JUDGMENT : 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 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 not been superseded, which provides for the very same condition in so far as determination of seniority when two rival claimants have equal periods of continuous service. It is also pointed out that Ext.P7 applies to Government Schools and in that the prescription, again is for determining the seniority on the basis of respective seniority in the cadre of HSA/UPSA. It is also pointed out that Ext.P7 applies to Government Schools and in that the prescription, again is for determining the seniority on the basis of respective seniority in the cadre of HSA/UPSA. Ext.P19, as has been held by the learned Single Judge, can at best be said to be an opinion expressed by the Government, which cannot have the status or force of an order under Article 166 of the Constitution of India. There is absolutely no reason why a parallel should be drawn from Chapter XIV.A of the KER, especially when Rule 2 makes the method of appointment and qualifications of teachers and non-teaching staff in aided Higher Secondary Schools in the State to be under Chapter XXXII; notwithstanding anything contained in the KER. There is a specific exclusion of Chapter XIV.A and if at all a parallel has to be drawn, a closer example would be that provided in Ext.P7 for Government Higher Secondary Schools. The learned Counsel relies on Lilly v. State of Kerala [ 2016 (2) KLT 649 ] and Ext.P20 judgment in WP(C) No.12881 of 2004 dated 17.05.2010. 7. On facts, there is no dispute and both the rival claimants were appointed on the very same date to the post of HSST and they have identical continuous service in that cadre. Ext.P5, as has been pointed out, cannot be relied on at the time when the vacancy arose, since the said G.O. of the year 2003 stood specifically superseded by the Government Order dated 16.12.2003. Ext.P6 again is an earlier Government Order dated 17.07.2003, which also provide for seniority in the cadre of HSST to be determined reckoning the seniority as HSA in the event of the continuous service in the higher cadre being identical. 8. Rule 37(2), based on which Ext.P19 has been issued, is extracted herein below: “37(2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. 8. Rule 37(2), based on which Ext.P19 has been issued, is extracted herein below: “37(2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior.” The prescription in Rule 37(2), in the case of teachers having the same date of commencement of continuous service, is to determine the seniority with reference to the date of first appointment and if that too be the same, then by age, the elder being the senior. 9. In the present case Ramesan was first appointed as UPSA on 15.07.1992 in the respondent- School. While Ramesan was continuing as UPSA, Manoj Kumar was appointed as HSA on 18.07.1995. It was later to this, that Ramesan was appointed as an HSA on 01.06.1998. Both the teachers were appointed as HSST on 02.08.2000, when Chapter XXXII was not introduced in the KER. Admittedly, they have the same period of service in the cadre of HSST. Ramesan's first appointment was earlier to that of Manoj Kumar; but in the post of UPSA. In the cadre of HSA Manoj Kumar is the admitted senior. If the parallel from Rule 37(2) is applied, one has to first look at the continuous service, then the date of first appointment and still later, the age of the rival claimants. 10. The commencement of continuous service and the date of first appointment are not identical concepts as has been held by the Full Bench of this Court in Valsamma v. State of Kerala [ 2014 (4) KLT 569 ] was as to who was entitled to the post of HSST [Junior] from among the HSA's, since both the HSA's had the identical date of commencement of continuous service. Reliance was placed on the Full Bench in Valsamma, which held that the date of continuous service and first appointment are two different concepts to find that the HSA younger in age was the first appointed in the school. Reliance was placed on the Full Bench in Valsamma, which held that the date of continuous service and first appointment are two different concepts to find that the HSA younger in age was the first appointed in the school. The facts in the Full Bench indicates that the tussle was to the post of Headmaster by two HSA's. The Full Bench found that a younger HSA had an earlier service as UPSA and the date of first appointment being the date of appointment to the post of UPSA, the younger person was held to be senior in the cadre of HSA's. In Lilly also following the dictum of the Full Bench, the person, who had the first appointment, though a broken service, was given the benefit of seniority. 11. If we take a parallel as available under Section 37(2), the date of first appointment is of Ramesan as a UPSA and he should get the seniority in the cadre of HSST. It cannot in any event go by age as found in Ext.P19. But Rule 2 in Chapter XXXII is a non- obstante clause, making the method of appointment and promotion in the Higher Secondary section to be only in accordance with Chapter XXXII, in exclusion of the other provisions in the KER. We are hence of the opinion that there could be no parallel drawn from Rule 37. Ext.P19 as held by the learned Single Judge also will have no effect, especially the same being not an order under Article 166 of the Constitution of India. Now we come to the reliance placed on Ext.P5 order. Ext.P5, as we saw, reckons seniority by reckoning seniority as High School Assistant, which according to the learned Senior Counsel cannot be since it is against the statutory prescription by way of a note under Sl.No.1 of Rule 6. We agree with that submission. 12. Chapter XXXII was introduced in the KER in 2001, and sub-clause (3) in Sl.No.1 in the Table under Rule 6 of Chapter XXXII, still later in 2009. Ext.P5 as we found had been superseded. The learned Special Government Pleader also submits that there is a lacuna in Chapter XXXII insofar as there being no rule for the purpose of determining seniority when the continuous service is the same. Ext.P5 as we found had been superseded. The learned Special Government Pleader also submits that there is a lacuna in Chapter XXXII insofar as there being no rule for the purpose of determining seniority when the continuous service is the same. The additional respondent also submits that age alone can be a consideration since that is the accepted principle followed everywhere when the continuous service is the same in the feeder category. 13. In this context we have to notice that long before GO(MS) No.162/98/Gen.Edn. dated 13.05.1998, the order sanctioning Higher Secondary level in Schools, provided for a procedure for filling up posts of HSST, on the same ratio as provided in 2009. The relevant clauses are extracted hereunder: “2. The posts of Higher Secondary School teachers in Government Higher Secondary Schools and Aided Higher Secondary Schools will be filled up as follows: (i). 25% vacancies will be reserved for appointment from qualified High School Assistants and Primary School Teachers. xxx xxx xxx (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 consisting of the Manager or his representative, the Principal of the school and a Government nominee from the panel of officers consisting of 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.” 14. The ratio as per the above G.O. came up for consideration in Ext.P20. In Ext. P20, as to the principles of by-transfer appointments relying on a judgment of the Division Bench, it was held so: “6. ...Therefore the manager necessarily has to adopt a reasonable method in consonance with Articles 14 and 16, keeping in mind the language used in the rules, while choosing the subjects in which vacancies are to be filled up by transfer. Such a reasonable method would be, to first ascertain how many qualified HSAs are available in the school to be considered for appointment as HSSTs. Such a reasonable method would be, to first ascertain how many qualified HSAs are available in the school to be considered for appointment as HSSTs. Then the subjects, in which they are qualified are to be looked into. Thereafter, those subjects are to be chosen, in which the senior-most among them are qualified to be appointed. If there are no sufficient qualified persons available among HSAs, then only UPSAs and LPSAs shall be considered. Such a reasonable procedure would obviate arbitrariness and discrimination... 7. ...The principles laid down by the Division Bench Viswanathan v. Director of Higher Secondary Education, 2005(3)KLT SN 78 (Case No.91) in that case squarely apply in this case, on all fours. Therefore in this case, when a senior HSA qualified to be appointed as HSST (Junior) in Malayalam is available for appointment by transfer, the manager cannot resort to direct recruitment to that post, on the ground that he has chosen the post of HSST (Junior) in Economics for by transfer appointment in the 25% category and the senior most qualified teacher who happened to be a UPSA was chosen for that post. Here admittedly, the petitioner was a HSA possessing the requisite qualifications for appointment as HSST (Junior) in Malayalam and the 5th respondent was only a UPSA having qualifications for appointment as HSST (Junior) in Economics. In such circumstances, the manager had no option but to choose the post of HSST (Junior) in Malayalam to be filled up by transfer, instead of the post of HSST (Junior) in Economics. Here, I note that in Kumari devi v. Valsala Kumari’s case (supra),Valsala Director, Higher Secondary Education, 2007(4) KLT 494 (SC) the Supreme Court has also stressed the importance of seniority in by transfer appointments as HSST's, which would also indirectly support such a course of action...” 15. Hence when vacancy arises in the cadre of HSST in different subjects, then, the seniority of the HSA's having qualification to be appointed as HSST in the specific subjects shall be reckoned for the purpose of promoting the senior-most having subject qualification to the vacancy available. Hence when filling up the vacancies, in the present case, 12 vacancies, the first three [25% of 12] will go to by- transfer appointments. In making such appointments the Manager also has to appoint the senior, first. Hence when filling up the vacancies, in the present case, 12 vacancies, the first three [25% of 12] will go to by- transfer appointments. In making such appointments the Manager also has to appoint the senior, first. Even if the appointment is on the same day, the seniority in the cadre of HSST is determined by operation of the ratio and its implementation as declared in Viswanathan (supra) and Valsalakumari Valsalakumari (supra). 16. We also notice the decision of the Division Bench in Nanminda Higher Secondary School, wherein the question was as to whether the periods spent as HSST(Junior) could be reckoned for the purpose of promotion to the post of Principal. The contention was also that the Note provides for reckoning the HS/UP/LP experience in the absence of persons having qualification of 12 years at the Higher Secondary level. The Division Bench found that this does not as a corollary enable the experience as HSST (Junior) to be included, while seniority of HSST alone is to be reckoned. We respectfully agree with the above dictum. 17. We, find that there is no complete lacuna in Chapter XXXII, at least insofar as the fixation of seniority as against by-transfer appointments made to the cadre of HSST. As in the present case, 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. 18. 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. 18. Looking at it in that context, here, Manoj Kumar even as per the 25% reservation by the Government Order, would have got an appointment to the vacancy before Ramesan who is admittedly junior in the post of HSA. Admittedly the vacancy in the posts of HSST, in Economics and Malayalam, arose on the same day and both were promoted. If there were only two vacancies, that in Economics and Malayalam, then in making by-transfer appointment Manoj Kumar had to be chosen to be appointed as HSST(Malayalam), being the senior most HSA. Hence as against Manoj Kumar and Ramesan, Manoj Kumar will be deemed to be the senior in the cadre of HSST. The G.O. above referred kept 25% vacancies for by-transfer appointments and the remaining 75% from the direct recruits. We discern only one departure from the G.O. in the ratio now provided. As per the G.O. when appointments are made from both sources, those appointed from amongst HSA's would be placed above all the direct recruits. However, when 1:3 is applied, the by-transfer appointees would have to be adjusted against the 1st and every 4th vacancy arising thereafter. 19. We find that the apprehension expressed by the Special Government Pleader is not misplaced or without any basis. As against the direct recruits, there arise a difficulty with respect to the inter-se seniority amongst them and also when they are pitched along with by-transfer appointees. The question would be as to which vacancy position, a particular person is directly recruited against. Definitely there is requirement of such a rule in Chapter XXXII which the Government could look into and possibly provide on the basis of age. In that event, the first vacancy would go to by-transfer appointment and the next three vacancies would be filled up by direct recruitment in accordance with age; with the older among the three being the senior-most and so on and so forth. 20. In that event, the first vacancy would go to by-transfer appointment and the next three vacancies would be filled up by direct recruitment in accordance with age; with the older among the three being the senior-most and so on and so forth. 20. Be that as it may, it does not however create any problem with respect to resolution of the dispute here, which is an inter-se dispute between by- transfer appointees. When the vacancy of Principal arose in the year 2011, only two HSST's were qualified to be appointed to that post. Both of them were by-transfer appointees, whose seniority would depend upon the vacancy position they filled up. On the ratio of 25:75 Manoj Kumar definitely would have filled up the vacancy before Ramesan is accommodated in the next available vacancy. This is not to say that the period spent as HSA can be reckoned for seniority. But the ratio provided in the G.O operates to determine the seniority amongst the by-transfer appointees at the time of appointment itself. There is hence no requirement to provide a rule for determination of seniority as against HSST's appointed by transfer, who has the same period of service in that cadre, then or even now, for reason of the ratio provided in the Table under Rule 6 of Chapter XXXII. However, in the case of direct recruits there need to be a rule for determining the seniority among direct recruits at the time of appointment itself, which if provided would also decide the inter-se seniority between persons appointed by- transfer and directly recruited. 21. On the above reasoning, though slightly different from that of the learned Single Judge, we dismiss the appeals upholding the judgment of the learned Single Judge insofar as Manoj Kumar being entitled to the post of Principal. The parties shall suffer their respective costs. A Copy of the judgment shall be sent to the Secretary General Education Department to contemplate on introduction of a rule of seniority as amongst the direct recruits in the cadre of HSST.