Balakrishnan Nair, J.

The point that arises for decision in this Writ Appeal is whether seniority alone must be the criterion for filling up of the post of Headmaster in a Upper Primary School when both the rival claimants are graduate teachers and there is no senior under graduate teacher in the school. Essential facts necessary for the disposal of the case are the following. The vacancy in the post of Headmaster in the first respondent school arose on 1.4.1994. The appellant and the second respondent were the rival aspirants for the post. Both of them joined the School as under graduates with SSLC and TTC qualifications in the post of U.P.S.A. The second respondent commenced service on 1.6.1967 and the appellant on 6.6.1979. So, obviously the second respondent is senior to the appellant in the cadre of U.P.S.A.. While in service, the second respondent and the appellant passed B. A. and B.Ed. The second respondent passed B. Ed. only in 1990 and the appellant in 1989 (20.2.1989). So, when the vacancy arose on 1.4.1994, the second respondent did not complete five years service after acquisition of B.Ed. whereas the appellant completed five years service after acquiring B.Ed. on 20.2.1994. Both of them have passed the obligatory departmental test prior to 1.4.1994. It is common case of both sides that there is no senior under graduate teacher in the school. If five years service after acquisition of B.Ed. is an essential qualification, the second respondent is unqualified, albeit she is senior in service. She is qualified in every other respect and in senior in service also. The appellant is qualified in every respect, but she is junior to the second respondent. Pithily put, the dispute is whether five years service after acquisition of B. Ed. is an obligatory qualification for promotion as Headmaster in the absence of a senior under-graduate teacher.

2. The Manager preferred the second respondent by Ext.P2 dated 30.3.1994. Appeal by the appellant herein before the A.E.O. was rejected by Ext.P4 dated 18.6.1994. A further motion made before the D.E.O. met with the same fate as evidenced by Ext.P6 order dated 17.10.1994. Appellant challenged Exts.P2, P4 and P6 orders by filing OP No.1996/95. Learned single Judge dismissed the original Petition by judgment dated 4.2.1999 holding that there was nothing wrong with the orders impugned. Aggrieved appellant appeals.

3. Now, it appears, the second respondent has already retired from service. She has received all benefits. Now the benefits enjoyed by her cannot be disturbed after her retirement. Now what remains to be decided is whether the appellant is entitled to be appointed as Headmaster notionally with effect from 1.4.1994.

4. The qualifications for appointment of aided school teachers are prescribed in Chapter XXXI of the Kerala Education Rules. But the additional qualifications required for appointment as Headmasters are contained in Chapter XIV A. Rule 44 of Chapter XIV A. provides that the appointment of Headmasters shall ordinarily be according to seniority. Rule 45 prescribes the order of preference when there are graduates and undergraduates among the teachers. Rule 45B prescribes Account Test (Lower) conducted by the Public Service Commission as an obligatory qualification for promotion as Headmaster of a primary school. In this case, the construction of rule 45 alone is relevant. The said rule as it stood prior to the Amendments introduced on 31.1.1987 and 7.12.1988 reads as follows: -

"Subject to rule 44, when the post of Headmaster of complete U.P. School is vacant or when an incomplete U.P. School becomes a complete U.P.School, the post shall be filled up from among the qualified teachers on the staff of the School or Schools under the Educational Agency. If there is a graduate teacher with B.Ed. or other equivalent qualification and who has got at least five years experience in teaching after graduation, he may be appointed as Headmaster provided he has got a serv