BALAKRISHNAN NAIR, J.

“C.R”

The third respondent in the Writ Petition is the appellant. The first respondent herein was the Writ Petitioner. A vacancy of High School Assistant (HSA) (Hindi) arose in the 5th respondent's school on 5.6.2002, on the re-opening day of the school in the academic year 2002-03. The appellant was a claimant for the post under Rule 43 of Chapter XIV-A of the Kerala Education Rules {for short "KER"} whereas the first respondent/Writ Petitioner was a claimant under Rule 51-A. The first respondent had worked as HSA (Hindi) from 14.7.2000 to 29.9.2000. The said appointment was approved also. The appellant has approved service as Upper Primary School Assistant (UPSA) since 1.8.2000.

2. The Manager of the School, from among the two rivals, preferred the first respondent and appointed her as HSA (Hindi) with effect from 5.6.2002. The said appointment was approved by the District Educational Officer. The appellant challenged that appointment and its approval before the Director of Public Instruction, by filing Ext.P3 revision. The Director of Public Instruction, after hearing both sides, allowed the revision by Ext.P7 order dated 10.2.2004. The appointment of the first respondent was set aside and there was a further direction to promote the appellant to the post of HSA (Hindi). The first respondent preferred Ext.P8 revision against that order before the Government under Rule 92 of Chapter XIV-A of the KER. Thereafter the Writ Petition was filed before this Court challenging Ext.P7 and also seeking a direction to the Government to consider Ext.P8. This Court entertained the Writ Petition and after hearing both sides, allowed the same.

3. It is common ground that if the appellant is qualified for the post of HSA (Hindi), she is entitled to be preferred over the first respondent, the former being a claimant under Rule 43. We notice that the above legal position has changed after the amendment of Rule 51-A, in 2005.

4. The first respondent's qualifications were Sahityacharya and MA in Hindi. She was also having diploma in Hindi Teachers' Training. The appellant was having Sahityacharya, which is equivalent to BA (Hindi). She has also passed Acharya Examination in 1998. As per Rule 2(4) of Chapter XXXI of the KER, if the Acharya Examination is cleared in the year 1969-70 or before that, it shall be treated as sufficient training qualification for appointment as HSA (Hindi). But, the Government issued Ext.R3(d) order dated 3.10.1988, removing the above time limit concerning passing of Acharya Examination. The said order also provided that corresponding amendments will be brought to KER also.

5. It is common ground that so far, no amendments were carried out. In view of the absence of amendment, the first respondent took up the contention that the appellant does not have the training qualification as per the Rules for appointment to the post of HSA (Hindi). Though the training qualification possessed by the appellant is treated as an equivalent qualification by an executive order, the same cannot have any efficacy in the face of the statutory provision, it is submitted. It is also pointed out that Acharya qualification obtained up to 1969-70 alone will be treated as sufficient qualification. The learned single Judge accepted the contentions of the first respondent/Writ Petitioner and allowed the Writ Petition. Hence this appeal by the appellant. We heard learned counsel on both sides. We considered the material on record.

6. When the first respondent has invoked the statutory remedy by filing Ext.P8 revision under Rule 92, we think the Writ Petition should not have been entertained by this Court (see the decision of the Division Bench of this court in Mc Dowell & Co. Ltd. v. Assistant Commissioner {1985 K.L.T. 428}. It was stated therein as follows:

"We heard counsel at length. Bearing in mind the principles laid down by the Supreme Court referred to above, and the other decisions mentioned hereinafter, w