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54. A related question is whether a teacher appointed permanently or temporarily in a permanent vacancy and relieved on the closing day of the school is entitled to the benefit under Rule 51A. Ordinarily, a teacher appointed in a permanent vacancy is entitled to continue in service so long as the vacancy continues and he is not liable to be relieved on the closing day of the school as per Rule 49 and hence there is no occasion or need for him to seek the benefit under Rule 51A. However, in spite of the continuance of the vacancy if he happens to be relieved for some reason other than termination of service on disciplinary grounds, or on enforcement of the specific conditions of appointment he should get preference for appointment to future vacancies. As pointed out by my learned Brother K.S. Radhakrishnan, J., the rule making authority would not have envisaged an anomalous situation where a teacher appointed in a leave vacancy will have preference for appointment to future vacancies and a teacher appointed in a permanent vacancy will not have such preference. Hence the benefit under Rule 51A cannot be denied to a teacher merely because he was appointed in a permanent vacancy. It is not just or fair to say that the teacher could or should challenge the action of the manager in relieving him from service, though such a course also may be available to the teacher.

56. The next question is regarding the nature of the right under Rule 51A. Notes 1 and 2 under Rule 51A show that the teacher who is entitled to have preference for appointment to future vacancies need not even make an application to the Manager claiming appointment in a future vacancy. As and when a vacancy arises in future, the Manager is bound to issue an appointment order to the teacher by Registered Post Acknowledgement Due giving aperiod of 14 clear days to him to join duty. If the teacher does not join duty in time, the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under Rule 51A would be, forfeited if not exercised within another 7 clear days. Only if nothing is heard during that time also, the preferential right under the rule can be regarded as forfeited. It is significant that the expression used at both the places in Note 2 under Rule 51A is "preferential right" and not mere preference. It is also significant that Note 1 under Rule 51A stipulates even the order of preference when there are more than one claimant under Rule 51A. This is sufficiently indicative of the legislative intention to confer a right for appointment in a future vacancy and not a more preference while being considered along with other candidates. It should be noted there is no rule which stipulates that the Manager of a private aided school should advertise the vacancies inviting applications from candidates. A selection based on competition or assessment of relative merit is not contemplated under the K.E.R. The Manager of a private aided school is free to appoint any candidate who possesses the prescribed qualification if there is no other person having a right for preference for appointment to the vacancy.

57. Is there anything wrong or unjust in giving such a preferential right for appointment to teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies? I am of the view that it is only just and fair to confer a right on a qualified teacher relieved as per Rule 49 or 52 or on account of termination of vacancies, for appointment to a future vacancy in the schools under the same educational agency or an educational agency to which the school may be subsequently transferred provided that he has not been appointed in a permanent vacancy in a school under any other Educational Agency. It is more so when the Manager of a private aided school can make appointments without advertising the vacancies and without making any selection based on competition or assessment of relative merit. Why should a qualified teacher who was fortunate to get an appointment as per the rules and who unfortunately had to be relieved under the circumstances mentioned in Rule 51A, be denied the right to appointment to a future vacancy, enabling the Manager to appoint a fresh candidate of his choice? In my view, if the preference for appointment under Rule 51A is not construed as a right to appointment to future vacancies rather than a mere preference, it will lead to grave injustice and more arbitrariness in making appointment of teachers by the Manager of a private aided school. Hence, the preference for appointment to future vacancies under Rule 51A is a statutory right to appointment in future vacancies and is not a mere preference or weightage.

61. In the light of the above discussion it is held that:

(i) The preference for appointment to future vacancies under Rule 51A in Chap.XIV-A of K.E.R. is a statutory right to appointment in future vacancies and is not a mere preference or weightage.
(ii) The preference for appointment to future 'vacancies' under Rule 51A is available to;
(a) qualified teachers appointed in vacancies which are not permanent and which extend over the summer vacation and who continue in such vacancies till the closing date but are relieved on the closing date since their continuous service as on the closing day is less than eight months;