Holding

Rule 51(A) of the Kerala Education Rules, read with its explanatory note, gives preference to the teacher who first held a temporary appointment, so the earlier appointee has priority over a later one.

Summary

The appellant, a qualified Social Studies teacher, had worked in two temporary vacancies at M.G.M. High School in 1970. When a permanent vacancy arose in 1971, the school manager appointed another teacher who had worked later in a different temporary vacancy. The appellant claimed a preferential right under Rule 51(A) of the Kerala Education Rules, supported by a note stating that preference should be given according to the date of first appointment. The Kerala High Court held that the manager retained discretion to choose among eligible teachers and dismissed the petition. On appeal, the Supreme Court held that the rule, read with its note, confers priority to the earlier appointee, and therefore the appellant was entitled to the appointment and related benefits, setting aside the High Court’s order.

Issues considered

Whether a teacher who worked earlier in a temporary vacancy has a preferential right over a later appointee for a permanent vacancy under Rule 51(A) of the Kerala Education Rules.
Whether the note appended to Rule 51(A) is binding or merely persuasive in interpreting the rule.
Whether the school manager has discretion to select among eligible teachers notwithstanding the rule and its note.
Whether the preference under the rule should be determined by the date of first appointment (priority of title).

Legislation cited

Kerala Education Ruless. Rule 51(A)

Subjects

teacher appointmenttemporary vacancypreferential rightKerala Education Rulesrule interpretationnote to ruleseniorityadministrative law

Judgment

SMT. MARY OOMMEN
A
v.
MANAGER, M.G.M. HIGH SCHOOL, KURUPPAMPADDY,
KERALA & ORS.

FEBRUARY 25, 1987
B
[V. KHALID AND G.L. OZA, JJ.]

Kera/a Education Rules-Chapter XIV(A)-Rule 5J(A)-
Teacher-Appointment to a permanent vacancy-Scope of Note
appended to section-Whether a teacher who had worked in a tempor-
C ary vacancy earlier has a preferential right over a teacher who worked
later in the same school. --.J-

·Statutory Interpretation-Note to a Rule-Although not having
binding effect has persuasive force.

D Rule Sl(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
E 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 reference 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) ofRule 1 as far as High Schools are concerned.
F
The appellant, who was duly qualified, was appointed as a tea<:her
in a temporary vacancy in the school of the first respondent from
13.1.1970 and her appointment was approved by the District Educa-
tional 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
G vacancy from 22.8.70 to 17.12.1970. She went out of service when this
vacancy ceased. Respondent No. 4, another teacher, worked iu 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
H representation claiming appointment against that vacancy. But the first

436
MARY OOMMEN v. M.G.M. HIGH SCHOOL 437

respondent appointed the 4th respondent. On a complaint heing made A
'f 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 B
management. The appellant filed a petition under Article 226 cballeng-
ing the validity of the order passed by the third respondent, inter alia,
contending that she bad a preferential claim and that the appointment

--
of the 4th respondent was illegal.
'+
A Single Judge dismissed the petition on the ground that Rule
Sl(A) conferred a right on the appellant for appointment in the future c
vacancies in the school and it did not restrict the right of the manage-
1 ment 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 bad worked in a vacancy D
earlier has preferential right over a teacher who worked later in the
same school, allowing the appeal,

HELD: I.Rule Sl(A) of Chapter XIV(A) of the Kerala Education
-i Rules does not mandate that the one who worked earlier should be
preferred to the one who worked later. [441B] E

- 2.1 Although a Note to a Rule does not have any binding 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 Sl(A) for qualificatory purposes though it does not form a part
... +- of the Rule. [441F)
F

3. The preference in Rule Sl(A) should he based on priority of
title. [442G)

4. The High Court while interpreting Rule Sl(A) was influenced G
more by the words in the abstract contained in the Rule and not fairness
behind the Rule. The interpretation 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) H
F--
1
438 SUPREME COURT REPORTS [1987] 2 S.C.R.

A 5. The Rule as it stands clearly confers priority to the earlier ·'r
appointee. The appellant, therefore, is entitled to sncceed. The appel-
lant win he entitled to an the benefits as thongh she was appointed when
the vacancy in CJIDestion arose. However, this will not enable her to draw
salary for the period she had not worked bot only other benefits snch as
seniority, Increments etc .. [4430-F]
B
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.
._,,., .. -
c 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
D

~LID, 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.

E 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 termination of vacancies shall have
F 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
G 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 vacan-
cies cease to exist by the permanent incumbent coming back, the
temporary appointees go out. When thereafter a permanent vacancy
H arises, !hose who had temporarily worked in leave vacancies get pre-
MARY OOMMEN v. M.G.M. HIGH SCHOOL [KHALID, J.] 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 A
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 iemporary 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 B
such title latet. Before dealing with this case it will be useful to take
t. note of a Note io 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 reference to age, the older being given the first C
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·.,;
D
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 vacancy in the school of the first respondent,
from 13-1-1970 to 16-3-1970, in the academic year 1969-70. The
E

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 con- F
tinued 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 1-9-
1970 to 26-11-1970. 'Ibe 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 !st respondent. G

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 !st respondent appointed the 4th
respondent. The appellant is a Social Studies teacher. She thereupon H
440 SUPREME COURT REPORTS [1987] 2 S.C.R.

A 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 appointment 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
B 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 5l(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.
c The learned Single Judge dismissed the original petition by his
Judgment dated 1-2-1972, on the short ground that Rule 51(A) confer-
red a right on the appellant for appointment in the future vacancies in
the school and it did hot restrict the right of the management to· make
his own choice among the thrown out teachers. The appellant pursued
D 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 where-
E fore 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 5l(A). Now, both the appellant
and the 4th respondent are working in the same school. Though the
subject to be !ought by the appellant and the 4th respondent figured
F at one stage as an additional plea before the learned Single Judge, it is -..+
inconsequential for this Judgment, 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 respondent satisfy this
G requirement. It speaks of teachers being relieved as per Rule 49 or
Rule 52 or on account of termination 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
H the teachers were relieved on account of termination of vacancies. The
MARY OOMMEN v. M.G.M. HIGH SCHOOL [KHALID, J.] 441

Rule states, that such teachers shall have preference for appointment
to future vacancies in schools under the same Educational Agency. A 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 B
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 manage-
ment a right to choose between the two, on the ground of suitability,
merit or effeciency. The Judgment of the Division Bench under appeal c
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 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 elder being given the first preference. Of D
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 word-
ing 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 E
more into this Rule by considering 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 forrn a part of the Rule. The learned
Judges held that propriety and fairness required a decision in favour of F
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." G

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 H
442 SUPREME COURT REPORTS (1987] 2 S.C.R.

A another Division Bench Judgment where the identical rule fell for
consideration. The relevant portion of that Judgment 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
B 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.
c 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 preference. In that view, it is, no doubt, true
D that the petitioner's appointment's between 1957 and
1961 furnished here with a title to re-appointment not-
withstanding 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
E whether the plea of abandonment 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 ,
F case to a Full Bench.'' We would have been happy if the appellate --f ,_
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
G 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
H applied to the Manager, seeking appointment in the vacancy conse-
MARY OOMMEN v. M.G.M. HIGH SCHOOL [KHALID, J.] 443

quent on the retirement of a Head Master. The Manager declined the A
request and sent a reply to the appellant, the relevant portion of
which, eloquent in favour of the appellant, reads as follows:

"Rule 51(A) Chapter XIV-A K.E.R. lays down that
qualified teachers who are relieved on account of termina-
tion of vacancies shall have preference for appointments B
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 appoin-
ted Smt. P.E. Sosamma in the said vacancy." c
The Manager then understood the rule correctly, but later incor-
rectly. That is why we said earlier in our Judgment that the interpreta-
tion 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 D
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 en-
titled 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 E
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.
F