Judgment :- Petitioners, 14 in number, filed this original petition while they were temporarily working as High School Assistants (Malayalam) in Malappuram District. They commenced service as Junior Language Teachers. They possessed the requisite qualification for the post of H.S.A. (Malayalam). They were promoted as H.S.A against vacancies then available. The promotion was given as per Ext. P1 dated 31-5-1996. Subsequently when the number of posts of H.S.A. (Malayalam) were reduced, respondent No. 1 issued Ext. P5 order dated 30-1-2002 reverting High School Assistants (Malayalam) who were promoted on a provisional basis from the feeder categories. Ext. P5 shows that as many as 66 persons were reverted from the post of H.S.A. (Malayalam). 2. Aggrieved by Ext. P5, 11 persons among the petitioners filed O.P. No. 2015 of 2002. In that O.P. this Court passed Ext. P8 interim order dated 5-2-2002 directing that the reversion of the teachers pursuant to Ext. P8 (Ext. P5 herein) shall be effected only after consideration of the petitioner’s claim based on Government Order dated 24-10-2001, which should be completed within one month from the date of receipt of a copy of the order. Pursuant to Ext. P8 the 1st respondent passed Ext. P10 order dated 19-3-2002 sustaining the order of reversion and rejecting the request of the petitioners. 3. This O.P. has been filed by the petitioners challenging Ext. P10 order and praying, among other reliefs, for a declaration that the 1st respondent shall maintain the ratio of 1:1 1 among the direct recruits and promotees even when the reversion is to be made consequent on the reduction of posts. 4. Petitioners have taken up a contention that Ext. P7 Government Order dated 15-7-2000 directing that no post of HSA (Malayalam) be sanctioned from the beginning of the academic year 2000-2001 reckoning the number of students learning other languages, namely, Arabic, Urdu, Sanskrit etc. is without jurisdiction and in violation of the provisions in the K.E.R. However, learned counsel for the petitioner submitted that if the petitioners’ contention with regard to the illegality of Ext. P10 order is accepted, the question of deciding the validity of Ext. P7 will not arise. Learned counsel for the petitioners therefore focussed on the grounds taken against the validity of Ext. P10 order is accepted, the question of deciding the validity of Ext. P7 will not arise. Learned counsel for the petitioners therefore focussed on the grounds taken against the validity of Ext. P10 and emphasised the entitlement of the petitioners for promotion to the post of H.S.A. (Malayalam) on the basis of the cadre strength and the quota reserved for the members of the feeder categories by way of promotion as guaranteed in Ext. P3 G.O. dated 30-3-1998. 5. A detailed counter affidavit has been filed on behalf of the 2nd respondent-State of Kerala. 6. I have heard the learned counsel for the petitioners and the learned Government Pleader for the respondents. 7. It is common case that Ext. P3 Government Order governs the method of full time H.S.A. (all languages). Category III (b) in the annexure attached to Ext. P3 shows that the method of appointment to the post of F.T. H.S.A. (All languages) is to fill up (i) 30% of the posts by inter-district transfer, (ii) 10% by transfer from Ministerial service and (iii) the remaining vacancies inclusive of the unutilised vacancies under items (i) and (ii) above by promotion and by direct recruitment in the ratio of 1:1. 8. It is clear from the above method of appointment that at least 30% of the vacancies should be filled up by promotion. Ext. P3 provides (see annexure) that promotion shall be effected from the combined seniority list of junior language teachers etc. Ext. P3, however, does not give any clear indication as to whether actual number of vacancies in accordance with the percentage mentioned therein should be worked out by apportioning the total number of arising vacancies or taking into account the cadre strength of H.S.A. (Malayalam) or other categories as the case may be. It is therefore necessary to advert to Rule 5 of Part II of the Kerala State and Subordinate Service Rules. Sub-rule (3) of Rule 5 of the said rules reads as follows: “(3) Whenever a ratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidates from each method shall be decided by applying the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time.” 9. I find force in the submission of the learned counsel for the petitioners that in the absence of anything to the contrary contained in Ext. P3 or any special rules governing the method of appointment to the category in question. Rule 5 aforesaid shall be the guiding factor. It may be stated in this connection that no special rules as such have been issued prescribing the method of appointment to the various categories of language teachers in the Government schools. 10. Learned counsel for the petitioners invited my attention to the decision of the Supreme Court in Prakash v. Kurien (1999) (2) KLT 710) to fortify his submission that in a case where the method of recruitment postulates direct recruitment and promotion as per the prescribed ratio. The vacancies shall be filled up by apportioning the same in such a manner as to maintain the cadre strength of the respective class of employees or candidates in accordance with the ratio prescribed. In paragraph 14 of the judgment of the Supreme Court referred to above it was held that Rule 5 of Part II, K.S. & S.S.R. has got a wider application bringing within its fold the method of appointment prescribed under various special rules. It was held that Note (3) specifically provides that ‘Whenever’ a ratio or percentage is fixed for different methods of recruitment to a post, the number of vacancies to be filled up by candidates from each method is to be decided by applying a fixed ratio or percentage to the cadre strength of the post to which the recruitment is made and ‘not to the vacancies existing at that time’. In the opinion of the Supreme Court, the entire Rule 5 deals with the special rules which provide for filling up of the vacancies to any service, class or category by direct recruitment and by transfer. It was held in unambiguous terms that Rule 5 applies to all special rules whenever a ratio or percentage is prescribed in the Rules. Therefore there cannot be any doubt that the number of vacancies to be filled up in accordance with the prescribed percentage, has to be computed on the cadre strength of the post to which the recruitment is to be made and not on the basis of the vacancies existing at that time. Therefore there cannot be any doubt that the number of vacancies to be filled up in accordance with the prescribed percentage, has to be computed on the cadre strength of the post to which the recruitment is to be made and not on the basis of the vacancies existing at that time. I therefore hold that the percentage of vacancies in the post of H.S.A. (Malayalam) has to be computed on the basis of the cadre strength. 11. The above finding takes me to the next question which is a question of fact. Before dealing with the facts pertaining to this Original Petition, it is necessary to advert to the concept of “cadre strength” in the background of the service conditions and fixation of the staff strength of teachers in the Government as well as aided private schools. The expression “cadre strength” as that term is understood in service jurisprudence is alien to the categories of posts in the schools both aided and government. What is relevant, so far as the schools coming within the purview of K.E.R. are concerned, is the staff strength determined by the competent educational officer on the basis of the provisions in Chapter XXIII K.E.R. Assuming that the staff strength determined by the contempt authority for each academic year can be understood as the cadre strength for the respective years, the strength is likely to vary for every academic year. It will not remain constant for all the academic years. Hence the staff strength as determined by the competent educational officers for various schools under the control of the Deputy Director of Education for Malappuram District for the academic year in question will be the cadre strength for that year. 12. Learned counsel for the petitioners submitted that this Court may rely on the cadre a strength furnished by the 1st respondent in the counter affidavit so that any controversy on that score may be avoided. In paragraph 11 of the counter affidavit it is stated that the cadre strength of H.S.A. (Malayalam) as on 30-11-2001 is 374. The date furnished in the counter affidavit further shows that posts occupied by promotees (temporary and regular) from P.O. teachers was 145. Since the cadre strength has to be apportioned in the ratio of 10:30:30:30, the resultant figures will be 38:112:112:112. The date furnished in the counter affidavit further shows that posts occupied by promotees (temporary and regular) from P.O. teachers was 145. Since the cadre strength has to be apportioned in the ratio of 10:30:30:30, the resultant figures will be 38:112:112:112. Therefore it can be safely concluded that a minimum of 112 posts should be reckoned as the cadre strength of promotees in the category of H.S.A. (Malayalam) for the concerned academic year i.e. 2001-2002. The number of promotees who were holding, both temporarily and regularly the post of H.S.A. (Malayalam) as on 30-11-2001 is 145. Subsequently. Ext. P5 order dated 30-1-2002 was issued thereby reverting as many as 66 promotes from the post of H.S.A. (Malayalam) to their respective feeder categories. Hence the above 66 persons should be deducted from the total number of persons, namely, 145 who were holding the post of H.S.A. (Malayalam) by way of transfer appointment/promotion immediately before Ext. P5. After deducting 66 persons, the balance available is 79. Therefore it has to be held that out of the prescribed cadre strength of 112 reserved to be filled up by promotees, only 79 persons represented that group of H.S.A. (Malayalam). Hence the cadre strength of promotee H.S.A. (Malayalam) will be satisfied only if 33 more persons are appointed as H.S.A. (Malayalam) by promotion for the year 2001-2002. The number of promotees may probably be more than 33 in view of the fact that unutilized vacancies under items (i) and (ii) of category 3(b) in the annexure to Ext. P3 also will go in favour of the promotees and direct recruits in equal numbers. However, since the number of such unutilized vacancies is not available in this case, it is not possible to give any clear finding with respect to that matter. But it can be safely concluded that the cadre strength of promotee H.S.A. (Malayalam) will be satisfied only if, at least. 33 persons more belonging to the feeder categories are appointed by promotion to the said category in the year 2001-2002. 13. It is seen that Ext. P10 has totally failed to take into account the correct legal or factual position. Since Ext. P10 rests on other considerations and omits to take into account the relevant considerations, I hold that Ext. P10 is liable to be set aside. Accordingly Ext. P10 is quashed. 13. It is seen that Ext. P10 has totally failed to take into account the correct legal or factual position. Since Ext. P10 rests on other considerations and omits to take into account the relevant considerations, I hold that Ext. P10 is liable to be set aside. Accordingly Ext. P10 is quashed. There shall be a declaration that qualified members belonging to the feeder categories of posts mentioned in Ext. P3 for the post of H.S.A. (Malayalam) shall be entitled to be promoted to fill up, at least, 33 vacancies more for the purpose of satisfying the cadre strength for the year 2001-2002 as per the method of recruitment as also the general rules in K.S. & S.S.R. The above principle shall be followed for the next academic years also. 14. According to the counter affidavit 233 persons are holding the post of H.S.A. (Malayalam) and all of them are direct recruits. Going by the said figures, it appears that the direct recruits are adequately represented (if not more) for the year 2001-2002 because the cadre strength of direct recruits is only 112. Hence it is necessary that the cadre strength of the promotees is also maintained in an equal proportion subject to the maximum strength allowed as per Ext.P3. I therefore direct respondents 1 and 2 to promote the senior most qualified persons from the feeder categories (Junior Language Teachers) to the post of High School Assistance (Malayalam). This shall be done within one month from the date of receipt of a copy of this judgment. Original Petition is allowed to the above extent.