The manager's discretion in teacher appointments is subject to established preference rights under the Kerala Education Rules.

1Petitioner was appointed as a High School Assistant by the third respondent in a leave vacancy for the period from 1.9.1983 to 30.11.1983 (Ext. P1). That appointment was duly approved. She was appointed in the next year as Upper Primary School Assistant on 21.06.1984, consequent on the retirement of one Upper Primary School Assistant. That appointment was approved by Ext. P2 Order. The first respondent had approved service as High School Assistant in the School of the third respondent from 10.11.1982 to 283.983. She was appointed again from 5.9.1983 to 26.11.1983. She was, thereafter, appointed in a leave vacancy from 25.6.1984 to 30.8. 1984. The fourth respondent approved all the appointments. The second respondent was appointed as Upper Primary School Assistant in a leave vacancy from 6.1.1984 to 30.3.1984. She was regularly appointed as Upper Primary School Assistant in a permanent vacancy on 4.6.1984. Both those appointments were approved.

2It appears that an audit objection was raised against the appointment of the petitioner as Upper Primary School Assistant. She was not paid her salary since June, 1985. In the meantime, the first respondent had filed Ext. P3 petition dated 10.10.1984 before the first respondent complaining against the approval of appointment of the petitioner as Upper Primary School Assistant on 21.6.1984. Copy of that petition was served on the petitioner in July, 1986. She submitted her objections. The fifth respondent passed Ext. P4 order dated 21.1.1987. Copy of that order was served on the petitioner on 12.2.1987. Petitioner seeks the issue of a writ of certiorari to quash Ext. P4 order. Counsel submits that the fifth respondent has no jurisdiction to pass Ext. P4 order. It is also submitted that Ext. P3 application submitted by the first respondent was incompetent and out of time, and should not have been entertained. The further submission of the petitioner is that the first respondent could have challenged only the appointment of the second respondent as Upper Primary School Assistant in the first vacancy and should not have challenged the appointment of the petitioner.

3Counsel for the petitioner urged a very interesting proposition, that R.51A of Chap.14A of the Kerala Education Rules confers a right of choice on the Manager from among teachers who were eligible to be given preference According to him, note to that rule restricting the choice of the Manager is contrary to S.11 of the Kerala Education Act, which confers a right of appointment of teachers on the Manager. Counsel submits that the only obligation of the Manager under S.11 of the Act is that he shall appoint only a person who possesses the qualifications prescribed under S.10; and he is free to choose any from among such qualified persons,

4The effect of R.51A of Chap.14A of the Rules was considered quite often by this Court. In writ appeals 44 of 1970 and 175 of 1970, a division bench consisting of Raman Nair, CJ and Mathew, J held that R.51A meant a right for appointment in favour of a teacher who stood relieved. It was further held in the later decision that it is atleast arguable that where no priority in preference is prescribed by the rule, priority should be determined by priority of title. In the decision reported in Mary Oomman v. Manager, MGM School, 1973 KLT 538 Govindan Nair, J. as he then was, speaking for the Bench took a different view holding that the above observations were obiter and held, that there was a right of choice to the Manager from among the candidates who were entitled for preference under R.51A of Chap.14A. That provoked incorporation of the note almost in the same terms as the observations extracted above. The effect of the note was considered by the Supreme Court in Mary Oomman v. Manager, MGM School, 1987 (1) KLT 686. The decision of the Division Bench in 1973 KLT 538 was overruled. The Supreme Court has held, that the priority indicated in the note has to be observed by the Manager. The effect of tha