JUDGMENT K.M. Joseph, J. 1. Both these Writ Petitions being connected, they are disposed of by a common Judgment. 2. WP (C) No. 34551/06 is filed by an under graduate teacher. She is working as UPSA. Her case, in brief, is as follows: She is working as Teacher in Charge of the 6th respondent's School. She joined the 6th respondent's School on 06/12/1983. She is a TTC holder and passed Pre Degree and Account Test. She had approved service prior to her regular appointment. The 7th respondent joined service on 02/06/1986. Seventh respondent is a Graduate and she also possesses B.Ed. and Account Test (Lower). Her service was approved. Petitioner is ranked at Sl. No. 2 in Ext. P2 seniority list. Seventh respondent is ranked below her at Sl. No. 3. A vacancy of HM arose on 01/04/2004. It was filled up by appointment of the person in rank No. 1, Shri Francis M. Cherian who continued till retirement on 31/03/2005. In the resultant vacancy, petitioner was appointed with effect from 01/04/2005. This appointment was not approved by the Educational Authority and though she has preferred an Appeal, it was rejected on the ground that the seventh respondent is entitled to be promoted under R.45 of Chapter XIVA KER. The 7th respondent approached this Court and this Court directed the matter to be considered. By Ext. P3 Order, it was found that the 7th respondent is entitled to be promoted as HM, noting that the 7th respondent is a Graduate Teacher with requisite qualification and possessing more than half the service of the petitioner. By Ext. P3, the Government upheld the right of the 7th respondent herein to be appointed as HM with effect from 01/04/2004 and there was a direction to the Manager to appoint her as HM with effect from 01/04/2004 with monetary benefit from the day she joined. Ext. P4 is a consequential communication. Petitioner challenges Ext. P3 and seeks a declaration that R.45 of Chapter XIVA KER is subject to R.44, and cannot over ride the provisional seniority, unless written consent from senior claimant renouncing her claim permanently is obtained. 3. WP (C) No. 338/07 is filed by the Manager of the School. Therein also, there is a challenge to Ext. P3 Order and the prayers are similar. 4. 3. WP (C) No. 338/07 is filed by the Manager of the School. Therein also, there is a challenge to Ext. P3 Order and the prayers are similar. 4. I heard the learned senior counsel Smt. Sumathi Dandapani, appearing for the petitioner in WP (C) No. 34551/06 and Shri S. Subhash Chand, learned counsel appearing for the 7th respondent besides the learned Government Pleader. Learned counsel for 7th respondent would point out that the question involved is no longer res integra, and it has engaged the attention of this Court. He relied on the following decisions: 1) Sadanandan v. State of Kerala, 2000 KHC 665 : 2000 (3) KLT 516 . 2) Manager, A. M. U. P. School v. State of Kerala, 2001 KHC 67 : ILR 2001 (2) Ker. 125 : 2001 (1) KLT 155 . 3) Chandrasekhara Holla v. State of Kerala, 2001 KHC 478 : 2001 (2) KLJ 138 : 2001 (2) KLT 650 . 4) Manager, Philipose Mar Dinishus U.P. School v. State of Kerala, 2001 (3) KLT SN Case No. 31. 5) Prasad v. Philipose Mar Dilshus U.P. School, 2005 KHC 1001 : 2005 (2) KLJ 404 : 2005 (3) KLT 487 . 6) K. Pushparaj v. K. Manoharan and Others, 2006 KHC 679 : 2006 (2) KLT 951 : ILR 2006 (3) Ker. 1. 7) Sivasankaran v. Manager, K.M.U.P. School and Others, 2006 KHC 822 : 2006 (3) KLT 478 : 2006 (2) KLJ 823 : ILR 2006 (3) Ker. 293. 8) Manager, S. N. D. P. L. P School v. K. V. Roy and Others, 2006 KHC 1495 : 2006 (4) KLT 497 : ILR 2006 (4) Ker. 385. In particular, he would rely on the decision in Prasad v. Philipose Mar Dilshus U. P. School, 2005 KHC 1001 : 2005 (2) KLJ 404 : 2005 (3) KLT 487 , wherein a Division Bench of this Court held, inter alia, as follows: "5. Then, the question is whether the second petitioner of fifth respondent is qualified to be appointed in that vacancy. Admittedly, second petitioner was not a graduate teacher. But the fifth respondent was a graduate teacher with 13 years' teaching experience. It is more than 50% teaching experience of the second petitioner. Then, the question is whether the second petitioner of fifth respondent is qualified to be appointed in that vacancy. Admittedly, second petitioner was not a graduate teacher. But the fifth respondent was a graduate teacher with 13 years' teaching experience. It is more than 50% teaching experience of the second petitioner. This Court has held repeatedly that the word "may" used in R.45 means "shall" and if there is a graduate teacher with five years' teaching experience and more than 50% service of seniormost of non graduate teacher, he should he appointed as headmaster. This is so held in Karunakaran v. DEO, Badagara, 1976 KLN 51, V. Abdul Rahiman, Manager, AMUPS, Poovambai v. AEO, Balussery and Others, ILR 1976 (2) Kerala 158, etc. and those decisions are repeatedly followed. Even though in Rev. Fr. Daniel v. Director of Public Instruction, 1965 KLT 927 it was held that minority schools are exempted from R.44 and R.45 is only a preferential right and minority management can appoint seniormost qualified UPSA as headmaster notwithstanding availability of graduate teacher for promotion under R.45. But, after the above decision, R.45 was substituted by new R.45 with effect from 09/11/1971 R.44 and R.45 should be read together. In Kunjappa v. State of Kerala, 1992 (2) KLT 87 , it was held that if there is a graduate teacher with B.Ed. and required number of years of experience as mentioned in R.45 no teacher with SSLC and TTC above circumstances, only filth respondent was entitled to be appointed in the vacancy that arose on 01/06/1994." He would, therefore, submit that it is only if there is a tussle between two graduate teachers, the question of invoking R.44 which enunciates the doctrine of seniority in the matter of appointment to the post of HM, arises. 5. However, Smt. Sumathi Dandapani, learned counsel for the petitioner in WP (C) No. 34551/06 would point out that this is a case where admittedly the petitioner is senior to the 7th respondent as evident from Ext. P2 provisional seniority list. She would submit that R.44 unequivocally declares that for appointment to the post of HM, it is the senior who is to be appointed ordinarily. If deviation is to be done, it can be premised only on the basis of written consent from the senior claimant renouncing her claim permanently and the consent is to be approved by the Officer. She would submit that R.44 unequivocally declares that for appointment to the post of HM, it is the senior who is to be appointed ordinarily. If deviation is to be done, it can be premised only on the basis of written consent from the senior claimant renouncing her claim permanently and the consent is to be approved by the Officer. She would submit that this interpretation is further reinforced by the opening words of R.45, as R.45 begins with the words "subject to the provisions of R.44". Therefore, she would submit that even in a case where HM has to be appointed under R.45, the principle of seniority cannot be given a go by and as the petitioner is senior to 7th respondent, even if she be a Graduate, petitioner's right derived from the seniority and protected under R.44, cannot be taken away. Learned counsel appearing for the Manager also adopts the same arguments. Smt. Sumathi Dandapani would also contend that in the decisions relief on by counsel for 7th respondent, this aspect is not specifically considered. 6. I find myself unable to accept the contentions raised on behalf of the petitioners. No doubt, R.44 declares the principle of seniority. R.45 appears thereafter and also R.45 begins with the words making it unmistakable that it is subject to R.44. But, it is to be noted that this is not a case where the petitioner is a Graduate Teacher. It is to be noted that the Division Bench of this Court in Prasad v. Philipose Mar Dilshus U.P. School, 2005 KHC 1001 : 2005 (3) KLT 487 : 2005 (2) KLJ 404 has categorically held that the effect of R.44 read with R.45 is to be that as long as there is a Graduate Teacher who has the requisite service, no under graduate teacher can be appointed. In other words, it is a matter which goes to the qualification. The contention based on seniority in the context of R.44 would be relevant only if the clash is between two Graduate Teachers in which case, certainly the principle of seniority can legitimately be pressed into service. Equally, the principle of seniority included in R.44 springs into existence, if the rivals are under graduate teachers. The contention based on seniority in the context of R.44 would be relevant only if the clash is between two Graduate Teachers in which case, certainly the principle of seniority can legitimately be pressed into service. Equally, the principle of seniority included in R.44 springs into existence, if the rivals are under graduate teachers. Admittedly, it is not the factual situation to be considered in this case, as the petitioner is an under graduate teacher and her claim is pitted against the 7th respondent who is admittedly a Graduate who has got the requisite service. In such circumstances, I feel that though the petitioner is senior, in the context of R.45 and in the teeth of the decision of the Division Bench which I have more elaborately referred to above. I am of the view that neither prayers in both the Writ Petitions are liable to be granted. There is no merit in the Writ Petitions and they are dismissed.