JUDGMENT M.U. Issac, J. 1. Reverend Father John Veliyilparambil, the petitioner in this case, is now a high school assistant, in the St. Mary's High School, Alwaye; and the fourth respondent is its Manager. Respondent No.5 is the present Headmaster; and respondents 6 to 9 are high school assistants. All of them are graduates; and they have also got the training qualification. The petitioner was first appointed in this school as high school assistant on 5th June 1950. He was then a graduate. In June 1951 he was transferred by the Management to another school. Aided schools in the State were formerly governed by the Private Secondary School Scheme, shortly called the P. S. S. scheme. It was introduced by an administrative order of the Government; and it came into force with effect from 1st December 1951. The scheme has been amended from time to time. Finally it was replaced by the Kerala Education Act, 1958 (hereinafter referred to as the Act) and the Kerala Education Rules, 1959 (hereinafter referred to as the Rules) which came into force with effect from 1st June 1959. The petitioner took his training degree in 1954. Subsequently he became a permanent Headmaster of the St. George's High School, Kalayanthani. On 5th March 1957, while he was holding that post, the fourth respondent made an application, Ext. P-8, to the Director of Public Instruction, the first respondent, for approval to transfer and appoint the petitioner as Headmaster in the St. Mary's High School, on the retirement of the then Headmaster on 16th March 1957. But sanction was accorded by the Director of Public Instruction by his order Ext. P-1 dated 14th June 1957, to absorb the petitioner only as the junior-most among the permanent high school assistants. On that basis the petitioner joined the St. Mary's High School as a High School assistant on 17th June 1957. 2. It appears that the St. Mary's High School did not prepare and maintain a seniority list of its staff as required by the P.S.S. Scheme Chapter XIV of the Rules deals with conditions of service of aided school teachers; and rules 34 to 40 in Part A of that Chapter contain detailed provisions regarding the preparation and maintenance of staff list otherwise called seniority list. Mary's High School did not prepare and maintain a seniority list of its staff as required by the P.S.S. Scheme Chapter XIV of the Rules deals with conditions of service of aided school teachers; and rules 34 to 40 in Part A of that Chapter contain detailed provisions regarding the preparation and maintenance of staff list otherwise called seniority list. In accordance with the above provisions, the fourth respondent prepared a seniority list; and submitted it to the District Educational Officer, Alwaye, the third respondent for approval. That list assigned a rank to the petitioner as senior to respondents 5 to 9. The third respondent did not provisionally approve the said list, as required by rule 35 of the above Rules. Thereupon, the petitioner filed O. P. No. 3141 of 1965 to direct the third respondent to approve the said list provisionally. That writ petition was allowed by judgment dated 27th January 1966. However, the third respondent approved the list only subject to certain alterations; and the altered list was circulated among the teachers for submission of their representations. This procedure was objected to by the petitioner but his objection was overruled by the third respondent; and his order was upheld in appeal Director of by the second respondent, the Regional Deputy infection Director of Public Instruction, Alwaye. The petitioner then filed O.P. No. 2264 of 1967; and this Court by judgment dated 7th November 1967, set aside the above orders, and directed respondents' 2 and 3 to consider the question of the approval of the seniority on the basis of the list as submitted by the manager. The seniority list submitted by the manager was then returned to him by the third respondent, stating that it was not prepared in accordance with the rules, and directing him to submit a proper list. The manager took up the position that it was properly prepared. The petitioner again filed another writ petition, O. P. No. 1705 of 1968, to quash the order of the third respondent, returning the list to the manager as stated above. On 29th March 1968, the post of Headmaster became vacant; and on the basis of interim order passed by this Court, the manager appointed the petitioner in that vacancy as he was the seniormost teacher according to staff list which he had submitted to the third respondent for approval. On 29th March 1968, the post of Headmaster became vacant; and on the basis of interim order passed by this Court, the manager appointed the petitioner in that vacancy as he was the seniormost teacher according to staff list which he had submitted to the third respondent for approval. The third respondent declined to grant approval to the said appointment. By an interim order dated 3rd May 1968, this Court directed the third respondent to recognise the petitioner as Headmaster till the disposal of the writ petition. The writ petition was disposed of by this Court by judgment dated 25th July 1968 directing the third respondent to grant provisional approval to the seniority list submitted by the manager, and to finalise the same expeditiously according to the rules. Accordingly the petitioner continued as Headmaster. The third respondent then sent a notice to the petitioner to show cause why the rank assigned to him should not be revised. His request to furnish him with the grounds on which the said proposal was made as well as for copies of the representations made by other teachers was declined by the third respondent. Therefore, the petitioner filed O.P. No. 4497 of 1968 to direct the third respondent to furnish to the petitioner the aforesaid materials, so as to enable him to show cause against the proposed revision of the seniority list. That O. P. was allowed by this Court by judgment dated 2nd January 1969. Accordingly all the necessary materials were furnished to the petitioner; and he submitted his objections. The whole matter was considered by the third respondent; and by his order Ext. P-3 dated 22nd January 1969, he finalised the list declaring seniority in favour of respondents 5 to 9 over the petitioner. The petitioner and some of the other teachers filed appeals from the above order to the second respondent. He upheld the order of the third respondent, and dismissed the appeals by his order Ext. P-4 dated 22nd September 1969. The petitioner was reverted by the management from the post of the headmaster; and the fifth respondent was appointed in the post in the light of the order Ext. P-3. The petitioner, has, therefore, filed this Original Petition to quash Exts. P-4 dated 22nd September 1969. The petitioner was reverted by the management from the post of the headmaster; and the fifth respondent was appointed in the post in the light of the order Ext. P-3. The petitioner, has, therefore, filed this Original Petition to quash Exts. P-3 and P-4, to declare that he is senior to respondents 5 to 9, and to direct respondents 1 to 4 to appoint the petitioner as Headmaster of the school. 3. The only question for decision in this case is the inter se seniority between the petitioner and respondents 5 to 9 and that has now to be decided in accordance with the provisions of the Kerala Education Rules. There is practically no dispute that the petitioner's service prior to his rejoining the school pursuant to Ext. P-1 cannot be recognised for determining his seniority. He was then a trained graduate. Ext. P-1 reads as follows: "No. L, DIS. 7822/57/A.D.6. Office of the Director of Public Instruction, Trivandrum, 14-6-1957. OFFICIAL MEMORANDUM Sub.-Transfer of Private Secondary Teachers Sanction for. Ref.-Correspondence pending with letter No. 179 dated 13th June 1957 from the Manager, St. Mary's H. School, Alwaye. Sanction is accorded for the transfer of the teachers noted below to the schools noted against their names. The transfers would be given effect immediately provided there are permanent vacancies in the schools concerned to absorb them and the teachers are willing to be ranked as the juniormost among permanent H. S. As. in the schools to which they are transferred. 1. Rev. Fr. John Veliyilparambil, B. A., B. T. Headmaster, St. George's H. S., Kalayanthani. H.S.A., St. Mary's H.S., Alwaye 2. Rev. Fr. V. M. Cheriyan, B.A., B.T., H.S.A., St. Mary's H.S., Alwaye. H. S. A., St. Joseph's H.S., Kaloorkad (newly  sanctioned) 3. Rev. Fr. Mathew Narayanaparambil, H.S.A., St. Sebastian's H.S.,' Vazhithala. H.S.A., St. Mary's H.S., Alwaye (Sd) for Director." The petitioner would, therefore, take rank on the date of his joining this school namely 17th June 1957, as the juniormost among the permanent high school assistants 4. The question whether the petitioner would be senior to respondents 5 to 9 or any one of them on his joining the St. Mary's High School depends on whether they were at that time permanent as high school assistants or not. The management has not produced any document which throw light on this matter. The question whether the petitioner would be senior to respondents 5 to 9 or any one of them on his joining the St. Mary's High School depends on whether they were at that time permanent as high school assistants or not. The management has not produced any document which throw light on this matter. Its attitude has not been helpful; and it has been taking inconsistent positions, which came up for adverse comment by Gopalan Nambiyar,J. in his judgment in O. P. No. 1705 of 1968. The following are particulars relating to the details of appointments and qualifications of the petitioner and respondents 5 to 9. Name or the teacher Date of appointment Qualifications (Date of passing the examinations) Rev. Fr. John Veliyilparambil (Petitioner) 17-06-1957 B.A. (1941) B.T. (1954) T.A. Polulse (R5) 7-11-1951 B.A. (1943) B.T. (1958) T.A. Varki (R6) 6-6-1955 B.A. (1952) B.T. (1960) A.K. Ouseph (R7) 14-6-1955 B.A. (1955) B.T. (1960) T. Pylee (R8) 15-6-1937 B.A. (1954) B.T. (1960) K. Thariyan (R9) 9-10-1119 (M.E.) B.A. (1954) B.T. (1960) Ext. P-12 is a copy of the salary statement of the teachers of this school for the period from the date of accession of the school to the P.S.S scheme, namely 1st December 1951 to 1st April 1958. The correctness of this copy is not in dispute. It shows that respondent No. 5 was confirmed on 7th November 1952, while respondents Nos. 6 and 7 were only acting during the above period. Ext. P-12 further shows that from 7th November 1952, respondent No. 5 has been drawing regular yearly increments, while the salaries of respondents 6 and 7 during the years commencing on 1st April 1957 and 1st April 1958 were fixed. In other words, they did not draw any increments. The above position is also confirmed by the Service Books of these persons which have been produced in court by the learned Government Pleader for my scrutiny and made available for perusal of all the counsel appearing in the case. The service book of the sixth respondent shows that he began to draw increments only from 10th July 1959 (vide pages 14 and 16), while the service book of the seventh respondent shows that he began to draw increments only from 27th June 1960 (vide pages 8 and 10). These two service books also contain entries showing the above two persons as permanent with effect from 1st April 1957. These two service books also contain entries showing the above two persons as permanent with effect from 1st April 1957. But they also contain entries that these teachers were confirmed as per endorsement of the District Educational Officer dated 13th November 1968. I have carefully examined the service books of all the teachers concerned in this case. They contain corrections and new writings. Many of the pages have been signed by the Manager of the school after several years to which the entries therein relate. Having regard to the above features of the service books, the inconsistent and unhelpful attitude of the management, and the partisan attitude of respondents 2 and 3 as evidenced by their conduct in the matter of according provisional sanction to the seniority list submitted by the manager even in the face of the directions issued from this court in previous writ petitions, I am not able to place any reliance in the entries contained in the service books, in so far as they relate to controversial matters. I have no doubt that at the time of the petitioner joining the school as per Ext. P-1, the fifth respondent was a permanent Director of high school assistant, while respondents 6 and 7 instruction were only acting. The petitioner's learned counsel contended that the training qualification was a condition precedent under the P.S.S. Scheme for being confirmed, that the fifth respondent acquired that qualification only in 1958, and that he could not, therefore, be confirmed or become permanent before acquiring the said qualification. It appears from the Government's order G.O. Ms. No. 669, dated 19th June 1958 which permitted all untrained graduate teachers appointed before 29th May 1957 for being confirmed provided they are eligible for it otherwise, that such a qualification was necessary for confirmation, before the said order was issued. Under the P.S.S. Scheme as it originally stood, training qualification was not necessary either for appointment as a high school assistant or for confirmation in the said post. The relevant provision in that respect might have been amended. Nothing has been placed before me to show whether it was actually done, and if so when it was done. Ext. P-12 shows that the fifth respondent was confirmed on 7th November 1952; and this is corroborated by the entries in his service book. The fifth respondent was, therefore, a permanent high school assistant long before Ext. Nothing has been placed before me to show whether it was actually done, and if so when it was done. Ext. P-12 shows that the fifth respondent was confirmed on 7th November 1952; and this is corroborated by the entries in his service book. The fifth respondent was, therefore, a permanent high school assistant long before Ext. P-1. 5. Respondents 8 and 9 stand on a different footing. They were appointed as language teachers; and they continued to belong to that category, until by virtue of rule, 6 in Chapter XXVI of the Rules, they became entitled to be treated on the same footing as other graduate teachers and to be included the list of graduate teachers for fixing the number of first grade posts in the school, provided they have Rev. Father got the graduate qualification. This Chapter was added by Government Notification published in the Kerala Gazette dated 30th May 1961. By a subsequent notification, it was ordered that the said Chapter shall be deemed to have come into force on 27th December 1960. I am not concerned in this case whether their retrospective enforcement is valid or not. Suffice to say that at the time of Ext. P-1, respondents 8 and 9 were not high school assistants. It follows that, at the time of Ext. P-1, the fifth respondent was the juniormost among the high school assistants, and that the rank of the petitioner has to be fixed just below the fifth respondent and above respondents 6 to 9. 6. The next question for consideration is whether the above position has been altered by the Kerala Education Rules. That depends on the construction of rules 34, 37 and 39 and their application to the facts of the instant case. These rules read. "34, Seniority List.- Every management shall prepare and maintain in the prescribed form a staff list, otherwise called seniority list, of teachers."� "37. (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. (2) In the case of teachers in the same grade in the same unit, whose date of first appointment is the same, seniority shall be decided with reference to age, the older being senior."� "39. (2) In the case of teachers in the same grade in the same unit, whose date of first appointment is the same, seniority shall be decided with reference to age, the older being senior."� "39. The Staff List shall be prepared with reference to the position existing on the date of commencement of the school as an aided school under the Act unless there is a Staff List already approved by the Department which conforms to these rules and shall therefore be maintained up to date."� The rules do not say when the seniority list has to be prepared. Apparently it has to be done as soon as the Rules came into force. However, it is clear from rule 39 that the list shall be prepared with reference to the position existing on the commencement of the school as an aided school under the Act, unless there is a staff list already approved by the Department. In the case of the St. Mary's High School, it commenced as an aided school under the Act on 1st June 1959, when the Act came into force. Admittedly it had no staff list already approved by the Department. So the seniority list in this case has to be prepared with reference to the position existing on 1st June 1959, and after it is thus prepared and got approved under rule 38, it shall be maintained up-to-date. So far, there is no dispute. Rule 37 shows that the question of seniority arises only among teachers belonging to the same grade in any unit, and that it has to be decided with reference to the length of continuous service in that unit, provided he is duly qualified for the post. There has been some discussion at the Bar regarding the true meaning of this rule; whether the rule recognises only length of qualified continuous service, or only length of continuous service, provided the teacher has got the qualification for the post on the date with reference to which the seniority has to be fixed. There has been some discussion at the Bar regarding the true meaning of this rule; whether the rule recognises only length of qualified continuous service, or only length of continuous service, provided the teacher has got the qualification for the post on the date with reference to which the seniority has to be fixed. In other words, the question would be as between two teachers, on having five years qualified continuous service (being a trained graduate), and the other having six years continuous service of which one year's service alone is qualified service (having acquired the training qualification only one year before the school commenced as an aided school under the Act), who would be the Senior according to rule 37. In my view, the service that counts for fixing seniority is qualified continuous service; and the teacher who has five years qualified continued service would be senior to the teacher having six years continuous service as one year's service alone was qualified service in the case of the latter teacher. 7. This leads me to the next question whether the qualification which would be recognised under rule 37 is only the qualification which is necessary after the Act came into force, or whether the qualifications which were sufficient at different times under P.S.S. Scheme would also be recognised under the above rule for determining his seniority. This question is not free from difficulty. A grammatical construction of the rule may show that the qualifications necessary after the Act came into force alone is recognised. But it would lead to the iniquitous result of a teacher who was admittedly senior to another teacher at the commencement of the Act losing his rank, and becoming junior to the other person. I do not think that this was ever meant by the rule; and there is also the question whether the rights which had accrued can be taken away in such a manner by the rules. It is unnecessary to consider these aspects, as in my view, rule 39 contains sufficient safeguard in this respect. I read this rule as a proviso or a qualification to rule 37. Rule 39 provides that the seniority list shall be prepared not only as on the date on which the school commences as an aided school under the Act, but also with reference to the position existing on that date. I read this rule as a proviso or a qualification to rule 37. Rule 39 provides that the seniority list shall be prepared not only as on the date on which the school commences as an aided school under the Act, but also with reference to the position existing on that date. In other words, the seniority, as it exists on the said date has to be retained; and rule 37 would apply only subject to that condition. 8. I shall now examine how respondents 2 and 3 have dealt with the seniority list submitted by the Manager. Ext. P-4, the order of the second respondent is a speaking order, and it has affirmed Ext. P-3, the order of the third respondent. It is, therefore, sufficient to examine Ext. P-4 alone. He found that the fifth respondent was a permanent member of the staff, when the petitioner joined the school pursuant to Ext. P-1. This is also my finding on that matter. Then he stated that the sixth and the seventh respondents were eligible to be confirmed as permanent hands prior to 17 June 1957, namely from 6th August 1956 and 14th July 1956 respectively, and that the petitioner would, therefore, take only a rank junior to them. This reasoning is faulty on two grounds. First, the petitioner would, under Ext. P-1, take the juniormost rank among the permanent high school assistants. It relates only to those who were then permanent, and does not include acting hands who were eligible for being confirmed, or who may be subsequently confirmed with retrospective effect. Secondly, it is not known how these two persons became eligible for being made permanent on the above dates. The counter affidavit of the first respondent states that they were first appointed on probation, and that they were entitled to be confirmed after completion of one year of service. Their service books and Ext. P-12, as I have already stated, show a different state of things. However, the question is not whether they were entitled to be confirmed, but whether they were permanent on 17th June 1957, when the petitioner rejoined the school. Their service books and Ext. P-12, as I have already stated, show a different state of things. However, the question is not whether they were entitled to be confirmed, but whether they were permanent on 17th June 1957, when the petitioner rejoined the school. Regarding respondents 8 and 9, who were originally language teachers, the second respondent states in his order that, under rule 6 in Chapter XXVI of the Rules, they are entitled to have their seniority fixed in the combined list of high school assistants from dates of their graduation. The above rule reads as follows:- "6. Language teachers of High Schools who have the graduate qualification or other qualification declared by Government to be equal to it shall be treated on the same footing as other graduate teachers and shall be included in the list of graduate teachers for fixing the number of first grade posts for each aided school or for all schools under a single educational agency. Other language teachers for High Schools shall be eligible for the second grade, if trained."� As already stated, Chapter XXVI was added in the Rules by Government notification published in Kerala Gazette, dated 30th May 1961, and the above rule only entitled the graduate language teachers to be treated on the same footing as other graduate teachers and to be included in the list of graduate teachers, for fixing the number of first grade posts for the school. There is a controversy whether the rule affects the question of seniority of the graduate teachers. Whatever that may be, the rule is not retrospective, and is incapable of having any retrospective operation. The question of the seniority of respondents 8 and 9 in the category of graduate teachers arises only under the above rule and after the said rule has come into force. The finding of the second respondent that they are entitled to seniority reckoned from the dates of their graduation cannot be sustained. He has not also considered the effect of rule 39 in Chapter XVI-A of the Rules. In the light of the view I have taken on the true construction of that rule, these questions do not arise; and the seniority has to be fixed with reference to the position existing on the date of commencement of the school as an aided school under the Act. 9. In the result, I quash Exts. In the light of the view I have taken on the true construction of that rule, these questions do not arise; and the seniority has to be fixed with reference to the position existing on the date of commencement of the school as an aided school under the Act. 9. In the result, I quash Exts. P-3 and P-4 and direct the third respondent to approve the seniority list submitted by the Manager with the following ranks assigned to the petitioner and respondents 5 to 9 as high school assistants:- No. 1. T. A. Poulose (5th (5th respondent). No. 2 Rev. Fr. John Veliyilparambil (Petitioner). No. 3. T. P. Varkey (6th respondent). No. 4. A. K. Ouseph (7th respondent). No. 5. T. Pylee (8th respondent). No. 6. K. Thariyan (9th respondent). In the circumstances of the case, the parties are directed to bear their own costs.