JUDGMENT V. Balakrishna Eradi, J. 1. The petitioner is the Manager of an aided primary school in Alleppey District. For the academic year 1968-69 only eleven class divisions were sanctioned for the school as per the proceedings of the Assistant Educational Officer evidenced by Ext. P-1 dated 30th August 1968. The petitioner preferred an appeal before the , Regional Deputy Director of Public Instruction complaining against the refusal by the Assistant Educational Officer to sanction an additional division for Standard VI. The appeal petition was rejected by the appellate authority by the proceedings evidenced by Ext. P-5 dated 20th December 1968 wherein the appellate authority also concurred in the view taken by the Assistant Educational Officer that there was no sufficient accommodation in the school to warrant the sanctioning of the additional class division requested for by the Manager. One of the prayers in this writ petition is that Exts. P-1 and P-5 should be quashed. There was one permanent vacancy of assistant teacher in the petitioners school during the academic year 1968-69. The petitioner had apparently assumed that an additional class division would be sanctioned for Standard VI when the staff fixation for the year was made and probably anticipating such a vacancy also to arise he Appointed two teachers in the school on 5th June 1968, the persons so appointed beings respondents Nos. 4 and 5 in this writ petition. While making these appointments the petitioner appointed the 4th respondent against the permanent vacancy which already existed and the 5th respondent against the temporary post sanction for which was anticipated by her. When these appointment orders came up before the Assistant Educational Officer, Alleppey (2nd respondent) for approval the 2nd respondent informed the petitioner on 4th November 1968 that the 5th respondent had a preferential claim for appointment to the permanent post by virtue of the earlier untrained service rendered by her in the same school. It was also pointed out that there was only one vacancy in the school since the additional class division requested for by the Manager had not been sanctioned for that academic year. This communication was followed up by a further letter of the Assistant Educational Officer evidenced by Ext. It was also pointed out that there was only one vacancy in the school since the additional class division requested for by the Manager had not been sanctioned for that academic year. This communication was followed up by a further letter of the Assistant Educational Officer evidenced by Ext. P-7 dated the 11th November 1968 reiterating the same position and calling upon the petitioner to send up for approval revised orders appointing the 5th respondent in the permanent vacancy existing in the school. Ext. P-8 is the further communication to the petitioner from the 2nd respondent to the same effect. On finding that the petitioner had failed to implement the directions contained in Exts. P-7 and P-8 the 2nd respondent called upon the petitioner by the memo Ext. P-10 dated 17th May 1969 to explain why her name should not be reported to the higher authorities for disciplinary action for disobedience of the departmental orders. The petitioner seeks to have Exts. P-7, P-8 and P-10 also quashed. 2. I do not find any merit in the petitioner contention that he was entitled as of right to have an additional class division sanctioned for the school for Standard VI during the academic year 1968-69 and that the refusal on the part of respondents 2 and 3 to grant such sanction is illegal and violative of provisions of the Kerala Education Rules, 1959. It is true that going only by the effective strength of Standard VI for the year in question the sanctioning of an additional division for that standard may be warranted but the Educational Officer is not obliged to accord sanction for such class division unless he satisfied that there is adequate accommodation in the school for housing the extra division also. In the present case respondents 2 and 3 have declined to sanction the additional class division requested for by the petitioner on the ground of inadequacy of accommodation. The action so taken by them cannot be said to be in any manner illegal or contrary to the rules. 3. The contention put forward by the petitioner against Exts. P-7, P-8 and P-10 is twofold. The action so taken by them cannot be said to be in any manner illegal or contrary to the rules. 3. The contention put forward by the petitioner against Exts. P-7, P-8 and P-10 is twofold. Firstly, it is argued that Rule 5 of Chapter XIV (A) of the Kerala Education Rules, 1959 which lays down that unqualified teachers appointed under rule 2 and who acquire the prescribed qualifications subsequently shall have preference for appointments to future vacancies in schools under the same Educational Agency, is ultra vires and hence void. The argument is that section 10 of the Kerala Education Act, 1958 empowers the State Government only to prescribe the qualifications to be possessed by persons for appointment as teacher in Government and private schools and that the rule-making power under section 12 of the said Act only enables Government to prescribe conditions of service of teachers in aided schools including conditions relating to pay, pension, provident fund, insurance and age of retirement and that neither of these sections warrants the framing of a rule by the State Government like rule 5 which, according to the present petitioner does not either prescribe a qualification or lay down any condition of service. In my view, there is no substance in this contention. Rule 5 in so far as it confers a preferential claim for reappointment upon an unqualified teacher does lay down a term or condition of service of such unqualified teacher who is appointed under rule 2 by conferring upon such teacher the benefit of a preferential claim for reappointment to the school on a regular basis on the person getting himself fully qualified. It is not therefore possible to accept the petitioner contention that rule 5 does not contain the prescription of a term or condition of service and is therefore outside the scope of the rule-making power conferred by section 12. I am in full agreement with the decision of my learned brother Isaac, J. reported in K. V. Poulose v. Assistant Educational Officer 1967 K.L.T 1021 where the learned Judge has taken the same view and held rule 5 to be intra vires. 4. I am in full agreement with the decision of my learned brother Isaac, J. reported in K. V. Poulose v. Assistant Educational Officer 1967 K.L.T 1021 where the learned Judge has taken the same view and held rule 5 to be intra vires. 4. The next contention that is urged is that the petitioner became the Manager of the school only in 1968 March by virtue of a partition which took place in her family in 1963 and that therefore the previous unqualified service put in by the 5th respondent cannot be regarded as one rendered under the same Educational Agency. In the counter-affidavit filed on behalf of the State Government it has been stated that there has not been any change of ownership effected in respect of the school as far as the departmental records go and there has been only a change of management and that the Educational Agency therefore, continues to be the same. The petitioner has not produced any records whatever before this court to show that there has been a change of Educational Agency in between 1963 and 1968, 1963 being the year in which the 5th respondent had put in the unqualified service. In the circumstances the stand taken by respondents 1 to 3 and 5 that rule 5 fully applies to the present case must be accepted as correct. 5. There was one other contention taken by the petitioner, though feebly, that the 5th respondent had waived whatever right she had under rule 5 because her claims under that rule had not been recognised by the Manager while making an appointment to a permanent post which fell vacant in the school during the academic year 1966-67 and the appointment so made by the Manager overlooking the 5th respondent claims had been approved by the Educational Officer. Assuming that any such appointment contrary to the provisions of rule 5 had been made by the Manager and approved by the Educational Officer it would not operate to deprive the 5th respondent of the rights conferred on her by rule 5, unless it be that by some positive action on her part which would give rise to a bar of estoppel she has precluded herself from putting forward such tight in future proceedings. There is no case for the petitioner that the 5th respondent has done any such thing. There is no case for the petitioner that the 5th respondent has done any such thing. That being so this plea is also devoid of any merit. 6. The writ petition fails and is dismissed. There will be no direction regarding costs.