JUDGMENT : W.P.(C) No.39920/2017 has been filed challenging the order of the District Educational Officer, declining approval of promotion of the petitioner as HSA (English) and declaring the entitlement of the 6th respondent therein for promotion. W.P.(C) No.37899/2017 has been filed by the said 6th respondent, seeking implementation of the order. 2. For the sake of convenience, the petitioner in W.P.(C) No.39920/2017 is referred to as the petitioner and the petitioner in W.P.(C) No.37899/2017 is referred to as the sixth respondent. Rule 43 and Rule 51A, hereinafter referred to are, even if not specifically mentioned, those contained in Chapter XIVA of the Kerala Education Rules, 1959. 3. The petitioner was appointed as UPSA (English) in a regular vacancy at Samooham High School, North Paravur, from 26.11.2011 onwards. The appointment was duly approved by the authorities. On 03.06.2013, the petitioner was promoted as HSA (English) in a retirement vacancy. However, the approval was not granted by the authorities. On the revision petition by the Manager before the second respondent Director of Public Instructions, the District Educational Officer(DEO) was directed to re-consider the issue. The DEO held that the promotion of the petitioner was effected overlooking the claim of the sixth respondent, who is a claimant under Rule 43 of Chapter XIV-A K.E.R. Accordingly, the approval was rejected. The order was affirmed by the Deputy Director. Challenging the same, the petitioner approached this Court in W.P.(C) No.27544/2017. This Court interfered with the orders and directed the DEO to pass fresh orders. Thereafter, he passed Ext.P13 order holding that the sixth respondent is the rightful claimant for promotion under Rule 51A and Rule 43 of Chapter XIVA KER. The approval of appointment of the petitioner was thus rejected. The petitioner challenges the order, while the sixth respondent seeks implementation of the same. 4. I have heard the learned counsel for the petitioner Sri.M.A.Fayaz and Sri.N.K.Subramanian, the learned counsel for the 6th respondent and also Sri.Bijoy Chandran, the learned Senior Government Pleader. 5. Before proceeding to discuss the issues involved, it is necessary to place on record the appointment details of the sixth respondent, who, the authorities held to be having claim in precedence to the petitioner. The 6th respondent while working as UPSA was promoted as HSA (English), from 16.07.2003 to 30.06.2005. Thereafter she was reverted as UPSA. 5. Before proceeding to discuss the issues involved, it is necessary to place on record the appointment details of the sixth respondent, who, the authorities held to be having claim in precedence to the petitioner. The 6th respondent while working as UPSA was promoted as HSA (English), from 16.07.2003 to 30.06.2005. Thereafter she was reverted as UPSA. She stakes claim for the vacancy of HSA (English), as a claimant under Rule 43 and Rule 51A of Chapter XIVA K.E.R. 6. The points to be answered are :- (i) Is the sixth respondent entitled for promotion as a Rule 43 claimant? (ii) Is the sixth respondent a Rule 51A claimant? Chapter XIVA Rule 43 provides for promotion of qualified hands in the lower grade, according to seniority. Chapter XXXI Rule 2(x)(i)&(ii) stipulates the qualification for a HSA(English) thus :- “(i) A Degree in English language and literature; or a Degree in Functional English/Communicative English and (ii) B.Ed/B.T./L.T. with English as optional subject, conferred or recognised by the Universities in Kerala.” Therefore, an HSA(English) is to acquire, B.Ed/BT/LT with English as optional subject. It is only such qualified hands in the lower grade that are entitled for promotion. It is not in dispute that, while the petitioner possesses the required qualification of B.Ed in English, the sixth respondent does not possess the same. 7. The contention of the learned counsel for the sixth respondent is that, in view of the earlier promotion granted to her as HSA (English) in the leave vacancy, she became qualified in terms of Rule 43. 8. It is to be noted that, when the earlier promotion of the 6th respondent was effected in the leave vacancy, Chapter XXI Rule 2(x)(iii), as it then existed provided that, in the absence of candidates which possess B.Ed in English, candidates with B.Ed in any other subject could be considered. The said clause (iii) was omitted with effect from 05.01.2009. 9. According to the petitioner, having been qualified as on the date of the earlier promotion, any subsequent change of qualification cannot take away her acquired right. 10. I am afraid that the argument of the learned counsel has no force. Note-2 to Rule 43 of Chapter XIV-A reads “promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of the vacancy”. 10. I am afraid that the argument of the learned counsel has no force. Note-2 to Rule 43 of Chapter XIV-A reads “promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of the vacancy”. So it is the time of occurrence of the vacancy that is relevant. The vacancy in question arose in the year 2013. As noticed above, the Rule 2(x)(iii) was omitted with effected from 05.01.2009. Hence, as on the date of occurrence of the vacancy, B.Ed/BT/LT with English as optional subject was the mandatory qualification. The Apex Court in Jenany v. Rajeevan 2010(2) KLT 630 (S.C) held that, promotions are to be made from persons possessing the prescribed qualification at the time of occurrence of the vacancy, and that Note-2 to Rule XLIII Chapter XIV-A is clear, unambiguous and leaves no account of doubt that the relevant date would be, when the vacancy occurs. [See also Smitha Johny v. Josny Varghese & Ors ILR 2010 4 Ker. 533, Varghese & Ors. v. State of Kerala & Ors. 1981 KLT 458 (FB), Padmanabhan Nair v. Dy. Director 1991 1 KLT 337 (FB), Gopinathan Unnithan v. State of Kerala 1991 2 KLT 112 ]. The earlier temporary promotion granted in the leave vacancy does not qualify the petitioner with any rights under Rule 43. 11. The next contention of the petitioner is founded on the second proviso to Rule 2(x) of Chapter XXXI. It carves out an exception to the general qualification mandate of, possessing B.Ed in English, to teachers who became Rule 51A claimants before 05.01.2009. The proviso reads thus :- “Provided further that in respect of the teachers, who became claimants under Rule 51A Chapter XIV-A, before the 5th day of January, 2009 for appointment to the vacancies of HSA (English), in the absence of B.Ed//BT/LT with English as optional subjects, B.Ed./BT/LT in any other subjects conferred or recognized by Universities in Kerala shall be considered.” Therefore in such cases, B.Ed in any subject would suffice. 12. It is the case of the sixth respondent that, on her appointment to the promotion post of HSA in the leave vacancy on 16.07.2003, she became a Rule 51A claimant. Since she holds a B.Ed degree, though not in English. In terms of the proviso above, she is a qualified hand under Rule 43 of Chapter XIVA. 13. 12. It is the case of the sixth respondent that, on her appointment to the promotion post of HSA in the leave vacancy on 16.07.2003, she became a Rule 51A claimant. Since she holds a B.Ed degree, though not in English. In terms of the proviso above, she is a qualified hand under Rule 43 of Chapter XIVA. 13. Then the question is, whether the sixth respondent who was promoted from the post of UPSA, as HSA (English), in a leave vacancy, becomes a Rule 51A claimant. 14. Rule 51A being of relevance is extracted hereunder :- “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.” To get the status of a Rule 51A claimant, the teacher must have been relieved as per Rule 49 from a vacancy which is not permanent, or under Rule 52 on account of reduction in the number of post, or on account of termination of vacancy. Such teachers secure a right of preference for appointment to future vacancies that may arise in the school, in the same, higher, or lower category of teaching post for which he is qualified. However, they give way to a claimant under Rule 43 if any, for promotion. 15. The benefit of Rule 51A accrues to a teacher who is relieved in the contingencies mentioned earlier. Whether the term “relieved” occurring in Rule 51A refer to relieving from the post, or does it denote relieving from the school? 16. Rule 51A, as amended on 25.06.2005 provides that, such claimants shall have preference for appointment to the future vacancies in the same, higher, or lower category posts, based on qualification. So, even an appointment to a lower category will satisfy the claim under Rule 51A. It implies that, what is contemplated is to give appointment to a teacher, in the school from which the teacher was relieved under the contingencies mentioned in the Rule. So, even an appointment to a lower category will satisfy the claim under Rule 51A. It implies that, what is contemplated is to give appointment to a teacher, in the school from which the teacher was relieved under the contingencies mentioned in the Rule. It is not a lien to a post that the teacher had occupied earlier or a right to get appointment to a post in that category but, for appointment to a post in the school, which could even be in a lower category. Thus understood, the word “relieved” occurring in Rule 51A means, “relieved from the school”. 17. There is yet another indication in the Rule which fortifies the above view. Note 1A to Rule 51A was inserted on 25.06.2005. The Note reads, “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”. The words “such teachers thrown out from service” also indicate that, the term “relieved” used in Rule 51A refers to relieving from the school and not merely the post. 18. The sixth respondent, on termination of the leave vacancy, was reverted as UPSA. She was not relieved from the school. Her reversion was in accordance with the second proviso to Rule 43 which provides that, when a teacher promoted under Rule 43 faces retrenchment for want of vacancy, he shall be reverted to the category of post from which he has been promoted. However, if she was “relieved” from service, which I have presently noted to be understood as thrown out from the service of the school, she gets the preference to be accommodated in any vacancy that may arise in the same, higher or lower category in the school, based on qualification. In such case, the subsequent appointment in the lower category post also would have satisfied the claim under Rule 51A. This further bolsters the conclusion that, the term, “relieved” occurring in Rule 51A is to be understood as relieving from the school and not merely from the post. In such case, the subsequent appointment in the lower category post also would have satisfied the claim under Rule 51A. This further bolsters the conclusion that, the term, “relieved” occurring in Rule 51A is to be understood as relieving from the school and not merely from the post. In Mini Antony v. District Educational Officer [ 2012 (1) KLT 927 ], and Fasalu Rahiman v. manager, B.T.M. Higher Secondary School [ 2013 (3) KHC 675 ], this Court held that, a claim under Rule 51A would be available only if, on account of termination of vacancy, the teacher is relieved from the school, and if he continues in the school, the question of claiming rights under Rule 51A would not arise. The words, “in the same or higher or lower category” indicates that the claim is only for a post in the school according to the teacher's qualification, and not a claim for a post in the same category. Therefore, the claim is only for a post in the school. A person who continues in the school after termination of the leave vacancy cannot have any further right to claim. Therefore, such a teacher cannot be a claimant under Rule 51A. 19. The learned counsel for the 6th respondent relied on a judgment of the Division Bench of this Court in, Sandhya v. Jalaja Kumari [ 2008(3) KLT 655 ] to buttress his contention that, a Rule 43 claim can co-exist with Rule 51A claim, in a teacher. When it is held that a claim for promotion under Rule 43 can co-exist with a Rule 51A claim, it implies that, even a teacher working in the school in a lower category can acquire a Rule 51A claim in a higher post in the same school, it is argued. 20. The judgment in Sandhya's case above was placed before a Full Bench on a reference, in Sumangala Devi v. Binu 2022 (3) KLT 800 (FB). 20. The judgment in Sandhya's case above was placed before a Full Bench on a reference, in Sumangala Devi v. Binu 2022 (3) KLT 800 (FB). Certain observations in the judgment of the Full Bench are of significance, and are as follows :- “….Her reversion to the post of LG Hindi teacher was in accordance with the 2nd proviso to Rule 43 of Chapter XIV-A KER and hence she was never retrenched from the school for the purposes of claiming any right under Rule 51A of Chapter XIV-A KER…...” “….Smt.Binu P.N. was never relieved from the school but accommodated in a teaching post in a lower category consequent to her right under the 2nd proviso to Rule 43. In that view of the matter, she never really obtained a right under Rule 51A at the time of her reversion from the post of HSA (Hindi) on 15.07.2003…..” “….In the instant case, as already noted, Smt.Binu P.N. never obtained a right under Rule 51A since she was never “relieved” from the school but accommodated in a teaching post in a lower category where she continued till 2011.” The Full Bench was of the view that, since the teacher therein was never relieved from the school, a right under Rule 51A did not vest with her. The Full Bench took note of the amendment to Rule 51A effected in the year 2005. It was also held that, the teacher therein was, consequent on her right under second proviso to Rule 43, accommodated in a teaching post in a lower category which has to be seen as an effectuation of the right under Rule 51A if at all she had obtained any such right. The full bench held that Sandhya's case was decided on the peculiar facts in that case. The 6th respondent having continued in the school in a post in a lower category (UPSA) after termination of the post of HSA is not entitled for a claim under Rule 51A. 21. The learned counsel for the sixth respondent would place a further argument that, the amendment to Rule 51A, providing for appointment in the same, higher or lower category, was brought in only on 25.06.2005. The sixth respondent was appointed in the leave vacancy from 16.07.2003. Hence the right of a Rule 51A claimant became vested with her. 21. The learned counsel for the sixth respondent would place a further argument that, the amendment to Rule 51A, providing for appointment in the same, higher or lower category, was brought in only on 25.06.2005. The sixth respondent was appointed in the leave vacancy from 16.07.2003. Hence the right of a Rule 51A claimant became vested with her. The subsequent amendment to Rule 51A would not extinguish her vested right for a claim to a post in the very same category in which she had worked, it is urged. 22. I am afraid that the argument of the learned counsel for the sixth respondent has no substance. Even taking it to be that, prior to the amendment, the teacher had a claim to a post in the very same category, for such claim to accrue, the teacher must have been relieved as per Rule 49, or 52, or on account of termination of vacancy. In the case at hand, the sixth respondent was relieved from the leave vacancy on 30.06.2005 i.e. after the amendment came into force. Therefore, as on the date when the sixth respondent was relieved, the amended provision was in force. Therefore, the argument has to fail. 23. Even if the sixth respondent was relieved prior to the amendment, the Apex Court in Manager, VKNM Vocational Higher Secondary School v. State of Kerala and Others 2016 (1) KHC 430 held that, a Rule 51A claim existing prior to the amendment of Rule 7A(3) would have no effect after the amendment. The Apex Court, in the context of the period of service required for the claim, held that, Rule 51A claim existing prior to amendment of Rule 7A(3) would not have any effect if the claim is not in consonance with the amended Rule in force when the vacancy arose. The Apex Court held :- “It cannot be held that the law that prevailed, namely, the right which was available under the unamended R.7A(3) alone would remain and not the law that prevailed at the time when the 5th respondent staked her claim for preferential appointment i.e. when the vacancy arose in the year 2010.” Therefore, the said contention also fails. 24. Therefore, it is concluded that, (i) That the sixth respondent who was not relieved from the school but was reverted back as UPSA did not acquire the right under Rule 51A. 24. Therefore, it is concluded that, (i) That the sixth respondent who was not relieved from the school but was reverted back as UPSA did not acquire the right under Rule 51A. (ii) If at all she was treated as a Rule 51A claimant, her right got effectuated by her reversion to the post of UPSA. The claim did not survive. (iii) The claim of the sixth respondent that, she is entitled for the benefit of the second proviso to Rule 2(x) of Chapter XXXI regarding qualification, thus making her qualified for promotion under Rule 43, cannot be sustained. 25. Thus, the claim of the sixth respondent banking upon Rule 43 and 51A of Chapter XIVA, fails. The petitioner who is the qualified and senior most UPSA is eligible for promotion as HSA (English). In the light of the above, the 4th respondent is to pass fresh orders on the claim of the petitioner for approval of her promotion as HSA English with effect from 03.06.2013. Resultantly, W.P.(C) No.39920/2017 is allowed. Ext.P13 order of the 4th respondent is quashed. It is declared that the sixth respondent is not qualified to be considered for promotion as on the date of occurrence of the vacancy. The 4th respondent shall pass fresh orders with regard to approval of promotion of the petitioner in the light of the findings in the judgment, as expeditiously as possible and at any rate within a period of one month from the date of receipt of a copy of this judgment. W.P.(C) No.37899 of 2017 fails and is dismissed.