Judgment :- 1. The second respondent in O.P. 5354 of 1971 has appealed from the judgment of Isaac, J. allowing the petition of the first respondent. By the judgment the appointment of the third respondent here as well as in the O.P., to the school by order dated 4th May 1970 passed by the appellant has been set aside. 2. The facts are the following. The first respondent as well as the third respondent were unqualified teachers in the aided upper primary school under the management of the second respondent during the period 3rd June 1964 to 31st March 1965. The first respondent had also service prior to that. The first respondent passed the Teachers Training examination in 1967 from the Mysore University and the third respondent passed the Teachers Training Course of the Kerala University in 1969. The first respondent had written to the appellant that he had passed the Teachers Training examination as early as on 5th April 1970 and that he may be appointed in any ensuing vacancy. Soon after that letter a leave vacancy arose in the school. The first respondent applied for the post by application dated 1st May 1970. The third respondent had also applied for the post and by order dated 4th May 1970 the third respondent was appointed by the appellant. It is the case of the appellant that be received the application of the first respondent only on 5th May 1970. The appointment of the third respondent was questioned in O.P. 6471 of 1970 by the first respondent. The order upholding the appointment of the third respondent was set aside by this court for the reason that the only ground stated in the order that the first respondent was not qualified for the post to which the third respondent was appointed at the time of the occurrence of the vacancy, was not correct. It is necessary to further state that from the judgment it is clear that this was the only point that was decided by this court by that judgment and all other matters were left open for consideration de novo after affording reasonable opportunity to the first and third respondents to state their cases. It is necessary to further state that from the judgment it is clear that this was the only point that was decided by this court by that judgment and all other matters were left open for consideration de novo after affording reasonable opportunity to the first and third respondents to state their cases. It is also necessary to mention that the District Educational Officer who passed the order which was impugned in O.P. 6471 of 1970 had ceased to be the District Educational Officer by the time the matter came up for consideration again before the District Educational Officer. The second time also the third respondent succeeded and it was held that the lawful claimant to the post is the third respondent and not the first respondent. In so holding it was found that the application of the first respondent reached the Manager only on the 5th May. 1970 after the third respondent was appointed by the Manager by order dated the 4th of May, 1970. Some evidence was taken for the purpose of deciding the question as to the date of the receipt of the application of the first respondent by the appellant and it was on the basis of such evidence that it was recorded by the District Educational Officer that the application of the first respondent was actually received by the appellant only on 5th May 1970. 3. The question arising for our consideration in this case is whether there are justifiable grounds for setting aside the appointment of the third respondent by the Educational Authorities. These were challenged in the O.P. and the learned judge felt that the District Educational Officer who dealt with the matter the second time had gone beyond the ambit of the enquiry visualised by the judgment in O.P. 6471 of 1970 and therefore exceeded his jurisdiction. Certain strong observations have also been made in the judgment that the District Educational Officer went out of his way to find that the application of the first respondent was received by the appellant only on 5th May 1970. It was therefore directed that enquiry should be conducted against the District Educational Officer who passed the order Ext. P2 produced along with the original petition. We are informed that such enquiry had been commenced and is pending. By the time the writ application was filed the person who passed Ext. It was therefore directed that enquiry should be conducted against the District Educational Officer who passed the order Ext. P2 produced along with the original petition. We are informed that such enquiry had been commenced and is pending. By the time the writ application was filed the person who passed Ext. P2 order also ceased to be the District Educational Officer and the counter-affidavit in the O.P. has been filed by a third District Educational Officer. We are mentioning these facts because certain observations have been made in the judgment regarding the averments in the counter-affidavit filed by the third District Educational Officer, in answer to the original petition. 4. The real question arising for decision in this case is whether the first respondent had any priority to be appointed to the vacancy to which the third respondent was appointed. If the prior appointment that gives rise to the priority must be one that should have been made after 2nd February 1965 there can be little doubt that the first respondent will not be entitled to get priority. It is admitted that the appointment relied on by the first respondent was one that was made before 2nd February 1965. The argument advanced by counsel for the first respondent was that the rule would be applicable even in cases where the appointment was before 2nd February 1965 if the incumbent continued to work pursuant to the appointment even after 2nd February 1965. It is true that the first respondent was appointed before 2nd February 1965 and continued in service after 2nd February 1965. Dealing with a case where the appointment was before 2nd February 1965 and which appointment had terminated before 2nd February 1965 Justice Eradi and one of us had occasion to consider whether the person relying on such appointment would be entitled to the benefit of R.5 of Chapter XIVA of the Kerala Education Rules, 1959 which is the rule that gives the right to priority. That rule at the relevant time stood in these terms: "5. Unqualified teachers appointed under R.2 and who acquire the prescribed qualifications subsequently shall have preference for appointments to future vacancies in schools under the same Educational Agency. Note. If more than one person acquires the prescribed qualifications subsequently, preference as among them shall be given to the person who acquired the qualifications earliest. Unqualified teachers appointed under R.2 and who acquire the prescribed qualifications subsequently shall have preference for appointments to future vacancies in schools under the same Educational Agency. Note. If more than one person acquires the prescribed qualifications subsequently, preference as among them shall be given to the person who acquired the qualifications earliest. If more than one person acquires the prescribed qualifications on the same date, the person with the earliest date of first appointment as an unqualified hand, shall be preferred." In the decision rendered by Eradi, J. and one of us in Rev. Fr. Xavier v. State of Kerala 1971 KLT 941 we expressed the view that the petitioner in the case having been appointed before 2nd February 1965 and his services having ended before 2nd February 1965 he was not entitled to any priority in the matter of appointment. This is clearly seen from Para.13 of the judgment. Having said so the judgment proceeded to state another reason as well. In Para.14 after dealing with R.1 to 6 of Chapter XIVA and the date on which they were brought into force by a notification dated 2nd February 1965 and referring to the expression "unqualified teachers appointed under R.2" the view was expressed that the reference can only be to persons who were appointed subsequent to 2nd February 1965 on which date alone R.2 came into force. It was also observed that "Rule 2 of Chapter XIV-A in the form in which it originally stood prior to its substitution by the present rule, did not deal with the topic of unqualified teachers at all and hence the reference in R.5 can only be to the provisions of the new R.2 as substituted on 2nd February 1965.", Then followed a categorical sentence which we must extract: "It is, therefore, obvious that the intention of the rule-making authority in enacting R.5 could only have been to confer the benefit of a preference for reappointment on persons appointed temporarily as unqualified teachers subsequent to 2nd February 1965 on which date R.1 to 6 of Chapter XIVA were brought into force." (The underlining is ours) This is a very clear statement. It was submitted that the decision was based only on the fact that the appointment had originated before 2nd February 1965 and had terminated before 2nd February 1965 and nothing else was discernible from the judgment. It was submitted that the decision was based only on the fact that the appointment had originated before 2nd February 1965 and had terminated before 2nd February 1965 and nothing else was discernible from the judgment. We find it impossible to accept this argument. Whether the observations were justified or not we will examine presently. There can be little doubt that the decision of the case was rested not only on the ground that the appointment originated and ended before 2nd February 1965 but also founded on the wording used in R.5 which indicated that the benefit of the provisions was intended to be applied only to unqualified teachers who were appointed subsequent to 2nd February 1965. Isaac, J. doubted the correctness of that decision because the learned judge felt that the interpretation that has been placed on R.51A in Chapter XIV-A by the judgment in Sarojini v. Assistant Educational Officer, Mullasseri ILR, 1972(1) Kerala 266 and the unreported decision in W.A. 44 of 1970 both rendered by Raman Nayar, Chief Justice and Mathew, J. was at variance with that placed on R.5 in Rev. Fr. Xavier V; State of Kerala 1971 KLT 941 and that R.5 must be interpreted in the same manner in which it was interpreted by Raman Nayar.C J. What the learned Chief Justice said was that the present tense in R.51A was a tense of logic and not a tense of time and that the wording of the rule indicated that past events which had occurred before the coming into force of the rule had been taken into account for the purpose of granting the benefit under the rule and such taking into account of past events in conferring a prospective benefit is not enacting retroactively and the rule was therefore valid and must be applied. On the reference made by Isaac, J. doubting the correctness of the decision in Rev. Fr. Xavier v. State of Kerala 1971 KLT 941 in O. P. 6332 of 1970, a Full Bench was constituted and hat Full Bench reaffirmed the decision in Rev. Fr. Xavier v. State of Kerala 1971 KLT 941. One would have expected that the matter ended there. Fr. Xavier v. State of Kerala 1971 KLT 941 in O. P. 6332 of 1970, a Full Bench was constituted and hat Full Bench reaffirmed the decision in Rev. Fr. Xavier v. State of Kerala 1971 KLT 941. One would have expected that the matter ended there. But counsel for the first respondent again stressed that even in the case that was before the Full Bench the appointment that had been relied on had originated and ended before 2nd February 1965 and the decision would therefore have only a limited application as governing only cases where the appointment relied on was before 2nd February 1965 and had terminated before 2nd February 1965. The learned counsel is quite correct on his reading of the facts and is further correct that we did not consider the question about the effect of an appointment pursuant to which the teacher continued to work after 2nd February 1965. The Full Bench did not consider the question that we dealt with in Para.14 of the judgment in Rev. Fr. Xavier v. State of Kerala 1971 KLT 941. So the matter can W said to be still at large in the sense that the Full Bench has not decided the question. But the submission that the matter is entirely open and that this court has not pronounced on this aspect cannot be accepted because we have already adverted to what has been said in Para.14 of the judgment is Rev. Fr. Xavier v. State of Kerala 1971 KLT 941 and we feel no doubt that the point is fully covered by what was said therein. 5. We would like to point out here that the wording of R.5. A is entirely different from the wording of R.5 as it stood at the time the decision in Rev. Fr. Xavier v. State of Kerala 1971 KLT 941 was rendered. We have already extracted R.5 and we will now read R.51A: "51A. Qualified teachers who are relieved as per R.49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in schools under the same Educational Agency provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. Note: If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. Note: If there are more than one claimant under this rule the order of 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 first preference. In making such appointments, due regard should be given to the requirements of subjects as far as High Schools are concerned." 6. A mere glance at these rules will indicate that the import and the meaning of the rules are different. While R.5 specifically refers to an appointment under R.2 which rule itself, as was pointed out, came into force only on 2nd February 1965, making it thus absolutely necessary in order to make the appointment to be one under R.2, that it should be on or after 2nd February 1965, there is no such wording whatever in R.51A. It is not for us to try to fathom the wisdom behind the two rules. But we must state that before R.5 and R.2 of Chapter XIV A were introduced by the amendment which came into operation on 2nd February 1965 an appointee under R.2 of Chapter XXI as it stood then had no preferential claim for future appointment on that ground. This was specifically stated in R.2 (1) of Chapter XXI of the Kerala Education Rules. That was the law till 2nd February 1965. If this was to be wiped out R.5 newly introduced would have to be retroactive in operation. - A rule making authority unless specifically empowered by the legislature would not have the power to make a retrospective rule. That was not attempted and we think rightly. 7. We may add that what we stated is the true intention of the rule introduced on 2nd February 1965 is clear from the later amendment to R.2 and 5 in Chapter XIV A by the notification dated 4th July, 1972. The amended R.2 and 5 of Chapter XIV A run thus: "2. Appointment of qualified hands shall be deemed acting till they are confirmed." "5. Unqualified teachers appointed after 2nd February 1965 and who acquired the prescribed qualification shall have preference for appointment to future vacancies in schools under the same Educational Agency. Note: (1) If more than one person acquires the prescribed qualifications,- preference as among them shall be given to the person who acquired the qualification earliest. Unqualified teachers appointed after 2nd February 1965 and who acquired the prescribed qualification shall have preference for appointment to future vacancies in schools under the same Educational Agency. Note: (1) If more than one person acquires the prescribed qualifications,- preference as among them shall be given to the person who acquired the qualification earliest. If more than one person acquires the prescribed qualification on the same date; the person with the earliest date of first appointment as an unqualified hand shall be preferred. (2) If there are claimants under this rule and rule S1A, preference shall be given to those coming under R.51A." 8. We have therefore no hesitation in coming to the conclusion that the first respondent who had been appointed before 2nd February 1965 is not entitled to the benefit of R.5 in Chapter XIV A notwithstanding the fact that he continued in service by virtue of that particular appointment beyond 2nd February 1965. The first respondent not being entitled to any priority was not in a position to contest the appointment of the third respondent by order dated 4th May 1970. No further question therefore arises for consideration and it is unnecessary therefore to determine whether the application made by the first respondent on 1st May 1970 was actually received by the appellant before us before 5th May 1970 as contended by the first respondent. But it is however necessary to point out that there is no material before us to indicate that the District Educational Officer has been guilty of any error whatever and the observations made in the judgment under appeal, with great respect we are constrained to say, do not seem to be warranted by the facts of the case. We went through the records and found that the observations of the District Educational Officer were made on the basis of the evidence furnished by the examination of the first respondent as well as the third respondent. The acknowledgment receipt signed by the the appellant was put to the first respondent at the time of the first respondent's examination and he had sworn that the date of receipt of the application sent by him to the appellant was 5th May 1970. The acknowledgment receipt signed by the the appellant was put to the first respondent at the time of the first respondent's examination and he had sworn that the date of receipt of the application sent by him to the appellant was 5th May 1970. It is unfortunate that without having the entire records before the court certain inferences were drawn and certain observations were made and that without realising the fact that the District Educational Officers who passed the two successive orders as well as the person who filed the affidavit in the present O.P. were different individuals. It is even more unfortunate that the relevant papers were not made available to the learned Judge. We are anxious that no harm should ensue to any of the three District Educational Officers as a result of what, we conceive, had been done in the discharge of their duties. We therefore expunge those remarks from the judgment under appeal and we are sure that any action taken against the concerned Educational Authorities would be dropped. 9. This appeal has to be allowed. We set aside the judgment and allow the appeal and dismiss the O.P. There will be no order as to costs. Allowed.