this Court, the amendment introduced to the said Rule with effect from 25.6.2005 will not affect the claims acquired under the unamended Rule before the said date. We agree that R.51A is not made expressly applicable to the Higher Secondary Wing, though by an executive order, R.51B governing appointment under the dying-inharness scheme appears to have been made applicable. The appellant is a candidate selected by a duly constituted selection committee and she has two spells of approved service to her credit also. Therefore, even in the absence of any express provision in the rules, such a candidate is entitled to get preference, before a candidate from the open market without any prior service under the management is considered for appointment. If the vacancy in which the appellant was appointed continued as a result of taking leave by other teachers till the resignation vacancy arose on 16.1.2006, she would have continued in service. Only because of the termination of the vacancy in which she was working, the appellant was retrenched. It is a well recognized principle in service jurisprudence that if a person is thrown out from a post, owing to termination of vacancy, as soon as the vacancy arises, the said incumbent is entitled to be re-appointed. If it is conceded that the Manager can go for a fresh candidate from the open market, a teacherwho has been relieved on termination of the vacancy, even after serving 5 or 10 years, will not get protection. The Manager can ignore such a teacher's claim and go for a fresh hand from the open market. We think, the absence of an express provision in Chap.XXXII concerning re-appointment will bring forth such disastrous consequences. The general principle of service jurisprudence will mandate that the Manager should appoint a person with previous service in preference to a fresh hand from the open market. Further, the Manager, who is a statutory functionary, has a duty to act fairly and not to act capriciously. So, he has a duty to reappoint the retrenched teacher, in lieu of a new hand, if a vacancy arises. Therefore, we declare that the management was bound to appoint the appellant in the vacancy that arose on 16.1.2006. Accordingly, we hold that the subsequent appointment of the 3rd respondent in the said vacancy is illegal and unsustainable. The absence of an express provision in Chap.XXXII cannot be a ground to deny all service benefits to the employees of the Higher Secondary Wing. Even in the absence of any provision in Chap.XXXII, the staff of the Higher Secondary Wing are getting pay revision benefits, pensionary benefits etc. Disciplinary action can also be taken against them, even though there is no express provision regarding the same in Chap.XXXII. So, the absence of a provision in Chap.XXXII cannot be treated as the end of the world, as far as a teacher working in the Higher Secondary School is concerned. The decision in Krishnankutty v. State of Kerala (supra), relied on by the 3rd respondent, has no application to the facts of this case. The decision in Pathanapuram Taluk Samajam Corporate Management Schools v. Sreelatha (supra) deals with the claim for appointment in the Higher Secondary Wing, of an incumbent who has got a claim for appointment under R.51B of Chap.XIV A of the K.E.R. (compassionate appointment under the dying-in-harness scheme) in the High School Wing. The said decision has
