Abdul Gafoor, J.

We will deal with the Writ Appeal first. It will resolve the dispute in the Original Petitions.

2. The issue is whether the first appellant ought to have appointed the second respondent as Higher Secondary School Teacher (English) against the vacancy earmarked for in service candidates on commencement of the academic year 1999-2000 during which five vacancies of such teachers had been filled up.

3. As per Exhibit P2 order prescribing method of appointment, twenty-five per cent of the vacancies shall be earmarked for qualified High School Assistants and Primary School Teachers working under the management. The first appellant is the Manager of the School concerned. The Higher Secondary course was started in the year 1998. During that year 12 posts were sanctioned. The first appellant did not fill up all the vacancies. Post of Higher Secondary School Teacher (Hindi) was kept vacant. Even though the petitioner in O.P.No.12706 of 2003 was in service as UPSA (Hindi), he was not promoted against that vacancy. He claims that he was qualified during the year 1998-99 even on the strength o Exhibit P2 Government Order in that Original Petition.

4. During the year 1999-2000 out of the five vacancies to be filled up, one was that of Higher Secondary School Teacher (English) and another Higher Secondary School Teacher (Hindi) which was vacant from the previous year onwards. The first appellant preferred the petitioner in O.P.No.12706 of 2003, a Hindi Teacher in the quota for inservice candidates and filled up the other posts including that of English Teacher by direct recruitment. Against the post of English Teacher the second appellant was appointed. This was objected to by the second respondent in the Writ Appeal contending that she, being senior to the petitioner in O.P.No.12706 of 2003, ought to have been preferred for appointment against the post of English Teacher setting it apart to inservice candidates. It was filled up by direct recruitment. In other words, it is contended that when steps for filling up five vacancies were taken up during the year 1999-2000, 25% thereof should have been given for inservice candidates and while considering such incumbent the person with lengthier service among the aspirants should have been considered first and the remaining 75% should have been reserved for direct recruitment. In such a situation, the second respondent, who had lengthier service, ought to have been appointed as Higher Secondary School Teacher (English), rather than the petitioner in O.P.No.12706 of 2003 appointed as Higher Secondary School Teacher (Hindi). The department found this contention in favour of the second respondent as is seen from Exhibit P7, of course, on a different reason based on an interim order passed by the Supreme Court on 7.12.1999. But the facts remain that the junior hand, namely, the petitioner in O.P.No.12706 of 2003 was preferred for appointment from among existing teachers in the school on 2.8.1999 and the second appellant was directly appointed as English Teacher with effect from 2.8.1999. Therefore, the position of the rules or orders, obtainable as on that date, ought to have been considered.

5. Exhibit P7 was challenged on that count by the second respondent. Even if the position on 2.8.1999 or 28.9.1999 is taken note of, no order is produced before us to show that the petitioner in O.P.No.12706 of 2003 was having lengthier service than the second respondent. On the other hand it is admitted that the second respondent is, in any way, senior to the petitioner in O.P.No.12706 of 2003. Therefore, he ought to have been considered for the post for which he was qualified rather than preferring a junior hand like the petitioner in O.P.No.12706 of 2003.

6. At this juncture, it is submitted on behalf of the first appellant that Exhibit P2 order prescribing the ratio of 25:75 between promotion and direct recruitment does not stipulate that the Manager should fill up first the post to whi