Ashok Bhushan, J. - (1.) Leave granted.
(2.) This appeal has been filed against the Division Bench judgment of Kerala High Court dated 17.08.2016 in Writ Appeal No. 1504 of 2015 by which judgment the Writ Appeal filed by the respondent was allowed, reversing the judgment of learned Single Judge. The learned Single Judge has allowed the Writ Petition filed by the appellant, setting aside the order of the State Government which had directed for appointment of respondent Reshma Parayil.
(3.) The brief facts of the case necessary to be noted for deciding the issue are:- 3.1 The respondent No.5 is an aided institution. Respondent No.1 was serving as Upper Primary Assistant in the school. The school was upgraded as Higher Secondary School in the year 2011-2012. Consequent to the upgradation, 13 new posts of Higher Secondary School Teacher (Junior) were created. Out of 13 posts 4 posts of Higher Secondary School Assistant (Junior) were filled up by transfer of Higher Secondary School Assistant and 9 posts were filled up by direct recruitment. In 2012-2013, a new commerce batch with economics was allotted vide Government order dated 15.07.2013 by virtue of which two posts of Higher Secondary School Teacher (Junior) and two posts of Higher Secondary School Teacher (Commerce and Economics)were created. Both the posts of Higher Secondary School Teacher were filled up by direct recruitment by the management. The appellant was appointed on 26.08.2013 as Higher Secondary School Teacher (Economics) by direct recruitment. 3.2 The respondent No.1, who was working as Higher Secondary School Assistant in the School, filed a complaint to the Regional Deputy Director of Education questioning the direct recruitment of the appellant. Respondent No.1 claimed that she being Higher Secondary School Assistant available in the school, the post of Higher Secondary School Teacher (Economics) was required to be filled up by transfer of respondent No.1. The complaint of respondent No.1 was rejected by Deputy Director of Education vide his order dated 22.02.2014. An appeal was filed by the respondent No.1 to the Director of Education, which too was dismissed on 07.07.2014. 3.3 Respondent No.1 filed a revision before the State Government, which revision petition was allowed by the State Government vide order dated 01.11.2014. The State Government held that the post of Higher Secondary School Teacher (Economics) was required to be filled up by transfer of Reshma Parayil (the respondent herein). The State Government set aside the order of Deputy Director of Education and directed the management to fill up the post of Higher Secondary School Teacher (Economics) by transfer of respondent No.1, if she is otherwise eligible. The order of the State Government was challenged by appellant before the High Court by filing a Writ Petition NO. 30707 of 2014. Learned Single Judge relying on Rule 5(3) of the Kerala State & Subordinate Services Rules, 1958 took the view that vacancy has to be filled up on the basis of cadre strength and not on the basis that the first vacancy should be filled up by transfer. The order of the Regional Deputy Director and Director of Education was upheld and that of the State Government was set aside. The respondent No.1 aggrieved by the judgment of learned Single Judge filed a Writ Appeal before the Division Bench. 3.4 The Division Bench vide its judgment dated 17.08.2016 has allowed the Writ Appeal and set aside the judgment of the learned Single Judge. The Division Bench relied on an earlier Division Bench judgment in Ajithakumari Vs. Shamma,2009 1 KerLT 808, which according to Division Bench covered the issue. The Division Bench took the view that Rule 5 of Kerala State and Subordinate Service Rules, 1958 (hereinafter referred to as 'KSS Rules) has no application and the vacancy of Higher Secondary School Teacher was to be filled up by transfer. Aggrieved by the judgment of the Division Bench, the appellant has filed this appeal.;