The main legal point established in the judgment is that R.51(A) of the Kerala Education Rules confers priority to the earlier appointee for appointment to future vacancies in schools under the same Educational Agency, limiting the discretion of the manager to choose among rival contenders to a future vacancy.

1. 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 (1973 KLT 538).

2. This appeal involves the correct interpretation and the scope and effect of R.51(A) of Chap.14-A of the Kerala Education Rules. The Rule reads as follows:

"51A. Qualified teachers who are relieved as per R.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, 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 R.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 preference 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 R.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 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 R.1 as far as High Schools are concerned."

This note gives the correct guideline based on justice and fair play.

3. 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 appointment has to be approved by the District Educational Officer, the second respondent herein, which was duty 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 1-9-1970 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.

4. 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 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 Direct