Prasad Vs. Manager, P.M.D.U.P.
School & Ors
 Insc 387 (10 April 2007)
S.B. Sinha & Markandey Katju
[Arising out of S.L.P. (Civil) No. 22003 of 2005] S.B. SINHA, J Leave
A primary school known as 'P.M.D. Upper Primary School' was established in
the year 1917. It is an educational institution governed by the provisions of
the Kerala Education Act and the Rules framed thereunder known as 'Kerala
Education Rules' (for short, 'the Rules'). A post of Headmaster in the said
institution governed by the said Act and the rules was to be filled up in terms
of Rules 44 and 45 of the Rules. The School in question is said to be a
minority institution within the meaning of clause (1) of Article 30 of the
Constitution of India. The post of Headmaster in the said school fell vacant on
or about 01.06.1994. There were two contenders therefor, Respondent Nos. 2 and
6 herein. Respondent No. 2 was appointed in the said post. Various writ
petitions were filed by the parties hereto before the Kerala High Court at
various stages as the competent authority, either itself or pursuant to the
directions made by the High Court in the writ petitions, passed diverse orders
from time to time.
As the history of the litigations may not be very material for our purpose,
we may only notice that ultimately the writ petition filed by Respondent No.6
herein claiming a preferential right of appointment to the post of Headmaster vis-`-vis
Respondent No.2 was allowed by a learned Single Judge of the Kerala High Court
by a judgment and order dated 08.04.2002, directing :
"This Original Petition is filed by the petitioner seeking a direction
to the respondents to appoint her as Headmistress with effect from 01.06.1994
and to grant her all consequential benefits. The petitioner herein is the fifth
respondent in OP No. 3409/99. In view of the dismissal of that Original
Petition, this Original Petition is liable to be allowed. The first respondent
is directed to appoint the petitioner as Headmistress with effect from
01.06.1994 and she will be entitled to all consequential benefits arising out
of that appointment in accordance with law. Respondents 4 and 5, if they think
fit, will be free to proceed against the Manager for recovering any amount paid
to the second respondent in accordance with law."
Appellant herein was not a party in any of the proceedings initiated by
Respondent No. 2 or Respondent No. 6. He upon obtaining leave in this behalf,
preferred an intra-court appeal, inter alia, on the premise that his case
should have been considered for appointment in the post of Headmaster, as he
had the requisite qualifications therefor. The Manager of the School also
preferred a writ appeal against that part of the judgment wherein an
observation in relation to the recovery of the amount paid to Respondent No. 2
had been made by the learned Single Judge.
Respondent No. 2 admittedly had retired during the pendency of the writ
appeal. A writ petition was also filed by the Manager, inter alia, praying for
dropping the proceeding to recover the loss suffered by the Government.
The Division Bench despite noticing that though Respondent No. 2 was wrongly
appointed, in view of the fact that she had been performing her duties,
directed that the amount paid to her may not be recovered. In regard to the
claim of Respondent No. 6, it was directed that although she should be
appointed as Headmistress with effect from 01.06.1994, but would not be
entitled to arrears of salary from the said date upto the retirement of
Respondent No.2. It was directed :
"We fully agree with the learned single Judge. We have already held
that during the period second respondent was actually working, salary cannot be
denied and Government is also not at loss as we have not directed to pay
arrears of salary for that period to the fifth respondent. Once Educational
Authority also approved the appointment of second appellant. Hence, we cannot
say that action of the management is not bonafide.
Therefore, Ext. P5 notice in O.P. No. 39254 of 2003 ordering recovery of
alleged loss from the manager is set aside. Ext. P4 passed by the Government in
3409 of 1999 is affirmed subject to the above directions regarding equitable
relief with respect to drawal of salary. Arrears and other benefits as per the
observations in this judgment should be paid to the fifth respondent who is the
petitioner in O.P. No.4017 of 2002 within three months from the date of receipt
of a copy of this judgment and she should be posted as headmistress and
appointment order with effect from 1.6.1994 shall be issued on or before 1st
The Manager of the School has not preferred any petition for grant of
special leave before us.
Before embarking upon the contentions raised by the learned counsel for the
parties, we may notice the admitted fact. Respondent No. 2 joined the School on
16.07.1969. Appellant herein joined the school as a Drawing teacher on
17.07.1978 and has been working on a regular basis only with effect form
02.06.1980. He was declared a protected teacher from 01.06.1989. While
discharging his duties as a teacher, Appellant applied for and granted study
leave for higher studies for two years with effect from 01.06.1991. He remained
on leave upto 28.02.1993. It is accepted that he was not a candidate who was
considered for appointment to the post of Headmaster. He indisputably gave
consent for appointment of Respondent No. 2. His case, therefore, never fell
for consideration either by the management of the school or by the Government
or by the High Court. Rule 45 of the Kerala Education Rules in the
aforementioned context, interpretation whereof falls for our consideration may
now be noticed :
"45. 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 acquisition of B.Ed. degree he
may be appointed as Headmaster provided he has got a service equal to half of
the period of service of the senior most under graduate teacher. If graduate
teachers with the aforesaid qualification and service are not available in the
school or schools under the same Educational Agency, the senior most primary
school teacher with S.S.L.C. or equivalent and T.T.C. issued by the Board of
Public Examination Kerala or T.C.H. issued by the Karnataka Secondary Education
Examination Board, Bangalore or a pass in Pre-degree Examination with pedagogy
as an elective subject conducted by the University of Kerala or any other
equivalent training qualification prescribed for appointment as primary school
assistant may be appointed.
Note : The language/specialist teachers, according to their seniority in the
combined seniority list of teachers shall also be appointed as Headmaster of
U.P. School or Schools under an Educational Agency provided the teacher possesses
the prescribed qualifications for promotion as Headmaster of U.P. School on the
date of occurrence of vacancy."
The said rule, thus, provides for essential qualification. Rule 45 is in
three parts. The first part provides for the qualification of a teacher who can
be appointed in the post of Headmaster. He must be graduate with B.Ed. or other
equivalent qualification and must have at least five years' experience in
teaching after acquisition of B.Ed. degree. The second part of the rule
provides for consideration of such teachers only in the event a graduate
teacher is not available. Indisputably, Respondent No. 6 fulfils the
educational qualification as also five years' experience in teaching after
acquisition of B.Ed. degree. Ignoring her claim, Respondent No. 2 was appointed
whose case comes within the purview of the second part of Rule 45, as she did
not have the qualification specified in the first part thereof .
Appellant was a Drawing teacher. He, therefore, was a specialist teacher.
According to him his case comes within the purview of the 'note' appended to
For the time being, we may assume that in view of fact that he had also
acquired the qualification of B.Ed. in April 1989, his case also could be
considered in terms of Rule 45; although it is well-settled principles of law
that the note appended to a statutory provision or the subordinate legislation
must be read in the context of the substantive provision and not in derogation
thereof. Five years' teaching experience for appointment to the post of
Headmaster was a sine qua non. Such teaching experience was to be 'teaching
experience' and not a deemed teaching experience.
In Punjab State Electricity Board Ltd. v. Zora Singh and Others [(2005) 6
SCC 776], this Court noticing a decision of a Full Bench of the Andhra Pradesh
in A.P. SRTC v. STAT [ILR 2001 AP 1], observed :
"23. In A.P. SRTC v. STAT a Full Bench of the Andhra Pradesh High Court
has noticed thus: (An LT p. 544, para 31) 31. The meaning of note as per P.
Ramanatha Aiyars Law Lexicon, 1997 Edn. is a brief statement of particulars of
some fact, a passage or explanation.
24. The note, therefore, was merely explanatory in nature and thereby the rigour
of the main provision was not diluted."
Mr. V. Shekhar, the learned Senior Counsel appearing on behalf of Appellant,
however, has drawn to our attention to a circular letter dated 30.12.2005
issued by the Government of Kerala Finance (Rules) Department, from a perusal
whereof it appears that the leave without allowance under rule 91 for study
purpose would carry service benefit in regard to seniority/promotion
accumulation of HPL but would not be counted towards seniority/promotion and
accumulation of earned leave.
Apart from the fact that the said circular was issued only on 30.12.2005 and
had not been given a retrospective effect, a clarification had been issued in
respect of reckoning of period for service benefits only and not for
seniority/promotion. It had been issued by the Finance Department and not by
the Education Department. It does not and in law cannot supersede the statutory
Indisputably, Appellant was on study leave for the period 01.06.1991 to
28.02.1993. During the said period, he was not teaching. He did not gain any
teaching experience during the said period. If the said period is excluded for
the purpose of computing teaching experience as envisaged under Rule 45 of the
Rules, the question of his being considered for promotion to the post of
Headmaster would not arise. Eligibility condition must be satisfied before a
person is considered for promotion/appointment in respect of a particular post.
Submission of Mr. Shekhar that the High Court failed to notice that Rule 45
of the rules would not govern the minority institution is stated to be
rejected. Validity of Rule 45 is not under challenge. He, in any event, cannot
raise the said contention. A contention to that effect could be raised only by
the institution. It has not preferred a special leave petition. Whether
Respondent No. 2 could validly be appointed by the management in view of its
minority character protected under clause (1) of Article 30 of the Constitution
of India, therefore, does not fall for our consideration.
Mr. Shekhar faintly argued that such a contention is available to Appellant also
as in the event, appointment of Respondent No. 2 is held to be valid, the post
of Headmaster must be held to have fallen vacant again on her retirement which
would unable the authorities to consider his case for promotion thereto.
We are not in a position to persuade ourselves to accept the said
contention. Vacancy arose in 1994. The management of the school, the State
Government as also different benches of the High Court in various litigations
considered only that aspect of the matter, namely, Respondent No. 6 had
fulfilled the eligibility criteria and had, therefore, been appointed.
Appellant was nowhere in the picture at the relevant time. At his instance,
the court cannot embark upon a larger question which had not been raised for
its consideration directly. What cannot be done directly, it is well- settled,
cannot be done indirectly.
For the reasons aforementioned, there in the no merit in this appeal, which
is dismissed accordingly with costs payable by the Appellant to Respondent No.
6. Counsel's fee is assessed at Rs. 10,000/-.
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