Judgment :-

Radhakrishnan, J.

The question that has come up for consideration in this case is whether a retrenched teacher who was relieved from the post of UPSA and on protection could claim the post of Headmistress in the school on the plea that she has got a lien in the school.

2. The writ petitioner was appointed as a UPSA on 8-6-1976 and the appointment was approved. She was continuing in the school without break. The Headmistress of the school retired from service on 31-3-2001 and consequently a vacancy arose on 1-4-2001. Petitioner was the senior-most UPSA. However, at the time she was not qualified for promotion as Headmistress. She had not passed the prescribed departmental test. There was no other qualified teacher in the staff of the school as on 1-4-2001. Manager therefore posted her as teacher-in-charge with effect from 1-4-2002. On 24-6-2001 she attained the age of fifty and was therefore, permanently exempted from acquiring test qualification. Manager therefore passed an order appointing her as Headmistress of the school with effect from 24-6-2001. Manager forwarded the appointment order to the Assistant Educational Officer for approval. No order was passed by the Assistant Educational Officer on the said request. Fifth respondent the retrenched teacher filed a representation before the Deputy Director of Education claiming the post of Headmistress. She had joined the school as UPSA on 14-6-1976 and was thrown out from the school on 28-2-1985 due to reduction of student strength and being junior most. From Ext.P3 list kept in the school it is seen that she is rank No.5 among the protected teachers in the school. Though she was thrown out she was deputed to the Government School and was continuing as High School Assistant. Second respondent Deputy Director of Education however passed order dated 6-9-2001 directing the manager of the school to appoint 5th respondent as Headmistress in the school. Petitioner Challenged the said order before this Court and this court directed the petitioner to invoke the statutory remedy under Rule 92 of Chapter XIV A KER. Statutory remedy was invoked but the Government upheld the orders of the Deputy Director. Petitioner is aggrieved by the orders passed by the educational authorities as well as the order of the Government.

3. Learned single Judge allowed the writ petition and quashed the order passed by the Deputy Direction of Education as well as that of the Government holding that the petitioner was the legitimate claimant for appointment to the post of Headmistress. Aggrieved by the same this appeal has been preferred by the 5th respondent.

4. Counsel appearing for the appellant-5th respondent submitted that even though 5th respondent was retrenched from the school she has retained her lien and seniority in the school and therefore entitled to be considered for the post of Headmistress. Counsel placed reliance on G.O.(MS) No.104/69/Edn. Dated 6-3-1969, and laid stress on the following paragraph:

"Government, after considering all aspects of the question are pleased to order that the lien of these teachers should be retained under the management of the aided schools in which they were working at the time of retrenchment. But they may be posted on purely working arrangement in the next available vacancies of similar category arising in Government schools in the same educational district."

Counsel submitted she is working in another school on working arrangement without break in service and she retains lien in her parent school. Counsel submitted that she was deployed as protected teacher due to circumstances beyond her control. So unlike teachers voluntarily seeking transfer to other schools or transferred to Government schools, the protected teacher retains lien in the parent school. Counsel submitted for the purpose of Rule 37(1) of Chapter XIVA of Kerala Education Rules, a protected teacher is having continuous service in the same grade, but in another unit retaining the lien in the