Important points:
• There was no possibility or opportunity for the Manager to have conducted a selection prior to 24.10.2011 and there cannot be found any delay having been occasioned only for the purpose of enabling the appellant to acquire the Post Graduate qualification.
• As the appointment or promotion to a post with a required qualification. Such a principle also would advance transparency and ensure that there is no nepotism in so far as the appointing authority delaying the selection so as to enable a favoured person to acquire the required qualification for the post.
• If the appellant's claim to the third post of HSST (Jr.) sanctioned in the 4th respondent school is not allowed, then necessarily the first respondent would be qualified to be appointed to that post. If the appellant is found qualified on the relevant date, the 1st respondent would not be entitled to claim the exception since the appellant has qualified B.Ed & M.Sc in the relevant subject, i.e. Mathematics.

K. VINOD CHANDRAN, J.

1. The appellant and the first respondent claimed the third vacancy of Higher Secondary School Teacher (Jr.) [for brevity HSST hereafter] which arose in the 4th respondent school wherein both of them were working as High School Assistants (HSA).

2. The appellant was working as a HAS (Mathematics) having qualification of B.Sc. B.Ed. and M.Sc. in that subject. The Post Graduate qualification in Mathematics was obtained only on 16.9.2011. The first respondent had a graduate and B.Ed. qualification in Mathematics and Post Graduate qualification in Malayalam. She was working as HSA (Malayalam) in the aided school. Admittedly, the appellant was senior to the first respondent, having been appointed as a HAS (Mathematics) on 5.8.1996 and the first respondent appointed as a HAS (Malayalam) on 22.6.1998 from which date there is approved service, which alone can be reckoned for seniority.

3. The courses in the Higher Secondary section were sanctioned by the Government on 20.7.2010 which sanction order also provided for appointment of HSST's temporarily as Guest Lecturers. Later, by Ext P1 dated 24.10.2011 produced in the Writ Petition 1510 posts of HSST Juniors, 110 posts of HSST and 146 posts of Principals were created in the Higher Secondary Schools in Thrissur and northern districts. The 4th respondent's school was in Thrissur District and pursuant to Ext P1 obtained sanction of 10 posts of HSST Junior and 1 post of HSST. As per Rule 4 of Chapter XXXII of the Kerala Education Rules (KER) 25% reservation had to be given to the existing qualified teachers in the High School, Upper Primary or Lower Primary Section. A ratio of 1:3 was provided by which out of four the first post was to be conceded to by-transfer appointment from qualified hands in High School, Upper Primary or Lower Primary Section. The appellant was appointed by the Manager, which was unsuccessfully challenged by the first respondent before the educational authorities. Before this Court the first respondent was successful, as the learned Single Judge found the claim of the first respondent to be worthy of consideration going by Note (2) of Rule 43 of Chapter XIV A K.E.R. The appellant impugn the aforesaid judgment.

4. The learned counsel for the appellant at the outset contends that Rule 43 and Chapter XIVA of the K.E.R. has absolutely no application in so far as the appointment and service conditions of the HSST's which are regulated by Chapter XXXII. It is pointed out that as early as in 2006 a Division Bench of this Court in Pathanapuram Taluk Samajam Corporate Management Schools vs. Sreelatha, 2006 (3) KLT 867, held that Chapter XIVA is not applicable to the Higher Secondary Section of an aided school. Therein the claim of Rule 51B on the basis of the death of an employee in an aided school in the High School Section, was declined to be considered in the higher secondary section. It is also pointed out that Rule 5 of Chapter XXXII by a note specifically speaks of a selection process and in such circumstances, there could be no application of Chapter XIVA and the determination has to be on the basis of seniority. The appellant had acquired the qualification on 16.9.2011 after which the posts were created, notification for selection was published and the actual selection was carried out. Annexure-A dated 18.11.2011 is the publication calling for applications and Annexure-B dated 5.12.2011 shows the proceedings of the interview conducted. The learned counsel also relies on the judgment of this Court in W.P. (C) No. 31505 of 2013, Divya S. vs. State of Kerala and Others, dated 26th October, 2015 wherein reference was made to Ext P1 and the date for determining the acquisition of qualification was found to be the date of that particular order, i.e. 24.10.2011. The appellant asserts that her appointment to the third post, has to be affirmed.

5. The learned counsel for the first respondent took us through Ext P1 to argue for the date of retrospectiv