The main legal point established in the judgment is that when there is a conflict between the provisions of R.51A and R.43 of the Kerala Education Rules, 1959, the former should give way to the latter, influencing the court's decision in justifying the preference of the 4th respondent over the petitioner for filling up the vacancy.

K. Bhaskaran, J.

1. The facts are brief and are not in dispute. The petitioner qualified to hold the post of language teacher Hindi) in High School was appointed in a leave vacancy by the 3rd respondent, the Manager, Calicut Girls High School from 23rd November 1972 to 31st January 1973. The petitioner was relieved from that post when the vacancy terminated. During the academic year 1977-78 as per the staff fixation order a post of language teacher (Hindi) was sanctioned for the said High School. The petitioner made an application on 30th May 1977 in anticipation of this post which as a matter of fact was subsequently sanctioned on 15th July 1977, claiming protection under R.51A of Chap.14A of the Kerala Education Rules, 1959 (the rules). She also made a further application dated 20th July 1977, a true copy of which is Ext. P1. The 3rd respondent, however, appointed the 4th respondent as a teacher in the Upper primary section with effect from 14th July 1977, and appointed the 4th respondent as a High School Assistant with effect from 19th September 1977, keeping the post sanctioned from 15th July 1977 vacant till then. The petitioner objected to the appointment of the fourth respondent in the sanctioned post. As the objection was not considered within a reasonable time, she filed O. P. No. 3784 of 1977 before this Court for a direction to the 2nd respondent, the District Educational Officer, Kozhikode, to pass appropriate orders. In pursuance to the direction given by this Court the 2nd respondent disposed of the objection and that decision was in favour of the 4th respondent. Ext. P2 is the copy of the order, dated 21st January 1978 passed by the 2nd respondent. The 2nd respondent, however, cancelled Ext. P2 order, upholding the claim of the petitioner by a subsequent order, dated 27th February 1978, a true copy of which is Ext. P3. The petitioner had also filed an appeal before the Regional Deputy Director of Public Instruction, Kozhikode, and the third respondent also had filed an appeal against Ext. P3 decision of the 3rd respondent. Both the appeals were disposed of by the Regional Deputy Director of Public Instruction by order, dated 2nd May 1978, a true copy of which is Ext. P4. By Ext. P4 order the claim of the petitioner was upheld and the appeal by the 3rd respondent was dismissed. Aggrieved by Ext. P4 decision the 3rd respondent took up the matter before the 1st respondent, the State of Kerala. The Government upheld the contention of the Manager by its order G. O. Rt. No. 2907/79/G. Edn., General Education (E) Department, dated 18th July 1979, a true copy of which, marked Ext. P8, has been produced along with C. M. P. No. 12702 of 1979 before this Court. In the ultimate analysis what is under challenge in this writ petition is Ext. P8.

2. The counsel for the petitioner submitted that the Government ought not to have disturbed the order of the District Educational Officer confirmed by the Regional Deputy Director of Public Instruction inasmuch as the petitioner admittedly had service from 23rd November 1972 to 31st January 1973, whereas the 4th respondent joined the school as a lower primary school teacher only on 14th July 1977, and therefore, in the vacancy which arose on 15th July 1977 the petitioner ought to have been preferred because she is entitled to such preference by virtue of the provisions contained in R.51A in Chap.14(A) of the rules. The said 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 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 is the same, then preference shall be decided with referenc