1. An interpretation of R.51A of Chap.XIVA of the Kerala Education Rules, 1959 and the amendment to the same introduced as per G.O.(P) No. 187/2005 arises for consideration in this case.

2. The first petitioner is the Manager of a school and the second petitioner is the newly appointed High School Assistant (English) with effect from 18.7.2005. The 4th respondent is the claimant under R.51A. The school is having Upper Primary and High School Sections and she had approved service in the U.P. Section during different spells, viz. from 31.7.1998 to 16.10.1998 and 14.10.1998 to 16.2.2000. She has got qualifications for holding the post of HSA (English).

3. Smt. P. Indira Devi, HSA retired from service on 31.3.2005 and thus a vacancy of HSA arose. The second petitioner was appointed as per Ext.P1 appointment order dated 18.7.2005 which was duly approved by the third respondent as per order dated 31.3.2006.

4. Subsequently, the 4th respondent raised her claim for appointment to the above HSA vacancy under R.51-A of Chap.XIV-A K.E.R. She approached the Director of Public Instruction by a representation, who by Ext.P2 informed her that she is having eligibility for appointment as HSA (English) as per G.O.(P) No. 187/2005. Subsequently, the 4th respondent forwarded the same along with a representation, to the first petitioner Manager and then only the Manager knew about the existence of Ext.P2. Later, the third respondent District Educational Officer directed the first petitioner to reconsider the appointment of second petitioner and to grant appointment to the 4th respondent in the light of G.O.(P) No. 187/2005.

5. The first petitioner took the stand that since G.O.(P) No. 187/2005 is not having any retrospective effect, the second petitioner’s appointment is not affected. Accordingly, Exts.P5 and P6 replies were given to respondents 3 and 4. Again, by Ext.P7 the third respondent District Educational Officer directed the first respondent to terminate the appointment of the second petitioner and to appoint the 4th respondent. Against this, a revision petition was filed before the Government which was directed to be disposed of by this court as per the judgment in Writ Petition No.30226/2006. By Ext.P8, the revision petition stands dismissed which is under challenge in this Writ Petition.

6. The Government took the view that even though the 4th respondent is not qualified on the date of occurrence of vacancy, she became qualified from 17.6.2005 in the light of the amendment made to K.E.R. Since the second petitioner was appointed only on 18.7.2005, subsequent to the amendment and as R.51-A being a special provision to protect the interest of a thrown out teacher, the appointment cannot be denied to the 4th respondent on the ground that on the date of occurrence of vacancy, she was not qualified.

7. Heard learned counsel for the petitioner Shri M.R. Anison, learned Senior Counsel Shri N.N. Sugunapalan, for the 4th respondent and learned Government Pleader Shri Antony Mukkath, for respondents 1 to 3.

8. Learned counsel for the petitioner mainly contended that herein, the vacancy arose on 1.4.2005 consequent on the retirement of the Teacher and the amendment introduced as per G.O.(P) No.187/2005 was brought into force only on 17.6.2005. As the said provision is not retrospective, the qualification for appointment has to be considered as on the date of occurrence of vacancy. Prior to the amendment, the provision envisaged a preference in the matter of appointment to an identical post, viz. the post of UPSA here and thus the 4th respondent was not entitled to claim any preference for appointment of HSA (English). Such claim would therefore arise only in a vacancy that arose on or after 17.6.2005. Learned counsel relied upon various decisions of this court, viz. Varghese & Ors. v. State of Kerala & Ors.(1981 KLT 458 (F.B.)), Padmanabhan Nair v. Deputy Director (1991 (1) KLT 337 (F.B.)), Neema Rajan v. Jyothi Chandran (2001 (3) KLT SN 25 (C