The brief facts of the case necessary to be numbered for deciding the issue are 3.1 The respondent No.5 is an aided institution.
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 order of the Regional Deputy Director and Director of Education was upheld and that of the State Government was set aside.
Both the posts of Higher Secondary School Teacher were filled up by direct recruitment by the management.
In 2012 2013, a new companymerce 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.
Aggrieved by the judgment of the Division Bench, the appellant has filed this appeal.
Consequent to the upgradation, 13 new posts of Higher Secondary School Teacher Junior were created.
The companyplaint of respondent No.1 was rejected by Deputy Director of Education vide his order dated 22.02.2014.
The order of the State Government was challenged by appellant before the High Court by filing a Writ Petition NO.
The Division Bench relied on an earlier Division Bench judgment in Ajithakumari Vs.
1504 of 2015 by which judgment the Writ Appeal filed by the respondent was allowed, reversing the judgment of learned Single Judge.
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.
An appeal was filed by the respondent No.1 to the Director of Education, which too was dismissed on 07.07.2014.
The respondent No.1 aggrieved by the judgment of learned Single Judge filed a Writ Appeal before the Division Bench.
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.
The Division Bench took the view that Rule 5 of Kerala State and Subordinate Service Rules, 1958 hereinafter referred to as KSS Rules has numberapplication and the vacancy of Higher Secondary School Teacher was to be filled up by transfer.
30707 of 2014.
The school was upgraded as Higher Secondary School in the year 2011 2012.
The appellant was appointed on 26.08.2013 as Higher Secondary School Teacher Economics by direct recruitment.
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.
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.
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.
Shamma, 2009 1 KLT 808, which according to Division Bench companyered the issue.
3.2 The respondent No.1, who was working as Higher Secondary School Assistant in the School, filed a companyplaint to the Regional Deputy Director of Education questioning the direct recruitment of the appellant.
The learned Single Judge has allowed the Writ Petition filed by the appellant, Signature Not Verified setting aside the order of the State Digitally signed by ASHWANI KUMAR Government Date 2018.12.04 171643 IST Reason which had directed for appointment of respondent Reshma Parayil.
Respondent No.1 was serving as Upper Primary Assistant in the school.
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 number on the basis that the first vacancy should be filled up by transfer.
ASHOK BHUSHAN,J. Leave granted.
This appeal has been filed against the Division Bench judgment of Kerala High Court dated 17.08.2016 in Writ Appeal No.
