JUDGMENT

Deepak Verma, J.

1. Leave granted.

2. Short but important question of law, having great impact is required to be considered by us in this appeal. The question is with regard to interpretation of Note 2 appended to Rule 43 in Chapter XIV A of Kerala Education Rules, 1959 (hereinafter shall be referred to as 'the Rules') framed under Kerala Education Act, 1953. The relevant Note (2), is reproduced herein below:

"Note: (2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy." (Emphasis supplied by us)

3. The question to be considered by us is, which would be the relevant date for possessing prescribed qualification whether at the time of occurrence of vacancy or at the time the appointment is to be made.

4. To decide the aforesaid controversy, factual matrix required to be mentioned is as under:

5. A vacancy to the post of High School Assistant, (in short, H.S.A.) (Hindi) arose on 1.7.2003, in the Guhanandapuram School run by Devaswom Committee. On 10.8.2003, an advertisement for selection of a teacher for the said post was issued by the management. On coming to know about the vacancy, the appellant herein applied for the said post, since according to her, she possessed all the requisite qualifications on the relevant date. She was called for interview. She was appointed H.S.A (Hindi) vide appointment order dated 11.9.2003, issued by the Manager of the School. The appointment order indicated that she was to join duty within 15 days. Since appellant was under medical rest, on account of her recent delivery, she requested the management for grant of further time to join duty, which was acceded to by the management.

6. Respondent No.1, S. Rajeevan was already working as Lower Grade Hindi Teacher in the said school but had not passed the test which would have enabled him to possess requisite qualification and had applied for re-evaluation. However, he was declared 'pass' on 23.9.2003, which would enable him also to stake his claim for appointment to the said post of H.S.A on which appellant was given appointment. The aforesaid date would clearly reveal that on the date vacancy had arisen i.e. 1.7.2003, respondent No.1 was not a duly qualified candidate.

7. Appellant, ultimately after grant of extension for joining duties, reported for duty on 23.10.2003. It is stated that after joining duty, she was obstructed by respondent No.1 herein and other anti-social elements hired by him. She and her husband both were physically assaulted and their entry in the school was obstructed. She had also sustained injuries in the assault and was required to be admitted in Government Hospital. Police registered a criminal case against many and respondent No.1 was arrayed as accused No.7 in the said case.

8. Aggrieved by the appointment of the appellant, respondent No.1 filed W.P(C)No. 33575 of 2003 before the High Court of Kerala. Vide order dated 27.10.2003, High Court disposed of the Writ Petition filed by respondent No.1 on the admission made by Government Counsel that his representation would be considered on merits in accordance with law. This was first round of litigation. Pursuant to the order passed by the High Court, his representation was decided.

9. The District Education Officer passed an order on 5.1.2004 rejecting the contention of respondent No.1. The District Education Officer held as under:

"From the circumstantial evidences, the Manager made maximum attempt to appoint Sri S. Rajeevan who is working as LG-Hindi Teacher of the School and he who had appeared for the LTT examination while the vacancy was originated as on 1.7.2003. As per Note 2 to Rule 43 Chapter XIV A KER, promotion under the Rule shall be made from persons processing the prescribed qualifications at the time of occurrence of vacancy."

10. Feeling aggrieved by the said order passed by District Education Officer, respondent No.1 filed Revision Petition before the Government but it also