JUDGMENT K.K. Narendran, J. 1. A question of considerable importance as far as aided school service is concerned arises for consideration in this Original Petition. The question is whether the rights of Upper Primary School Assistants qualified for the post of Headmaster of an Upper Primary School can be defeated by sanctioning a graduate post of Headmaster for the Upper Primary School. The petitioners in this Original Petition are Upper Primary School Assistants of the Union U. P. School, Kallekad. The grievance of the petitioners is against Ext. P-1 order of the first respondent, Assistant Educational Officer and Ext. P-5 order of the third respondent Regional Deputy Director of Public Instruction sanctioning the post of a graduate Headmaster for the Union U. P. School, Kallekad. The school was originally only a Lower Primary School and it was upgraded into an Upper Primary School in 1964. The first petitioner joined the staff of the Lower Primary School in 1957 while the second petitioner was appointed as a teacher in 1965. Both the petitioners are S.S.L.C., T.T.C. holders and hence have got the minimum qualification for appointment as Headmaster of an Upper Primary School. In March, 1973 the then Headmaster of the school who is none other than the 4th respondent who is the present Manager of the school retired from service and a vacancy in the post of Headmaster of the school arose thereby. But one K. Sankaranarayanan Nair, a H.E.T.T.C. holder was put in charge of the post of Headmaster when the previous Headmaster left the service. Then by Ext. P-1 staff fixation order for the year 1973-74 the first respondent Assistant Educational Officer, Palghat sanctioned for the first time the post of a graduate Headmaster for the school. The petitioner case is that though Ext. P-1 order was issued on 25th June 1973, two days later on 27th June 1973, the 4th respondent Manager obtained under compulsion the signatures of the teachers of the school to a representation stating that they have no objection in appointing a graduate Headmaster in the school. The first petitioner was not a signatory to the above representation dated 27th June 1973. But on 9th July 1973 the very same teachers who signed the representation dated 27th June 1973 submitted Ext. The first petitioner was not a signatory to the above representation dated 27th June 1973. But on 9th July 1973 the very same teachers who signed the representation dated 27th June 1973 submitted Ext. P-2 joint petition to the second respondent District Educational Officer, Palghat stating that they have objection against the appointment of an outsider graduate as Headmaster of the school and further stating that their signatures were obtained in the representation dated 27th June 1973 under compulsion by the 4th. respondent Manager. The petitioners state that there was no graduate on the staff of the school. In Ext. P-2 a request was also made that the seniormost Secondary T.T.C. holder is to be appointed as Headmaster of the school. Copies of Ext. P-2 were submitted to the first and third respondents also. 2. Then on 29th August 1973 the second respondent District Educational Officer, Palghat, by Ext. P-3 order reviewed Ext. P-1 staff fixation made by the first respondent Assistant Educational Officer and cancelled the post of graduate. Headmaster sanctioned by Ext. P-1 and varied Ext, P-1 by sanctioning six posts of Upper Primary School Assistants. In pursuance of Ext. P-3 order, the first respondent Assistant Educational Officer by Ext. P-4 letter dated 19th October 1973 requested the fourth respondent Manager to post the seniormost Secondary T.T.C. holder as Headmaster of the school and report compliance of the same within a week on receipt of the letter. The 4th respondent Manager filed an appeal before the third respondent, Regional Deputy Director of Public Instruction; but the third respondent dismissed that appeal stating that he has no power to entertain an appeal. Thereupon, the fourth respondent Manager filed O. P. No. 4344 of 1973 before this court and this court held that an appeal lies to the third respondent from Ext. P-3 order in review by the 2nd respondent and directed the third respondent Regional Deputy Director of Public Instruction to entertain the fourth respondent appeal and dispose it of on the merits. Thereupon, the third respondent Regional Deputy Director of Public Instruction, after hearing the parties concerned passed Ext. P-5 proceedings dated 3rd July 1974. By Ext. P-5 order, the third respondent Regional Deputy Director of Public Instruction set aside Ext. P-3 order in -review by the second respondent District Educational Officer and sanctioned the post of a graduate Headmaster to the school for the year 1973-74. P-5 proceedings dated 3rd July 1974. By Ext. P-5 order, the third respondent Regional Deputy Director of Public Instruction set aside Ext. P-3 order in -review by the second respondent District Educational Officer and sanctioned the post of a graduate Headmaster to the school for the year 1973-74. The petitioners seek to quash Ext. P-5 order of the third respondent Regional Deputy Director of Public Instruction. 3. On behalf of respondents 1 to 3 a counter-affidavit and a rejoinder affidavit have been filed. The stand taken by respondents 1 to 3 is that in the absence of a relinquishment on the part of qualified Upper Primary School Assistants on the staff of an Upper Primary School no post of a graduate Headmaster can be sanctioned for the school since that will be against rule 45 of Chapter XIV (A) of the Kerala Education Rules, 1959. But in this case since the first petitioner resigned the post of Headmaster in 1962, he cannot now claim the post of Headmaster. As far as the second petitioner is concerned, as he was a signatory to the' representation he cannot claim the post of Headmaster. As far as the other Upper Primary Assistants on the staff and who are qualified, they cannot also claim the post because they are also signatories to the above. representation dated 27th June 1973. 4. The stand taken in the counter-affidavit filed by the fourth respondent Manager is, that the first petitioner cannot claim the post of Headmaster because he resigned the Headmastership in 1962. , Not only that because of his conduct the first petitioner has become disentitled to claim the post of Headmaster. As far as the second petitioner and other members of the staff are concerned, as they have given an undertaking on 27th June 1973, they cannot now turn round and claim the headmastership of the school. Along with the counter -affidavit Ext. R-1 a request of the first petitioner to the fourth respondent Manager to appoint him as Headmaster and Ext. R-2, reply of the 4th respondent are produced. The petitioners have filed two reply affidavits controverting the contentions raised in the counter-affidavit. 5. The learned counsel for the petitioners contends, that at any rate the first petitioner who is not a signatory to the undertaking dated 27th June 1973 cannot be denied the post of Headmaster of the school. R-2, reply of the 4th respondent are produced. The petitioners have filed two reply affidavits controverting the contentions raised in the counter-affidavit. 5. The learned counsel for the petitioners contends, that at any rate the first petitioner who is not a signatory to the undertaking dated 27th June 1973 cannot be denied the post of Headmaster of the school. It is contended that creation of a graduate Headmaster post as long as there is no graduate among the Upper Primary School Assistants of the school qualified for the post of Headmaster is against the provisions of rule 45, Chapter XIV (A) of the Kerala Education Rules, 1959. Under the above rule 45 as long as there are qualified teachers among the Upper Primary School Assistants on the staff of the school no question of appointing an outsider even if he is qualified for the post of a graduate Headmaster, arises at all. The learned counsel points out that the petitioners have not preferred any appeal under rule 44, Chapter XIV (A) of the Rules, because as a matter of fact, no appointment has been made by the fourth respondent. It is also contended that the resignation of the first petitioner as Headmaster of the Lower Primary School before the school was upgraded into an Upper Primary School, cannot in any way be material because it is the post of Headmaster of the Upper Primary School that is claimed by the first petitioner now The fact that the present Manager before his retirement on 31st March 1973 continued as Headmaster of the Upper Primary School cannot also in any way be against the petitioners claiming the post. That will only disentitle the petitioners to claim the post of Headmaster as long as he continued as Headmaster. The learned Government Pleader submits that an appointment of Headmaster of an Upper Primary School cannot be made against the provisions of rule 45, Chapter XIV (A) of the Rules. So the creation of a graduate Headmaster post when there are qualified Upper Primary School Assistants for appointment as Headmaster will also be against their claim under the rules. But the learned Government Pleader points out that in this case the first petitioner since he resigned the post of Headmaster in 1S62, cannot now claim the post. So the creation of a graduate Headmaster post when there are qualified Upper Primary School Assistants for appointment as Headmaster will also be against their claim under the rules. But the learned Government Pleader points out that in this case the first petitioner since he resigned the post of Headmaster in 1S62, cannot now claim the post. As far as the second petitioner and other teachers on the staff of the school are concerned, in view of the undertaking. that they gave on 27th June 1973, they cannot also claim the post of Headmaster. Under the above circumstances, the petitioners cannot successfully resist the creation of a graduate Headmaster post by Exts. P-1 and P-5 orders. The learned counsel for the fourth respondent-Manager also contends that none of the petitioners are entitled to claim the post of Headmaster of the School. As far as the first petitioner is concerned, he resigned the post on a previous occasion. Not only that he is not a fit person to be appointed as Headmaster. As far as the second petitioner and other teachers of the school are concerned they cannot claim the post in view of the undertaking given by them on 27th June 1973. The learned counsel also contends that the creation of graduate Headmaster post by Exts. P-1 and P-5 are perfectly legal and rule 45 of Chapter XIV (A) of the Rules cannot, in any way, stand in the way. Rule 45 of Chapter XIV (A) of the Kerala Education Rules, 1959 reads: Subject to rule 44, when the post of Headmaster of complete U.P. School is vacant or when an incomplete U.P. School becomes a complete U. P. School, the post shall be filled up from among the qualified teachers on the staff of the school or schools under the Educational Agency. If there is a graduate teacher with B. Ed., or other equivalent qualification and who has got at least five years experience in teaching after graduation, he may be appointed as Headmaster provided he has got a service equal to half of the period of service of the seniormost under-graduate teacher. If graduate teachers with the aforesaid qualification and service are not available in the school or schools under the same Educational Agency, the seniormost Primary School Teacher with S.S.L.C. or equivalent and T.T.C. qualification may be appointed. If graduate teachers with the aforesaid qualification and service are not available in the school or schools under the same Educational Agency, the seniormost Primary School Teacher with S.S.L.C. or equivalent and T.T.C. qualification may be appointed. What rule 44 insists is that the appointment of Headmasters shall ordinarily be according to seniority. The seniormost under-graduate teacher (Primary School Teacher with S.S.L.C. or equivalent and T.T.C, qualification) on the staff of the school or schools under the same Educational Agency has to be appointed as Headmaster of the U. P. School. But if there is a trained graduate teacher with at least five years teaching experience after graduation and if he has got service equal to half of the period of service of the seniormost under-graduate teacher he has to be preferred for the post of Headmaster. So it goes without saying that a trained graduate who is not on the staff of the school or schools under the management cannot be appointed as long as under-graduate teachers qualified for appointment as Headmaster are there. When this is the rule which governs the appointment of Headmaster a graduate post of Headmaster can be created only when there is on the staff of the school or schools under the same management a graduate teacher qualified for appointment as Headmaster by virtue of the fact that he has got at least half the period of service of the seniormost under-graduate teacher. A post which cannot be filled up as per the rules cannot be created also because the very purpose of creating a post is to fill it up and not to keep it vacant. In this case there is no graduate teacher on the staff. Even when a graduate Headmaster retires if there is no qualified graduate teacher to be promoted as Headmaster the post of graduate Headmaster cannot be continued. It will have to be converted into the post of an under-graduate Headmaster if the two grades are even now different. But this question does not arise in this case since the Headmaster who retired was not a graduate. The first petitioner resignation from the post of Headmaster of the Lower Primary School in 1962 cannot stand in the Way of his claim to the post of Headmaster of Upper Primary School. But this question does not arise in this case since the Headmaster who retired was not a graduate. The first petitioner resignation from the post of Headmaster of the Lower Primary School in 1962 cannot stand in the Way of his claim to the post of Headmaster of Upper Primary School. As long as the first petitioner has not declined to accept the post of Headmaster of the Upper Primary School his superior claims for that post as the seniormost under-graduate teacher qualified for the post cannot be ignored. The 2nd petitioner having given the undertaking dated 27th June 1973 cannot now make a claim to the post. I hold that the first petitioner is entitled to be posted as Headmaster of the school in the vacancy that arose on 31st March 1973. I quash Ext. P-5 and Ext. P-1 in so far as it sanctions the post of a graduate Headmaster. Respondents 1 and 3 are directed to take steps to create a post .of Headmaster in which the first petitioner can be promoted and appointed as per rule 45 of Chapter XIV (A) of the Rules. 6. Before parting with the case I think it is necessary to make mention of another aspect of the matter also. In this case the second petitioner and the other under-graduate teachers lost their right to claim the post of Headmaster, because of the written undertaking dated 27th June 1973 the 4th respondent obtained from them. The petitioners case is that this was obtained by compulsion. This may or may not be true. But there can be instances where such undertakings are obtained by managers by adopting pressure tactics. In the matter of resignation by teachers a safeguard is provided in rule 53, Chapter XIV (A) of the Kerala Education Rules, 1959. It is only good that some similar safeguard is made by amending the rules to protect the teachers against obtaining undertakings from them by compulsion. The Original Petition is allowed to the extent indicated above. There will be no order as to costs.