JUDGMENT : AMIT RAWAL, J. 1. Present writ appeal is directed against the judgment dated 12/12/2022 rendered in Writ Petition No.11734 of 2021 seeking following relief: “i) Issue a writ of certiorari or other appropriate writ or direction to call for the records relating to Exhibits-P16, P17 and P23 and quash the same; ii) Issue a writ of mandamus or other appropriate writ or direction, compelling the respondents 2 and 4 to approve the appointment of petitioners from the date of their appointment evidenced by Exhibits-P1 to P4; iii) Issue a writ of mandamus or other appropriate writ or direction, compelling the 4th respondent to initiate appropriate disciplinary action against the 2nd respondent for willfully flouting the Judgment of this Hon’ble Court evidenced by Exhibits-P9, P11 and P14, and taking away the vested right of petitioners behind their back; iv) Award the cost of this Writ Petition from the 2nd respondent and her assets; and v) Grant the Petitioners such other and further reliefs which this Hon’ble Court deems just and fit under the facts and circumstances of the case;” Order dated 26.04.2021, appointing respondent No.1 to the post of Upper Primary School Assistant (hereinafter called ‘UPSA’, for short) without undertaking the test of KTET ( Kerala Teachers Eligibility Test), provided, to be undertaken compulsorily as per the provisions of Section 23 of the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter called ‘Act No.35 of 2009’, for short) have been quashed with direction issued to the Assistant Educational Officer (A.E.O.), Palode to reconsider the matter strictly in terms of the judgment dated 25.05.2020 rendered in W.P.(C) No.25712 of 2016 and connected cases as clarified by the Single Bench in judgment dated 15.01.2021 in W.P.(C)No.3718 of 2017 and connected cases and series of other directions. 2. Before dealing with the rival contentions of the parties, it is expedient to refer facts in brief, the order dated 26.04.2021 issued by A.E.O., whereby respondent No.1 – Smt. Sreeja J.T. was ordered to be appointed as UPSA with effect from 01.09.2016 by giving exemption of K-TET qualification was quashed. Once the aforementioned order granting appointment to respondent No.1 and exempting her from acquiring KTET qualification had been quashed, the direction No.(d) extracted herein below, for all intends and purposes, in our considered view could not have been issued. Once the aforementioned order granting appointment to respondent No.1 and exempting her from acquiring KTET qualification had been quashed, the direction No.(d) extracted herein below, for all intends and purposes, in our considered view could not have been issued. “d) The claim of St.Sreeja, as a 51A claimant and her entitlement for K-TET exemption in terms of the directions issued in para 31 of the Division Bench, having found in her favour, no further deliberation is warranted or required at the hands of the AEO.” 3. There was no question of declaring the claim of the respondent No.1. Portion of the order which has been quashed is also required to be extracted. The same reads as under: “Ref:- 1) Interim Order of the Hon’ble High Court of Kerala in W.P.© 25712/2016, dated 20/12/2018. 2) This office order No. C/3515/2018/ K.Dis dated 27/12/2018. 3) Final Judgement of the Hon’ble High Court of Kerala in W.P.(C) 257122/2016 dated 25/05/2020. 4) Government Letter No.Al/186/2020/ G.Edn. dated 18/10/2020. 5) Final Judgement of the Hon’ble High Court of Kerala in W.P.(C). No. 3718/2017, WP(C). No. 41306/2018 and WP(C). No. 23811/2020, dated 15/01/2021 6) Order No. F1/38396/2013/G edn. of the Director General of Education Officer dated 16/03/2021 7) The Government Order No. 294/2012/Gedn dated 20/09/2012 Smt. Sreeja J.T., U.P.S.T. of K. V U.P.S. Pangode is given provisional appointment with effect from 04/06/2012 as per the interim order of the Hon’ble High Court of Kerala in the writ petition filed by her referred 1 above, vide Ref. 2nd cited above. However, vide Ref (3). (4), and (5). Smt. Sreeja J.T has to be appointed on 01/09/2016 if vacancy is available as on 31/08/2016 or later when vacancy becomes available, subject to KTET qualification: it is ordered that the salary and attendant benefits which she did not get from the date of her approval shall be realized from the manager. It is also mentioned that since Sreeja J.T. is a 51A claimant, she is eligible for exemption from K-TET qualification. In view of the above circumstances, the appointment of Smt. Sreeja J.T. from 04/06/2012 was cancelled, vide Ref (6). As per Government Order. vide Ref (7), 51A claimants are given exemption from K-TET qualification. Under the above circumstances, on the basis of the High Court judgment and Government Orders, all the documents and proposal of Smt. Sreeja J. T. were examined. As per Government Order. vide Ref (7), 51A claimants are given exemption from K-TET qualification. Under the above circumstances, on the basis of the High Court judgment and Government Orders, all the documents and proposal of Smt. Sreeja J. T. were examined. In the above circumstances, on the basis of the orders of the Hon’ble High Court, and Ref. (5) & (6), orders are issued granting approval of appointment to Smt. Sreeja J.T as U.P.S.T. in K.V.U.P.S. Pangode with effect from 01/09/2016. As per the orders of the Court Smt. Sreeja J.T.’s arrears of salary from 01/09/2016 to 20/12/2018 has to be provided by the manager(under suspension), and the acquittance regarding that has to be submitted before this office. Smt. Sreeja J.T. will be eligible for continuous salary and attendant benefits subject to rules and Government Orders. The service and salary benefits of Smt. Sreeja from 01/09/2016 are to be recorded in her service book, and the Headmaster of K.V.U.P.S. Pangode is entrusted to take steps to defray her salary and attendant benefits accordingly. Thus, judgment of Hon’ble Kerala High Court, vide Ref (5), is implemented.” By noticing the aforementioned reliefs as well as the observations, it tantamount to take away the right of respondent No.1. 4. Appellant – writ petitioner No.4 in W.P. (C)No.11734 of 2021 was appointed as UPSA on 01.06.2018 as she possessed all the qualifications and fulfilled the requirements of having undertaken K-TET as per the provisions of Section 23 of the Act No.35 of 2009. However, her approval was kept pending and have been agitating the issue along with other teachers in this court. But the aforementioned claim of appellant – writ petitioner No.4 and other similarly situated persons was attempted to be interdicted by one Smt.Sreeja J.T., respondent No.1 in the aforementioned writ petition and present writ appeal, who, on 08.11.2001, was appointed against leave vacancy as Peon on compassionate grounds in Krishana Vilasam Upper Primary School, Pangode, an aided school. She discharged her duties upto 31.03.2003. On account of another vacancy, was again appointed as Peon on 05.08.2004. By that time, alleged to have joined the B.Ed Course and applied for a study leave which was rejected on the ground that she had, without applying leave for acquiring the B.Ed Course, remained unauthorizedly absent. She discharged her duties upto 31.03.2003. On account of another vacancy, was again appointed as Peon on 05.08.2004. By that time, alleged to have joined the B.Ed Course and applied for a study leave which was rejected on the ground that she had, without applying leave for acquiring the B.Ed Course, remained unauthorizedly absent. Though according to the averments and the submissions made at bar, she had acquired B.Ed Qualification during the month of April, 2005. Since the Manager of the School did not accept the reason assigned by Smt.Sreeja J.T. for having remained absent, removed her from service. The aforementioned action was challenged vide Writ Petition No.14285 of 2005 and this Court vide judgment dated 21.05.2012 allowed the writ petition after setting aside the disciplinary action and directed that Smt.Seeja J.T., be re-admitted to duty as Peon. 5. Aforementioned order was assailed by the Manager in Writ Appeal No.1145 of 2012. It is pertinent to mention here that one Sheeja Beegam, during the interregnum, was appointed as a Peon and owing to the directions ibid by the Single Bench, preferred a Writ Appeal No.1230 of 2012. Both the aforementioned writ appeals were clubbed together and disposed of vide common judgment dated 16.07.2012. The Division Bench held that without going into the merits of the findings of the learned Single Judge which was based on a procedure and reliability, disposed of the writ appeals with a direction to the Management that the Manager/appellant in W.A No. 1145 of 2012 have to fill up the next Peon post by offering it to respondent No.1 Smt.Sreeja J.T., who was held entitled to seek further promotion in accordance with law as and when the post of the teacher arises or falls vacant and by virtue Rule 51A, Chapter XIVA KER of the Kerala Education Rules, 1959. The first respondent may set up the claim of preference/priority provided therein, over appointment of other teachers and on account of such occurrence of the vacancy. Manager was further directed that in case aforementioned conditions exist/ occurrence of such situations shall consider all the aforementioned relevant facts and the appeal of Smt.Sheeja Beegam was dismissed. 6. Rule 51A, Chapter XIVA KER extracted herein below with the proviso envisages two situations : “[51A. Manager was further directed that in case aforementioned conditions exist/ occurrence of such situations shall consider all the aforementioned relevant facts and the appeal of Smt.Sheeja Beegam was dismissed. 6. Rule 51A, Chapter XIVA KER extracted herein below with the proviso envisages two situations : “[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] 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”.] CHAPTER XIV A 111 [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 108[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]. [Note 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 reappointment 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.] [Note 2. 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.] [Note 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 perusal of the rule extracted above, it is evident that the teacher appointed earlier for a particular academic year would have a preference/priority for being appointed owing to the previous judgment. In the year 2012-2013, 2013-2014, certain vacancies of U.P.S.A. arose but appointment was given to third parties without providing the benefit of appointment to Smt.Sreeja J.T as per the directions contained in the Writ Appeal bearing No.1145 of 2012 ibid, which give a cause of action to her and approached this Court vide Writ Petition (C)No.25712 of 2016. It is pertinent to mention here that though the reliefs as sought for in the aforementioned writ petition was available in view of the directions and appointments had been made, the claim was staked only after lapse of four(4) years. 8. This Court vide interim order dated 31.08.2016 directed the Manager to provisionally appoint Smt.Sreeja J.T. in the first vacancy of U.P.S.A. An application for recalling of the aforementioned order was filed which was dismissed resulting into a challenge vide Writ Appeal No.812 of 2018 which was also dismissed. On the basis of the aforementioned interim order passed by the Single Bench, during the pendency of the Writ Petition No.25712 of 2016 preferred by respondent No.1, an order dated 27.12.2018 was issued by the A.E.O. directing to appoint Smt.Sreeja J.T. as UPSA with effect from 04.06.2012 with a consequential recommendation for approving her appointment. 9. It is pertinent to mention here that on account of the aforementioned order passed by the A.E.O., certain direction to recover the salary due to the Smt.Sreeja J.T. from the Manager was also issued. 9. It is pertinent to mention here that on account of the aforementioned order passed by the A.E.O., certain direction to recover the salary due to the Smt.Sreeja J.T. from the Manager was also issued. The above order was challenged by the Manager as well as the other U.P.S.A., appointed during the interregnum, before the Division Bench of this Court. In Writ Appeal Nos.1697 of 2019 and 1653 of 2019, on analysis, the Division bench found that similar matter was already seized before the Single Bench, requisitioned proceedings of the Writ Petition bearing No.25712 of 2016 on record of the Division Bench. The reason for calling upon the writ petition was that the other U.P.S.A. were affected by the interim order passed in the writ petition bearing No.25712 of 2016. 10. The Division Bench of this Court vide judgment dated 25.05.2020 Ext.P9 /Ext.R1(C) disposed of the writ petition in the following manner: “(i) WP(C) No. 25712/2016:-Petitioner's appointment as per order dated 27/12/2018, of AEO shall be treated as provisional. Her appointment shall be approved either on 1/9/2016 if there existed a vacancy in the school as on 31/8/2016 or on such other date when the vacancy had arisen, subject to her acquiring the qualification of KTET as per the procedure prescribed. Petitioner shall be entitled for salary only from the date of joining. The Manager who is already under suspension shall be liable to pay the eligible salary of the petitioner either from 1/9/2016, if there existed a vacancy as on 31/8/2016 or from a future date when the vacancy had arisen. The said amount shall be recovered by the AEO and paid to the petitioner. Manager's suspension shall stand revoked on payment of the above amount. (ii) RP No.226/2019:-Review Petition is allowed and the interim order dated 12/2/2019 is recalled. (iii) WA Nos.1653/19 an 1697/2019:-Writ appeals are allowed modifying the interim order and they are disposed of in the light of the judgment in WP(C) No. 25712/2016.” 11. Aforementioned order was assailed by respondent No.1 before the Supreme Court vide SLP Nos.10244 -10247 of 2020 and vide order dated 12.10.2020 the Special Leave Petition was dismissed by passing the following order: “SUPREME COURT OF INDIA RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). Aforementioned order was assailed by respondent No.1 before the Supreme Court vide SLP Nos.10244 -10247 of 2020 and vide order dated 12.10.2020 the Special Leave Petition was dismissed by passing the following order: “SUPREME COURT OF INDIA RECORD OF PROCEEDINGS Petition(s) for Special Leave to Appeal (C) No(s). 10244- 10247/2020 (Arising out of impugned final judgment and order dated 25-05-2020 in WP(C) No. 25712/2016 and order dated 25-05-2020 in RP No. 226/2019 in WP(C) No. 25712/2016, WA No. 1653/2019 and WA No. 1697/2019 passed by the High Court Of Kerala At Ernakulam) SREEJA J.T. Petitioner(s) VERSUS STATE OF KERALA & ORS. ETC. Respondent(s) (FOR IA No.84194/2020-EXEMPTION FROM FILING O.T. and IA No.84196/2020-EXEMPTION FROM FILING AFFIDAVIT and IA No.84193/2020-PERMISSION TO FILE ADDITIONAL DOCUMENTS/FACTS/ANNEXURES) Date : 12-10-2020 These petitions were called on for hearing today. CORAM : HON'BLE MR. JUSTICE ASHOK BHUSHAN HON'BLE MR. JUSTICE R. SUBHASH REDDY HON'BLE MR. JUSTICE M.R. SHAH For Petitioner(s) Mr. V. Chitambaresh, Sr. Adv. Mr. Sanand Ramakrishnan, AOR Mr. Rajeev Mishra, Adv. Mr. C. Govind Venugopal, Adv. For Respondent(s) Mr. P.N. Ravindran, Sr. Adv. Mr. Jogy Scaria, AOR Ms. Beena Victor, Adv. UPON hearing the counsel the Court made the following ORDER The special leave petitions are dismissed. Pending applications stand disposed of.” 12. As a consequence of the aforementioned orders, Government of Kerala terminated the services of respondent No.1 vide order dated 16.10.2020. Government Secretary noticing the observations recorded in the judgment dated 25.05.2020 directed that the respondent No.1 is to be appointed to the post on 01.09.2016, in case of occurrence of vacancy as on 31.08.2016 or on a later date as and when the vacancy arises subject to the condition that she acquires K-TET qualification and on account of non-attainment of K-TET till 2020-2021, would not be entitled for appointment and salary during the period with a further directions to the AEO to reinstate the Manager. Additionally, an order was also passed regarding the appointment of Yahiya T. and Jasmine, for approval from the date of appointment in case of requisite qualifications. 13. Additionally, an order was also passed regarding the appointment of Yahiya T. and Jasmine, for approval from the date of appointment in case of requisite qualifications. 13. The aforementioned order dated 16.10.2020 was assailed by respondent No.1 Sreeja J.T., in Writ Petition (C) No.23811 of 2020 claiming the following reliefs: “(i) Issue a writ of certiorari, calling for the records leading to Exhibit P6 order and quash the same; (ii) Declare that Ext.P6 order is the one issued without any authority of law and in the teeth of Ext.P3 judgment and is therefore void and nonest; (iii) Issue a writ of mandamus or any other writ, direction or order, directing the 2nd respondent to approve the appointment of the petitioner as UPSA with effect from 01/09/2016 and recover the arrears of salary payable to the petitioner from the 3rd respondent, Manager as directed by this Hon’ble Court in Ext.P3 judgment and pay the same to the petitioner forthwith; (iv) To grant such other reliefs as this Hon’ble Court deems fit in the interest of justice.” 14. On perusal of the aforementioned, it is evident that respondent No.1 challenged the order regarding her appointment with effect from 01.09.2016 or later, on account of occurrence of vacancy, as it was not in tandem with the directions contained in the judgment dated 25.05.2020 rendered in writ petition No.25712 of 2016 and connected matters which was attached as Ext.P3 in writ petition bearing No.23811 of 2020. 15. Abdul Latheef – Manager, and other U.P.S.A.s i.e., Jasmine, Yahiya, Shibine, Lisa E.L. and the appellant – Petitioner had also invoked the jurisdiction of the Single Bench vide Writ Petition No.3718 of 2017, 41396 of 2018 regarding the non-approval of their appointments. 16. All these writ petitions were clubbed together with the writ petition bearing No.23811 of 2020 of Sreeja J.T. -respondent No.1. Learned Single Bench on consideration of the matters and noticing the previous orders passed in W.P(C) 25712 of 2016, disposed of all the three aforementioned writ petitions by directing the AEO, Palode to consider the grant of approval of appointments to all the teachers involved in the cases strictly in terms of directions contained in the judgment dated 25.05.2020 in W.P.(c) No.25712 of 2016 and connected matters. While undertaking the aforementioned exercise and completion thereof, AEO was directed take a call untrammeled by the findings contained in the order dated 16.10.2020 confining the appointments of the respondent No.1 with effect from 01.09.2016 or later on, subject to the availability of the vacancy and also to consider the contentions of respondent No.1 regarding her entitlement to the benefit of Rule 51A, under Chapter XIV A of the Kerala Education Rules 1959, as to whether requirement to obtain K-TET qualifications on account of the fact acquisition of the status of being appointed on account of occurrence of vacancies, on 16.07.2012 i.e., prior to the Government Order dated 25.07.2012 by granting one time exemption for all from undergoing the K-TET in respect of the Academic Year 2012-2013. The aforementioned exercise was directed to be undertaken after hearing all the parties in accordance with law within a period of four(4) months thereafter. Directions aforementioned are extracted hereinbelow: “I am, consequently, of the firm view that these writ petitions require to be ordered, directing the AEO, Palode, to consider grant of approval of appointments to all the Teachers involved in these cases, implicitly adhering to the directions in the judgment of a learned Division Bench in W.P(C)No.25712 of 2016 and connected cases (Ext.P3 in W.P.(C)No.23811 of 2020). I make it clear that while the afore exercise is completed by the AEO, he shall act untrammeled by anything contained in Ext.P6 in W.P.(C)No.23811 of 2020 and shall specifically consider the contentions of Smt.Sreeja J.T.-that she is entitled to the benefit of Rule 51A, Chapter XIVA KER of Chapter XIVA of the KER, thus being not required to obtain the K-TET qualification on account of the fact that she acquired the afore status on 16.07.2012, which is prior to Ext.P5 order dated 25.07.2012 in W.P.(C)No.23811 of 2020; as also the opposing assertion of the Manager that she has never obtained the status of a Rule 51A, Chapter XIVA KER Claimant or is she entitled to claim exemption from acquiring the K-TET qualification. Needless to say that while the AEO takes a decision as afore directed, he shall hear all the parties -either physically or through video conferencing – and advert to every material and precedents to be produced and cited by them in support of the rival contentions, thus resulting in apposite order/s. The afore directed exercise shall be completed as expeditiously as is possible, but not later than four months from the date of receipt of a copy of this judgment. These writ petitions are, thus, disposed of.” 17. In terms of the aforementioned order, AEO, Palode issued an order dated 26.04.2021 by cancelling the appointment of Sreeja J.T. -respondent No.1 from 04.06.2012 and ordered that she will be entitled to get an order of her appointment with effect from 01.09.2016 by granting her the benefit of service and salary as well as exemption from undertaking K-TET qualification. The operative part of the order has already been extracted (supra). 18. The aforementioned order was assailed by the Manager as well as other U.P.S.A.s including the petitioner-appellant. Writ petition filed by the Manager was W.P(C) No. 11983 of 2021 whereas of the appellant – petitioner Bhinumol S. was W.P(C) 11734 of 2021. 19. On consideration of the facts as well as the previous findings rendered in Writ Petitions (supra), order dated 26.04.2021 doing away with the K-TET qualification viz-a-viz the respondent No.1 – Sreeja J.T., learned Single Bench quashed the aforementioned order with a direction to the AEO to consider the case afresh. But as noticed above, also gave a direction i.e., direction ‘D’, that on consideration, if AEO finds that respondent No.1 -Sreeja J.T., is entitled to the benefit of 51A i.e., preference of appointment, be accorded. The aforementioned judgment is assailed before us in Writ Appeal No.1796 of 2023 20. But as noticed above, also gave a direction i.e., direction ‘D’, that on consideration, if AEO finds that respondent No.1 -Sreeja J.T., is entitled to the benefit of 51A i.e., preference of appointment, be accorded. The aforementioned judgment is assailed before us in Writ Appeal No.1796 of 2023 20. Mr.K.M.George assisted by Sreehari K.K., learned counsels appearing on behalf of the appellant/petitioner, in support of the memorandum of appeal taken in the intra-court appeal, raised the following submissions: 1) The judgment dated 25.05.2020 rendered in Writ Petition No.25712 0f 2016 with connected matters attained finality and could not have been clarified by a Single Bench in a subsequent litigation i.e., vide Writ Petition No.23811 of 2020, as noticed by the Single Bench, for the reason that respondent No.1 had never cleared the K-TET qualification and therefore could not be considered for appointment strictly as per Rule 51A, Chapter XIVA KER i.e., the preference given to the already served employees for claiming re-appointment. In other words, learned Single Bench erroneously relied upon a circular dated 25.07.2012 issued as one time measure for granting exemption from undertaking K-TET qualification in respect of academic year 2012-13 considering the fact that Act of 35 of 2009 had already come into force requiring the teaching and non-teaching staff to undertake the mandatory test. But, while doing so, failed to notice the subsequent clarification dated 16.09.2012, whereby keeping the letter and spirit of the provisions of Section 23, Government clarified that K-TET test is mandatory for all aspirants seeking appointment as teachers to be obtained within a period of five(5) years. 2) Respondent No.1 so far as in the absence of any pleading or submissions, have not cleared the K-TET qualifications. 3) Findings rendered in paragraph No.31 of the judgment dated 25.05.2020 in 25712 of 2016 and connected cases are obiter in view of the directions contained in the penultimate paragraph (ibid). 4) Learned Single Bench could not have sat over the judgment of the Division Bench by issuing directions to the AEO for issuance of appointment once the order dated 26.04.2021 has been quashed. 5) In the previous round of litigation, vide judgment dated 15.01.2021 in W.P.(C)No.23811 of 2020, the findings rendered in the judgment dated 25.05.2020 in W.P.(C)No.25712 of 2016 and connected matters have incorrectly been interpreted while issuing directions to the AEO, resulted into issuance of order dated 26.04.2021. 5) In the previous round of litigation, vide judgment dated 15.01.2021 in W.P.(C)No.23811 of 2020, the findings rendered in the judgment dated 25.05.2020 in W.P.(C)No.25712 of 2016 and connected matters have incorrectly been interpreted while issuing directions to the AEO, resulted into issuance of order dated 26.04.2021. 6) During all these period, appellant continued to discharge the duties whereas the respondent No.1 , in terms of the directions of the Single Bench in the impugned judgment, was issued appointment only on 26.04.2021 and thereafter vide order dated 02.08.2023 Annexure A1, the services of the appellant – petitioner has been dispensed with. 7) There are only four(4) vacancies. Both the litigants i.e., Sreeja J.T., as well as the appellant cannot be permitted to continue, owing to the fact that there are already three(3) regularly appointed teachers discharging the duties and the fourth post is the one under consideration on which both the parties have laid their claims. 8) It is settled law that the rules and regulations which are vogue, have to be taken into consideration at the time when the right of consideration for appointment accrues but not on the date when the vacancy had arisen. In support of the contention relied upon the judgment of the Supreme Court in The State of Uttar Pradesh and Ors. Vs. Rachna Hills and Ors. And The State of Uttar Pradesh and Ors. Vs. Anjali and Ors. (Civil Appeal Nos.1882 of 2023, 1883 of 2023 and 1884 of 2023), Paragraph No.30 of the same reads as under: “30. In any event, it is now a settled principle of law that a candidate has a right to be considered in the light of existing Rules, which implies Rules in force as on the date of consideration. This principle is affirmed by this Court in Deepak Agarwal and Anr. v. State of U.P. and Ors. MANU/SC/0273/2011 : (2011) 6 SCC 725 , as below: “26. It is by now a settled proposition of law that a candidate has the right to be considered in the light of the existing rules, which implies the “rule in force” on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up old vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. The right to be considered for promotion accrues on the date of consideration of the eligible candidates. Unless, of course, the applicable rule, as in Y.V.Rangaiah case lays down any particular time-frame, within which the selection process is to be completed. In the present case, consideration for promotion took place after the amendment came into operation. Thus, it cannot be accepted that any accrued or vested right of the appellants has been taken away by the amendment.” 21. On the other hand, Mr.Ganesh, learned counsel appearing on behalf of the respondent No.1 raised the objection with regard to maintainability of the appeal on the ground that writ appeal has been preferred only against the decision rendered in Writ Petition No.11734 of 2021 and not against the judgment bearing W.P.(C)No. 11983 of 2021. The appointment issued in favour of the respondent No.1 vide order dated 26.04.2021 was in terms of the judgment rendered in Writ Appeal No.1145 of 2012 dated 16.07.2012, W.P. (C)No.25712 of 2016 decided on 25.05.2020 and W.P. (C)No.23811 of 2020 decided on 15.01.2021. A.E.O. had erroneously considered the case of respondent No.1 for appointment with effect from 2016 whereas the vacancy had undisputedly occurred in the academic year 20122013 and 2013-2014 and therefore respondent No.1 is liable to be appointed with effect from 2012 and at that time the mandatory condition of undertaking the K-TET qualification was exempted. Appellant cannot, therefore, rely upon the subsequent clarifications dated 16.09.2012. Appellant is estopped from laying claim before the Single Bench in the absence of any challenge to the judgment dated 15.01.2020 rendered in Writ Petition No.23811 of 2020. Principles akin to resjudicata would be applicable in the absence of any challenge to the findings rendered in the common judgment dated 12.12.2022 in Writ Petition No.11983 of 2021, preferred by the Manager. 22. We have heard learned counsel for the parties and appraised the paper books. 23. Section 23 of the Act 35 of 2009 provides certain contingencies to be complied with by the teaching and non-teaching staffs. The same reads as under: “23. 22. We have heard learned counsel for the parties and appraised the paper books. 23. Section 23 of the Act 35 of 2009 provides certain contingencies to be complied with by the teaching and non-teaching staffs. The same reads as under: “23. Qualifications for appointment and terms and conditions of service of teachers. - (1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher. (2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under subsection (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification: Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within a period of five years. [Provided further that every teacher appointed or in position as on the 31st March, 2015, who does not possess minimum qualifications as laid down under sub-section (1), shall acquire such minimum qualifications within a period of four years from the date of commencement of the Right of Children to Free and Compulsory Education (Amendment) Act, 2017.] (3)The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.” Rule 51A, Chapter XIV A of Kerala Education Rules, 1959 reads as under: “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 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”.] 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. [Note 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 reappointment 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.] [Note 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]” 24. The questions which arises for consideration before us are: (i) Whether a person who had appointment for a particular academic year would fall within the ambit of Rule 51 and claim exemption of undertaking K-TET qualification or not? If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited]” 24. The questions which arises for consideration before us are: (i) Whether a person who had appointment for a particular academic year would fall within the ambit of Rule 51 and claim exemption of undertaking K-TET qualification or not? (ii) Whether the findings rendered in paragraph No.31 of the judgment dated 25.05.2020 in Writ Petition (C)No.25712 of 2016 viz-a-viz the relief can be held to be obiter?. (iii) Whether the impugned judgment of the Learned Single Bench is sustainable and whether the directions contained, particularly Clause D, ibid, in the impugned judgment would be sustainable, once the order dated 26.04.2021 appointing the respondent No.1 as U.P.S.A with effect from 01.09.2016, is quashed? 25. On juxtaposition of the directions contained in the judgment dated 25.05.2020 in W.P.(C)No.25712 of 2016 and connected matters as well as the findings in the impugned judgment read with the claim set up by the respondent No.1 in the W.P.(C)No.23811 of 2020, the plain and simple claim of respondent No.1 was to issue directions to the A.E.O to take a call and decision in terms of the directions contained in the judgment dated 25.05.2020 in W.P.(C)No.25712 of 2016 and not beyond. However, the learned Single Judge while dealing with the writ petition No.23811 of 2020 and other connected matters vide judgment dated 15.01.2021, had only noticed the directions contained in paragraph No.31 of the judgment rendered in W.P.(C)No.25712 of 2016 but not the penultimate paragraph disposing of the writ petition. For the sake of brevity paragraph No.31 of the judgment reads as under: “31. It is not in dispute that the petitioner holds B.Ed. Degree. It is not known whether she has the qualification of KTET. Even if she does not have the said qualification, still if her appointment is made on an earlier date, she can avail of the exemption granted to like persons until 2020-2021. It is for educational authorities to look into such matters before approving her appointment.” And the last paragraph of the same already extracted (supra), for the sake of repetition, again extracted hereinbelow: “(i) WP(C) No. 25712/2016:-Petitioner's appointment as per order dated 27/12/2018, of AEO shall be treated as provisional. It is for educational authorities to look into such matters before approving her appointment.” And the last paragraph of the same already extracted (supra), for the sake of repetition, again extracted hereinbelow: “(i) WP(C) No. 25712/2016:-Petitioner's appointment as per order dated 27/12/2018, of AEO shall be treated as provisional. Her appointment shall be approved either on 1/9/2016 if there existed a vacancy in the school as on 31/8/2016 or on such other date when the vacancy had arisen, subject to her acquiring the qualification of KTET as per the procedure prescribed. Petitioner shall be entitled for salary only from the date of joining. The Manager who is already under suspension shall be liable to pay the eligible salary of the petitioner either from 1/9/2016, if there existed a vacancy as on 31/8/2016 or from a future date when the vacancy had arisen. The said amount shall be recovered by the AEO and paid to the petitioner. Manager's suspension shall stand revoked on payment of the above amount. (ii) RP No.226/2019:-Review Petition is allowed and the interim order dated 12/2/2019 is recalled. (iii) WA Nos.1653/19 an 1697/2019:-Writ appeals are allowed modifying the interim order and they are disposed of in the light of the judgment in WP(C) No. 25712/2016.” 26. On examination of the aforementioned, we would be failing in duty in not extracting the findings rendered by the Single Bench in paragraph No.13, while dealing with the claim of respondent No.1 and other writ petitioners, disposing of the writ petition bearing No.23811 of 2020 and connected matters. The same reads as under: “13. In fact, going by paragraph 31 of the judgment in W.P.(C)No.25712 of 2016 and connected matters, the learned Division Bench has also made it clear that even if Smt.Sreeja J.T. does not have the afore said qualification, if her appointment is made on an earlier date, she can avail the exemption granted to persons until 2021. This issue certainly, ought to have engaged the attention of the AEO and the clarification offered by the Government, therefore, cannot obtain any favour in law.” 27. Directions contained in the penultimate paragraph and paragraph No.13 are totally anomalous to each other and cannot be read together for the purpose of adjudication of the claim viz-a-viz the appellant – petitioner as well as respondent No.1. Directions contained in the penultimate paragraph and paragraph No.13 are totally anomalous to each other and cannot be read together for the purpose of adjudication of the claim viz-a-viz the appellant – petitioner as well as respondent No.1. It is intriguing that the respondent No.1 despite the order dated 26.04.2021 passed in her favour according appointment with effect from 01.09.2016, was never assailed. Meaning thereby respondent No.1 accepted the appointment to be from 2016 and not from 2012. 28. It is also worth mentioning that despite the order dated 26.04.2021 passed in favour of respondent No.1 has been quashed, there is no such challenge. It is worthwhile to mention here at this point of time, we deem it appropriate to extract the Government Order dated 25.07.2012 and 20.09.2012. 25.07.2012 ORDER As per the GO read above, Government have approved the guidelines developed by SCERT to conduct the Teachers Eligibility Test in the state modification/exemption to the GO read above, Government are pleased to hereby order following:- 1) The teachers who are appointed against regular vacancies on or before 31.3.2012 are exempted from acquiring K-TET. 2) Claimants under Rule 51(A) and Rule 51(B) Chapter XIV A KER as on the date of this GO are exempted from acquiring K-TET. 3) The teachers appointed on daily wages against additional division vacancies during the academic year 2011-2012 will be exempted from acquiring K-TET provided they are found to be otherwise eligible for approval and the vacancies to they were appointed are properly established on completion of UID based fixation. 4) The teachers who are appointed against regular vacancies in 2012-13 will be approval w.e.f 1.6.2012 if they produce K-TET Pass Certificate. 5) M.Ed holders shall stand exempted from Kerala Teacher Eligibility Test. 6) The word ‘State Eligibility Test' in the para (2) of the GO read above shall be corrected and read as 'Kerala Teacher Eligibility Test' 20.09.2012 ORDER Government had approved the guidelines developed by SCERT to conduct K-TET in the state vide the GO read as 1st paper above. As per the GO read as 2nd paper above. the teachers who were appointed against regular vacancies on or before 31.03.2012 have been exempted from acquiring K-TET qualification. As per the GO read as 2nd paper above. the teachers who were appointed against regular vacancies on or before 31.03.2012 have been exempted from acquiring K-TET qualification. Also Claimants under Rule 51A & 51B Chapter XIVA KER as on 04.07.2012 were exempted from acquiring K-TET.Government have also ordered that the teachers appointed on daily wages against additional division vacancies during the academic year 2011-2012 will be exempted from acquiring K-TET provided they are found to be otherwise eligible for approval and the vacancies to which they are appointed are properly established on completion of UID based Staff Fixation. Presently appointments made in 20122013 and appointment to Leave Without A owance vacancies require K-TET qualification. Vide Letter read as 3 rd paper above, Government of India have informed that only those candidates who qualify the TET may be considered for appointment as a school teacher. In these circumstances, Government are now pleased to clarify that all appointments made in 2012-2013 will be given approval without insisting K-TET qualification on condition that such appointees should acquire K-TET within a period of 5 years from the date of their joining duty. It is also clarified that even if appointment approval are given to Leave Without Allowance vacancies exceeding 8 months, which entitle the appointee to a 51A Claim they will be treated as 51A claimants only if they acquire K-TET qualification.’ 29. On comparison of the aforementioned Government Orders, it is evident that the one time exemption was granted only for the academic year 2012- 2013 and not for infinite period or subsequent academic years keeping in view of the provisions of Section 23 of the Act of 35 of 2009 and clarified two months thereafter, mandating all the aspirants seeking appointment to the U.P.S.A to undergo K-TET qualifications with a span of five(5) years. The conceded position on record of respondent No.1 is that so far, not undertaken the K-TET qualifications and cannot, in our considered view, take the aid of the Rule 51A, Chapter XIVA KER, preferential right for appointment without undertaking the K-TET qualifications, which is not only against the Government Orders but also statutory provisions of Section 23, as the power to grant exemption only vest with the Central Government. All WA NO. 1796 OF 2023 these factors, with great respect, have totally been omitted and not noticed by the Single Bench. All WA NO. 1796 OF 2023 these factors, with great respect, have totally been omitted and not noticed by the Single Bench. Thus, we are of the view that the directions, particularly direction ‘D’ and other directions could not have been issued, for the reason that while drawing the facts, factum of dismissal of the SLP preferred against the judgment dated 25.05.2020 rendered in Writ Petition No.25712 of 2016 was noticed but while rendering the findings, learned Single Judge remained oblivious of the same. Subsequent events which have arisen during the pendency of the appeal and after the disposal of the writ petition have been noticed by us i.e., the order dated 26.04.2021 appointing respondent No.1 and termination of the services of the appellant vide order dated 02.8.2023. 30. The argument of Mr.Ganesh for consideration of the Rules prevailing at the time of accrual of vacancy does not merit acceptance in view of paragraph No.30 of the judgment cited (supra). As an upshot of finding, the order dated 26.04.2021 appointing respondent No.1 as well as rejection of the claim of the appellant – petitioner are quashed. Judgment is set aside. Accordingly, writ appeal is allowed, consequently WP(C)No. 11734 of 2021 is allowed. Respondent A.E.O. is directed to approve the appointment of the appellant within a period of one month from the date of receipt of the certified copy of the judgment.