JUDGMENT : DAMA SESHADRI NAIDU, J. Introduction: 1. The race is for the post of Higher Secondary School Teacher (Malayalam); the first respondent, an in-service candidate, has cried foul and filed a Writ Petition. The appellant, the Manager, asserted his right to appoint a candidate of his choice. The 6th respondent, the beneficiary, toed the appellant’s line. The Court, in the Writ Petition, has declared that the first respondent is the wronged; the 6th respondent, the usurper; and the appellant, the wrongdoer. Questioning the writ conclusions, the appellant and the 6th respondent have taken two intra-court appeals: W.A. Nos.2524 and 2737 of 2015. 2. As both the Writ Appeals arise out of one judgment, we have decided to dispose of both the appeals through a common judgment. For narrative purpose, we have taken W.A. No.2524 of 2015 as the basis, and the parties are referred to accordingly. Facts in Brief: 3. In the school managed by the appellant, the first respondent, Augustine M.J., joined in 1989 as a High School Assistant (Malayalam), duly qualified. In 2000-2001, the school had a higher secondary division sanctioned to it. The Government, earlier, issued G.O.(MS)No.162/98/ G.Edn., Tvm., dt. 13.5.1998 (‘the GO’), setting out the methodology for appointing higher secondary school teachers (‘HSST’). Broadly, 25% of the teachers had to be recruited from the in-service candidates, and 75% by direct recruitment. 4. Unconnected with the present dispute, though, G.O.(MS) No.162 of 1998 engendered a lot of litigation: in a batch of Special Leave Petitions and Writ Petitions under Article 32, the Hon’ble Supreme Court on 07.12.1999 issued Ext.P5 interim order directing the schools to appoint H.S.S.T.s only from among the eligible in-service candidates. Nevertheless, it permitted the schools to go for direct recruitment only if a suitable in-service candidate was unavailable. The Government, in consequence, issued Ext.P6 circular dated 23.12.1999. 5. To put these developments in perspective, we may observe that the impugned G.O. held the field till 07.12.1999, when the Apex Court issued the interim direction; thereafter, the interim direction held the field till 14.11.2000, when the judicial proceedings concluded in M.M. Dolichan v. State of Kerala ( (2001) 1 SCC 151 ). It is pertinent to observe that, by the time the Apex Court rendered Dolichan, the Government brought in draft rules for an alternative method of recruitment. Thus, any deep forensic analysis of the impugned G.O. before the Apex Court was obviated. It is pertinent to observe that, by the time the Apex Court rendered Dolichan, the Government brought in draft rules for an alternative method of recruitment. Thus, any deep forensic analysis of the impugned G.O. before the Apex Court was obviated. It, thus, held the sway for a very limited period. 6. Coming back to the facts, we may further note that despite the above judicial and administrative developments, the Manager, acting on the earlier GO, issued Ext.P7 notification dated 9.8.2000 inviting applications for direct recruitment to H.S.S.T. posts. 7. Given the challenge mounted against the G.O., which permitted direct recruitment, many teachers in the school, including Augustine, represented to the Manager that their case as in-service candidates must be considered before the school could go for direct recruitment. As a result, three in-service candidates were appointed by way of promotion as H.S.S.T.s in Hindi, Arabic, and English. The candidates thus appointed are respondents 3, 4 and 5. As Augustine, said to be the senior most, was not considered, he submitted Ext.P8 representation to the Director of Higher Secondary Education (‘DHSE’). Later, he followed it up with Ext.P9 representation. Eventually, his grievance unredressed, Augustine filed O.P.No.25157 of 2000, which has given rise to the present appeal. 8. As a matter of parallel development, we may also note that the respondents 3 to 5, appointed as H.S.S.T.s allegedly at the expense of Augustine, had their appointment confirmed. Further aggrieved, Augustine filed O.P.No.11660 of 2001. This Court, through Ext.P10 judgment, directed the DHSE to look into Augustine’s grievance. Thus, in compliance with Ext.P10 judgment, DHSE passed Ext.P11 order, rejecting Augustine’s contentions. 9. With future amendments, O.P.No.25157 of 2000 filed by Augustine turned out to be comprehensive, as it challenged, among other things, both Ext.P7 recruitment notification and Ext.P11 order of DHSE. This Court, through Ext.P10 judgment, directed the DHSE to look into Augustine’s grievance. Thus, in compliance with Ext.P10 judgment, DHSE passed Ext.P11 order, rejecting Augustine’s contentions. 9. With future amendments, O.P.No.25157 of 2000 filed by Augustine turned out to be comprehensive, as it challenged, among other things, both Ext.P7 recruitment notification and Ext.P11 order of DHSE. These are the reliefs sought in O.P.No.25157 of 2000: (i) To quash part of Ext.P7 recruitment notification issued by the Manager inviting applications for the post of H.S.S.T. (Malayalam); (ii) To direct the Director, HSE to strictly comply with Ext.P5 interim order of the Hon’ble Supreme Court and Ext.P6 circular issued by the Government; (iii) To direct the Manager to appoint Augustine to the post of H.S.S.T. (Malayalam) in compliance with Exts.P5 and P6; (iv) To stay all further proceedings under Ext.P7 recruitment notification pending the disposal of the O.P.; and (v) To quash Ext.P11 order issued by the Director, H.S.E. confirming the appointment of respondents 3 to 5. Litigious Developments: 10. This Court, at the outset, was not inclined to stay Ext.P7. Pending the Writ Petition, the Manager went ahead and appointed Mr.Pradeep Kumar.K., the 6th respondent, as an H.S.S.T. (Malayalam). This development prompted Augustine to file I.A.No.4235 of 2000, in which this Court passed an order dated 5.9.2000: the appointment made under Ext.P7 should not be confirmed until further orders. It has also recorded Augustine’s undertaking that he would bring on record the teacher thus appointed. The record further reveals that Augustine, soon thereafter, filed I.A.No.45032 of 2000 proposing to implead Pradeep Kumar, the newly appointed H.S.S.T., to whom notice was ordered on 26.10.2000. And, on entering appearance, Pradeep Kumar filed a counter affidavit soon thereafter. The fact, nevertheless, remains that the impleadment petition was allowed much later, and Pradeep Kumar was brought on record on 06.07.2007. 11. A learned Single Judge disposed of O.P. No.25157 of 2000 directing DHSE to reconsider the matter. Curiously, DHSE, representing the State, filed an intra-court appeal in W.A.No.1037 of 2000. A learned Division Bench, after setting aside the impugned judgment, remanded the matter for fresh consideration. On remand, a learned Single Judge allowed the O.P. through judgment, dt.28.10.2015. Aggrieved, both the Manager and Pradeep Kumar filed W.A. Nos.2524 of 2015 and 2737 of 2015 respectively. Submissions: Appellant’s: 12. Sri. A learned Division Bench, after setting aside the impugned judgment, remanded the matter for fresh consideration. On remand, a learned Single Judge allowed the O.P. through judgment, dt.28.10.2015. Aggrieved, both the Manager and Pradeep Kumar filed W.A. Nos.2524 of 2015 and 2737 of 2015 respectively. Submissions: Appellant’s: 12. Sri. P.C. Sasidharan, the learned counsel for the Manager, has submitted that the learned Division Bench remitted the matter only to facilitate the adjudication whether Pradeep Kumar was appointed as per the Government Order. The learned Division Bench has, in fact, held that if Pradeep Kumar’s appointment was based on the G.O., it could not be annulled. He has also contended that, as the appointment was in keeping with the G.O., the third condition in Dolichan protects it. Ext.P5 interim order, he asserts, has merged with the final judgment of Dolichan, which alone prevails. 13. The learned counsel has drawn our attention to Ext.P6 circular and contended that it is an administrative instruction that cannot override the G.O., an executive order, which stood affirmed by the Apex Court. Augustine, according to him, was only a protected teacher till the Academic Year 2003-2004; he was, later, accommodated in the retirement vacancy of another employee from AY 2003-2004. A protected teacher is entitled, the learned counsel underlines, only to the continuation of service with no other further benefits. 14. Adverting to the ratio prescribed in the G.O., the learned counsel would have us accept that, though only 25% vacancies should be filled with in-service candidates, it has not, however, fixed any priority. In other words, Pradeep Kumar’s appointment under 75% direct recruitment remains unaffected. On the precedential position weighed with the learned Single Judge, he would contend that the judgments relied on in the impugned judgment reflected the statutory position of 2000-01, but not the subsequent changes. 15. The learned counsel has also contended that seniority alone is not the criterion. If the 25% quota had already been filled up, the Manager could not be compelled to make appointments over the quota prescribed. Pradeep Kumar’s approved appointment, further contends the learned counsel, still remains undisturbed; without setting it aside, the learned Single Judge ought not to have issued positive directions as to the manner of adjusting the services of Augustine and Pradeep Kumar, which is, according to him, unworkable. Specific is his contention that disturbing Pradeep Kumar’s service after 15 years is unconscionable. 16. Specific is his contention that disturbing Pradeep Kumar’s service after 15 years is unconscionable. 16. The learned counsel has frontally attacked the direction in the impugned judgment to the Manager to compensate the State the loss it is to suffer because of what is said to be the Manager’s maladministration. According to him, the contingencies enumerated in Rule 7 of Chapter III of the K.E.R. were not present in the case to justify such a direction. In the alternative, he has also submitted that the Special Rules governing the services of H.S.S.T. are separately codified; they do not apply to the other provisions of K.E.R. The learned counsel has placed reliance on these authorities: Valsalakumari Devi v. Director, Higher Secondary Education ( 2007 (4) KLT 494 (SC)); Manager, Mar Sleeba U.P. School v. State of Kerala ( 1990 (1) KLT 626 ); and Sreeramachandran v. State of Kerala ( 2002 (2) KLT 428 ). 17. In the end, the learned counsel has contended that Augustine’s approach has never been bona fide. In elaboration he submits that Augustine all along assailed the promotion of respondents 3 to 5, but only in 2007 he thought of questioning Pradeep Kumar’s appointment, especially, given the Apex Court’s interim order. Summing up his submissions, the learned counsel has urged us to set aside the impugned judgment as a whole or, in the alternative, to the extent of the Manager’s getting mulcted with the burden of repaying to the Government the financial loss it is alleged to suffer. 6th Respondent’s: 18. Sri T.K.M.Unnithan, the learned counsel for Pradeep Kumar, the 6th respondent in W.A. No.2524 of 2015 and appellant in W.A.No.2737 of 2015, has adopted the submissions made by Sri P.C. Sasidharan, the learned counsel for the Manager. First Respondent’s: 19. Sri Benoy Thomas, the learned counsel for Augustine, to begin with, has submitted that the Division Bench while remanding the matter has left the adjudicatory scope of the matter wide open. In other words, it is fallacious, if anything, to contend that the scope of further adjudication has been narrowed to one singular aspect: Was Pradeep Kumar’s appointment in terms of the G.O.? 20. In elaboration of his submissions, the learned counsel would contend that the G.O. held the field for a short period, i.e., only till the Apex Court issued the interim direction. 20. In elaboration of his submissions, the learned counsel would contend that the G.O. held the field for a short period, i.e., only till the Apex Court issued the interim direction. According to him, the effect of the interim direction is that the stipulation of 25% and 75% allocation for in-service candidates and direct recruitees respectively stood obliterated, and the schools had to appoint HSSTs entirely from the cadre of in-service candidates. Only if any suitable in-service candidates are unavailable, can the management have the luxury of resorting to direct recruitment. 21. According to the learned counsel, the direction in the impugned judgment that the Manager should compensate is eminently justifiable, for he has resorted to illegal appointment despite a clear judicial directive to the contrary by the Apex Court. He has asserted that Augustine is the senior most in-service candidate and his being, incidentally, a protected teacher does not affect his seniority in any manner. The learned counsel has specifically contended that Augustine was diligent and bona fide in pursuing his legal remedies. In elaboration, he has submitted that, at the very beginning, even before Pradeep Kumar could be appointed, Augustine impugned Ext.P7 notification and, soon thereafter once Pradeep Kumar was appointed, he filed an impleading petition in 2000 itself. The delay in its disposal could not be attributed to Augustine. 22. The learned counsel has vehemently contested the appellant’s assertion that the Apex Court has given its judicial imprimatur to the G.O. in toto. On the contrary, he contends, the Apex Court has found any meaningful discussion of the G.O. to have been obviated because the Government, by the time of Dolichan’s disposal, came up with the draft proposal of an alternative mode of recruitment. In sum and substance, the learned counsel would have us conclude that the Apex Court has never permitted a conflict between the G.O. and its interim direction, both of which distinctively differ as regards the method and source of recruitment. 23. Reminding us of the fact that Pradeep Kumar was appointed after Ext.P5 interim order by the Apex Court, the learned counsel has further contended that the Manager had been well aware of the judicial directive. He, in fact, followed it in the appointment of the respondents 3 to 5. 23. Reminding us of the fact that Pradeep Kumar was appointed after Ext.P5 interim order by the Apex Court, the learned counsel has further contended that the Manager had been well aware of the judicial directive. He, in fact, followed it in the appointment of the respondents 3 to 5. The Apex Court in its interim order has directed the schools to have a committee constituted for selecting the suitable in-service candidates-which arrangement is conspicuously absent in the G.O. Respondents 3 to 5, asserts the learned counsel, have been appointed only on the recommendation of the committee constituted as per the Apex Court’s interim direction. Having thus followed the directions in one instance, the Manager, according to the learned counsel, has no justification to deviate from it by issuing Ext.P7 notification and by recruiting Pradeep Kumar at Augustine’s expense. 24. The learned counsel has laid emphasis that the law’s delays cannot adversely visit on Augustine, the diligent prosecutor. As regards the true impact of Dolichan, the learned counsel has submitted that Ext.P8 circular amply establishes how the Government has understood the judgment-especially condition No.3 in the conclusive part of the judgment. In the end, the learned counsel has submitted that the impugned judgment is unexceptionable and needs no interference. According to him, as an equitable measure, the learned single judge has ensured that Pradeep Kumar, though illegally appointed, has not been deprived of his service benefits. To support his submissions, the learned counsel has placed reliance on Joymon v. Asha Sindhu ( 2010 (3) KLT 111 ), Gigimol v. Director of Higher Secondary Education ( 2008 (1) KLT 278 ), Viswanathan v. Director of Higher Secondary Education (2005 (3) KLT SN 78 (C.No.91)) and Sreeramachandran v. State of Kerala ( 2002(2) KLT 428 ). 25. Heard the Sri P.C. Sasidharan, the learned counsel for the appellant; Sri. Benoy Thomas, the learned counsel for the 1st respondent; Sri T.K.M. Unnithan, the learned counsel for the 6th respondent, and the learned Government Pleader, apart from perusing the record. Issues: 1. What is the scope of remand in W.A. No.1037 of 2000? 2. What was the impact of Dolichan on the recruitment of HSSTs till an alternative method of recruitment was put in place? 3. Does the Impugned Judgment, dt.28.10.2015, warrant interference? Issue No.1: 26. Issues: 1. What is the scope of remand in W.A. No.1037 of 2000? 2. What was the impact of Dolichan on the recruitment of HSSTs till an alternative method of recruitment was put in place? 3. Does the Impugned Judgment, dt.28.10.2015, warrant interference? Issue No.1: 26. As is evident from the record, initially, a learned Single Judge disposed of O.P. No.25157 of 2000 directing DHSE to hear the Manager, Augustine, and Pradeep Kumar and to take a final decision keeping in view the government orders and the directions of the Hon’ble Supreme Court. DHSE filed W.A. No.1037 of 2000. A learned Division Bench, after setting aside the impugned judgment, remanded the matter for fresh consideration. 27. A perusal of the judgment reveals that the learned Division Bench has acknowledged the fact that the appointments in the private schools pursuant to the Apex Court’s interim order dated 7.12.1999 are valid. Likewise, it has further observed that the appointments made based on the Government Order dated 13.5.1998 as on the date when the final judgment was rendered should continue and should not be annulled. It has also observed in para four that “if the appointment of the 6th respondent [Pradeep Kumar] is based on the Government Order dated 13.5.1998, his appointment cannot be annulled. But the question as to whether his appointment is in terms of the Government Order dated 13.5.1998 is certainly to be examined by this Court and if it is found that such appointment is in terms of the Government Order dated 13.5.1998, then the protection ordered by Condition No.3 will be available to his appointment.” 28. To the above extent, the judgment admits of no ambiguity; in fact, it lends support to Manager’s contentions. The judgment further records that the learned counsel for Augustine has pointed out that in the light of the interim order passed as per Ext.P5, there is no scope for making any appointment by direct recruitment and such appointment, if any, made cannot be treated as legal, in terms of the Government Order. Then, the judgment serves a caveat: “We are not expressing any opinion on the merits of the contention so raised, in the view we are taking.” 29. Finally, the judgment concludes the issue in these lines: “5. Then, the judgment serves a caveat: “We are not expressing any opinion on the merits of the contention so raised, in the view we are taking.” 29. Finally, the judgment concludes the issue in these lines: “5. Before protecting the appointment of the 6th respondent, based on the judgment of the Apex Court in Dolichan’scase (supra) a finding has to be entered as to whether the 6th respondent was duly appointed to the post of H.S.S.T. (Malayalam) in terms of the Government Order and if only such appointments are made in terms thereof, that he will be entitled to protection. While considering the said contention, the contention of the petitioner whether any such appointment could have been made in terms of the interim order of this Court [?] will also be considered. We are leaving open this contention to be addressed before the learned Single Judge since in the absence of any finding rendered by the learned Single Judge on the aforesaid question, we think it appropriate to send back the matter to the learned Single Judge for consideration. Any other aspect having a bearing on the question whether the 6th respondent was appointed in terms of the Government Order are also left open to be considered by the learned Single Judge. The judgment of the learned Single Judge, for the purpose of such consideration, is set aside.” (emphasis added) 30. Inescapably, we may have to observe that there is an element of ambiguity in-and seeming conflict between-paras 4 and 5 of the judgment. To our rescue comes the well-established canon of construction that a judgment has to be read in its entirety, not in bits and pieces. The learned Division Bench has, indeed, acknowledged Augustine’s counter argument: “in the light of the interim order passed as per Ext.P5, there is no scope for making any appointment by direct recruitment….” It expressly, then, records that the question is left open. 31. Another obstacle we face is the observation by the learned Division Bench whether any such appointment could have been made in terms of the interim order of this Court….” First, there is no interim order from this court, at any stage, interdicting Pradeep Kumar’s appointment. The only restriction the Court imposed through its interim order, dt.05.09.2000, was that Pradeep Kumar’s appointment should not be regularised until further order. The only restriction the Court imposed through its interim order, dt.05.09.2000, was that Pradeep Kumar’s appointment should not be regularised until further order. Further, Augustine’s objection, as acknowledged by the learned D.B., is that the appointment was unsustainable in the light of the Apex Court’s Ext.P5 interim direction. We must-with an air of certainty-conclude that the learned D.B. has meant “the interim order of the Apex Court” rather than of this Court. 32. We, therefore, conclude that the learned D.B. has, in fact, left the issue of Pradeep Kumar’s appointment wide open. The learned Single Judge was rightly called upon to consider the impact of the G.O. and the Apex Court’s interim order, too. In other words, one of the issues ought to be, and is, whether the G.O. still held its sway even in the face of the Apex Court’s interim direction. The concomitant question is whether the disposal of Dolichan has revived the G.O. retrospectively so that all the appointments made as per the G.O., even beyond Ext.P5 interim order, are valid. Issue No.II: The Impact of Dolichan 33. The Apex Court has, first, observed that it has not proposed to examine the issue. Their Lordships have evidently been persuaded by the Government having come up with an alternative statutory scheme: Draft Special Rules for Kerala Higher Secondary School Education Services. Second, there is an unambiguous acknowledgment that the State Government has the power to issue Administrative Order governing the service conditions of its employees absent any statutory provisions governing the field. And the Government has issued the G.O. in the exercise of such power. 34. In para three of the judgment, the Apex Court records the submission of one of the counsel that several teachers have already been appointed under the procedure prescribed in the Government Order, dated 13.5.1998. Keeping this submission in view, the Apex Court has issued these directions in para four of the judgment: (1) All the teachers in the private schools appointed during the pendency of these cases under the interim order dated 7.12.1999 would be held to be duly appointed to the post and their services will not be annulled. (2) All the teachers appointed in the government schools, too, under the order dated 1.2.1999 shall also be held to be duly appointed, and those appointments will not be annulled. (2) All the teachers appointed in the government schools, too, under the order dated 1.2.1999 shall also be held to be duly appointed, and those appointments will not be annulled. (3) If there has been any appointment made under the Government Order of 13.5.1998 as on today, those appointments also will continue and will not be annulled. (4) There will be no further appointment from any source either in the private school or in the government schools from today for three months. (5) The State Government is directed to bring into force the Statutory Recruitment Rules within the period of 3 months whereafter recruitment to the vacancies in the higher secondary grade could be dealt with under the said statutory rules. (6) If for any unforeseen circumstances the statutory rules cannot be notified and brought in force within the period of 3 months, and in such event there exists any necessity for immediate recruitment of teachers then it would be open for the parties to move this Court for appropriate direction. (emphasis added) 35. After comprehensively considering the ratio of Dolichan, we discern that indisputably the G.O., dt.13.05.1998, held the field initially. And the appointments made thereunder were directed to be protected. But the question is, up to what extent or which date? Is it until the disposal of Dolichan or until Ext.P5 interim order? We may, from our discussion, leave out whether and when the draft Special Rules for Kerala Higher Secondary School Education Services have been brought into effect. 36. Put it differently, what does the third direction in Dolichan mean: appointments made under the Government Order of 13.5.1998 as on today? (a) The Government Order: 37. As far as the recruitment of H.S.S.T.s is concerned, the G.O. mandates thus: (i) 25% vacancies will be reserved for appointment from qualified High School Assistants and Primary School Teachers. (ii) The remaining 75% of posts in Government schools will be filled up by direct recruitment through the Public Service Commission. Absent select list with the Public Service Commission the vacancies will be filled up by candidates from Employment Exchange…. (iii) Appointments to the 75% vacancies earmarked for direct recruitment in the Aided Higher Secondary Schools will be done by the management. If qualified teachers are not available for appointment as mentioned in item (i) above, the management will fill up such vacancies also by direct recruitment. (iii) Appointments to the 75% vacancies earmarked for direct recruitment in the Aided Higher Secondary Schools will be done by the management. If qualified teachers are not available for appointment as mentioned in item (i) above, the management will fill up such vacancies also by direct recruitment. Selection of candidates for direct recruitment in Aided Higher Secondary Schools will be done by a staff selection committee comprising the Manager or his representative, the Principal of the school and a Government nominee from the panel of officers comprising Deputy Director, Education, D.E.O. of the area and DIET Principal of the district. The management can select a nominee from among the above officers. The above officers are permitted to attend the staff selection committee meeting without further sanction. (b) The Interim Direction: 38. In Dolichan, the Apex Court issued these interim directions: “In the case of private aided schools, by way of an interim order, we direct that if suitable, qualified candidates among the existing teachers already working are available in those schools, they may be appointed purely on an ad hocbasis as a stop gap arrangement subject to further orders. These persons shall be appointed on the recommendation of a Selection Committee constituted by the Manager or his representative of the school, Principal of the school and a government nominee from the panel of officers consisting of Deputy Director, Education, DED of the Area, and DIET Principal of the District. If such suitable candidates are not available, then the teachers may be appointed from the open market, also on ad hoc basis as stop gap arrangement at the recommendation of the aforesaid Selection Committee. All the candidates will be informed that their appointment is purely on ad hoc basis and subject to the final outcome of these appeals.” (emphasis added) (C) The Circular and Subsequent G.O.: 39. In compliance with the interim direction, the Government issued Ext.P6 circular, dt.23.12.1999. Later, it issued G.O.No.298/2000/G Edn., Tvm., dt.25.08.2000, which reads thus: “All appointments of Higher Secondary School Teachers both in Govt. and aided schools will be on an ad hoc basis until further orders. Candidates who have passed the SET will be given preference in appointments. Others will be appointed only in the absence of SET qualified candidates. Candidates who have acquired Ph.D., M.Ed. and aided schools will be on an ad hoc basis until further orders. Candidates who have passed the SET will be given preference in appointments. Others will be appointed only in the absence of SET qualified candidates. Candidates who have acquired Ph.D., M.Ed. Or M.Phil and those who have passed NET/JRF shall be treated on par with SET qualified hands in the matter of appointments as Higher Secondary School Teachers in Govt. and aided schools. Govt.Schools x x x Aided Schools (i) If there is a SET qualified teacher in the school, he/she shall be given the first preference for an appointment. If there are more than one eligible qualified candidate in a school, a Selection Committee consisting of the Principal, Manager and Deputy Director of Education/District Educational Officer/or the Principal of DIET shall make the selection. (ii) In the absence of category (i) above appointments shall be made from the open market from among the candidates who have passed SET. (iii) In the absence of SET qualified hands, other eligible qualified hands shall be appointed on ad hoc basis. 40. Without cluttering the issue with much chronology, we may, however, observe that the G.O., was issued on 13.05.1998; the Apex Court issued Ext.P5 interim direction on 07.12.1999; the Government issued Ext.P6 Circular on 23.12.1999; and finally it issued G.O.(Ms.) No.298/2000/G Edn., Tvm., dt.25.08.2000. Pertinently, Pradeep Kumar was appointed on 30.08.2000. Which Should Prevail: The G.O. or the Circular? 41. The Manager clutched on to the indisputable concept of administrative law that the Government Order, a species of subordinate legislation, prevails over a Circular, a mere administrative instruction. No denying it. But the fact remains that Ext.P6 circular was followed by G.O. (Ms.) 298, dt.25.08.2000, giving a statutory recognition to the interim direction. Even otherwise, Ext.P5 has all the facets and force of a law in terms of Article 141 of the Constitution of India-interim orders not excluded. Thus, in our considered view, any discussion on this dichotomy is of no consequence-obviated. Which Held the Field: The G.O., or the Interim Order, or Both? 42. Appointments made in terms of the G.O., from 13.05.1998, the date of its origin, till 07.12.1999 (when Ext.P5 interim direction was given) have all been incontrovertibly protected. Thus, in our considered view, any discussion on this dichotomy is of no consequence-obviated. Which Held the Field: The G.O., or the Interim Order, or Both? 42. Appointments made in terms of the G.O., from 13.05.1998, the date of its origin, till 07.12.1999 (when Ext.P5 interim direction was given) have all been incontrovertibly protected. Further, not in dispute is that the Apex Court in Ext.P5 order has put paid to the Government’s intention to recruit H.S.S.T.s in 25:75 ratios from in-service candidates and open market. That said, we must conclude that from 07.12.1999, only Ext.P5 interim direction held the field. The Government did act on those directions. It issued Ext.P6 circular and later G.O. (Ms.) No.298, dt.25.08.2000. We, therefore, of the opinion that there was no scope for the G.O. and the interim direction to be operational simultaneously—as they contain different, divergent modes of appointment. The Merger of Ext.P5 Interim Order and the Supposed Retrospective Revival of G.O.: 43. On 14.11.2000 Dolichan was rendered. With little cogitation we may say that interim directions are transitory and temporary. Such orders cannot be independent of the final adjudication; nor can they survive or travel beyond the final verdict. Nevertheless, when they subsist, they suffer no shortcoming just because they are interim directions. They are real, efficacious, and enforceable. They brook no disobedience. In the present instance, Pradeep Kumar was appointed much after Ext.P5 interim order-even after G.O. Ms. No.298. Ext.P7 notification, by then, was sub judice. Now, the question is, does the merger theory allow the G.O., to eclipse the interim order, retrospectively at that? 44. We approve of the Manager’s submission that the Apex Court has not finally interdicted or invalidated the G.O. The Court has held that the Government does have the power and the G.O., is in the exercise of that power. It has, at the same time, observed that the Government has come up with an alternative mode of recruitment and has already taken the required measures for its enforcement. One of the counsel in Dolichan has represented that many have been appointed under the G.O. The Apex Court, not to inflict agony on the unwary appointees, all of whom are not parties to the lis, has held that their appointments cannot be disturbed. 45. One of the counsel in Dolichan has represented that many have been appointed under the G.O. The Apex Court, not to inflict agony on the unwary appointees, all of whom are not parties to the lis, has held that their appointments cannot be disturbed. 45. Now, the Manager’s further submission is that, as Dolichan has approved the G.O., Ext.P5 interim order lost its existence and that all the appointments under the G.O., beyond Ext.P5, too, should be held valid. In other words, the admitted violation of the interim order is of no consequence. Appealing as the argument was, appalling would be consequences if such a line of reasoning were to be accepted. 46. First, Pradeep Kumar’s appointment was when the interim order was in force. The G.O. stood eclipsed: it was not, then, operational to be acted upon. Further, the Government issued G.O. (Ms.) 298, dt.25.08.2000, which, even otherwise, superseded the earlier G.O. Viewed from another perspective, it could never be a permissible practice to assume that the Courts intend mutually exclusive orders-one judicial and the other executive, at that-to be operational at the same time. If there is any subsequent validation of what was in its inception illegal, there ought to be a specific judicial imprimatur to that eventuality. Here, none is present. 47. The issue can be viewed from another perspective, too. By the time Dolichan was disposed of, the Government had come up with only draft rules. No effective alternative mechanism had actually been put in place. But, the Apex Court, still, proscribed the Government from making any appointments under the G.O. The directions 4 and 5 in the conclusive part of the judgment are eloquent on that aspect: (4) There will be no further appointment from any source either in the private school or in the government schools from today for a period of 3 months; (5) The State Government is directed to bring into force the Statutory Recruitment Rules within the aforesaid period of 3 months whereafter recruitment to the vacancies in the higher secondary grade could be dealt with in accordance with the said statutory rules. 48. To sum up, we may observe that the Apex Court has only, in principle, recognised the Government’s power to issue a Government Order like the one in consideration, but has not gone beyond. 48. To sum up, we may observe that the Apex Court has only, in principle, recognised the Government’s power to issue a Government Order like the one in consideration, but has not gone beyond. The G.O’s operational sphere did not extend beyond 07.12.1999, the date of the interim order. Any other interpretation, in our view, renders the directions 4 & 5 incongruous and incompatible with the other directions, all of which are to be read compendiously and coherently. 49. We, therefore, conclude that the G.O., was in force from 13.05.1998 to 07.12.1999; from 08.12.1999 till 14.11.2000, when Dolichan was rendered, Ext.P5 interim order was in force; thereafter, too, in terms of G.O.(Ms.) No.298/2000/G Edn., Tvm., dt.25.08.2000, the recruitment process mandated in Ext.P5 interim order had been in force till the draft regulations have been enforced. Issue No.III: The Sustainability of the Impugned Judgment: 50. The judgment has these directives: (1) Augustine, entitled to the post of HSST (Malayalam), shall be immediately appointed thus with retrospective effect; (2) Pradeep Kumar shall be accommodated as an HSA (Malayalam) in the resultant vacancy in the High School section; (3) The monetary benefits already drawn by the 6th respondent in the post of HSST in 2000-2001 cannot at all be recovered from him, since he has been appointed and continued by the Manager in that post; (4) The additional monetary benefits that would have been available to Augustine, had he been appointed as H.S.S.T., have to be protected; (5) The Manager would be liable for such amounts, which the Government would pay to Augustine, in the light of this judgment; (6) The Government shall recover the amounts from the Manager under Rule 7 of Chapter III K.E.R.; (7) Augustine, for pension, should be reckoned as HSST from the date on which Pradeep Kumar joined service. (8) Pradeep Kumar is also entitled to the salary of an HSST, though he will now be posted as an H.S.A. (Malayalam); (9) The difference in salary would also be the Manager’s liability, and it should be recovered by the Government; (10) If Pradeep Kumar refuses to serve as a HSA, then he would not get the benefit of the above directions. (11) Pradeep Kumar would be appointed in the resultant vacancy of H.S.S.T. and would have continuous reckonable service from the date of his appointment. Has Augustine the Seniority to the Post? 51. (11) Pradeep Kumar would be appointed in the resultant vacancy of H.S.S.T. and would have continuous reckonable service from the date of his appointment. Has Augustine the Seniority to the Post? 51. The Manager has contended that Augustine is a protected teacher, and the protection does not extend to seniority. The impugned judgment has repelled this contention with this observation: Augustine, the protected teacher, was retained and continued on the rolls of the parent school with no break. 52. If we examine the precedents cited at the bar, in Mar Sleeba U.P. School (supra) one of the contentions is that the protected teacher continues to be a member of the staff in the parent school and that his claim for the post of Headmaster should be considered along with other teachers in the staff, as and when vacancies arise in the parent school. A learned Single Judge has observed that when the rule states that the excess hand will be retrenched by throwing out the junior most hand, it means that the junior most is sent out of the school. Such a teacher who is thrown out cannot be treated as a member of the teaching staff of the parent school. In other words, a teacher thus relieved because of reduction in the number of posts under orders of the Department is entitled only to a preferential claim to an appointment in the school in future vacancies, as provided under R.51-A of Chapter XIV-A. He has no other right in the parent school. 53. In Sreeramachandran (supra), one of the pleas, as in Mar Sleeba UP School, was that the staff fixation orders specifically stated that the 4th respondent was a protected teacher and that he was, in consequence, not entitled to be promoted. A learned Division Bench has observed that the contention was incorrect. In the staff fixation orders, in the column for the name of the post, after ‘Hindi’ it was stated within brackets ‘protected’. It only means that the post of Hindi teacher is protected in terms of an extant G. O. On the facts, the learned D.B. has eventually held that, strictly speaking, the Asst. Educational Officer was not justified in adding the word “protected” within brackets. It only means that the post of Hindi teacher is protected in terms of an extant G. O. On the facts, the learned D.B. has eventually held that, strictly speaking, the Asst. Educational Officer was not justified in adding the word “protected” within brackets. Merely because the A.E.O. described the post as protected in the sense in which he used it to explain the position, it does not follow that the teacher appointed or accommodated against the full-time post was a “protected teacher” as commonly understood or that he was subject to the liabilities of a protected teacher. Is the ratio of this judgment, we wonder, of any consequence to either party, though both Augustine and Pradeep Kumar relied on it? 54. As has been rightly observed by the learned Single Judge, Augustine has never been retrenched; nor has he left the parent school to serve elsewhere as a Rule 51-A protectee. He has all along been in the parent school serving as an H.S.A. (Malayalam). Though he may have faced the threat of retrenchment, it never materialised; he had certain protective regulations to his aid. Absent any definite criteria for selecting the posts for by transfer appointments, is still seniority a factor to be reckoned? 55. In Joymon, a learned D.B. has held that even though the rules provide no criteria for identifying/selecting the posts for by-transfer appointments, the Manager is bound to follow the principles of equity and good conscience. In selecting/identifying the posts for by-transfer appointments, the Manager shall not act arbitrarily or discriminatorily but prudently and reasonably. He shall consider the situation prevailing in the institution and shall not defeat the legitimate claim of a deserving person. Nor can he aid an undeserving person. The Court has relied on Valsalakumari (supra) to emphasise the proposition that in by-transfer appointments, seniority is a factor that shall be reckoned. In fact, Joymon reiterates the ratio of Viswanathan (supra), a Division Bench judgment rendered earlier. Seniority and Suitability: 56. In Valsalakumari (supra), the Hon’ble Supreme Court has held that the expression “subject to seniority and suitability” occurring in the G.O., dated 27.6.1990, does not mean the comparative assessment of suitability and it only means the suitability for the particular post and the suitability is related to the prescribed qualification and requisite experience. Seniority and Suitability: 56. In Valsalakumari (supra), the Hon’ble Supreme Court has held that the expression “subject to seniority and suitability” occurring in the G.O., dated 27.6.1990, does not mean the comparative assessment of suitability and it only means the suitability for the particular post and the suitability is related to the prescribed qualification and requisite experience. In view of the distinction between the appointment by promotion from General Education Subordinate Service and an appointment to the 75% vacancies earmarked for direct recruitment, their Lordships are of the view that the finding arrived at by the Director, Higher Secondary School, that seniority is not the criterion for “appointment by promotion to H.S.S.T.” is erroneous and is not in terms of the regnant regulations. 57. Their Lordships have further held that there is no scope for making a comparison of qualifications or comparative assessment of suitability. The expression “suitability” means that a person to be appointed shall be legally eligible, and “eligible” should be taken to mean “fit to be chosen”. Gigimol (supra) also echoes Valsalakumari. Any Mala fides or Indolence? 58. One of the allegations is that Augustine has not been diligent in pursuing his cause; on the other hand he was indolent. All along, Augustine has pursued both causes: (1) that there should be no direct recruitment; and (2) that he is the senior most in-service candidate. He challenged both Ext.P7 notification and P11 order of DHSE. Even on the issue of impleading, he could not be faulted. He is neither mala fide nor indolent. He has established a positive case on both counts, but the learned Single Judge, equitably, chosen not to disturb the appointment of respondents 3 to 5; there can be no quarrel about it. Does the Impugned Judgment Call for Interference? 59. The term ‘Manager’ is a misnomer. The Manager not only manages the aided educational institution but also owns it, with the façade of a legal entity like a trust or without. Though the Manager runs or rules the institution, the Government is the paymaster: It bears the entire expenditure. The paymaster prefers to play the role of an ascetic, practicing self-abnegation, abdicating and conceding powers to private management, its holding the purse notwithstanding. Though the Manager runs or rules the institution, the Government is the paymaster: It bears the entire expenditure. The paymaster prefers to play the role of an ascetic, practicing self-abnegation, abdicating and conceding powers to private management, its holding the purse notwithstanding. Kerala Education Rules (KER), the fattest tome, still grows by the day, for we can see here the subordinate legislation at its creative best; orders get passed like a tropical torrent-a phenomenon not unknown to Kerala, the birth place of rain. Some orders could be person specific; most orders, regrettably, are marked by expediency. It makes Dicey squirm eternally in his grave, his wondering whether it is droit maladministratif. Should the Manager not be Mulcted? 60. Sri P.C. Sasidharan has valiantly contended that the Manager has only followed the law, say the G.O., and acted bona fide. According to him, Rule 7 of Chapter III, K.E.R., has no application in this case. If we examine Rule 7, any mismanagement, malpractice, corruption, maladministration, gross negligence of duty, or disobedience of Departmental instruction makes the Manager liable to punitive measures. Clause 4(b) thereof mandates that denial of promotion to an eligible teacher under specified circumstances visits upon the Manager with pecuniary sanctions. Further clause 4(c) includes, as an aspect of maladministration, supersession of a teacher; under clause 4(d) falls another facet: making irregular appointments and getting them approved by the Educational Officers concerned by furnishing false information/declaration by the Managers regarding the claimants, under Rule 51 A Chapter XIV A. 61. In the present instance, first, Augustine was superseded; it resulted in respondents 3 to 5 getting appointed as H.S.S.T.s on transfer. Second, Pradeep Kumar’s appointment is irregular. But for the interim order, dt.05.09.2000, of this Court, his services could have been confirmed. The Manager’s conduct cannot be countenanced in the face of Apex Court’s Ext.P5 interim direction. When Pradeep Kumar was appointed, Ext.P5 alone held the field. Further, G.O.Ms. No.298, too, came to occupy G.O. Ms.No.162. 62. The other contention raised by the Manager is that his conduct is neither wilful nor contumacious to get mulcted with the recovery of huge amounts. The impugned judgment in the concluding part justly rationalises the infliction of recovery on the Manager. Further, G.O.Ms. No.298, too, came to occupy G.O. Ms.No.162. 62. The other contention raised by the Manager is that his conduct is neither wilful nor contumacious to get mulcted with the recovery of huge amounts. The impugned judgment in the concluding part justly rationalises the infliction of recovery on the Manager. It is observed that though the Government, usually, is not cast with the liability of pay and allowances to a person illegally denied an appointment; it is nonetheless mulcted with the liability of pension reckoning the services of two in one HSST post. This happens only, observes the learned Single Judge, because the authorities under the K.E.R. are not diligent enough. The nominee in the Selection Committee is reduced to be a namesake. Individual rights cannot be affected for the only reason of executive inefficiency. The judgment, therefore, asserts that the Government can proceed against the defaulting officers, too. Manager’s Hardship: 63. As to the individual hardship, it is aphoristic to observe that the juggernaut of justice inexorably-and menacingly, too, for offenders-rolls on. If anyone stands in the way, he may get crushed. Make way, for the Rule of Law is paramount; it brooks no trifling. Delayed dispensation of justice, when the delay cannot be attributed to a party, cannot dilute the relief he is entitled to. The efflux of time, the changed circumstances, the regimental rigmarole of legal procedures-and all other such contributories-may be factors to be reckoned, but of limited efficacy. They cannot efface a remedy due to a deserving suitor. 64. In the law’s broad-sweep, individual inconveniences, and even hardships, hardly matter. They are swept away. The common law, however, provides for the substituted solace called equity, so long as it does not come in conflict with the enacted law. Here, that precisely has happened: Pradeep Kumar’s career has been protected. The pecuniary burden cast on the Manager is efficacious and exemplary, lest one should assume that it pays to trifle with the rule of law. We, therefore, find no illegality in the judgment impugned. As a result, we dismiss both the Writ Appeals. No order on costs.