The legal principle established is that the preferential right for future appointment under R.51A of Chapter XIV-A is limited to the same category of posts held earlier by the individual.

1. This case has come before the Division Bench on a reference made by Justice Thomas on the ground that important questions of law have arisen for consideration in this case which merit being decided by the Division Bench. The relevant facts necessary for the purpose of disposal of this case may be stated as follows:

2. The petitioner was appointed as a Clerk by Ext. P1 dated 7-7-1976 by the 3rd respondent-Manager of B. H. School, Kalady, a school which receives aid from the Government under the Kerala Education Act and Kerala Education Rules. The appointment was for the period from 7-7-1976 to 2-11-1976, which was duly approved by the District Educational Officer. Thereafter another vacancy to the post of Clerk arose in the year 1981 in which the petitioner was appointed as per Ext. P2 dated 21-10-1981 for the period from 21-10-1981 to 2-1-1982. That appointment was also approved by the District Educational Officer. Subsequently in the same school there occurred a vacancy of Peon in June, 1984. The 3rd respondent appointed the petitioner as a peon in that vacancy by Ext. P3 dated 25-6-1984. The District Educational Officer refused to approve the said appointment by his order Ext. P4 dated 14-8-1984. The reason assigned for not approving the appointment of the petitioner is that the 4th respondent who had become a full-time menial in the school with effect from 1-4-1981 was entitled to be considered for promotion to the cadre of Peons. Instead of recognising the rights of the 4th respondent for promotion, the action of the Manager in appointing the petitioner as Peon was held to be not in accordance with law. The said order was taken up in appeal before the Deputy Director of Public Instruction and the said authority dismissed the appeal by Ext. P5 dated 9-11-1984. It is in this background that the petitioner approached this court challenging Exts. P4 and PS and seeking a direction to the authorities to approve the appointment of the petitioner as peon.

3. The petitioner's contention is that he is entitled to the protection of R.51A in Chapter XIV-A of the Kerala Education Rules. Though the said provision deals with teachers, it was pointed out that the said provisions applies mutatis mutandis to non-teaching staff as per R.7 of Chapter XXIV-B of the Kerala Education Rules. It is not disputed that the benefit of rule S1A is available to the petitioner.

4. The first question for examination is as to whether the right which the petitioner claims under R.51A of Chapter XIV-A can be pressed into service in this case for securing appointment as Peon in the school, on the basis of his previous service as Clerk. The fact that the petitioner served as a clerk in the school on two previous occasions as per Exts. P1 and P2 and that the same was also approved by the District Educational Officer is not disputed. It is also not disputed that the petitioner has acquired a preferential right for appointment in a future vacancy of clerk. What we have to examine is as to whether the petitioner has acquired a preferential right to appointment to the future vacancy of a peon also on the basis of his prior service as a clerk in the same school. R.51A of Chapter XIV-A gives a preferential right for appointment in future vacancies in the schools under the same educational agency. The intention of the rule is to restore to the person the appointment which he lost for want of vacancy etc. In other words, an attempt is made to put him back in the same position which he would have occupied but for termination for want of vacancy etc. If a person is once appointed is a particular vacancy for a particular post and his services get terminated on account of want of vacancy or for other similar causes, the role enables him to lay a preferential claim for appointment when a vacancy in respect of a similar post arises on a future occasion. In other words, there must be identity in regard to the nature of the post. The preferential right conferred by