JUDGMENT : T.R.RAVI, J. Heard Sri V.A.Muhammed, counsel for the petitioner in W.P.(C)No.16740 of 2023 and for the 6 th respondent in W.P.(C)No.20223 of 2023, Sri T.R. Rajesh for the petitioner in W.P.(C)No.20223 of 2023, Sri Poovamulle Parambil Abdul Kareem for respondents 4 and 5 in W.P. (C)No.16740 of 2022 and for respondents 3 and 4 in W.P.(C)No.20223 of 2023, Sri Venugopal, Government Pleader for official respondents/State. W.P.(C) No.16470 of 2022 2. The petitioner was appointed as a UPSA in the 4 th respondent School with effect from 19.08.1996. She was promoted as HSA (English) with effect from 02.06.2008. She is a Post Graduate in English with more than 50% marks, B.Ed. in English, and is also SET qualified, which makes her eligible for appointment to the post of HSST (English). 3. Chapter 32 of the KERALA EDUCATION RULES (hereinafter referred to as 'KER') deals with the appointment of Teachers in the Higher Secondary Section. As per Rule 3 of Chapter 32 KER, the HSST and HSST Junior posts are categorised as categories 2 and 3, respectively. The method of appointment is dealt with in Rule 4. An HSST is to be appointed by transfer from among the Junior Lecturers in the subject concerned under the management/HSST Junior. In the absence of qualified hands in the above category, the vacancy is to be filled up by “by transfer” appointment and direct appointment in the ratio of 1:3. By transfer appointment is to be from among High School Assistants who possess the requisite qualifications under the educational agency and in the absence of High School Assistants, from among qualified UPSA/LPSA who possesses the requisite qualification in the subject concerned under the educational agency. The note to Serial No.2 in the table in Rule 4 says that when qualified persons are not available to fill up the vacancies set apart for appointment by transfer from among High School Assistants/ UPSA/LPSA, such vacancies are also to be allotted for direct recruitment. 4. A retirement vacancy of HSST English occurred in the school on 01.06.2020. No HSST Junior English was available for promotion. The petitioner contends that the vacancy was to be filled up by a “by transfer” appointment of a qualified HSA. A second vacancy of HSST English occurred on 01.06.2021. 4. A retirement vacancy of HSST English occurred in the school on 01.06.2020. No HSST Junior English was available for promotion. The petitioner contends that the vacancy was to be filled up by a “by transfer” appointment of a qualified HSA. A second vacancy of HSST English occurred on 01.06.2021. Due to the ban on appointments owing to the COVID-19 pandemic, no appointments were made towards the above-mentioned vacancies at the time when the vacancies arose. The seniormost HSA English who was eligible to be appointed by transfer as HSST English was appointed as HSST English in 2021, towards the vacancy which arose on 01.06.2020. However, instead of filling up the vacancy that arose on 01.06.2021 consequent to the retirement of Smt.K.Jaya, HSST English, the Manager notified the post for direct appointment, by treating both the vacancies as having arisen in 2021. The petitioner contends that the two vacancies could not have been clubbed together as vacancies that arose in 2021. 5. The petitioner submitted Ext.P1 representation before the3 rd respondent, claiming appointment to the vacancy that arose in2021. The request was rejected stating that as per Circular No.3257/2021 dated 06.07.2021, the Director has directed to effect appointment against existing vacancies only on 15.07.2021, treating the same as one single unit, and hence, only one vacancy can be filled up under the transfer method and the next vacancy will have to be filled up by direct recruitment. The petitioner preferred Ext.P3 revision before the Government, which has been rejected as per Ext.P4 order dated 07.04.2022. Ext.P4 order has been challenged in this writ petition. 6. The petitioner has produced a letter dated 09.04.2019 (Ext.P5) whereby the Government had informed the Director that the ratio of 1:3 must be applied based on the number of vacancies and not based on the cadre strength. The reasoning in Ext.P4 is that, even though the vacancies in the particular year has to be taken into account for applying the ratio of 1:3, in view of the direction not to fill up the vacancies which occurred in 2020-2021, the 2 vacancies will have to be treated as vacancies existing on 15.07.2021 and the ratio of 1:3 will have to be applied on the said vacancies. The order refers to a decision of the Hon'ble Supreme Court in Girija V. Reshma Parayil & Ors. The order refers to a decision of the Hon'ble Supreme Court in Girija V. Reshma Parayil & Ors. [ (2019) 2 SCC 347 ], which had been rendered by interpreting Rule 4 of Chapter XXXII KER. The petitioner contends that if the dictum laid down by the Hon'ble Supreme Court is followed, the conclusion drawn in Ext.P4 could not have been made. 7. In Girija (supra) , the question that the Hon’ble Supreme Court considered was whether the post of HSST (Economics), newly sanctioned in the school in the year 2012-13 was required to be filled up by direct recruitment taking the cadre strength of the HSST or the same was required to be filled up by transfer. Paragraphs 14 to 16 of the judgment of the Hon'ble Supreme Court in Girija (supra) are extracted below: “ 14. We may now first look into the statutory Scheme as delineated by Rule 4 of KERALA EDUCATION RULES . The first issue is as to whether for filling up the post of Higher Secondary School Teacher, the vacancy has to be allocated as per the cadre strength. A perusal of the Rule 4(2) contemplates that post of Higher Secondary School Teacher is to be filled up first “by transfer from Junior Lecturer in the subject concerned under the management / Higher Secondary School Teacher (Junior)”. Thus, every vacancy of Higher Secondary School Teacher has to be filled up first by the transfer of Higher Secondary School Teacher (Junior) in the subject concerned. There is a purpose and object for providing a particular Scheme for filling up the post of Higher Secondary School Teacher. Higher Secondary School Teacher (Junior) is also lecturer in concerned subject and the Statute required that whenever post in Higher Secondary School Teacher arises, the same shall be first offered to the Junior Lecturer in the subject. Above statutory Scheme serves the interests of the School, students and the teachers already serving in the institution. A Junior Lecturer working in the same subject is first choice to fill up the post, which obviates the management to take any other steps for recruitment. The second method of recruitment under Rule 4(2) begins with the word “in the absence of qualified hands under clause (1) above”. A Junior Lecturer working in the same subject is first choice to fill up the post, which obviates the management to take any other steps for recruitment. The second method of recruitment under Rule 4(2) begins with the word “in the absence of qualified hands under clause (1) above”. Thus, recruitment under Clause (2) shall be resorted only when no qualified hands under clause (1), i.e. Junior Lecturer in the concerned subject is not available. Further, the second phrase of Rule 4(2) begins with the word “the vacancies shall be apportioned in the ratio 1:3 between appointment by transfer and direct recruitment”. The clear intendment is that vacancy arising in Higher Secondary School Teacher has to be apportioned in ratio of 1:3. There is no concept of looking to the cadre of the post of Higher Secondary School Teacher while apportioning the vacancy under Rule 4(2), the cadre strength is not to be looked into in view of the method of recruitment provided under Rule 4(2), i.e. of vacancies of Higher Secondary School Teacher is filled up first by transfer of Junior Lecturer. 15. A plain reading of the above Statutory Provision clearly indicates that for apportioning the vacancy, the cadre strength of the Higher Secondary School Teacher is not to be looked into to find out as to which vacancy will go to transfer or direct recruitment. Now coming to the facts of the present case, in the year 2012-2013, two new posts were created in Higher Secondary School Teacher, i.e. Commerce and Economics, both were the new vacancies and no Junior Lecturers, i.e. Higher Secondary School Teacher (Junior) qualified in the subject being available, Rule 4(2) has to be resorted to. The ratio mentioned is 1:3, which means that first vacancy is to be filled up by transfer. Resorting to cadre strength, thus, was not contemplated by plain reading of Rule 4(2). We, thus, do not find any substance in the submission of the counsel for the appellant. 16. Above interpretation of Rule 4(2) is reinforced by looking to Rule 4(3), which deals with recruitment of Higher Secondary School Teacher (Junior). Higher Secondary School Teacher(Junior) is also to be filled up by transfer from qualified High School Assistant in the subjects concerned. In absence of qualified hands, by transfer from qualified Upper Primary School Assistants/ Lower Primary School Assistants in the subjects concerned under the Educational Agency. Higher Secondary School Teacher(Junior) is also to be filled up by transfer from qualified High School Assistant in the subjects concerned. In absence of qualified hands, by transfer from qualified Upper Primary School Assistants/ Lower Primary School Assistants in the subjects concerned under the Educational Agency. For filling up the posts in the subjects concerned, the direct recruitment is also provided as one mode of recruitment. Note 1, which is very relevant, provides “25% of the total posts shall be filled up by the method specified in item (I) above on seniority-cum- suitability basis and 75% of such post shall be filled up by direct appointment”. Here, Note 1, uses two expressions “total posts” and “such posts”. Thus, computation of 25% and 75% is to be based on that total posts of Higher Secondary School Teacher (Junior). The language used in Note 1 when read in contradiction to Rule 4(2)(ii), the intention is clear that whereas for appointment in Higher Secondary School Teacher, the vacancy shall be apportioned, whereas for filling up the post of Higher Secondary School Teacher (Junior), “total posts”are to be apportioned on the basis of cadre strength.” 8. The judgment in Girija (supra) was followed by this Court in Ext.P7 judgment in WP(C) No.7009/2021. There is no dispute regarding the above legal position. However, in Ext.P4, a distinction is drawn, since, as per G.O.(MS) No.28/2021/G.Edn. dated 21.02.2021, the Government had ordered that the staff fixation order for the year 2019-2020 is to be followed for the year 2020-2021 also. The said staff fixation was also followed during 2021-2022. The question, therefore, is whether the staff fixation order and the fact that the appointment was permitted only to be made from 15.07.2021 could have the effect of postponing the dates of occurrence of the vacancy from 01.06.2020 and 01.06.2021 to a later date. 9. It is contended that the right to be considered for appointment is to be decided based on the date on which the vacancy arose. [See Varghese & Ors. V. State of Kerala & Ors. [1981 KLT 458 (F.B.)] and Padmanabhan Nair V. Deputy Director [ 1991 (1) KLT 337 (F.B.)] . 9. It is contended that the right to be considered for appointment is to be decided based on the date on which the vacancy arose. [See Varghese & Ors. V. State of Kerala & Ors. [1981 KLT 458 (F.B.)] and Padmanabhan Nair V. Deputy Director [ 1991 (1) KLT 337 (F.B.)] . The decision in Manju v. State of Kerala [ILR 2005 (1) Kerala 410] (Ext.P.10), is relied on to submit that in cases where vacancy occurs immediately on the vacation of an office of an incumbent who superannuates on the closing date, the statutory interdiction not to fill up the vacancy till the re-opening date, does not envisage the postponement of the date of occurrence of a vacancy. It is submitted that the date of occurrence of vacancy and the date of appointment are two different aspects, and the mere fact that appointments were permitted by the Government with effect from 15.07.2021 would not shift the date of occurrence of vacancy to that date, and that there is hence no necessity that the two dates should coincide. Reliance is also placed on the judgment of this Court in Manager Evans School, Parassala & Anr. v. P.J. Usha Kumari [ 2011 (2) KLT 768 ] wherein reference was made to the judgment of a Full Bench of this Court in Manager MDPS UP School v. Paulose E.A. [ 2010 (2) KLT 29 (FB) . The petitioner also relies on G.O.N(Rt.)No.5157/2023/G.Edn. dated 5.9.2023 and G.O.(Rt.)No. 6138/2023/G.Edn. dated 14.10.2023, wherein the Government had made it clear that the ratio of 1:3 for appointments to the post of HSST must be applied based on the occurrence of the vacancy and not when the appointment was effected. It is pointed out that the vacancies in those cases were also those that occurred in different years, but the appointments were made simultaneously due to the COVID-19 pandemic. 10. The educational authorities have filed a counter affidavit in tune with Ext.P4. The 4 th respondent has filed a counter affidavit wherein it is stated that, as instructed by the official respondents, the first vacancy had been earmarked for appointment by transfer, and the second vacancy was earmarked for appointment by direct recruitment. 10. The educational authorities have filed a counter affidavit in tune with Ext.P4. The 4 th respondent has filed a counter affidavit wherein it is stated that, as instructed by the official respondents, the first vacancy had been earmarked for appointment by transfer, and the second vacancy was earmarked for appointment by direct recruitment. It is submitted that Smt.Navya P.K., who is the petitioner in W.P.(C)No.20223 of 2023, was selected in an interview conducted by the Selection Committee and appointed to the vacancy to be filled up by direct recruitment. It is stated that she has been working as an HSST from 1.6.2022 without any pay and allowances since the appointment is yet to be approved. 11. The 4 th respondent has placed reliance on the judgment of the Hon'ble Supreme Court in the State of Himachal Pradesh & Ors. v. Rajkumar & Ors. [ 2022 (3) KLJ 604 ] to submit that the right to be considered for appointment must be based on the Rule in force as on the date on which the consideration takes place, and if the Government takes a conscious policy decision not to fill up the vacancies, the said policy decision cannot be ignored. Reliance is also placed on the judgment of a Division Bench of this Court in W.A.No.2609 of 2015 [Ext.R4(e)] and the judgment in Manager, Iqbal Higher Secondary School & Anr. v. Saritha P.V. & Ors. [ 2019 (4) KHC 391 ] . The said decision is to the effect that the vacancy position should be after excluding the post of Junior Lecturer/HSST (Jr.). In Manager, Iqbal Higher Secondary School (supra), the Division Bench held that the ratio applicable to HSA and direct recruitment will have application only when an appointment is made and an HSST(Junior) is not available. It can be seen from the facts on which the above judgment is rendered that 15 appointments were made in the Higher Secondary School, 11 HSSTs were promoted from the post of HSST (Jr.), three appointments were made from the cadre of HSA to the post of HSST and the 4 th vacancy as per the ratio of 1:3 was to be conceded for direct recruitment. 12. A reading of the judgment would show that the court had considered the appointments made in previous years to apply the ratio of 1:3 to the vacancies that arose. 12. A reading of the judgment would show that the court had considered the appointments made in previous years to apply the ratio of 1:3 to the vacancies that arose. The Court held that vacancies which were filled up from HSST (Jr.) will have no relevance, and it would apply only to vacancies which were filled up in the absence of HSST (Jr.). The 4 th respondent has produced Ext.R4(g), which shows the details of appointments made from 2000 onwards in the school in the HSST Section. Out of 17 appointments made in the post of HSST, six were “by transfer” appointments and 11 were direct recruitments. However, it is not clear from Ext.R4(g) as to whether the appointments by transfer made to six of the vacancies are from among the HSAs or HSSTs (Jr.). As such, the contention of the 4 th respondent that the 18 th vacancy has to be filled up by direct recruitment cannot be decided based on the available facts. 13. On a reading of the judgments in Girija (supra) and Manager, Iqbal Higher Secondary School (supra) , the question of clubbing of the vacancies of 2020 and 2021 has no relevance. The application of the ratio cannot be on an year to year basis, in which case, the rule itself would not be capable of being given effect to. If there were no HSST (Junior) available when the vacancies arose, then necessarily the apportionment of the vacancies between the by transfer appointment and direct appointment would come into play. The method laid down in Manager, Iqbal Higher Secondary School (supra) will then have to be followed, after ascertaining the vacancies that arose in the previous years which were not filled up by appointment of HSST(Junior). That is to say, the vacancies filled up by appointment of HSST(Junior) are to be deducted from the total vacancies, and the ratio has to be applied to the resultant figure. It is seen that neither Ext.P2 nor Ext.P4 has considered the issue from the correct legal position and has proceeded based on the clubbing together of vacancies of the two years and applying the ratio. 14. In the result, W.P.(C)No. 16740 of 2022 is allowed in part. Exts.P2 and P4 are set aside. It is seen that neither Ext.P2 nor Ext.P4 has considered the issue from the correct legal position and has proceeded based on the clubbing together of vacancies of the two years and applying the ratio. 14. In the result, W.P.(C)No. 16740 of 2022 is allowed in part. Exts.P2 and P4 are set aside. The 3 rd respondent is directed to reconsider the issue based on the law stated above, call for the details regarding the appointments made in the previous years, and pass fresh orders after hearing the petitioner, the 4 th respondent, and the petitioner in W.P.(C)No.20223 of 2023, at the earliest, at any rate within two months from the date of receipt of a copy of this judgment. W.P.(C)No.20223 of 2023 15. The petitioner in this case is the person appointed to the post of HSST (English) by direct appointment, in the 4th respondent school. The prayer is for a declaration that her appointment is in accordance with law and for directions to pass orders on Ext.P7 representation for approval of appointment and payment of salary. In the light of the directions issued in W.P.(C)No. 16740 of 2022, this writ petition is disposed of directing the 3rd respondent to pass consequential orders on Ext.P7 representation, within two weeks from passing orders as directed in W.P.(C)No.16740 of 2022.