Judgment :- C.S. Rajan, J. The perennial problem arising out of the dispute between a graduate and non-graduate to be appointed as a Headmaster of an Aided School has cropped up again in this Original Petition. The Headmaster of the School belonging to the fourth respondent retired on 31.5.1995. The 3rd respondent, who is an under-graduate, is the seniormost teacher in the School. But she did not have the test qualification at that time. Therefore, she was appointed as a teacher in charge. The petitioner is a graduate. She was appointed in the school on 6.6.1994. At the time of her appointment she was a graduate with B.Ed, qualification. At the time of arising of the vacancy of the Headmaster on 1.6.1995, the petitioner also did not have the test qualification. She acquired the test qualification by passing the test conducted in June, 1995, the result of which was published in September ,1995. The third respondent was permanently exempted on completion of 50 years of age on 24.4.1996. 2. When the petitioner put forward her claim for appointment as a Headmistress to the School, the matter was referred to the Director of Public Instructions. The Director of Public Instructions informed the fourth respondent that the Teacher who claimed the post of Headmistress should be appointed since she had the necessary educational and test qualification. But the fourth respondent appointed the third respondent which was approved by the 2nd respondent as per order dt. 28.11.1995. When the fourth respondent requested the second respondent to consider the representation filed by the petitioner for appointment as Headmistress, the 2nd respondent by Ext. P2 letter informed the fourth respondent that the claim of the petitioner was unsustainable, since she did not have the qualification prescribed under R.45B Chapter. XIV-A of KER. 3. Still the 4th respondent appointed the petitioner as Headmistress on 23.2.1996. The 3rd respondent filed a revision petition before the 1st respondent. The 3rd respondent also approached this Court by filing O.P. No. 4337 of 1996. This court in GMP No. 8796/1996 directed the first respondent to consider and pass orders on the revision petition. Accordingly, the first respondent passed Ext. P3 order dt. 15.7.1996 after hearing all the affected parties and held that the third respondent is the rightful claimant to the post of Headmistress. This court in GMP No. 8796/1996 directed the first respondent to consider and pass orders on the revision petition. Accordingly, the first respondent passed Ext. P3 order dt. 15.7.1996 after hearing all the affected parties and held that the third respondent is the rightful claimant to the post of Headmistress. The reasoning of the first respondent in upholding the claim of the third respondent was that the petitioner did not have five years teaching experience after acquisition of B Ed. Degree and that she also did not have service equal to half of the period of service of the 3rd respondent. 4. Ext. P3 is under challenge in this Original Petition. Sri. Ramesh Babu, learned counsel for the petitioner submitted that the petitioner is not seeking any preference in the matter of appointment as a Headmistress as a graduate teacher. It was further submitted that by learned counsel that it was not the intention of the rule making authority to insist that graduate teachers can be appointed only if they have five years teaching experience or half the service of the senior most under-graduate teacher. According to the learned counsel, the above interpretation will lead to the anomalous situation where the under-graduate teachers can be appointed without any minimum teaching service or length of service where as the graduate teacher will alone be required to possess such minimum teaching service. Therefore, we have to see whether the relevant rule is capable of such an interpretation as put forward by the learned counsel. 5. Sri. Abraham, learned counsel for the contesting respondents pointed out that five years teaching experience after graduation is an essential qualification for the post of Headmaster as far as a graduate teacher is concerned. The pro visions for appointment of Headmistress in the Aided Schools are Rr. 44,45 and 46 of Chapter XIV of KER R.44 says that the appointment of Headmasters shall ordinarily be according to seniority from the seniority list prepared and maintained under clauses (a) and (b) as the case may be of R.34. The Manager will appoint the Headmaster subject to the Rules laid down in the matter. R.44A prescribes qualifications for appointment of Headmasters of Aided complete High schools/training Schools. The Manager will appoint the Headmaster subject to the Rules laid down in the matter. R.44A prescribes qualifications for appointment of Headmasters of Aided complete High schools/training Schools. The minimum service qualification for appointment of Headmasters shall be 12 years of continuous graduate service with a pass in the test in the Kerala Education Act and Kerala Education Rules and pass in Account Test (Lower). R.45, which is the relevant rule applicable in this case, deals with appointment of Headmasters of Complete Upper Primary School. The above Rule is quoted hereinbelow for reference: "45 A. Subject to R.44, when the post of Headmaster of a complete L.P. School is vacant or when an incomplete L.P. School becomes complete, the post shall be filled up from among the qualified teachers on the staff of the school or schools under the Educational Agency. The person appointed as Headmaster shall have passed SSLC or equivalent Examination with TTC issued by the Board of Public Examination, Kerala or T.C.H. issued by the Karnataka Secondary Education Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy as an elective subject conducted by the University of Kerala or any other equivalent training qualification prescribed for appointment as Primary School Assistant. In the case of those who are continuing as teachers with S td. VII or its equivalent with H.E.T.T.C. or its equivalent training qualification they shall have 12 years of continuous qualified service as Assistant for appointment as Headmasters of Lower Primary Schools." Only qualified teachers can be appointed as Headmasters from among the staff of the UP. School, which may consist of both graduate teachers and under-graduate teachers. If the graduate teacher is senior enough to be appointed as Headmaster, there will not be any difficulty in appointing him as Headmaster. But if there are senior undergraduate teachers and a junior graduate teacher, then there will be rival claims for the post of the Headmaster. In order to meet the above contingency provision has been made in R.45. Thus, a junior Graduate Teacher can be preferred to a senior under-graduate teacher only if he fulfils the conditions mentioned above. He must have atleast five years experience in teaching after acquisition of B.Ed. Degree. He must have also a service equal to half of the period of service of the seniormost undergraduate teacher. Thus, a junior Graduate Teacher can be preferred to a senior under-graduate teacher only if he fulfils the conditions mentioned above. He must have atleast five years experience in teaching after acquisition of B.Ed. Degree. He must have also a service equal to half of the period of service of the seniormost undergraduate teacher. In the absence of a graduate teacher with the above qualification and service the seniormost primary school teacher with necessary qualification can be appointed. R.45C(1) enjoins the Manager to appoint the seniormost teacher on the staff of the school temporarily where qualified teachers are not available to be promoted as Headmaster in accordance with Rr. 44 and 45. R.45C sub-rule (6) enjoins that if no teacher with the prescribed service qualification is available on the staff of the school under the Educational Agency for temporary promotion as Headmaster under sub-r.(1) and the proviso thereunder, the seniormost teacher on the staff of the school or the schools shall be appointed as Teacher¬in-charge. 6. Analysing the whole scheme of the above rules contained in Chap. XIVA KER it can be seen that teaching experience is a necessary qualification for appointment as Headmaster. While for appointment as Headmaster of a High School the minimum graduate service is 12 years, for appointment as Headmaster of U.P. School it is five years teaching experience after acquisition of B.Ed, degree. Therefore, it is idle to contend that a graduate need satisfy the minimum teaching experience only if he is pitted against senior undergraduate teacher in the matter of appointment of the Headmasters. As far as the undergraduate is concerned he must possess SSLC, TTC, and test qualifications. 7. In this case, it is clear that the petitioner was only having one year graduate service on the date of the occurrence of the vacancy. The third respondent was having 28 years of service. Therefore, the petitioner was ineligible to claim the post of Headmaster as on 1.6.1995. The subsequent acquisition of test qualification will not cure the basic defect of not having the required minimum service of teaching experience. 8. The action of the fourth respondent in first appointing the third respondent as a teacher-in-charge was perfectly valid in view of R.45C(1) and (6) of chapter XIVA KER. This is because on 1.6.1995 neither the petitioner nor the third respondent was qualified to be appointed as Headmaster. 8. The action of the fourth respondent in first appointing the third respondent as a teacher-in-charge was perfectly valid in view of R.45C(1) and (6) of chapter XIVA KER. This is because on 1.6.1995 neither the petitioner nor the third respondent was qualified to be appointed as Headmaster. But the action of the fourth respondent in appointing the petitioner as Headmistress on the ground that she had acquired the test qualification was illegal and was rightly interfered by the first respondent in Ext. P-3. Therefore, I do not find any illegality in Ext. P-3. The claim of the third respondent for appointment as teacher-in-charge from 1.6.1995 to 23.4.1996 and as a regular Headmistress with effect from 24.4.1996 on completion of 50 years of age is legally correct and sustainable. Therefore, the Original Petition is devoid of any merit and is therefore, dismissed. The fourth respondent is directed to give effect to Ext. P3 order forthwith.