Ramachandran Nair, J.

The controversy is as to who between the petitioner and the 3rd respondent is eligible to be appointed as Headmistress of the High School in the regular vacancy that arose on 01/04/2011. While the case of the petitioner is that the District Educational Officer as well as the Deputy Director found petitioner's eligibility, the Government vide Ext.P12 reversed their decision and upheld the decision of the Management appointing the 3rd respondent as Headmistress and ordered approval of the same. It is against Ext.P12 the petitioner has filed this Writ Petition challenging the said order and for a declaration that she is entitled to be appointed to the post of Headmistress that arose on 01/04/2011.

2. We have heard Shri. K.G. Anil Babu, learned counsel appearing for the petitioner and Shri. Abraham Vakanal, learned Senior counsel appearing for the 3rd respondent and also learned Government Pleader appearing for the 2nd and 4th respondents.

3. There is no dispute that the 3rd respondent is senior in service to the petitioner by 7 years, and therefore if qualification remained equal the 3rd respondent is the necessary choice. However, the petitioner's specific case is that as on the date of arising of vacancy i.e. on 01/04/2011, the 3rd respondent is not qualified in as much as she has not passed all departmental tests and has not completed 50 years of age to dispense with test qualification to be appointed to the post of Headmistress. Learned Senior counsel opposed the contention by stating that the 3rd respondent had the required service and was the senior most and the disqualification for appointment was only because the result of departmental test written by her was not published as on the date of arising of the vacancy. In fact, she had written the test in January 2011, and on publishing the result on 30/04/2011 she had passed the test. What we notice is that there is no need to consider whether the delay in publication of the test result by the Department authorities should lead to denial of promotion to the 3rd respondent until she passed the test because the Management also did not accept the position that the 3rd respondent acquired the qualification for appointment as Headmaster as on the date of arising of vacancy that is on 01/04/2011. On the other hand, the Management was of the view that as on the date of arising of vacancy even the petitioner was not qualified as she did not have continuous service of 12 years as a graduate teacher in High School as on the date of arising of the vacancy, and on finding that nobody is qualified as on the date of arising the vacancy, the Management appointed the 3rd respondent as a teacher in-charge of the Headmaster's post until the 3rd respondent acquired the qualification i.e. on 30/04/2011. The stand of the Management did not find acceptance with the District Educational Officer and the Deputy Director because according to them, the broken period of service rendered by the petitioner as a High School Assistant in leave vacancy prior to her regular appointment should also be clubbed with regular service. The Government did not accept the finding of the District Educational Officer as well as the Deputy Director because according to the Government continuous service means service without break and it should be regular service as a teacher after appointment on regular basis. Learned Senior counsel appearing for the 3rd respondent argued in support of the findings of the Government in Ext.P12. However, relying on the definition of "Graduate Service" as explained in Rule 44A of Chapter XIV A of the Kerala Education Rules, the petitioner's counsel contended that continuous service should be considered with reference to the meaning of graduate service, which takes in all service of a teacher as a High School Assistant after acquisition of training qualification, namely B.T., L.T. or B. Ed. Since the controversy is on the meaning of continuous service as cont