The main legal point established in the judgment is the interpretation and validity of R.5 in Chapter XIV(A) of the Kerala Education R.1959, and the effect of the absence of the Legislative Assembly on the validity of the rules.

1. This Original Petition raises the question relating to the validity and applicability of R.5 in Chapter XIV (A) of the Kerala Education R.1959 (hereinafter referred to as the Rules), made by the Government in exercise of the powers under S.36 of the Kerala Education Act, 1958 (hereinafter referred to as the Act).

2. The petitioner is the manager of an Upper Primary School. The 4th respondent, who was an untrained candidate, was appointed by the petitioner as a teacher in the school during the year 1962-63, after advertising the vacancy and establishing the non-availability of trained hands. Her appointment was approved by the first respondent; and on the basis of this service, she was selected for Teachers' Training Course in the Department quota. Accordingly, she was relieved from service at the end of the year; and she joined the T. T. Course. She completed the course, which is for 2 years, and passed in the examination held in April 1965. A vacancy arose in the school during the year 1965 66. The petitioner advertised the vacancy in the Malayalam Daily "Deepika", on 17 51965. It is stated by the 4th respondent that immediately after the school re opened in 1965, she approached the petitioner for appointment, and that the advertisement was made ignoring the same. This is denied by the petitioner. It is also averred by the 4th respondent that, on seeing the advertisement, she applied to the petitioner putting forth her claim for the post. Ext. R-1 is produced as a true copy of her application; and it is dated 22 61965. She also sent a petition to the first respondent on 21-6-1965, claiming that she was entitled to the appointment, and complaining against the petitioner's refusal to appoint her, even though she approached him for that purpose. A copy of this petition was also forwarded to the petitioner. However, the petitioner appointed the 3rd respondent in the vacancy from 2.8.1965, and sought the approval of the Department for the appointment. The approval was rejected by the first respondent as per letter, Ext. P-1, dated 8-11-1965, on the ground that the appointment of the 3rd respondent was in violation of R.5 in Chapter XIV (A) of the Rules, and that the 4th respondent had preferential right to the post under the said Rule. The petitioner filed an appeal before the 2nd respondent, who dismissed it as per order, Ext. P-2, dated 20-2-1966. This Original Petition has been filed to quash Exts. P-1 and P-2, and for a writ of mandamus directing respondents 1 and 2 to approve the appointment of the 3rd respondent.

3. Chapter XIV(A) of the Rules deals with the conditions of service of aided-school teachers. R.1 to 6 in this Chapter were substituted by Notification G. R. O. No. 43 of 1965 published in the Kerala Gazette No. 5 dated 2 21965. These Rules read as follows:

1. Subject to the qualifications laid down by Government from time to time in respect of teachers of Government and aided schools and subject to the following restrictions, teachers of aided schools may be appointed as (a) permanent, (b) acting, or (c) temporary.

2. Appointment of unqualified teachers made under R.2(1) of Chapter XXI shall be deemed temporary. Appointments of qualified teachers shall be deemed as acting till they are confirmed.

3. Initial appointment of qualified teachers shall be on probation:

Provided that for the purpose of this Rule qualified teachers in service on the date on which this Rule comes into force and who have a satisfactory continuous service of not less than one year, shall be deemed to have completed their probation.

4. Permanent appointment of teachers shall be mads from among the qualified teachers who have completed their probation satisfactorily.

5. Unqualified teachers appointed under R.2 and who acquire the prescribed qualifications subsequently shall have preference for appointments to future vacancies in schools under the same Educational Agency.

6(a) Teachers appointed under R.3 shall be on probation for a total