JUDGMENT K.K. Narendran, J. 1. The question that arises for consideration in the Original Petition is whether the 1st respondent-Director of Public Instruction after determining the requirements of subject in the matter of appointment of High School Assistants under rule 1 (1) of Chapter XIV (A) of the Kerala Education Rules, 1959, has the power to, issue circulars which in effect vary the subject requirements determined by him for all the schools having the same curricula of studies. The petitioner is a High School Assistant in the A. T. High School, Mankombu. The petitioner is a fully qualified High School Assistant with Chemistry and Physics as her subjects and was appointed in the school on 1st June 1966. The 3rd respondent is another High School Assistant of the same school with Botany and Zoology as her subjects and was appointed in the school on 1st July 1965. While both the petitioner and the 3rd respondent were continuing in the staff, the 2nd respondent-District Educational Officer by Ext. P-1 order dated 11th July 1972 fixed the establishment of the school for the year 1972-73. As per Ext. P-1, only 11 posts of High School Assistants were sanctioned for the school for the year 1972-73 in the place of 12 posts of High School Assistants that were there in the year 1971-72. The 2nd respondent in Ext. P-1 staff fixation classified the 11 posts of High School Assistants according to subject requirements as follows: "General Mathematics 4 General Science 4 (Phy. Sc. 2, Nat Sc.2) Social Studies 3 Total 11 In Ext. P-1, under the heading 'Details of Protected Staff' the 2nd respondent included the name of the 3rd respondent as a High School Assistant who is to be given protection under G.O. MS. No. 104/69/Edn., dated 6th March 1969, But the grievance of the petitioner is that on 19th July 1972, the 2nd respondent issued Ext. P-3 proceedings as an erratum to Ext. P-1, staff fixation order, dated 11th July 1972. By Ext. P-3 erratum, the 2nd respondent-District Educational Officer directed to substitute the petitioner in the place of the 3rd respondent in the details of protected staff appended to Ext. P-1 staff fixation order. 2. As per Ext. P-2, circular instructions, dated 22nd April 1972 the 1st respondent insisted on new subject distribution of posts of High School Assistants under Mathematics, Science and Social Studies. P-1 staff fixation order. 2. As per Ext. P-2, circular instructions, dated 22nd April 1972 the 1st respondent insisted on new subject distribution of posts of High School Assistants under Mathematics, Science and Social Studies. Till then, the subject requirement that was in practice was the minimum subject requirement rule by which the minimum staff required for the three core subjects of Mathematics, Science and Social Studies will be determined on the basis of the number of periods for these subjects and after satisfying the minimum subject requirements in the remaining posts of High School Assistants, teachers belonging to any of the three categories, namely, Social Studies, Mathematics and Science can be appointed. This was changed from the year 1972-73 by Ext. P-2 circular instructions and in Ext. P-2 the Educational Officers were directed to fix the establishment for the year 1972-73 on the basis of the new subject requirements of 3: 4: 5 insisted upon in Ext. P-2. It is not disputed in this Original Petition that Ext. P-1 staff fixation was issued and the subject-wise break-up of the posts of High School Assistants in the petitioner school was given in Ext. P-1 on the basis of the subject requirements insisted upon in Ext. P-2 circular. 3. As, including the petitioner, there are only two High School Assistants (Physical Science) and as per Ext. P-1 there is provision for two High School Assistants (Physical Science), the contention of the petitioner is that she cannot but be given a post in the staff for the year 1972-73 and that it was the 3rd respondent who should be relieved because of the reduction in the number of posts of High School Assistants by one in the year 1972-73. As per Ext. P-1 also the petitioner cannot be sent out. But the mischief was really created by Ext. R-1 circular of the 1st respondent dated 31st July 1972. In Ext. R-1 the 1st respondent has laid down that in High Schools where there was reduction in the number of divisions and consequent reduction of staff, the senior High School Assistants shall ordinarily be retained in preference to junior High School Assistants with due regard to the subject requirement that was in force previous to the introduction of the new ratio. R-1 the 1st respondent has laid down that in High Schools where there was reduction in the number of divisions and consequent reduction of staff, the senior High School Assistants shall ordinarily be retained in preference to junior High School Assistants with due regard to the subject requirement that was in force previous to the introduction of the new ratio. No doubt, it is the minimum subject requirement rule that was in force till the year 1972-73 that the 1st respondent is referring to in Ext. R-1 and as per that minimum subject requirement rule the 3rd respondent could continue in the staff in spite of the fact that in 1972-73 only 11 posts of High School Assistants were sanctioned in the place of 12 posts that were there in the year 1971-72. Admittedly, the 3rd respondent is senior to the petitioner in the staff of the school. The 3rd respondent has not filed any counter-affidavit in this case. The contention in the counter-affidavit filed on behalf of the 1st respondent is based on Ext. R-1 circular, dated 31st July 1972. Though it is stated in paragraph 4 of the counter-affidavit that Ext. P-3 erratum was issued by the 2nd respondent because of Ext. R-1, it may not be correct because Ext. R-1 is dated 31st July 1972 whereas Ext. P-3 erratum is dated 19th July 1972. 4. Under rule 12, Chapter XXIII of the Kerala Education Rules, 1959 the 2nd respondent should finalise the staff fixation not later than the 15th of July of the year in question. So, it is doubtful whether the 2nd respondent has power to vary Ext. P-1 staff fixation by Ext. P-3 even though Ext. P-3 is styled as an erratum. But for the purpose of deciding this case I do not think it necessary to go into this question. 5. In the reply affidavit filed by the petitioner on 31st May 1973 the petitioner has questioned the jurisdiction of the 1st respondent to issue Ext. R-1 circular dated 31st July 1972 and also contended that the petitioner services could not be dispensed with on the basis of Ext. R-1. In the reply affidavit dated 1st October 1973 filed on behalf of the 1st respondent in reply to the contentions raised in the above reply affidavit of the petitioner the contention raised is that even as per Ext. R-1. In the reply affidavit dated 1st October 1973 filed on behalf of the 1st respondent in reply to the contentions raised in the above reply affidavit of the petitioner the contention raised is that even as per Ext. P-2 circular dated 22nd April 1972 the petitioner was to be retrenched as she was the junior most High School Assistant. It is further contended in the reply affidavit that it was not necessary to decide the High School Assistant to be retrenched with reference to the new subject requirements or the number of periods allotted for Physical Science and Natural Science under the new formula and that the old subject requirement formula is to be followed and as per that formula there is no further division of General Science hands into Physical Science and Natural Science hands. The conclusion in the above reply affidavit is that as both the petitioner and the 3rd respondent were appointed as General Science hands and of the two, the petitioner being junior, it was the petitioner who should be relieved. 6. Rule 1 of Chapter XIV (A) of the Kerala Education Rules, 1959, as it stood after the amendment by Notification dated 4th July 1972 published in the Kerala Gazette dated 18th July 1972, is as follows: "1. (1) Managers of Private Schools shall appoint only candidates who possess the prescribed qualification. As far as High School classes are concerned the appointment shall be made with due regard to the requirement of subjects as determined by Director of Public Instruction with reference to the curricula of studies. Whenever vacancy occurs, the manager shall follow the directions issued by Government from time to time, for ascertaining the availability of qualified hand. (2) The age limit and the relaxation thereof for appointment applicable to teachers of Government Schools shall apply mutatis mutandis to teachers of aided schools. (3) Subject to rule 51-A, the appointment of teachers in schools managed by Panchayats shall be made from among the qualified hands advised by the Employment Exchange."� As per this rule, the Director of Public Instruction is given the power to fix the subject requirement with reference to the curricula of studies and the appointments of High School Assistants are to be made in accordance with that subject requirement. Ext. Ext. P-2 circular instruction is to be taken as a circular issued by virtue of the powers vested in the Director of Public Instruction under the above rule 1 though, as a matter of fact, the above rule was incorporated in the Kerala Education Rules only by Notification dated 4th July 1972. But, no doubt, the above rule has come into force from 4th July 1972, i.e. prior to the last date for staff fixation for the year 1972-73. It has been held in Kochusara v. Gracy I.L.R. 1973 (2) Kerala 163 that the amendments to the rules in the Kerala Education Rules, 1959 will come into force on the date of the Notification if no other date is specified therein and not on the date of publication in the Gazette. In view of the above decision, though the Notification with regard to the amendment in question was only published in the Kerala Gazette dated 11th July 1972, from 4th July 1972 the new rule I must be considered to be in force. So, on 11th July 1972 when Ext. P-1 staff fixation was made, it is rule 1 as substituted by the Notification dated 4th July 1972 that was in force. As per the above rule 1 the Director of Public Instruction has got the power to determine the subject requirement as far as High School classes are concerned. But this subject requirement is to be the same for all High Schools having the same curricula of studies. The rule does not empower the Director of Public Instruction to issue circulars which in effect will amount to the insistence of a subject ratio which is different from the one that he has determined by virtue of his powers under rule 1. Moreover, under the rule, the Director of Public Instruction has no power to have different subject requirements (subject ratio) for different schools having the same curricula of studies. Because of Ext. R-1 circular dated. 31st July 1972, as regards the A.T. High School, Mankombu in which the petitioner is working, there is an insistence by the Director of Public Instruction to follow a subject requirement (subject ratio) which is different from the subject requirements fixed by him as per Ext. P-2 circular instruction. Keeping in fact the subject requirement fixed by Ext. P-2 circular, the Director of Public Instruction has no power to issue Ext. P-2 circular instruction. Keeping in fact the subject requirement fixed by Ext. P-2 circular, the Director of Public Instruction has no power to issue Ext. R-1 circular the effect of which is to change the subject requirement contained in Ext. P-2 circular instructions as far as the petitioner school is concerned. In actual practice, because of Ext. R-1, it is quite likely that in very many schools where there is a reduction in the number of divisions, the subject requirement of the staff retained will be different from that insisted upon by the Director of Public Instruction as per Ext. P-2. The Director of Public Instruction has no power under rule 1 to issue Ext. R-1 circular. If that is the case, the petitioner in this Original Petition cannot be adversely affected by Ext. R-1 circular. It is not necessary for the purposes of this case to strike down Ext. R-1 and there is also no prayer in the Original Petition for that. But it will be sufficient to direct that Ext. R-1 should not affect adversely the rights of the petitioner to continue in the staff of the school. 7. One other aspect of the matter which it is pertinent to advert to is that the subject-wise break-up of the posts of High School Assistants contained in Ext. P-1 is not varied by the Erratum Ext. P-3. As long as the subject-wise - break-up of the posts in Ext. P-1 continues without change, the petitioner has got a place in the staff of the school since there are two posts for High School Assistants (Physical Science) and including the petitioner there are only two High School Assistants (Physical Science). If a staff fixation order which has become final contains a classification of High School Assistants, neither the 2nd respondent, District Educational Officer, nor the 4th respondent-Headmaster of the school can direct the relief of a High School Assistant who has got a place in the staff of the school as per the staff fixation in force for the year. The learned counsel for the petitioner brought to my notice a decision of Isaac, J. wherein my learned brother has held that the subject-wise classification of High School Assistants contained in the staff fixation order has to be followed in the matter of appointments to the posts of High School Assistants. The learned counsel for the petitioner brought to my notice a decision of Isaac, J. wherein my learned brother has held that the subject-wise classification of High School Assistants contained in the staff fixation order has to be followed in the matter of appointments to the posts of High School Assistants. So, according to me, as long as the classification of the posts of High School Assistants contained in Ext. P-1 staff fixation continues to be unchanged, the petitioner cannot be relieved from the staff of the school. The learned counsel for the 3rd respondent drew my attention to the fact that the 3rd respondent was continuing in the school for the whole of the year 1972-73 and she was being paid her salary without break. It will be improper if the 3rd respondent is directed to refund the salary she has received for a period for which she has actually worked though she will become an excess hand in the staff of the school when the petitioner has to be retained. I therefore hold that the petitioner was entitled to continue in the staff of the A. T. High School, Mankombu and the direction to relieve her from the staff in pursuance of Ext. P-3 Erratum was wrong. 8. In the result, this Original Petition is allowed to the extent indicated above. The parties are to suffer their costs.