JUDGMENT G. Viswanatha Iyer, J. 1. This Original Petition has come up for consideration before a Division Bench on a reference by one of us (Dr. Kochu Thommen, J.) sitting single. A nice question of the scope of R.43 Chap.14A, Kerala Education Rules arises for consideration and apparently the view expressed by Khalid, J. in one case differs from the views of Subramonian Poti, J. and George Vadakkel, J. in two other cases. 2. The short facts are as follows:- The first petitioner is the Manager of an aided Private High School. For the academic year 1976-77 the District Educational Officer after due inspection and verification sanctioned the establishment according to subject requirement as follows:- General Mathematics .. 7 General Science .. 7 (Physical Science 4+ Natural Science 3) Social Studies .. 6 --- Total .. 20 --- There were six science hands working during 1975-76. Among them there was only one Physical Science hand, the rest were Natural Science hands. So to makeup the strength of seven sanctioned for 1976-77, the Manager appointed the second petitioner, a Physical Science hand. The same was approved by the Educational Officer. The fourth respondent, a Natural Science hand was then working as an Upper Primary School Assistant in the same school, her approved service having commenced from 2nd June 1975. She appealed to the Regional Director challenging the approval of the appointment of the second petitioner. According to her under R.43 of Chap.14A she is entitled to promotion to the one additional post sanctioned in 1976-77 for teaching science subjects. This appeal was allowed by the Regional Director and the revision filed by the petitioners before the Government did not succeed. So the petitioners have filed the original petition challenging the orders of the Regional Director and the Government. 3. According to the petitioners for the one post sanctioned by the staff fixation order, which has become final, as the fourth respondent is not qualified she cannot be promoted under R.43. In this connection the petitioner's counsel drew our attention to R.1(1) of Chap.14A which reads 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. (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 and for filling up vacancy". He also referred to R.1 and 2(2)(a) of Chap.31 which was added to the Kerala Education Rules from 5th December 1972. These rules are: "1. The teachers in Private School shall have the educational and professional qualifications prescribed in this Chapter. The conditions regarding age, Departmental Test qualification, service qualifications and other service conditions shall be governed by the provisions of the Act and the rules contained in the foregoing Chapters: Provided that nothing contained in this Chapter shall affect the teachers appointed in private schools prior to the coming into force of this Chapter and who possess the qualifications prescribed under valid orders then in force and whose appointments have been approved as fully qualified teachers: Provided further that such persons will be eligible for appointment in any schools. 2. High Schools: (1) x x x x x x x x x x x x (2) High School Assistant:- (a) High School Assistants (Subjects) -- A degree in the concerned subject and B.Ed./B.T./L.T. conferred or recognised by the Universities in Kerala". In the light of these provisions the argument is that as the sanction in the staff fixation order is for four Physical Science hands and 3 Natural Science hands and there are already five Natural Science hands working even from the previous year only a Physical Science hand can be appointed and the fourth respondent, a Natural Science hand is not qualified. 4. There is great force in this contention. The Manager can under R.1(1) of Chap.14A appoint only a qualified hand with due regard to the requirement of subjects. There are circulars issued by the Director of Public Instruction regarding the breakup of the posts of High School Assistants for Social Studies, Mathematics and Science. Ext. P10 circular, dated 22nd April 1972 fixes the ratio of 3:4:5 and the breakup posts of High School Assistants for Science is in the ratio of 3:2. There are circulars issued by the Director of Public Instruction regarding the breakup of the posts of High School Assistants for Social Studies, Mathematics and Science. Ext. P10 circular, dated 22nd April 1972 fixes the ratio of 3:4:5 and the breakup posts of High School Assistants for Science is in the ratio of 3:2. The same circular directed the Educational Officers to give in the staff fixation order details of the posts sanctioned. No doubt by another circular Ext. P11, dated 8th June 1973 this circular was relaxed to reappoint teachers earlier retrenched under R.49 or R.52 of Chap.14A. In respect of them permission was given to reappoint them on the basis of the instructions in force prior to Ext. P10. Again Ext. P10 circular was relaxed by Ext. P5 circular, dated 23rd October 1973 to accommodate Primary Section teachers who had got promotion on the basis of the circular in force prior to Ext. P10 but had been relieved on account of termination of vacancy subsequently. It must be borne in mind that the relaxation of Ext. P10 was only limited to cases covered by Exts. P11 and P5. In other respects the distribution of posts must be as per Ext. P10 ratio. 5. The ratio of 3:4:5 sanctioned in Ext. P10 was later changed by the Director to 1:1:1 from 15th July 1974 as can be seen from Ext. P13, dated 31st January 1974. But in this nothing was mentioned about the breakup of the posts of High School Assistants for Science specified in Ext. P10. The Educational Officer understood that the ratio of 3:2 is applicable even thereafter. Ext. P12 staff fixation order dated 26th July 1974 and Ext. P8 staff fixation order dated 14th July 1975 are clear proof of this. They give the breakup of Physical Science posts and Natural Science posts sanctioned. No objection is seen taken by the higher educational authorities to this breakup. Naturally the Educational Officer when he sanctioned the staff for 1976-77 has shown the breakup of the posts of seven science teachers as 4+3. So to the new post sanctioned in Ext. P9 only a Physical Science teacher can be appointed. As the fourth respondent has not a degree in that subject she is not qualified for promotion under R.43 Chap.14A. 6. So to the new post sanctioned in Ext. P9 only a Physical Science teacher can be appointed. As the fourth respondent has not a degree in that subject she is not qualified for promotion under R.43 Chap.14A. 6. But the contention of the fourth respondent which found favour with the Regional Deputy Director of Public Instruction and the Government is that she must be considered as qualified for appointment as Physical Science teacher in the light of Ext. P2 order of the Director of Public Instruction dated 20th February 1965 and Ext. P5 circular dated 23rd October 1973. She also relies on the decision of Khalid, J. in O.P. 3550 of 1976. We will consider how far these records help to establish the fourth respondent's case. Ext. P2 is a clarification issued by the Director of Public Instruction on a doubt raised as to whether any distinction has to be drawn between graduate teachers handling Physical Science and Natural Science. A graduate teacher who has taken Physical Science or Natural Science or General Science has one of the optionals in the B.Ed. degree, was directed to be treated as qualified to be a General Science teacher and no distinction between a Physical Science and Natural Science was required to be maintained in the appointment of science teachers. That order further prescribed a minimum of two teachers for each of the core subjects, namely, Science, Mathematics and Social Studies. This order cannot be deemed to be in force after Chap.31 prescribing qualifications for private school teachers was added to the Education Rules from 5th December 1972. The proviso to R.1 of Chap.31 provides that the provisions of this Chapter shall not affect teachers appointed prior to the coming into force of that Chapter and who possess the qualifications prescribed under valid orders then in force and their appointments have been approved as fully qualified teachers. To teachers appointed subsequent to 5th December 1972 the qualification prescribed under the Rules in the Chapter alone should be looked into. R.2(2)(a) of the said Chapter prescribes a degree in the concerned subject as a qualification for appointment as High School Assistant in the subject. That was why when the ratio of the posts was fixed as 3:4:5 and the breakup of the science teachers in the ratio of 3:2 between Physical Science and Natural Science teachers in Ext. R.2(2)(a) of the said Chapter prescribes a degree in the concerned subject as a qualification for appointment as High School Assistant in the subject. That was why when the ratio of the posts was fixed as 3:4:5 and the breakup of the science teachers in the ratio of 3:2 between Physical Science and Natural Science teachers in Ext. P10, complaints were received from teachers who had been appointed earlier, but happened to be either retrenched or relieved for want of vacancy and concession was shown to them by Ext. P11, dated 8th June 1973 and Ext. P5, dated 23rd October 1973. These two circulars relax the rule for reappointment or promotion of those teachers on the basis of the old subject ratio, namely, that contained in Ext. P2. The argument of the respondents' counsel is that Ext. P5 should be understood to be a relaxation of the qualification for the promotion of Primary School Teachers whether such teachers are appointed before Chap.31 came into force or not. A proper understanding of Ext. P5 does not warrant such a conclusion. Ext. P5 recites the complaint of the few teachers who have been promoted from the primary section as High School Assistants in the new vacancies during 1972-73, but relieved on account of termination of vacancies subsequently. They claim benefit of the relaxation allowed under Ext. P11, to High School Assistants retrenched for want of vacancy. It is their case that is ordered in the last paragraph of Ext. P5 which reads as follows:- "It is hereby ordered that primary teachers eligible for promotion as High School Assistants under R.43, Chap.14A may be promoted provided they would have got promotion had the old subject ratio been in force." To take this out of the context referred to in the earlier paragraphs will be a misreading of Ext. P5. The fourth respondent was appointed as a Primary School Assistant only from 2nd June 1975. Hence the benefit of Ext. P11 or Ext. P5 is not available to her to claim promotion under R.43 of Chap.14A to a post to which she is not qualified under R.2(2) of Chap.31. 7. In O.P. 3550 of 1976 what was considered was a case of a primary school teacher in service on 5th December 1972. Hence the benefit of Ext. P11 or Ext. P5 is not available to her to claim promotion under R.43 of Chap.14A to a post to which she is not qualified under R.2(2) of Chap.31. 7. In O.P. 3550 of 1976 what was considered was a case of a primary school teacher in service on 5th December 1972. Her claim for promotion under R.43 of Chap.14A was not countenanced by the Manager when a vacancy of a High School Assistant arose in the same school. The Manager appointed a fresh hand. On her appeal the Deputy Director of Public Instruction directed the Manager to recognise her preferential claim for promotion and that order was confirmed by the Government. A challenge of that order was made in the above Original Petition. Khalid, J., referring to the relaxation, circulars dated 8th June 1973 and 23rd October 1973, referred to above, upheld the orders of the R.D.D.P.I., and the Government. That decision has no application here because the fourth respondent has been appointed only on 2nd June 1975 long after Chap.31 prescribing the qualifications of Private School Teachers was added to the Education Rules. So reliance of the fourth respondent on the relaxation orders and the decision of Justice Khalid is of no avail. The decision that really touches this question is the one rendered by Vadakkel, J., in O.P. 1776 of 1977. In that case the Manager of a school appointed a Science Graduate against a post sanctioned for appointment of a High School Assistant in Science. But that appointment was not approved on the ground that another teacher has a better claim to be appointed to that post by promotion. The latter teacher is a Social Studies hand and he relying on R.43 of Chap.14A claimed a right to be promoted. The question arose whether R.43 can be relied on by a teacher irrespective of the question whether he is qualified with reference to the subject for which a post is sanctioned. After referring to the provisions in Chap.31 and Chap.14A the learned Judge held that R.43 cannot be invoked for promotion by a teacher who is not qualified for the sanctioned post. After referring to the provisions in Chap.31 and Chap.14A the learned Judge held that R.43 cannot be invoked for promotion by a teacher who is not qualified for the sanctioned post. To the same effect is the decision in O.P. 4249 of 1977 rendered by Poti, J. In that case competing claim of a teacher, thrown out for want of vacancy under R.51 A of Chap.14A and that of a teacher claiming promotion under R.43 was the matter for decision. The learned Judge after referring to the orders and the rules found that R.43 cannot be invoked by a teacher for promotion to a post sanctioned for teaching a subject in which the claimant had not graduated. We approve the reasoning given by the learned Judges in these decisions and according to us also a true construction of R.43 leads only to an inference that a teacher must be qualified for the post sanctioned, the qualification being as provided for in Chap.31 of the Kerala Education Rules. 8. Equally incorrect is her contention that the ratio of 3:2 between Physical Science Teachers and Natural Science Teachers mentioned in Ext. P10 disappeared with the issue of the circular Ext. P13 fixing the ratio of 1:1:1 as against 3:4:5 in Ext. P10. There is no warrant for such a conclusion. Ext. P13 did not deal with the breakup of the posts in the science subject. It changed only the ratio between the core subjects, namely, Science, Mathematics and Social Studies. The internal breakup mentioned in Ext. P10 remain intact and that was correctly understood by the Educational Officer when he mentioned the breakup of the posts sanctioned in science in the staff fixation orders for 1974-75 and 1975-76 referred to earlier. Ext. P3 no doubt was issued only on 26th November 1976. But it is not a new direction, but only one drawing the attention to the existing ratio of 3:2. Therefore this contention also cannot stand. In the result our conclusion is that both the R.D.D.P.I, and the Government have not properly appreciated the rule while passing the order in favour of the fourth respondent. The fourth respondent is not qualified for promotion to the post of a Physical Science Teacher sanctioned for the year 1976-77. Therefore those orders are quashed and the orders passed by the Educational Officer approving the appointment of the petitioner is the correct one. The fourth respondent is not qualified for promotion to the post of a Physical Science Teacher sanctioned for the year 1976-77. Therefore those orders are quashed and the orders passed by the Educational Officer approving the appointment of the petitioner is the correct one. In the result the Original Petition is allowed, Exts. P4 and P7 orders are quashed and it is declared that the approval granted by the Educational Officer to the appointment of the petitioner is the correct one. The Original Petition is disposed of in the above terms. There will be no order as to costs.