ivil Appeal No 1284 of 1973
From the Judgment and Order dated 181
1973 of the Kerala High Court in transfer petition No 45 of 1972
G Vishwanath Iyer and N Sudhakaran for the Appellant
PK 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 51A 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 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 51A 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 BA 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 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 51A of Chapter XIVA 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 51A 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 51A
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
The note quoted above was inserted on 4 7 1972
This note leaves no doubt as to how Rule 51A 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 51A 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 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 51A Chapter XIV A KER 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
PE 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
APJ Appeal allowed


Summary:
Rule 51A of Chapter XIVA 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 471972 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 Rule4 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 1311970 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 1631970
She again worked in a further vacancy from 22870 to 17121970
She went out of service when this vacancy ceased
Respondent No 4 another teacher worked in the same school in another leave vacancy from 191970 to 26111970
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 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 51A 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 51A of Chapter XIVA of the Kerala Education Rules does not mandate that the one who worked earlier should be preferred to the one who worked later
441B 21 Although a Note to a Rule does not have any bind ing effect it does indeed have a persuasive force
441E 22 It cannot be ignored that the Note has come as an appendage to Rule 51A for qualificatory purposes though it does not form a part of the Rule
441F 3
The preference in Rule 51A should be based on priority of title
442G 4
The High Court while interpreting Rule 51A 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