K. VINOD CHANDRAN, J.

1. The petitioner is aggrieved with Exhibit P3 order of the Director of Higher Secondary Education, which directed the 5th respondent to be appointed as Higher Secondary School Teacher [for brevity “HSST”].

2. The incumbency details of the petitioner and the 5th respondent are as here in after stated. Both the petitioner and the 5th respondent were appointed as Lower Primary School Assistant [for brevity “LPSA”] on 06.06.2000 and as HSST (Junior) on 01.01.2002; the very same dates. Both the petitioner and the 5th respondent also had prior service in the very same school, as Upper Primary School Assistants [for brevity “UPSA”]. No documents of the petitioner's prior service is produced. But, the petitioner admits that the same was subsequent to the broken service of the 5th respondent.

3. The petitioner was promoted to the vacancy of HSST on 25.06.2010 when a vacancy arose in the subject of Economics; in which both the petitioner and the 5th respondent are qualified. The petitioner's appointment was approved as per Exhibit P2. The 5th respondent challenged the petitioner's appointment and its approval, before the Director of Higher Secondary Education, which resulted in Exhibit P3 order, against the petitioner; which is challenged herein. The petitioner was also subsequently appointed as Principal and is continued as per the interim order granted by this Court. It is the seniority claim which has to be decided as between the petitioner and the 5th respondent.

4. The learned counsel for the petitioner assails Exhibit P3 on the preliminary ground of there being no jurisdiction conferred on the Director, since Chapter XXXII of the Kerala Education Rules, 1959 [for brevity “KER”] does not speak of an appeal to the Director of Higher Secondary Education. It is also pointed out that Chapter XXXII, Rule 1(b), defines “Director” as the Director of Higher Secondary Education Department or any officer authorised by the Government to exercise such power. The Regional Deputy Director having been authorised to exercise the power of Director, there could be no further appeal to the Director of Higher Secondary Education, is the compelling argument.

5. On facts it is contended that in the Higher Secondary section the seniority has to be considered only in accordance with the general principles, being that, if the appointment to the post of HSST (Junior) is on the same date, then the elder person would have seniority. The petitioner also contends that there can be no importing of the provisions of Chapter XIV-A to Chapter XXXII, since this Court has found that it is not possible, in Pathanapuram Taluk S.C.M. Schools v. Sreelatha, 2006 (3) KLT 867 and Sam Joseph v. State of Kerala, 2009 (3) KLT 99.

6. The learned counsel for the petitioner also would refer to Chapter XXXII to further buttress his contentions. Rule 6, relating to qualifications of the Principal, is pointed out to indicate that the qualifying service in the lower unit cannot be reckoned for seniority. One of the qualifications required for promotion as Principal is a minimum approved teaching experience of 12 years at Higher Secondary School Level under the same Educational Agency. A relaxation is provided, insofar as any person having six years service in the Higher Secondary section being entitled to seek for reckoning of approved teaching experience at the High School/Upper Primary/Lower Primary schools; but only insofar as reckoning the qualifying service and not for the purposes of seniority. Rule 4 of Chapter XXXII is referred, to indicate that Serial No.2 speaks of 'by transfer' appointment from Junior Lecturer/HSST (Junior), which has to follow the general principles of seniority. If such general principles of seniority is followed, necessarily the petitioner and the 5th respondent having been appointed on the same day, petitioner, being elder, would have to be granted such seniority, is the argument.

7. The learned counsel for the 5th respondent