ORDER : 1. This appeal is before us pursuant to the reference order dated 27.02.2020 of a Division Bench of this Court that doubted the correctness of the view expressed by another Division Bench in Sandhya T.N vs. Jalaja Kumari and Ors. 2008 (3) KLT 655 while deciding the inter se claim between holders of rights under Rule 43 and Rule 51A of Chapter XIV-A of the KER in the matter of preferential appointment to vacancies arising in teaching posts in the school concerned. The brief facts necessary for an appreciation of the issue that has been referred is as follows: The appellant/writ petitioner Smt. Sumadevi G had worked as HSA (Social Sciences) during various spells between 1996 and 2004 and was finally appointed in a regular vacancy with effect from 02.06.2004. While she was working as such, she was retrenched from service with effect from 15.07.2005 on account of division fall that occurred in the school, and consequently became entitled to a right to preferential appointment in future vacancies in the same, higher or lower categories of teaching posts in the school. 2. The 5th respondent in the writ petition, Smt. Jaya R. was appointed as a UPSA in the school with effect from 22.07.1996 in a regular vacancy and was thereafter promoted as HSA (Mal) with effect from 01.06.2005. While continuing as such, the staff fixation order in the school for the academic year 2010-11 was passed on 15.07.2010, whereby three posts of HSA, in the subjects of Natural Science, Malayalam and Hindi, were reduced on account of the reduced student strength in the school. The HSA’s who were liable to be retrenched from service were however accommodated by promoting the surplus HSA (NS) as Headmaster, reverting the surplus HSA (Hindi) as LG Hindi Teacher and reverting Smt. Jaya R. as UPSA in a vacancy that arose with effect from 01.06.2010 consequent to the promotion of one Sindhu, UPSA as HSA (PS). The reversion of Smt. Jaya R. as UPSA was stated to be in accordance with the provisions of the 2nd proviso to Rule 43 of Chapter XIV-A KER. 3. The writ petitioner, Smt. Sumadevi had, in the meanwhile approached the Manager of the school with a representation dated 15.04.2010 staking a claim for appointment to the vacancy of UPSA that arose with effect from 01.06.2010. 3. The writ petitioner, Smt. Sumadevi had, in the meanwhile approached the Manager of the school with a representation dated 15.04.2010 staking a claim for appointment to the vacancy of UPSA that arose with effect from 01.06.2010. Her claim was based on the right that accrued to her under Rule 51A as noticed above. When the representation did not evoke any response from the manager of the school, she approached this Court through a writ petition which was disposed with a direction to the educational authorities to consider her case on merits. In the proceedings that ensued, the educational authorities directed the manager of the school to appoint her as UPSA in the vacancy that arose with effect from 01.06.2010. While the manager of the school did not initially comply with the said directions, pursuant to the directions issued by this court in a later writ petition, she was appointed as UPSA by an order dated 20.11.2010. The said appointment was not, however, approved by the educational authorities for the reason that the manager had not indicated the vacancy to which she was appointed. In an appeal preferred by Smt. Sumadevi against the denial of approval, the Government found that there was no vacancy available to accommodate the petitioner as UPSA. It was challenging the said Government Order that she preferred the writ petition before this Court. 4. The learned Single Judge who considered the matter found that Smt. Sumadevi’s right under Rule 51A could not overlook the seniority of Smt. Jaya R. who had been appointed prior to Smt. Sumadevi in the school. The impugned order of the Government was therefore upheld by dismissing the writ petition preferred by Smt. Sumadevi. 5. In the present appeal filed by her, it is the case of Smt. Sumadevi that Smt. Jaya R. could not have been accommodated as an UPSA in the vacancy that arose with effect from 01.06.2010, by reverting her from the post of HSA in terms of the 2nd proviso to Rule 43, because she was not a person who had earlier been promoted as HSA in terms of the said provision. It is contended therefore that, in the absence of a reversion, Smt. Sumadevi was the only claimant under Rule 51A available for filling up the said vacancy in the post of UPSA. It is contended therefore that, in the absence of a reversion, Smt. Sumadevi was the only claimant under Rule 51A available for filling up the said vacancy in the post of UPSA. The referring bench felt that this was a case that involved conflicting claims between a Rule 51A claimant and a Rule 43 claimant and inasmuch as another division bench had, in the case of Sandhya (supra) taken a view that was apparently contrary to the clear provisions of Rule 51A and Rule 43 of Chapter XIV-A of the KER as they then stood, the matter required consideration by a larger bench. 6. Before we discuss the merits of the rival claims, it would be apposite to refer to the provisions of Rule 43 and Rule 51A of Chapter XIV-A of the KER as they stood during the period between 17.06.2005 and 05.07.2012. They read as follows: Rule 43 “43. Subject to rules 44 and 45 and considerations of efficiency and any general order that may be issued by the Government, vacancies in any higher grade of pay shall be filled up by promotion of qualified hands in the lower grade according to seniority, if such hands are available: Provided that in the case of promotion to the post of High School Assistant (Subject), the minimum subject requirements alone need to be satisfied, to safeguard the interests of trained graduates who are awaiting promotions as High School Assistants. Provided further that where a Headmaster or a teacher who has been promoted under this rule faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has been promoted provided he is not eligible for protection in the retrenched post as per the orders issued by the Government from time to time. Note: (1) A teacher in a lower grade of pay in one category of post is eligible for promotion to a higher grade of pay in another category of post provided. (i) he has the prescribed qualifications. (ii) there is no teacher with the prescribed qualifications in the lower grade of pay of the category of post to which promotions are to be made. (2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy.” Rule 51A “51A. (i) he has the prescribed qualifications. (ii) there is no teacher with the prescribed qualifications in the lower grade of pay of the category of post to which promotions are to be made. (2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy.” Rule 51A “51A. Qualified teachers who are relieved as per Rule 49 or 52 or on account of termination of vacancies shall have preference for appointment to future vacancies in the same or higher or lower category of teaching posts, for which he is qualified that may arise if there is no claimant under rule 43 in the lower category in schools under the same Educational Agency or an Educational Agency to which the school may be subsequently transferred provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. “Provided that a teacher who was relieved under rule 49 or rule 52 shall not be entitled to preference for appointment under this rule unless such teacher has a minimum continuous service of one academic year as on the date of relief: Provided further that the first preference under this rule shall be given to protected teachers belonging to the same Educational Agency. Provided further that preference shall be given to teachers from Teachers Bank for appointment in vacancies as specified in Rule 7 of Chapter XXI. Note: (1) If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointments is the same then preference shall be decided with reference to age, the older being given first preference. In making such appointments due regard should be given to the requirement of subjects and to the instructions issued by the Director under sub-rule (4) of rule 1 as far as High Schools are concerned. (1A) Fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing re-appointment to such teachers thrown-out from service and protected teachers available under the Educational Agency. (1A) Fresh appointments to vacancies arising in the same or higher or lower category of teaching posts under the Educational Agency shall be made only after providing re-appointment to such teachers thrown-out from service and protected teachers available under the Educational Agency. Explanation: For the purpose of this clause “Protected teacher” means, a teacher who has been retrenched for want of vacancy after putting such length of regular service that may be specified by the Government or who is eligible for such Protection as per G.O. (MS) No. 104/69/Edn. dated 6-3-1969 or G.O. (MS) No. 231/84/G.Edn. dated 27-10-1984 or any other orders issued by Government from time to time. (2) Manager should issue an order of appointment to the teacher by Registered post acknowledgment due and give a period of 14 (fourteen) clear days to the teacher to join duty. If the teacher does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited.” 7. On a plain reading of the provisions, it is clear and unambiguous that during the period aforementioned, the right under Rule 43 was subject to the right obtained under Rule 51A and that, in the event of an inter se claim between the different right holders, the holder of the right under Rule 43 had to yield to the superior right held by the other under Rule 51A. 8. On the facts of the instant appeal, however, we find that the issue referred to us for our opinion really does not arise and hence does not require to be answered. We say so for the following reasons: 1. Consequent to the reduction of the three posts of HSA in the staff fixation order for the year 2010-11 in the school, the reversion of Smt. Jaya R. as UPSA was automatic in terms of the 2nd proviso to Rule 43 and was not dependent upon the existence of any vacancy in the post of UPSA. Consequent to the reduction of the three posts of HSA in the staff fixation order for the year 2010-11 in the school, the reversion of Smt. Jaya R. as UPSA was automatic in terms of the 2nd proviso to Rule 43 and was not dependent upon the existence of any vacancy in the post of UPSA. In other words, consequent to her being found surplus as an HSA, Smt. Jaya R. had necessarily to be reverted as a UPSA, and if there was no existing vacancy in that post in the school, she would have had to be accommodated by retrenching the junior most UPSA then in service in the school. 2. As for Smt. Sumadevi, even if her superior claim under Rule 51A, for appointment as UPSA to the vacancy that existed with effect from 01.06.2010 were to be conceded, she would have been the junior most UPSA on such appointment and would have faced retrenchment consequent to the reversion of Smt. Jaya R. as UPSA. 3. In either of the aforesaid appointments as UPSA, therefore, there is no situation of a conflict between the right holders under Rule 43 and Rule 51A. They would both be appointed as UPSA’s in the school subject to the availability of vacancies to accommodate them. In the absence of sufficient vacancies, however, Smt. Sumadevi would have to be retrenched so as to accommodate the senior, Smt. Jaya R, in service. 9. In view of the above discussion, we are of the view that the issue referred to us for resolution does not arise in the instant appeal. We therefore decline the reference and remand the matter to the Division Bench for a disposal of the appeal on merits, taking note of our findings as above.