ASHOK BHUSHAN, J.

1. This Full Bench has been constituted to answer the reference dated 27.07.2012 made by a Division Bench while hearing W.A. Nos. 797 and 1302 of 2012. The Division Bench in the reference doubted the correctness of the ratio of another Division Bench judgment in D. Madhuriletha vs. Secretary to Government and others, W.A. No. 3249 of 2001 dated on 15.11.2002. Facts necessary to be noticed for deciding both the appeals and reference are as follows.

2. Both the writ appeals were filed by Smt. P. Valsamma, who shall hereinafter be referred to as the petitioner. The 5th respondent was the contesting respondent, against whom seniority is claimed by the petitioner, who shall hereinafter be referred to as the respondent.

3. In an institution, namely ABV HSS, Muhamma, Alappuzha, the respondent was appointed as Upper Primary School Assistant (for short UPSA) on 09.08.1982. The respondent was promoted as High School Assistant (for short HSA) on 01.08.1983. The Date of Birth of the respondent is 28.11.1956. The petitioner's date of birth is 24.11.1954 and was directly appointed as HSA on 01.08.1983 in the institution. A post of Headmaster fell vacant in the institution in which the respondent was appointed on 01.04.2008, who subsequently, after attaining the age of superannuation, has retired on 31.03.2012.

4. W.P. (C) No. 21605 of 2010 was filed by the respondent (Smt. V.R. Sheela) challenging Ext.P7 order passed by Government on the representation of the petitioner in which it was stated – in case of teachers in the same grade in the same Unit whose date of first appointment is the same, seniority will be decided with reference to the age, the older being the senior. Citing the aforesaid order (G.O. (P) No. 112/78/G.Edn. Dated 22.08.1978), Government directed the District Educational officer to revise his order assigning seniority and to make a fresh seniority list.

5. W.P. (C) No. 25105 of 2010 has been filed by the petitioner challenging Exts.P5 and P6 orders and praying for a declaration that, appointment of the respondent overlooking the seniority of the petitioner, is illegal. Following are the prayers which have been made by the petitioner:

"(a) Issue a writ of certiorari quashing Ext.P5 and P6.

(b) Declare that the appointment of the 5th respondent as H.M. Overlooking the seniority of the petitioner is illegal and violative of Rule 44 r/w Rule 37 of Chapter XIV A K.E.R. and that the petitioner is entitled for appointment as H.M. in preference to the 5th respondent w.e.f. 01.04.2008 and therefore the petitioner is entitled for all service benefits of H.M. notionally w.e.f. 01.04.2008.

(c) Issue a consequential direction to grant the service benefits of H.M. to the petitioner, notionally w.e.f. 01.04.2008."

6. Learned Single Judge, by a common judgment dated 20.01.2012, allowed W.P. (C) No. 21605 of 2010 filed by the respondent and dismissed W.P. (C) No. 25105 of 2010 filed by the petitioner. These two appeals have been filed by the petitioner, Valsamma P. challenging the judgment dated 20.01.2012. The learned Single Judge in the judgment has referred to Rule 37(1) and 37(2) of Chapter XIV A of the Kerala Education Rules, 1959 (for short KER) and relying on the judgment of a Division Bench dated 15.11.2002 in W.A. No. 3249 of 2001, held that promotion of the respondent as Headmistress (for short HM) is valid. The Division Bench, in paragraphs 3 and 4 of the reference order, has expressed its doubt over the correctness of the earlier Division Bench judgment dated 15.11.2002.

7. Learned counsel for the petitioner/appellant in support of the reference contended that in accordance with Rule 37(2), since the appointment of petitioner/appellant as HSA was on the same date and petitioner being older in age, she is to be treated as senior. He submits that the words, date of first appointment as referred to in Rule 37(2) is the date of first appointment in the same grade i.e. HSA. He submits that since the date