Judgment :- Radhakrishnan, J. Retrospectivity given to the proviso to Rule 2 of Chapter XXXI of the Kerala Education Rules is questioned in WP(C) No.21154 of 2003 on the ground that the same would take away the vested rights under Rule 51A, Chapter XIV-A of the Kerala Education Rules and the Government Order No.G.O.(MS)177/87/G.Edn. dated 22-8-1987 permitting the candidates possessing Post Graduate qualification in the concerned subject or language, eligible for appointment as HSA (subject) or HSA (language) is under challenge in OP.No.32623 of 2001. Before examining the above issues we may refer to the facts in OP.No.5099 of 2001. 2. OP.No.5099 of 2001 was preferred by one C.P. Lilly seeking a writ of certiorari to quash Exts.P3, P6 and P8 orders and also for a writ of mandamus directing the 2nd respondent therein to issue appropriate direction to promote the petitioner to the post of HSA (Malayalam) in the retirement vacancy which arose on 1-6-1999 and also for other consequential reliefs. C.P. Lilly was appointed as UPSA in the 6th respondent school on 22-11-1988. Due to division fall her service was terminated with effect from 14-7-1992. Later she was appointed to the permanent post of UPSA on 6-6-1994 and is continuing as such. When the petitioner, the 3rd respondent in WP(C).21154/03, entered service her qualifications were B.SC. and B.Ed. (Natural Science). While in service she acquired M.A. (Malayalam) with second class in the year 1997 and was fully qualified for appointment to the post of HSA (Malayalam) as per G.O.(MS).177/87/G.Edn. dated 22-8-1987. Sindhu, the 7th respondent entered service on 29-6-1995 and her service was terminated on 14-7-1996 due to division fall. She was again appointed on the strength of G.O.(MS).377/96/G.Edn. dated 8-11-1996. Later her service was terminated on 14-7-1998 due to division fall. She was reappointed on 19-11-1998 on a temporary vacancy of HSA (Malayalam) being Rule 51A claimant and later her service was terminated on 5-3-1999. 3. A permanent vacancy of HSA (Malayalam) arose in the school due to the retirement of the one Ammini. Petitioner staked her claim for the said post since she was fully qualified for being appointed to the post of HSA (Malayalam) being a Rule 43 claimant. Petitioner submits, overlooking her claim, the manage 6th respondent appointed Sindhu in the vacancy which arose on 1-6-1999 on the ground that she was a Rule 51a claimant. Petitioner took up the matter before the DEO. Petitioner submits, overlooking her claim, the manage 6th respondent appointed Sindhu in the vacancy which arose on 1-6-1999 on the ground that she was a Rule 51a claimant. Petitioner took up the matter before the DEO. Her request was rejected by Ext.P3 order dated 19-1-2000 mainly relying upon G.O.(P).No.175/99/G.Edn. dated 26-7-1999. Order of the DEO was confirmed by the Deputy Director of Education and later by the Government and those orders are under challenge in OP.No.5099 of 2001. 4. Sri. V.N. Mohanadasan, counsel appearing for the petitioner submitted that the department as well as the Government have committed a grave error in placing reliance on GO(P).175/99/G.Edn. dated 26-7-1999 for denying appointment to the petitioner in the vacancy which arose on 1-6-1999. Counsel submitted, petitioner Lilly is Rule 43 claimant and Sindhu is only Rule 51A claimant and therefore the petitioner’s claim should prevail over that of the 7th respondent. Further counsel also submitted that the Government Order dated 26-7-1999 was wrongly applied to the vacancy, which arose on 1-6-1999. Learned Government Pleader and the counsel appearing for the manager tried to support the orders impugned. 5. We are of the view, going by the Government Order GO(MS).177/87/G.Edn. dated 22-8-87 petitioner was fully qualified for being appointed to the post of HSA (Malayalam) in the vacancy which arose on 1-6-1999. Petitioner is not graduate in Malayalam, but was having post-graduate degree in Malayalam on the date of occurrence of vacancy. In the above mentioned Government Order it is stated that the candidates having post graduate qualification in the concerned subject for language are eligible for appointment as HSA (subject) or HSA (Language). Government order dt. 22-8-87 stating that persons possessing M.A. (Malayalam) are eligible for appointment to the post of HSA was never questioned and since the petitioner a Rule 43 claimant, was qualified to hold the post of HSA (Malayalam) in the vacancy, which arose on 1-6-1999. Government Order GO(P)175/99/G.Edn. dated 26-7-1999 also would not come to the rescue of 7th respondent. Government Order specifically states that the teachers to whom the benefit of protection granted would be absorbed in the future vacancies arising under the respective management. Government Order GO(P)175/99/G.Edn. dated 26-7-1999 also would not come to the rescue of 7th respondent. Government Order specifically states that the teachers to whom the benefit of protection granted would be absorbed in the future vacancies arising under the respective management. Vacancy arose in the school prior to the said Government Order and therefore as on 1-6-1999 the Government Order dated 26-7-1999 would not apply and therefore between 7th respondent and petitioner, the petitioner was legitimate claimant for the post of HSA (Malayalam) in the vacancy which arose on 1-6-1999 and it is so declared. 6. Petitioner in WP(C).No.21154 of 2003 Bindhu Thomas was appointed as HSA in leave vacancy on 12-8-1999. She continued up to 15-10-1999. Again she was appointed on 11-1-2000 and she continued up to 15-3-2000. Later a regular retirement vacancy of HSA (Malayalam) arose on 5-6-2002. C.P. Lilly as well as Bindhu Thomas staked their claim for that vacancy. Bindhu Thomas HSA taken up the stand that Lilly was not qualified for being appointed to the vacancy, which arose on 5-6-2002 since she was not a graduate in Malayalam, but was only a post graduate in Malayalam. Sri. Abraham Vakkanal, Counsel appearing for Bindhu Thomas also submitted that the Government Order dated 22-8-1987 cannot be applied to the vacancy, which arose on 5-6-2002. Learned counsel also submitted that Bindhu Thomas is Rule 51A claimant of HSA (Malayalam) and since Lilly was unqualified, Bindhu Thomas is the rightful claimant for the post of HSA (Malayalam) in the vacancy, which arose on 5-6-2002. Learned counsel also submitted that Bindhu Thomas has a vested right under Rule 51A which cannot be taken away by an executive order or through a retrospective amendment of the rules. Learned counsel in support of his contention placed considerable reliance on the decision of the Apex Court in P.D. Aggarwal & Others vs. State of U.P. and others, (1987 (3) SCC 622), T.R. Kapur and others vs. State of Haryana and Others, (1986 (Supp.) SCC 584), Municipal Corporation of Greater Bombay and others vs. Mrs. Kalpana Sadhu Kamble and others, (1988 (Supp.) SCC 747), Chand Khan and another vs. State of U.P. (1995) 5 SCC 448), Indira v. State of Kerala, (1998 (2) ILR Kerala 771), Basavaraj R. Patil v. State of Karnataka (2000) 8 SCC 740). 7. Sri. Kalpana Sadhu Kamble and others, (1988 (Supp.) SCC 747), Chand Khan and another vs. State of U.P. (1995) 5 SCC 448), Indira v. State of Kerala, (1998 (2) ILR Kerala 771), Basavaraj R. Patil v. State of Karnataka (2000) 8 SCC 740). 7. Sri. Benny Gervasis, learned Government Pleader contended that as per Section 36(1) of the Kerala Education Act, the Government have got the power to amend the Rules retrospectively. Counsel also submitted, Rule 51-A claimant confers only a preferential right and not a vested right as claimed by Bindhu Thomas. Learned Government Pleader also placed reliance on the decision of the Apex Court in Tejshree Ghag and others v. Prakash Parashuram Patil and others, (2007) 6 SCC 220), State of J & K v. T.N. Kohsa, (AIR 1974 SC 1), Usha Ratnam v. State of Kerala, (2002 (3) KLT 161). 8. The proviso to Rule 2, Chapter XXXI of Kerala Education Rules inserted by GO(P)83/03/G.Edn. dated 3rd April 2003 and published in Gazette dated 23-4-03 came into effect from 22-8-1987. The legality of that provision was subject matter of a decision of this Court in Rose Williams v. State of Kerala and others, (2002 (2) KLT 34). Learned Judge interpreting the said provision and various Government orders on the point took the view that degree in the subject includes post graduate degree also. The matter was taken up in appeal by the aggrieved party in WA.No.961 of 2002 and the appeal was dismissed by a Division Bench. Aggrieved party took up the matter before the Apex Court by filing SLP(C).No.16911/03 which was dismissed by the Apex Court on 19-9-2003. Further, that the Government Order dated 22-8-1987 also remains unchallenged for more than two decades, which was given retrospective effect by the rule making authority by adding a proviso, a position which cannot be unsettled now. Further we are in agreement with the reasoning of the learned single Judge in Rose William’s case and the above mentioned judgment was affirmed by the Division Bench Lilly being a Rule 43 claimant, has got a better claim as against Bindhu Thomas who is only a Rule 51A claimant for the post of HSA (Malayalam) in the vacancy which arose on 5-6-2002 and the law is well settled that a Rule 43 claimant has got a superior claim over Rule 51A claimant. 9. 9. We also find it difficult to accept the contention of appellant in WA.No.1645 of 2003 that she has vested right and that vested right cannot be taken away retrospectively by the proviso to Rule 2 of Chapter XXXI K.E.R. Proviso was added in exercise of the powers conferred under the proviso to Article 309 of the Constitution. The Apex Court in T.R. Kapur’s case (supra) held that though rules can be amended retrospectively, benefits acquired under the existing rules cannot be taken away. Appellant’s right under Rule 51A has not been taken away. Rule making authority was only making the candidates possessing Post Graduate Degree eligible to apply for the post of HSA (Malayalam) or language with effect from 22-8-1987. Appellant’s claim under Rule 51A arose much thereafter and even that right has not been taken away. Further Rule 51A has to give way to Rule 43. Contention of the appellant that his vested right was taken away, therefore cannot be sustained. 10. We have already found in OP.5099 of 2001 that the petitioner Lilly was entitled to be appointed in the leave vacancy which arose on 1-6-1999 and Exts.P3, P6 and P8 orders in OP.5099 of 2001 cannot stand in the eye of law. Under such circumstance we are inclined to allow OP.No.5099 of 2001 and quash Exts.P3, P6 and P8 orders and declare that C.P. Lilly is entitled to get appointment as HSA (Malayalam) in the leave vacancy which arose on 1-6-1999 and later in the regular vacancy which arose on 5-6-2002. 11. We however, make it clear that since Lilly had not worked in the post of HSA in the leave vacancy, which arose on 1-6-1999 and later in the regular vacancy on 5-6-2002 she would not be entitled to get salary or monetary benefits for the period she had not worked. All the same she is entitled to get notional benefits in the post of HSA (Malayalam) from 1-6-1999 onwards. Bindhu Thomas who is working as HSA (Malayalam) has to give way for Lilly. Bindhu Thomas is however, entitled to get salary for the period she had worked. Counsel appearing for Bindhu Thomas submitted that once Lilly is promoted as HSA there will be a vacancy of UPSA in the school and direction be given to the Manager to accommodate Bindhu Thomas in that vacancy. Bindhu Thomas is however, entitled to get salary for the period she had worked. Counsel appearing for Bindhu Thomas submitted that once Lilly is promoted as HSA there will be a vacancy of UPSA in the school and direction be given to the Manager to accommodate Bindhu Thomas in that vacancy. It is open to her to take up the matter with the Manager and it is for him to decide that request on which we express no opinion. OP.No.5099 of 2001 would stand allowed. WA.No.1645 of 2003 and O.P.No.32623 of 2001 would stand dismissed.