KHALID, V. (J)

1. The Judgment of the Division Bench under appeal was delivered on 18-1-1973. The note quoted above was inserted on 4-7-1972. This note leaves no doubt as to how Rule 51(A) has to be construed. The Rule states that preference will be given with reference to the date of appointment. When the date of appointment is the same, age should prevail; the eider being given the first preference. Of course, it contains a rider that due regards should be given to the requirements of subject as far as High Schools are concerned. The Division Bench did not choose to accept the clarification contained in the note. The learned Judges held against the appellant, on the wording of the Rule that, in terms, it did not provide for any preference between two or more persons and did not consider it proper to read more into this Rule by considering the note to Rule 5 in the same chapter. Al though we do not say that a note to a Rule has any binding effect, it does indeed have a persuasive force. It cannot be ignored that this note has come as an appendage to Rule 51(A) for clarificatory purposes though it does not form a part of the Rule. The learned Judges held that propriety and fairness required a decision in favour of the appellant, when they observed:

"It would be proper no doubt to give an earlier appointee preference. But seeing the rule as we ought to see every rule and every section in the Kerala Education Rules and the Kerala Education Act as restrictions or regulations in the matter of the free right of the manager to choose and appoint, it is impossible to read more into the rule."

2. With respect, we feel that the learned Judges were influenced more by the words in the abstract contained in the rule and not with the fairness behind the rule.

3. The learned Judges of the Division Bench had before them another Division Bench Judgment where the identical rule fell for consideration. The relevant portion of that Judgment was extracted by learned Judges. We also find it useful to extract it here:

"5. Very recently, in Writ Appeal No. 44 of 1970, we had occasion to construe Rule 51- A. And we then observed that despite its unhappy wording, in particular, the use of the words, "preference for appointment" to mean "right to appointment, " we had little doubt that what the rule meant was that a person discharged for want of vacancy had a right to be appointed in future vacancies, provided, of course, he had not by word or deed given up that right or, we might now add, disqualified himself meanwhile. And we added that the present tense of the words, "are relieved" appearing in the rule was the present tense of logic, not of time, so that, in effect, the rule should be read as if it said "qualified teachers who stand relieved" shall have preference. In that view, it is, no doubt true that the petitioners appointments between 1957 and 1961 furnished here with a title to re-appointment notwithstanding that they were made before the rule came into force, and it is at least arguable that where no priority in preference is prescribed by the rule, priority should be determined by priority of title. The question, then, is whether the plea of abandonment to donment taken by the 3rd respondent is well founded."

4. The above observation was got over by the Division Bench with the observation that "it was obiter and are certainly not intended to be conclusive observations in the matter. If so, we would have referred this case to a Full Bench." We would have been happy if the appellate Bench had referred this question to a full Bench and resolved the controversy since the High Court felt that the appellants contention carried with it the element of fair play and justice and was at least, to put it mildly, in some measure supported by another Division Bench of the same Court. We agree that the preference in Rule 51-A should be based on priority of title. In this case, we do not have a plea of abandonment or other disqualification.The learned counsel for the appellant brought to our notice how this Rule was understood by the Manager of the same school when another vacancy arose earlier. At that time also the present appellant applied to the Manager, seeking appointment in the vacancy consequent on the retirement of a Head Master. The Manager declined the request and sent a reply to the appellant, the relevant portion of which, eloquent in favour of the appellant, reads as follows:

"Rule 51(A) Chapter XIV-A K.E.R. lays down that qualified teachers who are relieved on account of termination of vacancies shall have preference for appointments to future vacancies. When two persons apply for a post by virtue of the concession laid down in Rule 51 A, it is the natural justice to select the persons who has earlier and longer period of previous service. Hence considering all the aspects of the question, the management has appointed Smt. P.E. Sosamma in the said vacancy."

5. The Manager then understood the rule correctly, but later incorrectly. That is why we said earlier in our Judgment that the interpretation given by the High Court to this Rule can result in abuse of this discretionary power with the Manager. If the Government wanted to clothe the Manager the power to choose among rival contenders to a future vacancy, the rule should be suitably amended. The rule as it stands clearly confers priority to the earlier appointee. The appellant, therefore, is entitled to succeed. We set aside the order of the Division Bench under appeal and allow this appeal. The appellant will be entitled to all the benefits as though she was appointed when the vacancy in question arose. We would like to make it clear that this direction of ours will not enable her to draw s alary for the period she had not worked but only other benefits such as seniority, increments etc. The first respondent will pay costs of the appellant.

6. Appeal allowed.