The main legal point established in the judgment is the application of R.43 and R.51-A of the Kerala Education Rules in appointment disputes, and the interpretation of qualifications prescribed by an executive order.

1. These appeals arise from the judgment of Namboodiripad J. dismissing the original petition 5411 of 1972 moved by the appellants in these writ appeals as petitioners 2 and 1 respectively. They challenged in the writ petition the order passed by the Regional Deputy Director refusing the approval of the appointment of the appellant in writ appeal 296 of 1973 as a High School Assistant in the school managed by the appellant in writ appeal 376 of 1973. The Regional Deputy Director held by Ext. P8 that the 4th respondent in this appeal has preferential claim arising under R.43 in Chapter XIV-A or the Kerala Education Rules.

2. The facts are the following. The appellant in writ appeal 296 of 1973 had functioned in the leave vacancy caused by the 4th respondent being deputed for the B. Ed. Course in the year 1971-72. It is therefore admitted that she should ordinarily get the benefit of R.51A if that rule alone has to be considered. The 4th respondent has been working in the school as an upper primary school assistant from 1964. She passed her B. A. in the year 1969 and was deputed as was said earlier for the B. Ed. Course in the year 1971-72. Her examination result was published on the 30th July, 1972, and she was declared to have passed. A vacancy in the cadre of High School Assistant occurred on 15 7 72 and the manager appointed the appellant in writ appeal 296 of 1973 on 17-7-72 to the vacancy and had applied for approval of the appointment. This approval had been denied. We shall now extract R.43 and 51-A in Chapter XIV¬A of the Kerala Education Rules:

"43. Subject to R.44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available.

Note A teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided:

(i) he has the prescribed qualifications; and

(ii) there is no teacher with the prescribed qualifications in the lower grade of pay of the category of post to which promotions are to be made."

"51 A. 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 Educational Agency, provided they have not been appointed in permanent vacancies in schools under any other Educational Agency.

Note: 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 it the same', then preference shall be decided with reference to age, the older being given first preference. In making such appointments, 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."

3. There is an evident conflict between the provisions of these rules because both provided for priorities and the rules read by themselves contradict each other. The question was considered by Eradi J. in the decision in Mary v. The Regional Deputy Director of Public Instruction and others I. L. R. (1974) 2 Kerala 274 and the view was taken that when there was a person entitled to promotion under R.43 that rule should be applied and a claim under R.51-A will apply only in cases where R.43 is not attracted. The 4th respondent then may become entitled to be chosen for appointment to fill up the vacancy that occurred on 15-7-72 subject to other questions which we shall presently consider. The impact of the two rules has not been considered by the learned judge in the judgment under appeal because it was felt that the year being over there was no necessity to determine the question. It is agreed before us that it is necessary to determine the question because on this decision depends the fut