SMT. MARY OOMMEN versus MANAGER, M.G.M. HIGH SCHOOL, KURUPPAMPADDY, KERALA & ORS.

Citation: [1987] 2 S.C.R. 436 · Decided: 25-02-1987 · Supreme Court of India · Bench: V. KHALID · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
SMT. MARY OOMMEN 
v. 
MANAGER, M.G.M. HIGH SCHOOL, KURUPPAMPADDY, 
KERALA & ORS. 
FEBRUARY 25, 1987 
[V. KHALID AND G.L. OZA, JJ.] 
Kera/a Education Rules-Chapter XIV(A)-Rule 5J(A)-
Teacher-Appointment to a permanent vacancy-Scope of Note 
appended to section-Whether a teacher who had worked in a tempor-
C ary vacancy earlier has a preferential right over a teacher who worked 
later in the same school. 
·Statutory Interpretation-Note to a Rule-Although not having 
binding effect has persuasive force. 
D 
Rule Sl(A) of Chapter XIV(A) of the Kerala Education Rules 
provided that qualified teachers who are relieved as per Rules 49 or 52 
or on account of termination of vacancies shall have preference for 
appointment to future vacancies In schools under the same Education 
Agency. A Note was appended to this Rule on 4.7.1972 which provided 
that if there are more than one claimant under this Rule the order of the 
E 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 reference to age, the older being given the first preference. In 
making such appointment, due regard should be given to requirement 
of subjects and to the Instructions issued by the Director under sub-
Rule( 4) ofRule 1 as far as High Schools are concerned. 
F 
The appellant, who was duly qualified, was appointed as a tea<:her 
in a temporary vacancy in the school of the first respondent from 
13.1.1970 and her appointment was approved by the District Educa-
tional Officer, the second respondent. On the vacancy being ceased to 
exist she went out of job on 16.3.1970. She again worked In a further 
G vacancy from 22.8.70 to 17.12.1970. She went out of service when this 
vacancy ceased. Respondent No. 4, another teacher, worked iu the 
same school in another leave vacancy from 1.9.1970 to 26.11.1970. 
In the academic year 1971-72 a permanent vacancy arose for 
Social Studies. The appellant being a Social Studies teacher made a 
H representation claiming appointment against that vacancy. But the first 
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MARY OOMMEN v. M.G.M. HIGH SCHOOL 
437 
respondent appointed the 4th respondent. On a complaint heing made 
by the appellant, the second respondent found the appointment of the 
4th respondent irregular and held that the legitimate claimant for the 
permanent post was the appellant and, therefore, did not approve the 
appointment of the 4th respondent. The Regional Deputy Director of 
Public Instructions, respondent No.3, allowed the appeal of the 
management. The appellant filed a petition under Article 226 cballeng-
ing the validity of the order passed by the third respondent, inter alia, 
contending that she bad a preferential claim and that the appointment 
of the 4th respondent was illegal. 
A Single Judge dismissed the petition on the ground that Rule 
Sl(A) conferred a right on the appellant for appointment in the future 
vacancies in the school and it did not restrict the right of the manage-
ment to. make his own choice among the thrown out teachers, The 
Division Bench also dismissed the appeal preferred by the appellant. 
On the question whether a teacher who bad worked in a vacancy 
earlier has preferential right over a teacher who worked later in the 
same school, allowing the appeal, 
HELD: I.Rule Sl(A) of Chapter XIV(A) of the Kerala Education 
Rules does not mandate that the one who worked earlier should be 
preferred to the one who worked later. [441B] 
2.1 Although a Note to a Rule does not have any binding effect, it 
does indeed have a persuasive force. [441E) 
2.2 It cannot be ignored that the Note has come as an appendage 
to Rule Sl(A) for qualificatory purposes though it does not form a part 
of the Rule. [441F) 
3. The preference in Rule Sl(A) should he based on priority of 
title. [442G) 
A 
B 
c 
D 
E 
F 
4. The High Court while interpreting Rule Sl(A) was influenced 
G 
more by the words in the abstract contained in the Rule and not fairness 
behind the Rule. The interpretation given by the High Court to this 
Rule can result in abuse of discretionary power with the management. If 
the Government wanted to clothe the Manager with the power to choose 
among rival contendors to a future vacancy, the Rule should be suitably 
amended. [443C·D) 
H 
438 
SUPREME COURT REPORTS 
[1987] 2 S.C.R. 
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1 
A 
5. The Rule as it stands clearly confers priority to the earlier 
·'r 
appointee. The

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