St.Mary’s U.P. School, Njarakkal is an institution under the St.Mary’s Educational Agency, a corporate educational agency. Smt. K.A. Mary was promoted as the Headmistress of that school. The statutory authorities, including the Government, have concurrently refused approval for such promotion, upholding the contention of Smt. K.K. Lalitha, that she was entitled to be appointed in preference to Smt. K.A. Mary, in terms of Rule 45 in Chapter XIV of the Kerala Education Rules, 1958, hereinafter referred to as the ‘KER’, for short, framed and issued by the Government of Kerala, in terms of authority conferred by Section 36 of the Kerala Education Act, 1959, hereinafter referred to as ‘the Act.’ W.P(c).26374/04 is filed by the management challenging that decision, while W.P(c).11114/04 is filed by Smt. Lalitha, seeking a direction to the Manger to appoint her as the Headmistress with effect from 1.6.2001, the date of occurrence of that vacancy, with all attendant benefits, contending that the Manager is not complying with the successive orders of the statutory authorities.

2. Smt. Lalitha is a graduate teacher, while Smt. Mary is an under-graduate teacher.

3. As of now, the competing teachers have retired on superannuation.

4. In terms of Rule 45 of Chapter XIV A KER, if there is a graduate teacher with B.Ed or other equivalent qualification, and who has got a service equal to half of the period of service of the senior most under-graduate teacher. Rule 45 provides a statutory preference to the graduate teacher over the under-graduate teacher for appointment as Headmistress of the U.P. School. This issue, including the constitutional validity of that rule, is no more res integra in view of the decision of this Court in Kunjappan v. State of Kerala [1992 (2) KLT 87], affirmed by the Division Bench in Sadanandan v. State of Kerala [2000 (3) KLT 516].

5. The staff fixation orders in relation to this school, which are produced as Exts. R5(c) to R5(f) along with the counter affidavit of the Manager in W.P(C). 11114/04, would show that Smt. Lalitha was a junior Sanskrit teacher, who had been enjoying the benefit of G.O.(MS).No.62/73/G.Edn. dated 2.5.1973. Among them, Ext.R5 (e) is the staff fixation order for the academic year, in which, the vacancy of the headmistress arose. The reason shown in that staff fixation order for the retention of Smt. Lalitha is as follows:

“F.T. Benefit is given to Sankrit Teacher Smt. K.K. Lalitha having 8 periods and 5 years service vide (MS) No.62/73/G.Edn. dt.2.5.73.”

According to Smt. Lalitha, her continuance in the school on such ground enables her to claim entitlement to be appointed as the Headmistress in preference to Smt. Mary, who is only an under-graduate teacher.

6. The contentions of the management in support of its decision to appoint Smt. Mary, an under-graduate teacher in preference to Smt. Lalitha are that the latter one is incompetent to be appointed as Headmistress in terms of Rule 45 of Chapter XIV A, because, she is only continuing under the protection in terms of the aforesaid Government Order G.O.(MS).No.62/73 and that the management, being a minority institution, is entitled to appoint a Headmaster of its choice on the strength of Article 30 (1) of the Constitution of India.

7. Learned counsel for Smt. Lalitha, supporting the decisions of the statutory authorities, including that of the Government, argued that on the strength of G.O.(MS).No.62/73, particularly clause (vi) thereof, as interpreted by the Division Bench of this Court in Sreeramachandran v. State of Kerala [2002 (2) KLT 428], the protection granted is to the post and not to the teacher and therefore, the post that is thereby protected is part of the total number of posts available in the school and hence, Smt. Lalitha is entitled to be considered in preference to Smt. Mary in view of Rule 45 in Chapter XIV A of KER, which mandates that a graduate teacher has to be preferred to an under-graduate for being appointed as