Gopinathan, J.

1. Fourth respondent in WP(C).No.12881/2004 is the appellant. The first respondent herein, Smt.P.Asha Sindhu is the writ petitioner. On 15.7.1998, she was appointed as an Upper Primary School Assistant in PRW Higher Secondary School, of which the 4th respondent is the Manager. On 1.4.2000, she was promoted as High School Assistant (Malayalam). While so, the High School was upgraded as Higher Secondary School with effect from 2003-2004. Consequently, 12 posts of Higher Secondary School Teachers (HSST) were created, of which one is in Malayalam. As per the existing rules, 75% of the posts are to be filled up by direct recruitment. The remaining 25% shall be filled up by transfer from the High School Assistants in the subject concerned under the educational agency. In the absence of High School Assistants, Assistants in Primary, both Upper and Lower, are entitled. The 4th respondent in his wisdom opted three posts namely, in Physics, History and Economics to be filled up by transfer appointment and invited applications from those who are working in the school. Though the first respondent, who is duly qualified, applied for, she was not given appointment stating that the post in Malayalam is reserved for direct recruitment. On the other hand, the 5th respondent, who was an Upper Primary School Assistant, was appointed as HSST (Economics). The appellant, a direct recruitee was appointed as HSST (Malayalam). In Physics and History two qualified HSAs were appointed.

2. The first respondent, though applied for direct recruitment, it was stated that she was not selected. Being aggrieved she preferred Ext.P5 representation to the 3rd respondent quoting relevant provisions regarding the method of appointment. But, no action was taken on Ext.P5. Aggrieved by the inaction of the 3rd respondent in disposing Ext.P5, the first respondent moved this Court by filing WP(C).No.29985/2003 and obtained a judgment dated 24.9.2003 whereby the 3rd respondent was directed to hear the first respondent and to pass appropriate orders. The 3rd respondent by Ext.P7 dated 11.3.2004 rejected Ext.P5. The appointment of the appellant as HSST (Malayalam) was approved. Feeling aggrieved the first respondent moved the writ petition seeking a declaration that she is entitled to be appointed as HSST (Malayalam) in the service quota of 25% instead of appointing the 5th respondent who was only an Assistant in the Upper Primary School and that the appointments of the appellant as HSST (Malayalam) and that of the 5th respondent as HSST (Economics) are illegal and ultra vires of the rules and for a writ of mandamus directing the 3rd respondent to consider the first respondent for appointment in the service quota after quashing Ext.P5.

3. The learned Single Judge by judgment dated 17.5.2010 found that, though the 4th respondent had the discretion to choose the subject, he cannot exercise the same so as to deny right of a qualified person and to appoint the juniors. The learned Single Judge in arriving at a conclusion followed the decision of the Apex Court in Valsala Kumari Devi's case as well as a Division Bench of this Court in Viswanathan's case [2007 (4) KLT 494 and 2005 (3) KLT (SN) 78 (Case No.91)]. It was held by the learned Single Judge that the discretion exercised by the 4th respondent in choosing subjects for which transfer appointments are to be made and accommodating the 5th respondent, who was an Upper Primary School Assistant, was arbitrary and discriminatory and thereby the lawful entitlement of the first respondent was defeated and that the entitlement of the 5th respondent for transfer appointment can be considered only in the absence of High School Assistant. Instead of appointing 5th respondent who is an Upper Primary School Assistant, the first respondent should have been appointed as HSST (Malayalam) and if done there would have been no vacancy to appoint the appellant. Consequently, the appointment of the appellant and 5th