A claimant under R.51A has a legal claim for appointment as a teacher, and a member of the non-teaching staff with prescribed qualifications can claim appointment as a teacher under Note (1) of the relevant rule.

Whether a claimant under R.51 A of Chapter XIV A of the Kerala Education Rules would come within the term 'teacher' mentioned in Note (1) under sub-rule 1 of Rule 1 of the same chapter is the question to be decided in this original petition. The undisputed facts are as follows: -

2. The petitioner was appointed as a Peon in the school under the management of the 4th respondent on 19-7-1978. He acquired graduation in the year 1986 and B.Ed, degree in May 1989. During the relevant time, the 5th respondent, a trained graduate was working in the school in the leave vacancy of an Upper Primary School Assistant which arose in 1988 and which was to expire on 1-6-1993. On 25-7-1989 there arose another leave vacancy of a primary teacher for a period of 72 days. The petitioner made Ext.P1 representation to the manager requesting for appointment to the above post of teacher as provided under the Note (1) to sub-rule 1 of Rule 1 of Chapter XIV A of K.E.R. But the manager did not fill up the vacancy. Thereafter two permanent vacanceis arose on 4-6-90 in the post of UP5A. The petitioner again put forward a claim for one of the above two posts. But the manager shifted the 5th respondent from the leave vacancy to one of the permanent vacancies and appointed 6th respondent who is having a claim under R.51A of Chapter XIVAK.E.R. in the second vacancy. At the time of staff fixation, one division was reduced, therefore, there was only one permanent vacancy available. The manager therefore accommodated the 6th respondent in the leave vacancy in which the 5th respondent was originally working. Petitioner made complaint before the A.E.O. who gave direction to the manager to appoint the petitioner with effect from 4-6-90 against the regular vacancy.

3. The manager and respondents 5 and 6 appealed against the above order of the A.E.O. before the 2nd respondent, District Educational Officer. Under Ext.P3 order, the D.E.O. held that the action of the manager in shifting the 5th respondent from the leave vacancy to the permanent vacancy was correct. But he further held that in the leave vacancy, which was originally occupied by the 5th respondent, should go to the petitioner. The appointment of the 6th respondent to the leave vacancy was found unsustainable. The reasoning of the D.E.O. was that the petitioner has claim under R.43 of Chapter XIVA K.E.R. for promotion to the post of teacher and therefore he should be given preference to the 6th respondent who is a claimant under R.51 A. The matter was taken in revision by the petitioner, manager and the 6th respondent. Ext.P4 is the common order passed by the Government on the above mentioned revision petitions. While revision filed by the manager and the 6th respondent were allowed, the petitioner's revision was dismissed. According to the 1st respondent, a member of a non-leaching staff gets only eligibility under Note (1) of sub-rule 1 of Rule 1 and no right for being appointed as a teacher. On the other hand, a right is given under R.51 A to a teacher who was relieved from the service either under R.49

or 52 of Chapter XIVA. Therefore according to the 1st respondent, the 6th respondent has a better claim than the pelitioner in the leave vacancy. As far as the claim made by the petitioner to the permanent vacancy occupied by the 5th respondent, the view taken by the D.E.O. was affirmed.

4. I find it difficult to accept the view that member of the non-teaching staff does not get a right under Note (1) for appointment to a teaching post as in the case of a claimant under R.51 A. A reading of the note would show that it was meant not for merely declaring eligility of a member of the non-teaching staff for appointment as a teacher and leave him to the mercy of the Manager. On the other hand, the note is very clear that in the absence of a teacher eligible for promotion or appointment, a qualified member of the non-teaching staff would be entitled to claim promotion to a vacancy which arises in the