JUDGMENT K.K. Narendran, J. 1. The petitioner in this Original Petition is a teacher who has got qualified approved service in the Anjarakandi High School of which the second respondent is the Manager. The grievance of the petitioner is against Ext. P-2 proceed­ings of the fourth respondent the Regional Deputy Director of Public Instruction, Kozhikode by which the fourth respondent held that the petitioner waived her rights for future appointments in the school by her silence when a vacancy arose in 1971. The questions that arise for consideration are: (1) whether right to preference under rule 51A of Chapter XIV-A of the Kerala Education Rules, 1959 (for short the Rules) will be lost simply because the claimant did not apply for the post when the next vacancy arises in the school; (2) whether the Manager who did not issue an appointment order to a teacher who has got the right to preference under rule 51A of Chapter XIV-A of the Rules when a vacancy arose and who got the appointment of a fresh hand approved by the Educational Officer without disclosing that there was a claimant under rule 51A can contend that the teacher having right to preference under rule 51A has waived her right by not questioning the appointment of the fresh hand, and (3) the fact that the claimant under rule 51A did not question the appointment of the fresh hand even when she came to know of the same after the expiry of that appointment will in any way be detrimental to her claims for appointment under rule 51A of Chapter XIV-A of the Rules. 2. The petitioner was originally appointed in the second respondent’s school in a leave vacancy on 18th August 1969 and her appointment was duly approved by the first respondent, the District Educational Officer, sub­sequently another leave vacancy of a lower grade Hindi Pandit arose on 5th October 1971 and the second respondent Manager appointed the third respondent, a fresh hand, in that vacancy. Though the said appointment was in viola­tion of rule 51A of Chapter XIV-A of the Rules it was approved by the first respondent because the fact that the petitioner was overlooked was not brought to the notice of the first respondent. During the year 1973-74 a vacancy of lower grade Hindi Pandit arose as per the staff fixation order. Though the said appointment was in viola­tion of rule 51A of Chapter XIV-A of the Rules it was approved by the first respondent because the fact that the petitioner was overlooked was not brought to the notice of the first respondent. During the year 1973-74 a vacancy of lower grade Hindi Pandit arose as per the staff fixation order. The second respondent on 24th July 1973 filled up that vacancy by appointing the third respondent even though the petitioner on 14th June 1973 made a representation to the second respondent to appoint the petitioner in that vacancy. When the appointment of the third respondent was submitted for approval the first respondent, the District Educational Officer, by Ext. P-1 letter declined approval to that appointment on the ground that the petitioner was the rightful claimant to the post and the appointment of the third respondent ignoring the claims of the petitioner was violative of rule 51A of Chapter XIV-A of the Rules. After the issue of Ext. P-1 the petitioner again approached the second respondent Manager by a representation dated 2nd September 1973. But by an order dated 7th September 1973 the second respondent rejected that representation. 3. Thereupon the petitioner approached this Court with O.P. No. 3397 of 1973. While the above Original Petition was pending the second respondent Manager pre­ferred an appeal against Ext. P-1. Hence O.P. 3397 of 1973 was disposed of by this Court on 6th November 1974 with a direction to the fourth respondent, the Regional Deputy Director of Public Instruction to dispose of the second respondent’s appeal from Ext. P-1 without delay. Thereupon the fourth respondent after hearing the parties concerned passed Ext. P-2 proceedings dated 2nd April 1975 holding as follows:— “It must be presumed that she has waived her right by her silence when the vacancy arose in 1971. It is difficult to believe that she did not know of this vacancy. Her sister is working in that school and she would have reported the vacancy to Smt. Nirmala. If she had waived her claim in 1971, she cannot come forward with a preferential claim over Smt. Vimalakumari in 1973. In fact, Smt. Vimalakumari had longer service in the school before 1973,� The petitioner has challenged Ext, P-2 order in this Original Petition. 4. A counter-affidavit has been filed on behalf of respondents 1 and 4. If she had waived her claim in 1971, she cannot come forward with a preferential claim over Smt. Vimalakumari in 1973. In fact, Smt. Vimalakumari had longer service in the school before 1973,� The petitioner has challenged Ext, P-2 order in this Original Petition. 4. A counter-affidavit has been filed on behalf of respondents 1 and 4. The statement in paragraph 3 of the counter-affidavit is that the appointment of the third res­pondent in the vacancy from 5th October 1971 to 22nd December 1971 was approved by the first respondent the District Educational Officer on the strength of the declara­tion given by the second respondent Manager to the effect that there was none to be absorbed under the management by virtue of the rules in the Kerala Education Rules. It is further pointed out that though the petitioner was the rightful claimant to the vacancy which arose on 5th October 1971, this fact was not brought to the notice of the first respondent the District Educational Officer at the time of the approval of the appointment of the third respondent. The second respondent in paragraph 4 of his counter-­affidavit states that when the leave vacancy arose in 1971 the fact was conveyed to the petitioner through her direct sister Kumari M. P. Sarojini, a drawing teacher in the same school. It is further stated in paragraph 4 that the Manager also personally contacted the petitioner and informed her of her vacancy. The third respondent in her counter-affidavit contents that it was on the basis of her approved appointment in 1971 that she was again appointed in the school in the year 1973. It is also pointed out in paragraph 7 of the counter-affidavit that the petitioner was aware of the vacancy which arose in 1971 even before the third respondent was appointed in that vacancy. It is then contended that as the petitioner has waived her rights she cannot now claim any right over the third respondent. The petitioner has filed a reply affidavit to the counter-affidavit filed by the second respondent Manager and points out that no information regarding the vacancy that arose in 1971 was conveyed to her when the said vacancy was subsisting. It is also pointed out that the petitioner was without a job when the said vacancy arose in the second respondent’s school. 5. It is also pointed out that the petitioner was without a job when the said vacancy arose in the second respondent’s school. 5. Learned counsel for the petitioner contends that it was imperative on the part of the second respondent Manager to have issued an appointment order to the petitioner when a vacancy in 1971 arose in his school. Learned counsel further contends that the appointment of the third respondent who was only a fresh hand in con­travention of the specific provisions contained in rule 51A of Chapter XIV-A of the Rules and its approval without making it known to the first respondent the Educational Officer that the petitioner having right to preference under rule 51A of Chapter XIV-A of the Rules was left unabsorbed will not confer upon the third respondent any right superior to that of the petitioner for the vacancy that arose in the school as per the staff fixation for the year 1973-74. Learned counsel also refers to an instruction in the Circular Instructions of the Director of Public Instruction dated 16th February 1973 wherein it is made clear that intimation of a vacancy to the claimants under Rule 51A is absolutely necessary. Learned counsel then refers to the following sentence in Ext. P-2 order of the fourth respondent: “The Manager stated that Smt. Nirmala has forfeited her claims for preferential treatment when she did not apply in 1971�. Relying on the above statement, learned counsel contends that the case of the Manager before the fourth respondent was that the petitioner forfeited her claims for reappoint­ment since she did not submit an application when the vacancy arose in 1971. It is further contended by the learned counsel that it is thus clear that the second respon­dent had no contention before the fourth respondent that the petitioner lost her claims because of waiver. According to the learned counsel, as the second respondent did not raise such a contention before the Appellate Authority the contention of waiver is not available to him before this Court. Learned counsel then relies on P. Easwari Amma v. The Assistant Educational Officer, Chevayur (O.P. No. 646 of 1973) and contends that the petitioner’s claims under rule 51A of Chapter XIV-A of the Rules will not be lost because of the fact that the petitioner did not submit an application when the vacancy arose. Learned counsel then relies on P. Easwari Amma v. The Assistant Educational Officer, Chevayur (O.P. No. 646 of 1973) and contends that the petitioner’s claims under rule 51A of Chapter XIV-A of the Rules will not be lost because of the fact that the petitioner did not submit an application when the vacancy arose. In the above decision my learned brother Namboodiripad, J. has said: “The provision is sufficiently clear and respondents 1 and 2 have also understood the real scope of that provision. But the rather ingenious method found out to overcome that statutory provision is to advance the contention that the petitioner has not applied for reappointment in time. No provision was placed before me either in the Education Act or the Rules thereunder whereby the teacher who gets the benefit under rule 51A has to apply to the concerned management within a specified time. In fact considering the very nature of that claim, there cannot be such a rule because the question of vacancy arising in a school will be known only to the Manager unless the Manager has chosen to advertise it in case he wants to make a selection overlooking the claims of any teacher entitled to be protec­ted under rule 51 A. It appears that no particular procedure has been prescribed in the matter of implementation of rule 51A. That being the position, rules of natural justice must normally be applied. When a vacancy arises in a school, it is for the Manager to inform the concerned teacher whether that teacher is interested in the post or not. If in that respect any obligation like making an application within a specified time is to be fastened upon a teacher, that would mean that the provisions of rule 51A can be easily defeated by a clever Manager.� Learned counsel also points out that the contention of waiver is put forward by the second respondent and hence it is for him to prove that there was actually waiver on the part of the petitioner. The fourth respondent has not found waiver in Ext. P-2 but only presumed that the petitioner waived her right by her silence when the vacancy arose in 1971. The fourth respondent has not found waiver in Ext. P-2 but only presumed that the petitioner waived her right by her silence when the vacancy arose in 1971. Learned counsel relies on Ammed v. Krishnan and others, 1960 K.L.J. 892 in support of his contention that in order to consti­tute waiver there must not only be the existence, at the time of the alleged waiver, of a right, advantage or benefit, but also the knowledge, actual or constructive of the existence thereof and an intention to relinquish such right and advan­tage or benefit. In support of his contention that waiver is a mixed question of law and fact, learned counsel relies on Commissioner of Income-tax v. Tavaballi Mulla Jeevaji Kapasi & others, 1961 K.L.J. 284. In the above decision Raghavan, J. (as he then was) speaking for the Court has said: “The mere filing of a return in pursuance of an invalid or improper notice under section 34(1) of the Income-tax Act, is not suffi­cient to constitute waiver. To constitute waiver, there must be an intentional and conscious relinquishment of an existing known right or the voluntary relinquishment or abandonment of known existing legal right, or conduct such as warrants an inference of the relinquishment of the known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right.� 6. Learned counsel for the second respondent contends that waiver is a question of fact and as it has been found by the fourth respondent in Ext. P-2 appellate order no inter­ference by this Court under Article 226 of the Constitution is possible. Learned counsel contends that as the petitioner has forfeited her claims under rule 51A of Chapter XIV-A of the Rules she cannot claim any benefit of the Note added to the above rule by notification dated 4th July 1972. P-2 appellate order no inter­ference by this Court under Article 226 of the Constitution is possible. Learned counsel contends that as the petitioner has forfeited her claims under rule 51A of Chapter XIV-A of the Rules she cannot claim any benefit of the Note added to the above rule by notification dated 4th July 1972. Learned counsel also refers to Sarojini, P. R. v. The Assistant Educational Officer, Mullassery I.L.R. 1972 (1) Kerala 266 wherein Raman Nayar, C. J. has said: “Having regard to the purpose of the rule which, it seems to us, is to better the working of schools by bettering the conditions of service of persons appointed as teachers, we do not think that a person, who, on a vacancy arising, waives his right of reappointment based on a past appointment can on the basis of that past appointment claim preference with regard to vacancies arising after the waiver. If a person who stands discharged waives the right to be reappointed to a subse­quent vacancy with the result that some other person is appointed thereto, surely, at least as against that other person the former cannot be allowed to claim a vacancy arising thereafter on the strength of his prior appointment, the benefit of which he had waived.� Learned counsel then submits that as the 3rd respondent is; working in the vacancy from 24th July 1973 at any rate the 3rd respondent should be given her salary. Learned counsel for the 3rd respondent contends that whether there was a waiver or not is a disputed question of fact which this Courts cannot decide in these proceedings. According to the learned counsel, the petitioner lost her claims under rule 51A of Chapter XIV-A of the Rules since she did not raise any complaint against the appointment of the 3rd respondent in the leave vacancy in 1971. Learned counsel then contends that there is no rule that waiver must be in writing. It is also contended by the learned counsel that there is no rule in the Kerala Education Rules compelling the Manager of a school that he should issue an appointment order to a teacher having claims under rule 51A of Chapter XIV-A of the Rules. Learned counsel also refers to Thania v. District Educational Officer, Ernakulam I.L.R. 1975 (1) Kerala 609. Learned counsel also refers to Thania v. District Educational Officer, Ernakulam I.L.R. 1975 (1) Kerala 609. According to the learned counsel, as the 4th respondent has already found that the petitioner lost her claims under rule 51A of Chapter XIV-A of the Rules because of waiver on her part, there is an end of the matter and there is no reason why this Court should interfere with that order. 7. Learned counsel for the petitioner replying to the, contentions raised by the learned counsel for the respondents contends that the Bench decision of this Court in Sarojini, P. R. v. The Assistant Educational Officer, Mullassery, I.L.R, 1972 (1) Kerala 266 cannot be of any help to the 3rd respondent in view of the fact that a Note has been added to rule 51A of Chapter XIV-A of the Rules by notification dated 4th July 1972 and as per that Note if there are two thrown out qualified hands the order, of preference shall be according to the date of first appoint­ment. Learned counsel also contends that there is no material to show that the petitioner was aware of the appointments of the 3rd respondent in the leave vacancy in 1971 before the expiry of that vacancy. The stand taken by the 2nd respondent before the 4th respondent also was that the petitioner lost her claims not because of waiver but because of the fact that she did not submit an application for appointment in the leave vacancy. 8. There is considerable force in the contentions of the learned counsel for the petitioner. Rule 51A of Chapter XIV-A of the rules reads: ‘‘Qualified teachers who are relieved as per rule 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. If the date of first appointment is the same, then preference shall be decided with reference to age, the older being given first preference. 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 requirement of subjects and to the instruc­tions issued by the Director under sub-rule (4) of rule 1, as far as High Schools are concerned.� Rule 51A gives a very valuable right to a qualified thrown out teacher. When a vacancy arises he is to be appointed. He need not submit an application. It is imperative on the part of the manager of the school to issue an appointment order to him in the address available. If he does not turn up within a reasonable time the Manager need not wait for him. The Manager will then be free to appoint anybody else and seek approval of that appointment disclosing the circumstances under which the teacher having right to preference under the rule could not be appointed. If such a teacher gives up his claim, in writing or by any other mode which is beyond controversy, when the vacancy arises, the Manager need not issue an appointment order to him before appointing a fresh hand. Under no other circum­stance the Manager must have the right to appoint a fresh hand when there is a claimant under the rule. Otherwise, the result will be the hanging of the Damocles sword of waiver over the head of the claimant. The valuable right guaran­teed under the rule will also become a big zero. In this case, the clear stand taken by the second respondent before the 4th respondent was that the petitioner lost her claims because she did not apply when the vacancy arose in 1971. But the contention raised in this court is one of waiver. Significantly the Manager was silent about the claims of the petitioner when the appointment of the third respondent, a fresh hand, was submitted to the first respondent for approval. In this background the second respondent can­not raise the contention of waiver in these proceedings. Moreover, the fourth respondent has only presumed waiver in Ext. P-2. Significantly the Manager was silent about the claims of the petitioner when the appointment of the third respondent, a fresh hand, was submitted to the first respondent for approval. In this background the second respondent can­not raise the contention of waiver in these proceedings. Moreover, the fourth respondent has only presumed waiver in Ext. P-2. As the appointment of the third respondent was clearly in violation of rule 51Aof Chapter XIV-A of the Rules, by that appointment the third respondent cannot get any superior rights over the petitioner. Moreover, as per the Note to rule 51A the petitioner whose date of first appointment is earlier had to be chosen for the vacancy which arose in July 1973 even if it is taken for granted that the third respondent’s appointment in 1971 was also valid. The first respondent has come to a correct conclusion in Ext. P-1. Ext. P-2 order of the fourth respondent which directs the approval of the appointment of the third respon­dent cannot be sustained and it is hereby set aside. The petitioner is also declared as the rightful claimant for the vacancy of the Lower Grade Language Teacher (Hindi) which arose in the second respondent’s school in July 1973 as a result of the staff fixation for the year 1973-74. 9. Admittedly, the third respondent is working as Lower Grade Language Teacher (Hindi) in the vacancy from 24th July 1973 as a result of the appointment made by the 2nd respondent. It is only fit and proper that the appointment of the third respondent till date is approved to enable her to get her salary. I direct the 1st respondent to approve the appointment of the third respondent from 24th July 1973 till date and disburse her salary. It is to be made clear in the order of approval that the third respondent will not have any other right except to salary by the approval so granted. 10. The original petition is allowed to the extent indi­cated above. There will be no order as to costs.