Abdul Gafoor, J.

A post of Headmaster arose in L.P. School Chorode, Kozhikode, of which the 4th respondent is the Manager. On 1.5.1991, the 4th respondent preferred the 3rd respondent, who according to him was the senior most teacher in the school. There upon the appellant/writ petitioner staked his claim for the post. The education officer as per Ext.P4 resolved the dispute in favour of the 3rd respondent. Challenge of Ext.P4 in O.P.5173/1993 did not succeed. Therefore this writ appeal.

2. Two contentions are mainly urged by the appellant/writ petitioner to substantiate his claim for the post of Headmaster, in preference to the 3rd respondent. One is that he is senior to the 3rd respondent and the other is that he had acquired the necessary obligatory test qualification for promotion as Headmaster, earlier that the 3rd respondent.

3. Admitted facts revealed that both of them commenced continuous qualified service on 2.6.1981. There is no dispute. Both of them did have earlier under qualified spells of service. The 3rd respondent is considered as senior, counting such service. This is not permissible in terms of Rule 37 Chapter XIV-A KER, which determines the seniority of aided school teacher in a unit. It is submitted relying on the decision reported in K.P. Mathiri V. State of Kerala and Others (1973 KLT 284) that only qualified service cannot be reckoned, the appellant asserts.

4. Both of them were appointed on regular basis on 2.6.1981. On that date, both of them were duly qualified for the post of LP School Assistant. None of them is given seniority from an anterior date. Both are given seniority from that date alone; because Rule 37 Chapter XIV A KER permits that alone. But, when two incumbents commenced qualified continuous service on the same date, one shall have to be ranked below the other what shall be the order, that alone is the issue here. There is no question of reckoning any temporary or underqualified service for the purpose of seniority. The answer to the question lies in sub rule (2) of Rule 37. In order to conceive the issue in its real perspective, it is necessary to read Rule 37 as such.

“37(1). Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post.

(2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to the age, the older being the senior.”

5. Sub Rule (1) cannot answer the issue because both of them commence the qualified continuous service on the same date. Necessarily we have to step over to sub rule (2) which provides that the seniority of such incumbents commencing continuous qualified service on the same day shall be reckoned “with reference to the date of first appointment”; obviously meaning earlier temporary appointment, which may be either qualified or under qualified. It is pertinent to note sub rule (1) which stipulate commencement of continuous service “provided he is qualified for the post.” Commencement of continuous service shall be thus qualified continuous service. But sub Rule (2) while mentioning “the date of first appointment” as the order to reckon seniority among the persons having same date of continuance service, the word ‘qualified’ is not made mention of. What is mentioned in Sub Rule (2) is not “first qualified appointment” but only “first appointment.” Necessarily, that is a conscious omission by the legislature, which we cannot fill up. We cannot therefore accept the contention that while determining the preference between the two or more persons, who are having the same date of qualified continuous service, the earlier first appointment also shall be qualified appointment, because several orders permit