Kurian Joseph, J.

R.34 Chapter XIV-A KER provides for a combined seniority list of Upper Primary and Lower Primary School Teachers. R. l(b) of Chapter XXIII KER in the matter of fixation of staff strength provides that in any L.P.School there shall be as many posts of Lower Primary School Assistants as the number of class divisions reduced by one and that one is the Headmaster. R.5 of the said Chapter provides that in an

Upper Primary School there should be one post of Headmaster, as many posts of Upper Primary School Assistants as the number of class divisions reduced by one and as many posts of Lower Primary School Assistants as there are divisions in the Lower Primary School classes. The post of Lower Primary School Assistant and Upper Primary School Assistant is not interchangeable. In a situation where the

Headmaster of the Upper Primary School is a teacher qualified to teach only in the Lower Primary School, whether the consequential reduction of posts should be in the U.P. School or L.P. School is the question to be decided in these cases.

2. The petitioner in W.P.(C) No.5628/2004 is an Upper Primary School Assistant having approved service from 15.7.1997 to 31.10.2000. It is not in dispute that she is a claimant for future appointment in the school managed by the second respondent under R.51A of Chapter XIV-A KER. On 1.4.2002 there arose a vacancy pursuant to the retirement of the Headmaster. One Smt. Mariamma Thomas, the seniormost teacher who was an LPSA, was appointed as Headmistress. There are only four class divisions in Lower Primary and three divisions in Upper Primary Sections. When Smt. Mariamma Thomas was promoted as Headmistress, being a 51A claimant petitioner staked her claim. It appears the second respondent Manager was not inclined and he appointed the 3rd respondent. The justification for appointing the 3rd respondent is that in the staff fixation there are four posts sanctioned in the L.P. Section and there are only two in the U.P. Section. The petitioner being a claimant for appointment only as UPSA cannot be considered for the vacancy of LPSA.

3. Since the issue to be resolved is a legal question, it is sufficient to have reference only to the factual position as narrated above, though there are quite a few intervening developments which are not that germane to the issue. In a U.P.School with L.P.Section, when the Headmaster is an LPSA the consequential reduction is to be made whether from LPSA or UPSA is the issue.

4. R.34 of Chapter XIV-A KER reads as follows:

"34. Every Management shall prepare and maintain in Form 11A a staff list otherwise called the seniority list of teachers as specified below:

(a) In the case of High Schools, a combined seniority list of teachers specified in clauses (ii) and (HA) of Rr.3, Chapter XXIII shall be prepared.

(b In the case of Upper Primary School and Lower Primary School a combined seniority list of teachers if any, specified in clauses (iii), (iv) and (v) of R.3 Chapter XXIII shall be prepared." R.44(1) of Chapter XIV-A reads as follows:

"44(1). 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. A teacher if he is aggrieved by such appointment will have the right of appeal to the Department".

R.1 (b) of Chapter XXIII KER dealing with L.P.School reads as follows:-"1 (b). In schools which do not work on shift system, there shall be -

(i) One post of Headmaster: and

(ii) As many posts of Lower Primary School Assistants as the number of class divisions reduced by one". 5.5 of Chapter XXIII reads as follows:

"5. In every Upper Primary School, there may be -(i) One post of Headmaster:

(ii) As many-posts-of Upper Primary School Assistants as the number of class divisions.

reduced by one. (iii) As many posts-of Lower Primary School Assistants as there are divisio