary vacancy earlier has a preferential right over a teacher who worked later in the same school.     Statutory  Interpretation--Note to a Rule--Although  not having binding effect has persuasive force.

HEADNOTE:     Rule  51(A)  of Chapter XIV(A) of the  Kerala  Education Rules  provided that qualified teachers who are relieved  as per Rules 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Education Agency. A Note was appended to  this Rule on 4.7.1972 which provided that if  there  are more  than  one claimant under this Rule the  order  of  the preference shall be according to the date of first  appoint- ment.  If  the date of first appointment is the  same,  then preference shall be decided with reference to age, the older being  given the first preference. In making  such  appoint- ment, due regard should be given to requirement of  subjects and  to the instructions issued by the Director  under  sub- Rule(4) of Rule 1 as far as High Schools are concerned.     The appellant, who was duly qualified, was appointed  as a teacher in a temporary vacancy in the school of the  first respondent  from 13.1.1970 and her appointment was  approved by the District Educational Officer, the second  respondent. On the vacancy being ceased to exist she went out of job  on 16.3.1970.  She  again  worked in  a  further  vacancy  from 22.8.70  to  17.12.1970. She went out of service  when  this vacancy ceased. Respondent No. 4, another teacher, worked in the  same school in another leave vacancy from  1.9.1970  to 26.11.1970.     In  the academic year 1971-72 a permanent vacancy  arose for  Social  Studies. The appellant being a  Social  Studies teacher  made a representation claiming appointment  against that vacancy. But the first 437 respondent  appointed  the 4th respondent.  On  a  complaint being made by the appellant, the second respondent found the

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appointment  of the 4th respondent irregular and  held  that the  legitimate  claimant  for the permanent  post  was  the appellant and, therefore, did not approve the appointment of the  4th respondent. The Regional Deputy Director of  Public Instructions,  respondent No. 3, allowed the appeal  of  the management. The appellant filed a petition under Article 226 challenging  the validity of the order passed by  the  third respondent, inter alia, contending that she had a  preferen- tial  claim and that the appointment of the  4th  respondent was illegal.      A  Single  Judge dismissed the petition on  the  ground that  Rule  51(A)  conferred a right on  the  appellant  for appointment in the future vacancies in the school and it did not  restrict  the right of the management to make  his  own choice  among  the thrown out teachers. The  Division  Bench also dismissed the appeal preferred by the appellant.      On  the question whether a teacher who had worked in  a vacancy  earlier has preferential right over a  teacher  who worked later in the same school, allowing the appeal,      HELD:  l.  Rule 51(A) of Chapter XIV(A) of  the  Kerala Education  Rules  does not mandate that the one  who  worked earlier  should  be preferred to the one who  worked  later. [441B]        2.1 Although a Note to a Rule does not have any  bind- ing effect, it does indeed have a persuasive force. [441E]      2.2  It cannot be ignored that the Note has come as  an appendage to Rule 51(A) for qualificatory purposes though it does not form a part of the Rule. [441F]      3.  The  preference in Rule 51(A) should  be  based  on priority of title. [442G]      4.  The  High Court while interpreting Rule  51(A)  was influenced  more by the words in the abstract  contained  in the  Rule and not fairness behind the Rule. The  interpreta- tion  given  by the High Court to this Rule  can  result  in abuse  of  discretionary power with the management.  If  the Government  wanted to clothe the Manager with the  power  to choose among rival contendors to a future vacancy, the  Rule should be suitably amended. [443C-D] 438     5. The Rule as it stands clearly confers priority to the earlier appointee. The appellant, therefore, is entitled  to succeed. The appellant will be entitled to all the  benefits as  though  she was appointed when the vacancy  in  question arose. However, this will not enable her to draw salary  for the  period she had not worked but only other benefits  such as seniority, increments etc. [443D-F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 1284  of 1973.     From  the  Judgment and Order dated 18.1.  1973  of  the Kerala High Court in transfer petition No. 45 of 1972. G. Vishwanath Iyer and N. Sudhakaran for the Appellant. P.K. Pillai and Miss Lily Thomas for the Respondents. The Judgment of the Court was delivered by     KHALID,  J.  This appeal by special  leave  is  directed against  the  Judgment dated 18-1-1973, passed by  the  High Court of Kerala in Writ Appeal No. 45 of 1972.     This appeal involves the correct interpretation and  the scope  and  effect  of Rule 51(A) of Chapter  XIV-A  of  the Kerala Education Rules. The Rule reads as follows:               "51-A. Qualified teachers who are relieved  as               per  Rules 49 or 52 or on account of  termina-

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             tion  of vacancies shall have  preference  for               appointment  to  future vacancies  in  schools               under the same Education Agency, provided they               have not been appointed in permanent vacancies               in   schools  under  any   other   Educational               Agency." This Rule gives a teacher, discharged for want of vacancy or relieved as per Rule 49 or 52, a right to reappointment when a  future  vacancy  comes into existence. It  is  usual  for managers of schools to appoint teachers to leave  vacancies. Sometimes more than one teacher get so appointed when  there are  more than one vacancies. When such vacancies  cease  to exist by the permanent incumbent coming back, the  temporary appointees  go  out.  When thereafter  a  permanent  vacancy arises, those who had temporarily worked in leave  vacancies get pre- 439 ference  to  be appointed to that vacancy. The  question  in this  appeal  is whether the Manager who has  to  appoint  a teacher  to  a permanent vacancy has to go by  the  rule  of "last  come--first go", to use the usual industrial  jargon, in  reverse,  or whether the Manager has a right  to  choose between  the  temporary  teachers,  ignoring  the  principle usually accepted that a person who gets a right to a post by virtue  of  earlier  appointment should not  be  ignored  in preference  to  a person who gets such title  later.  Before dealing  with this case it will be useful to take note of  a Note to Rule 51(A) which reads as follows:               "If  there  are more than one  claimant  under               this  rule  the order of preference  shall  be               according to the date of first appointment. If               the  date  of first appointment is  the  same,               then  preference shall be decided with  refer-               ence  to age, the older being given the  first               preference.  In making such  appointment,  due               regard  should  be  given  to  requirement  of               subjects and to the instructions issued by the               Director  under sub-rule (4) of Rule 1 as  far               as High Schools are concerned." This  note gives the correct guideline based on justice  and fair play.     Now, we will briefly state the facts. The appellant is a B.A.,  B  .Ed. degree holder. She is fully qualified  to  be appointed as a teacher in any Government or aided school  in the State of Kerala. She was appointed in a temporary vacan- cy in the school of the first respondent, from 13-1-1970  to 16-3-1970, in the academic year 1969-70. The appointment has to  be  approved by the District  Educational  Officer,  the second  respondent  herein, which was duly done.  Since  the vacancy in which the petitioner was working ceased to exist. She  went  out of the job on 16-3-1970.  A  further  vacancy arose  on  22-8-1970 and it continued till  17-12-1970.  She worked  in this vacancy also. She went out of  service  when this vacancy ceased. Respondent No. 4 is another teacher who worked in the same school in another leave vacancy, from  1- 91970 to 26-11-1970. The appellant thus had a total  service of  six  months and one day while the 4th respondent  had  2 months and 25 days of service, under the 1st respondent.     A permanent vacancy arose in the school for the academic year  1971-72,  for Social Studies when the Head  Master  in that school retired. The appellant made a representation  to the  Manager for being appointed against that  vacancy.  The 1st  respondent appointed the 4th respondent. The  appellant is a Social Studies teacher. She thereupon 440

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complained  to the second respondent. The second  respondent found  the appointment of the 4th respondent  irregular  and held that the legitimate claimant for the permanent post was the  appellant. On this finding he did not approve  the  ap- pointment  of  the 4th respondent. The management  took  the matter  in  appeal before the Regional  Deputy  Director  of Public Instruction, respondent No. 3, who by his order dated 9-11-1971,  allowed the appeal. Aggrieved by this order  the appellant moved the High Court of Kerala by filing  Original Petition  No. 5064 of 1971, challenging the validity of  the order  passed by the 3rd respondent, inter alia,  contending that  as  per Rule 51(A), of Chapter XIV(A)  of  the  Kerala Education  Rules, she had a preferential claim and that  the appointment of the 4th respondent was illegal.     The learned Single Judge dismissed the original petition by  his  Judgment dated 1-2-1972, on the short  ground  that Rule  51(A) conferred a right on the appellant for  appoint- ment  in the future vacancies in the school and it  did  not restrict the right of the management to make his own  choice among  the  thrown out teachers. The appellant  pursued  the matter by filing Writ Appeal 45 of 1972. The Division  Bench dismissed the appeal agreeing with the learned Single  Judge that  the  management had a discretion to choose  among  the thrown out teachers. Hence this appeal by special leave.     Though  long  years have passed by  since  this  dispute arose wherefore we would have normally declined interference with the Judgment under appeal, we think it necessary to lay down the law correctly to avoid injustice in cases like this and  to  prevent abuse of power of those in  whom  right  is conferred under Rule 51(A). Now, both the appellant and  the 4th  respondent are working in the same school.  Though  the subject to be taught by the appellant and the 4th respondent figured  at  one  stage as an  additional  plea  before  the learned  Single Judge, it is inconsequential for this  Judg- ment, though the learned Single Judge held in favour of  the appellant on the question of the subject.     Let  us read the rule in question. This rule  speaks  of qualified teachers. Both the appellant and the 4th  respond- ent  satisfy this requirement. It speaks of  teachers  being relieved as per Rule 49 or Rule 52 or on account of termina- tion of vacancies. Rule 49 speaks of termination of teachers after  vacation, when the vacancy in which they work  extend over summer vacation and Rule 52 speaks of teachers relieved on account of reduction in the number of posts under  orders of  the department. We are not concerned with  these  rules. Here, both the teachers were relieved on account of termina- tion of vacancies. The 441 Rule  states, that such teachers shall have  preference  for appointment  to future vacancies in schools under  the  same Educational Agency. A future vacancy has arisen. The  school where  appointment is sought is under the  same  Educational Agency.  The proviso is not material in this case.  All  the conditions  for application of this Rule are satisfied.  The only  question that has to be answered is whether a  teacher who had worked in a vacancy earlier has a preferential right over  a teacher who worked later in the same school.  It  is true  that the rule does not in terms, mandate that the  one who worked earlier should be preferred to the one who worked later. But would it be in accord with justice and fair play, to  prefer  the one who worked later to the one  who  worked earlier?  In the absence of anything in the Rule  giving  to the  management  a right to choose between the two,  on  the ground of suitability, merit or effeciency. The Judgment  of the Division Bench under appeal was delivered on  18-1-1973.

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The  note quoted above was inserted on 4-7-1972.  This  note leaves  no doubt as to how Rule 51(A) has to  be  construed. The Rule states that preference will be given with reference to the date of appointment. When the date of appointment  is the  same,  age should prevail; the eider  being  given  the first  preference. Of course, it contains a rider  that  due regards  should be given to the requirements of  subject  as far  as High Schools are concerned. The Division  Bench  did not  choose  to accept the clarification  contained  in  the note. The learned Judges held against the appellant, on  the wording  of the Rule that, in terms, it did not provide  for any  preference  between  two or more persons  and  did  not consider it proper to read more into this Rule by  consider- ing  the note to Rule 5 in the same chapter. Although we  do not  say  that a note to a Rule has any binding  effect,  it does  indeed have a persuasive force. It cannot  be  ignored that  this note has come as an appendage to Rule  51(A)  for clarificatory purposes though it does not form a part of the Rule.  The learned Judges held that propriety  and  fairness required  a decision in favour of the appellant,  when  they observed:  "It would be proper no doubt to give  an  earlier appointee preference. But seeing the rule as we ought to see every  rule and every section in the Kerala Education  Rules and the Kerala Education Act as restrictions or  regulations in the matter of the free right of the manager to choose and appoint, it is impossible to read more into the rule."     With  respect,  we  feel that the  learned  Judges  were influenced  more by the words in the abstract  contained  in the rule and not with the fairness behind the rule. The learned Judges of the Division Bench had before them 442 another  Division  Bench Judgment where the  identical  rule fell  for consideration. The relevant portion of that  Judg- ment was extracted by learned Judges. We also find it useful to extract it here:                     "5. Very recently, in Writ Appeal No. 44               of 1970, we had occasion to construe Rule  51-               A.  And  we  then observed  that  despite  its               unhappy wording, in particular, the use of the               words,  "preference for appointment"  to  mean               "right  to appointment," we had  little  doubt               that  what  the rule meant was that  a  person               discharged for want of vacancy had a right  to               be appointed in future vacancies, provided, of               course,  he had not by word or deed  given  up               that right or, we might now add,  disqualified               himself  meanwhile.  And  we  added  that  the               present  tense  of the words,  "are  relieved"               appearing in the rule was the present tense of               logic,  not of time, so that, in  effect,  the               rule  should be read as if it said  "qualified               teachers who stand relieved" shall have  pref-               erence.  In that view, it is, no  doubt.  true               that  the petitioner’s  appointment’s  between               1957  and 1961 furnished here with a title  to               re-appointment notwithstanding that they  were               made  before the rule came into force, and  it               is at least arguable that where no priority in               preference is prescribed by the rule, priority               should be determined by priority of title. The               question,  then, is whether the plea of  aban-               donment to donment taken by the 3rd respondent               is well founded." The  above  observation was got over by the  Division  Bench with  the observation that "it was obiter and are  certainly

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not intended to be conclusive observations in the matter. If so,  we would have referred this case to a Full  Bench."  We would  have been happy if the appellate Bench  had  referred this  question to a full Bench and resolved the  controversy since  the High Court felt that the  appellant’s  contention carried with it the element of fair play and justice and was at  least,  to put it mildly, in some measure  supported  by another Division Bench of the same Court. We agree that  the preference  in  Rule  51-A should be based  on  priority  of title. In this case, we do not have a plea of abandonment or other disqualification.     The  learned  counsel for the appellant brought  to  our notice  how this Rule was understood by the Manager  of  the same school when another vacancy arose earlier. At that time also  the present appellant applied to the Manager,  seeking appointment in the vacancy conse- 443 quent  on the retirement of a Head Master. The  Manager  de- clined  the request and sent a reply to the  appellant,  the relevant portion of which, eloquent in favour of the  appel- lant, reads as follows:                    "Rule  51(A)  Chapter XIV-A  K.E.R.  lays               down that qualified teachers who are  relieved               on  account of termination of vacancies  shall               have  preference  for appointments  to  future               vacancies.  When two persons apply for a  post               by virtue of the concession laid down in  Rule               51 A, it is the natural justice to select  the               persons  who has earlier and longer period  of               previous  service. Hence considering  all  the               aspects  of the question, the  management  has               appointed Smt. P.E. Sosamma in the said vacan-               cy."     The  Manager  then understood the  rule  correctly,  but later incorrectly. That is why we said earlier in our  Judg- ment that the interpretation given by the High Court to this Rule  can result in abuse of this discretionary  power  with the Manager. If the Government wanted to clothe the  Manager the  power  to  choose among rival contenders  to  a  future vacancy, the rule should be suitably amended. The rule as it stands  clearly confers priority to the  earlier  appointee. The  appellant,  therefore, is entitled to succeed.  We  set aside the order of the Division Bench under appeal and allow this  appeal.  The  appellant will be entitled  to  all  the benefits  as  though she was appointed when the  vacancy  in question  arose.  We would like to make it clear  that  this direction of ours will not enable her to draw salary for the period  she had not worked but only other benefits  such  as seniority,  increments  etc. The first respondent  will  pay costs of the appellant. A.P.J.                                                Appeal allowed. 444