The fundamental right of the school management under Art.30(1) of the Constitution allows them to appoint a headmistress who meets the requisite qualifications, as per the Kerala Education Rules.

1. The question for consideration is whether Ext. P-9 order passed by the Director of Public Instruction is vitiated by an error of law apparent on the face of the record and whether the 1st petitioner is entitled to maintain the appointment of the 2nd petitioner as the Headmistress of the school. It is not necessary to enter into an elaborate discussion of the facts which led up to Ext. P-9 order. Suffice it for me to say that in a previous writ petition filed in this Court, namely O.P. No. 1883 of 1962 this Court directed the Director of Public Instruction to consider the appeal petition filed by the 2nd respondent and to pass the appropriate order.

2. On the retirement of the permanent undergraduate headmaster of the school in question, the D.E.O. sanctioned by Ext. P-1 order the creation of a graduate headmaster's post. By Ext. P-2 order, the graduate headmaster's post was made permanent. The 2nd respondent was the seniormost teacher in the school. But he was not a graduate. Sri. George Koshi, a junior to the 2nd respondent was appointed as the headmaster on 1-4-1960. Against this the 2nd respondent filed an appeal to the District Educational Officer. The D.E.O. approved the appointment of George Koshi by Ext. P-3. Subsequently George Koshi resigned from the headmastership and the 2nd petitioner was appointed as Headmistress and she took charge on 10-8-1960. The 2nd respondent filed an appeal against this order before the A.E.O., Haripad. The Assistant Educational Officer rejected this appeal by Ext. P-4 order. The 2nd respondent filed an appeal to the D.E.O. against Ext. P-4 order. On 11-10-1960 the 2nd petitioner's appointment was approved by the Director of Public Instruction. This order, it seems was passed on the appeal petition filed by the 2nd respondent before the 1st respondent against Ext. P-3 order. It appears that 2nd respondent filed an appeal before the Government against the order approving the appointment of the 2nd petitioner and the Government passed their proceeding dated 5-4-1962. The 1st respondent thereafter called upon the 1st petitioner to submit his explanation. That was submitted (Ext. P-6), and the 1st respondent passed the order Ext. P-7. It was to quash that order that O.P. No. 1883 of 1962 was filed in this Court. This Court, after considering the arguments of counsel appearing in the case, set aside the order and directed the Director of Public Instruction to consider the matter afresh and pass a fresh order. In pursuance to that direction the order evidenced by Ext. P-9 has been passed and it is the validity of this order that is being challenged.

3. The main submission made by counsel for the petitioner was that the post of headmaster was made a graduate's post and therefore the 2nd respondent could have not been promoted as headmaster. It was submitted that when the Department has sanctioned the creation of the post of graduate headmaster it was impossible for the manager to have promoted the 2nd respondent as he had not the necessary qualification for being so promoted and that the appointment of the 2nd petitioner as headmistress was therefore in order. It was further contended by counsel that the manager of a school like the one under

consideration has the fundamental right to appoint any person as headmaster or headmistress provided he or she has got the requisite qualification as enjoined by the rules.

4. Exts. P-1 and P-2 orders would make it clear that only a graduate could have been appointed to the post of the headmaster as it was made a graduate's post, Exts. P-1 and P-2 have not been superseded by any subsequent order. The argument of Mr. T. S. Krishnamoorthy Iyer, appearing on behalf of the 2nd respondent that it was not necessary for the Government to have superseded Exts. P-1 and P-2 does not appeal to me to be correct. So long as those orders remained in force it was not open to the manager to have appointed any person other than a graduate as headmaster of the scho