IMPORTANT POINTS
If 12 posts were to be filled up in the cadre of HSST. Rule 6 Sl.No.1(2) provides that in the absence of persons in the cadre of HSST (Junior), the HSST posts can be filled up from HSA's/UPSA's and by direct recruitment in the ratio of 1:3- The ratio provided, enables by-transfer appointment to the vacancies coming at positions 1, 5, 9 and so on- This provides sufficient guidelines to determine the seniority as between the by-transfer appointees to the cadre of HSST- Obviously on operation of the ratio of 1:3 the first vacancy would go to the senior most, the 5th one to the then junior and the 9th one to the 3rd in seniority- Hence as against the HSA's promoted by-transfer, to the post of HSST there is no difficulty in determining the seniority. The senior among the HSA's would be senior in the cadre of HSST also. This is not reckoning the service of HSST for seniority, but, the mandate of the rule which prescribes a ratio for appointment.

K. Vinod Chandran, J.

Rival claimants to the post of Principal, in an aided Higher Secondary School, was before this Court with two writ petitions; both the teachers being promoted to the post of Higher Secondary School Teacher [for brevity, 'HSST'] on the very same day. One challenged the order of the Government determining the seniority on the basis of age. The other sought implementation of the order of the Government. One another HSST, who was also recruited to that post on the very same day, by direct recruitment, impleaded himself since the decision in the above cases would affect his claim in the future. The Government too filed two appeals from the common judgment of the learned Single Judge, anxious to sustain its decision, especially since Chapter XXXII of the Kerala Education Rules, 1959 [for brevity, 'the KER'] applicable to the Higher Secondary section of aided Schools, does not provide a specific rule for determination of seniority.

2. The Government, by the impugned order, held that the seniority has to be determined in accordance with the age, in favour of U.V. Ramesan. The learned Single Judge found favour with the claim of Manoj Kumar K. and held that the seniority in the case of HSST has to be determined taking note of the length of service as High School Assistant [for brevity, 'the HSA']. Ramesan is in appeal from the aforesaid common judgment, along with the Government. We will refer to the parties by their name.

3. We have heard learned Senior Counsel Sri.S.Ramesh Babu instructed by Sri.T.B. Hood for U.V. Ramesan, and Sri. Elvin Peter appears for Manoj Kumar K., learned Special Government Pleader to Advocate General Smt.M.R. Sreelatha appears for the Government and Sri.A.J. Varghese for the additional respondent.

4. The reliance placed by Manoj Kumar is to Exts.P5, P6 & P7. The claim of Ramesan was upheld drawing a parallel from Chapter XIV.A of the KER, specifically Rule 37(2), wherein when the period of continuous service is the same, the seniority has to be determined by the date of first appointment and if that too is identical, then on the basis of age. The Government had taken the decision on the basis of communication produced at Ext.P19. The learned Single Judge found that Ext.P19 was only an opinion of the Under Secretary, who issued the said letter and it does not have the trappings of a Government Order and cannot be given force of an executive order under Article 166 of the Constitution of India. It was held that Ext.P5 Government Order applies to the issue on hand and hence the inter se seniority in the case of HSST has to be determined on the basis of the length of service as HSA and not based on the initial entry into service or age.

5. The learned Senior Counsel Sri.S. Ramesh Babu points out that Ext.P5 is no more in force. GO(MS) No.338/03/Gen.Edn. dated 16.12.2003 superseded all orders in the matter of placement of Principals in Higher Secondary Schools in the State, including Ext.P5, specifically referred therein. Further, it is pointed out that Rule 6 of Chapter XXXII of the KER applies insofar as promotions to the post of Principals. The Note to Rule 6 though enables the approved teaching experience at the HS/UP/LP School to be considered in the event of there being none having 12 years' teaching experience in the Higher Secondary level; such experience shall be reckoned only for qualifying service and shall not be reckoned for seniority. If service as an HSA can be reckoned only for the purpose of qualifying service as provided in the Note under Sl.No.1(3) of Rule 6 and it prohibits reckoning of that service for purpose of seniority; Ext.P5 order in any event cannot apply. The learned Senior Counsel would also rely on the decision of this Court in Nanminda Higher Secondary School v. Director of Higher Secondary Education [2015 (3) KLT 307].

6. Sri.Elvin Peter on the other hand would contend that even if Ext.P5 is not applicable, Ext.P6 survives for consideration, the same having