K.S. Radhakrishnan, J.

The question that has come up for consideration in this case is whether a member of non-teaching staff working in the High School is eligible for appointment to the post of HS A (Hindi) in accordance with Notes 1 and 2 of R.1(1) of Chapter XIV- A of the Kerala Education Rules if there is no other teacher eligible for promotion to such post. Learned single judge held in view of sub-r.2 of R.43-B of Chapter XIV-A K.E.R.,if qualified teacher as mentioned in sub-r.1 are not available in the schools under the same educational agency for promotion to the post of High School Assistant in that language, qualified candidates from the outside may be appointed to the post. Learned Judge took the view that since the post of peon does not come within the feeder categories mentioned in R.43-B. qualified candidates from outside has to be considered for appointment to the post of High School Assistant even if non-teaching staff is qualified.

2. In order to, understand the legal provision we have to examine certain facts. We may describe the parties according to their status in the Writ Petition. Fourth" respondent was working as a Peon in Viswabharathi Model High School. She was appointed as Peon on 19.6.1984 and the appointment was approved. She had obtained all necessary qualification for being considered for appointment as H.S.A.

Hindi. A retirement vacancy of H.S.A. Hindi arose in the school on 1.4.2000. There were no R.51-A claimants. Since the school is having only High School Section there was no claim from U.P. Section for appointment. The only person eligible to be considered for appointment to the said post was the 4th respondent. Manager however did not consider the claim of the 4th respondent and appointed the second petitioner vide Ext. PI order dated 1.8.2000. Appointment was approved by the District Education Officer vide order dated 23.9.2000. Claim raised by the 4th respondent was directed to be considered by the District Educational Officer by judgment of this Court in O.P. 19512/2000. District Educational Officer rejected her claim. Matter was taken up in appeal before the Director of Public Instruction. Second respondent however allowed the appeal and set aside the appointment of the 2nd petitioner. Aggrieved by the said order the present Writ Petition was preferred. Learned Single Judge allowed the Writ Petition and quashed Ext. P6 order. Aggrieved by the same 4th respondent has filed this appeal. When the matter came up for hearing we heard counsel on either side.

3. Qualification prescribed for the post of HSA (Hindi) are as follows:

1. Academic qualification: Sahithyacharya of Kerala Hindi Prachar Sabha with a pass in SSLC Examination conducted by the Commissioner for Government Examinations, Kerala or its equivalent.

2.Training qualifications : Diploma in Hindi Teachers Training issued by the Commissioner for Government Examinations, Kerala. The above mentioned qualifications are provided under R.2(b)(iv) of Chapter XXXI of KER. R.43-B deals with the manner in which the post of High School Assistant in a particular language be filled up. It is relevant to extract the said provision for easy reference:

43.B. (1) Notwithstanding anything contained in R.43, posts of full time High School Assistants in a particular language shall be filled up by promotion in the following order of preference: .

(i) Lower Grade Language Teachers who have the prescribed qualifications in that Language for promotion to the post of High School Assistants in that language at the time of occurrence of the vacancy and who had given option in writing as per G.O. (MS) 612/Edn. dated 10.11.1964 to continue as Lower Grade Language Teachers.

(ii) Part time High School Assistant in that Language.

(iii)Other Lower Grade Language Teachers in that Language. (iv)Regular Primary teachers having the prescribed qualification. (v)Craft and Specialist teachers having the prescribed qualifications.

(vi) If no teacher with the prescribed