JUDGMENT Shamsuddin, J. 1. The question to be considered in this Original Petition is when exactly avacancy to a post of Headmaster arises in a case when an incumbent holdingthe post takes leave preparatory to retirement. 2. Both the petitioner and 5th respondent were High School Assistants in St.Augustine's High School, which is under the management of the 4threspondent The petitioner is senior in service. Her date of birth is 27-4-1938.She complied 50 years of age on 27-4-1988. 3. R.45-B(1) of Chapter XIV-A lays down that Account Test (Lower)conducted by Kerala Public Service Commission shall bean obligatoryqualification for promotion as Headmasters of Lower Primary and UpperPrimary Schools. Sub R.4 of the said Rule states that the teachers, who haveattained the age of 50 years shall stand exempted permanently from acquiringthe qualification as specified in sub-rule (1). 4. On completion of 50 years, petitioner thus stood permanently exemptedfrom acquiring test qualification on 27-4-1988 and the 4th respondent stoodpermanently exempted on 31-8-1985. 5. The 5th respondent entered service as High School Assistant on 2-11-1959and he completed his 50 years of age on 31-8-1985. 6. Sri. K. K. Varghese, who was the Headmaster of the school took leavepreparatory to retirement on 25-3-1988. The leave for 37 days for which heapplied was granted. The next senior most teacher, L. Stella was suspendedfrom service pending disciplinary action for some misconduct, on 19-3-1988.When Varghese took leave the Manager gave charge to the 5th respondent.Petitioner filed a representation before the District Educational Officer statingthat she was the senior most High School Assistant and the legitimateclaimant to the post of Headmaster and requesting District Educational Officerto instruct the Manager to appoint her as Headmistress. However the Managerappointed 5th respondent as Headmaster with effect from 25-3-1988. TheDistrict Educational Officer approved the appointment of the 5th respondent.The petitioner filed an appeal from the order of District Educational Officer,before the Deputy Director of Education. The Deputy Director (Education)allowed the appeal, set aside the order of the District Educational Officergranting approval to the promotion of the 5th respondent as Headmaster andthe manager was directed to promote the petitioner as Headmistress in thepermanent vacancy which arose from 1-5-1988. 5th respondent filed arepresentation before the Government against the order of Deputy Director ofEducation and the Government passed Ext.14 order which is impugned in this Original Petition. 7. Learned counsel for the petitioner submitted that vacancy occurred only onthe superannuation of the Headmaster on 30-4-1988. 5th respondent filed arepresentation before the Government against the order of Deputy Director ofEducation and the Government passed Ext.14 order which is impugned in this Original Petition. 7. Learned counsel for the petitioner submitted that vacancy occurred only onthe superannuation of the Headmaster on 30-4-1988. He also brought to mynotice R.7A(3) of Chapter XIV- A of K.M.R. which states that no appointmentscan be made to short vacancies of less than two months. Based on thisprovision, it is contended by learned counsel that the leave applied for beingonly for 37 days, the vacancy could not have been filled up. 8. R.56 of Chapter XIV-A of the K.E.R. lays down that in the matter of casualleave and all other leave, the teachers of aided schools shall be governed bythe Rules for teachers of Government Schools in the Service Regulations forthe time being in force. R.72(2) Part I Kerala Service Rules states thatnotwithstanding anything contained in sub-rule (1) an officer on leavepreparatory to retirement shall be precluded from withdrawing his request forpermission to retire and from returning to duty, save with the consent of theauthority empowered to appoint him. It follows that in the normal course therewas no Scope for the termination of leave vacancy prior to 30-4-1988. In viewof specific provision contained in R.72(2) Part I Kerala Service Rules the leavepreparatory to retirement cannot be considered as a vacancy falling underR.7A(3) of Chapter XIV-A. 9. In the instant case, Sri K.K. Varghese did not rejoin duty prior to hisretirement. A remote possibility of an incumbent withdrawing the request forleave preparatory to retirement and rejoining duty with consent of authoritycompetent to appoint cannot be considered as a circumstance to hold thatR.7A(3) of Chapter XIV-A is attracted in such cases. In the circumstances, it isopen to the authorities to treat the vacancy as commencing from 2S-3-1988and continuing beyond 30-4-1988, the date of superannuation of the former Headmaster. 10. On 25-3-1988 there was no other teacher in the school under theEducational Agency, who was eligible for promotion to the vacancy. Petitionerhas not passed account test. She was entitled to permanent exemption onlyon 27-4-1988. As indicated above the 5th respondent stood permanentlyexempted on 31-5-1985 on completion of 50 years of age. It has come out inevidence that 5th respondent has since retired and the petitioner is now theHeadmistress of the school. Petitionerhas not passed account test. She was entitled to permanent exemption onlyon 27-4-1988. As indicated above the 5th respondent stood permanentlyexempted on 31-5-1985 on completion of 50 years of age. It has come out inevidence that 5th respondent has since retired and the petitioner is now theHeadmistress of the school. Since the vacancy in dispute occurred on25-3-1988 the appointment of the 5th respondent as Headmaster was in order.In the circumstances, the impugned order Ext. 13 is legal and does not sufferfrom any infirmity. There is no merit in this Original Petition and it is accordingly dismissed.