http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: JUTHIKA BHATTACHARYA

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH & ORS.

DATE OF JUDGMENT01/09/1976

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. GOSWAMI, P.K. GUPTA, A.C.

CITATION:  1976 AIR 2534            1977 SCR  (1) 477  1976 SCC  (4)  96  CITATOR INFO :  RF         1977 SC1237  (16)

ACT:             Interpretation   ---  "should"  contained  in  a  clause         "should possess a post-graduate degree and requisite experi-         ence"  whether  mandatory or director   --   "Post-graduate"         --Meaning of.

HEADNOTE:             Paragraph  3(b) of a memorandum dated December 21,  1967         issued by the State Government provides that for  absorption         in  the post of Principal of a Higher Secondary School,  the         person concerned "should" possess a post-graduate degree and         should also possess the prescribed experience.  An amendment         introduced  by the memorandum dated December 6,   1972  says         that wherever the qualification for a post is post-graduate,         the person concerned will have to obtain this degree  within         three  years  of absorption.  But this  amendment  was  made         applicable  only to persons who had been working in  schools         run  by Janpad Sabhas and Municipal Committees and  for  all         teachers of non-Government schools taken over by the Govern-         ment 1967-orders applied.             The appellant, who was a B.A.B.T., was the Head-Mistress         of a Private school.  When the administration of the  school         was  taken over by the Government, she was fixed in a  lower         time scale of pay because, under the rules, no person  could         be  appointed as Principal unless she held  a  post-graduate         degree and possessed the requisite experience.             The  High Court dismissed her Writ Petition.  In  appeal         to this Court it was contended that (i) her appointment in a         lower  post was illegal because she could have obtained  the         Post-graduate  degree within the three years’ time from  the         date  of her absorption; (ii) the word ’should’ used in  the         1967-memorandum showed that the rule is directory in charac-         ter;  (iii) since. she held B.A.B.T., she should be  consid-         ered as having a post-graduate qualification;  (iv) she  was         discriminated against because in the schools run by  Govern-         ment  from  their  inception, teachers who did  not  hold  a         Master’s  degree  were appointed as Principals and  (v)  the         qualifications of the teaching staff have to be the same  as         prescribed  in  the Regulations of the  Board  of  Secondary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

       Education.         Dismissing the appeal,             HELD:   (1)  In  view of the express  statement  in  the         1972-Memorandum that it would be applicable only to previous         teachers of Janpad Sabhas and Municipalities, the  appellant         could  not  claim the benefit of  the  particular  facility.         [479 E-F]             (2) The word ’should occurring in paragraph 3(b) must be         understood  in a mandatory sense.  The use of word  "should"         cannot  justify the construction that for absorption in  the         post of a Principal of a Higher Secondary School the  incum-         bent may or may not possess the Post-Graduate Degree.  In  a         memorandum containing a set of rules prescribing the  quali-         fications  for various posts, it is meaningless  to  provide         that the incumbent of a certain post may or may not  possess         a certain qualification, if the possession of the particular         qualification is considered to be a matter of no  importance         or consequence.  Paragraph 3(b) consists of a complex provi-         sion one part of which refers to the requirement of a  Post-         Graduate  Degree  and  the other to the need  to  possess  a         certain amount of experience.  Both the clauses of a  single         sentence are governed by the verb "should".  If the require-         ment as to the possession of a Post-graduate Degree is to be         directory  in character, the same consideration  must  apply         equally  to the requirement of experience, with  the  result         that  for eligibility for the post of a Principal, it  would         neither  be necessary to possess any particular  educational         qualification  nor  any particular experience  of  teaching.         [480 C-E]         478             (3) By "Post-graduate Degree" is meant a Master’s degree         like the M.A. or M.Sc. and not a Bachelor’s degree like B.T.         In  expressions like "post-nuptial", "post-operative"  etc.,         "post" means "after", the emphasis being on the happening of         an event after a certain point of time.  In the  educational         world the expression "post-graduate" has acquired a  special         significance.  It is the holder  a Master’s Degree like  the         M.Ed.  or  LL.M., who earns recognition as the holder  of  a         post-graduate  degree.  That is the sense in which  the  ex-         pression is used in the Memorandum.  [480 G, 481 A]             (4)  The  State Government had a valid reason  for  pre-         scribing comparatively stringent qualifications for  Princi-         pals in schools taken over from privae institutions.   While         a teacher in a Government school was appointed as  Principal         by reason of long and valuable experience gained as teacher,         a  Head  Mistress or a. Principal of a  private  school  was         appointed directly and straightway without insistence on any         worthwhile experience of teaching.  [481 G]             (5)  Regulations  of the Board  of  Secondary  Education         framed  under the Madhya Pradesh Madhyamik Siksha  Adhiniyam         1965 have no relevance in the present ease.  They  prescribe         conditions  with  which an educational  institution  had  to         comply  before seeking recognition.  The various  conditions         prescribed’ by the Regulations do not constitute  conditions         of  service and can create no rights and  obligations,  con-         tractual  or statutory, as between a school and its  employ-         ees, whether the school is a Government institution or a non         Government institution.  [482 A-B]

JUDGMENT:         CIVIL APPELLATE JURISDICTION: Civil Appeal No. 696 of 1976.             (Appeal  by Special Leave from the Judgment  and   Order         dated 16-4-1976 of the Madhya Pradesh High Court in M.P. No.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

       697/72).         A.K. Sen, S.S. Khanduja and S.K. Jain for the Appellant.         D.N. Mukherjee and C.L. Sahu, for Respondent No. 4.             Ram  Panjwani,  H.S.  Parihar and  1.  N.  Shroff,   for         Respondents 1--3.         The Judgment of the Court was delivered by         CHANDJACHUD, J.  The management  of Primary  and  Middle         Schools was taken over by the Madhya Pradesh Government from         the Local Authorities under the Madhya Pradesh Local Author-         ities  School  Teachers (Absorption in  Government  Service)         Act,  1963.  In 1968, the State Government decided  to  take         over  the management of Higher Secondary Schools also.   One         such school was Kanya Naween Vidya Bhawan, Gadarwara,  which         was run by a Society registered trader the Societies  Regis-         tration Act.  The appellant, Smt. Juthika Bhattacharya.  who         was  a B.A.B.T., was the Head Mistress of that  school.  Her         scale  of pay was Rs. 275--700 and at the relevant time  she         was drawing a monthly salary of Rs. 500.             On  February 23, 1970 the Divisional  Superintendent  of         Education,  Narmada-Division,  Hoshangabad,  wrote   to  the         Society  that  the management of the school run by it  would         be taken over by the Government if there was no  improvement         in its financial position.  On June 7, 1971 he informed  the         Society that the Government had issued directions for taking         over  the  management of the school.  In pursuance  of  this         letter, the management of the school, along with its assets,         was  taken  over  by the Government on  June  18,1971.   The         Government assured the Society that the staff of the  school         will be absorbed in the new set-up.         479             The case of the appellant is that she was entitled to be         appointed  as  a Principal since she was holding  a   corre-         sponding post in a  substantive capacity on the date of  her         absorption viz., June  18, 1971. But the Divisional Superin-         tendent  of  Education acting under the  directions  of  the         State  Government, and the Director of  Public  Instructions         directed  that the appellant should be absorbed as an  Upper         Division Teacher in the time scale of Rs. 150--290.  Accord-         ing  to the respondents, the appellant did not hold a  post-         graduate degree and no person could be appointed to the post         of a Principal unless he or she held a post-graduate  degree         and  possessed the stated  length of  experience.  Appellant         having had the requisite, experience, the only question  for         decision  in  this appeal is whether she is entitled  to  be         appointed as a Principal notwithstanding the fact that  she.         does  not hold  a  postgraduate degree.             Relying upon a Memorandum dated December 6, 1972  issued         by  the  Government of Madhya Pradesh in its  Department  of         Education, the appellant contended that even assuming   that         she could  not  be appointed as a Principal for the  alleged         reason  that  she did not hold a post-graduate  degree,  she         could  obtain that degree any time within 3 years  from  the         date  of  her absorption and therefore the order  passed  by         the,  State  Government, before the expiry of  that  period,         appointing  her  on  a lower post is illegal.  There  is  no         substance in this argument because the Memorandum of  Decem-         ber  6,  1972 applies, in terms, only to the  staff  of  the         Higher  Secondary, Schools run by Janpad Sabhas and  Munici-         palities  and  not to the staff of schools  run  by  private         Societies  like the school of, which the appellant,  on  the         date  of absorption, was the Head Mistress.  Paragraph  4(b)         of the  aforesaid Memorandum undoubtedly affords the facili-         ty  that where the qualification for a post is  post-gradua-         tion,  the  post-graduate degree may be  obtained  within  3         years  from  the date of absorption.  But in   view  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

       express  statement  in the Memorandum that it will  be  "ap-         plicable  only  to previous teachers of  Janpad  Sabhas  and         municipalities",  the appellant cannot claim the benefit  of         the’ particular facility.  Any lurking doubt in this  behalf         stands resolved by the further statement in the   Memorandum         that  except in regard to schools run by Janpad  Sabhas  and         Municipalities,  the  Rules  dated December  21,  1967  will         continue  to  apply  to nonGovernment  schools  without  the         amendments introduced by the Memorandum.             The  Memorandum dated December 21, 1967, the Rules  con-         tained in which remain unaffected by the amendments   intro-         duced by  the Memorandum dated December 6, 1972 provides  by         paragraph 3(b) that for absorption in the post of the  Prin-         cipal  of  a Higher Secondary School, the  person  concerned         "should"  possess the post-graduate degree and  should  also         possess experience of a certain number of years.  The appel-         lant  did have the requisite experience but the question  is         whether  paragraph  3(b) of the Memorandum  contains  but  a         directory  rule as it uses the word ’should’  and  secondly,         whether the appellant can be said to possess a  ’post-gradu-         ate degree’ since she holds the qualification of B.A.B.T.             It  is urged on the first limb of this argument that  as         contrasted  with the Memorandum of December 21,  1967  which         uses the word "should",         480         the  one  dated  December 6, 1972  Says   that  the.  person         concerned  "must" have obtained a post-graduate  degree  and         therefore the former rule is directory in character.  We are         unable to agree.  The mere use of the word "should" does not         mean  necessarily that the compliance with the rule is  dis-         cretionary.  It is well-settled that whether a provision  is         directory  or mandatory depends on its object  and  purpose,         not merely on the use of any particular word or phrase.  The         object of the Memorandum is to prescribe qualifications  for         the  staff of non-Government schools and Local Body  schools         taken  over by the State Government.  In that  context,  the         use  of  the word "should" cannot justify  the  construction         that for absorption in the  post of a Principal  of a Higher         Secondary  School,  the incumbent may or may not  possess  a         post-graduate degree.  In a memorandum  containing a set  of         rules  prescribing qualifications for various posts,  it  is         meaningless to provide that the incumbent of a certain  post         may  or  may  not possess a certain  qualification,  if  the         possession of the particular  qualification is considered to         be a matter of no importance or consequence.  Paragraph 3(b)         consists of a complex provision, one part of which refers to         the  requirement of a post-graduate degree and the other  to         the  need to. possess a certain amount of experience.   Both         the  clauses of a single sentence are governed by  the  verb         "should".   If  the requirement as to the  possession  of  a         post-graduate  degree is to be directory in  character,  the         same  consideration must apply equally  to the   requirement         of experience, with the result that for eligibility for  the         post  of  a  Principal, it would  neither  be  necessary  to         possess  any  particular educational qualification  nor  any         particular experience of teaching.  The appointment then  to         the highest post in the school would  depend upon  the sweet         will  of  the appointing authority, unguided  alike  in  the         matter of minimum qualification and minimum experience.  The         word "should" occurring in paragraph 3(b) of the  Memorandum         of 1967 must therefor be understood in a mandatory sense, so         that no person who does not hold a post-graduate degree  and         possess the requisite experience would be eligible for being         appointed as  the Principal of a  higher secondary school.             As  regards the second limb of the argument  that  since

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

       the appellant holds the qualification of B.A.B.T., she ought         to be considered as holding a "post-graduate degree", regard         must  again  be had to the context in which  the  particular         expression  occurs and the purpose of the prescription.   It         is  not inconceivable that the   expression   "post-graduate         degree"  may  in a broad and general sense mean in  a  given         context  any  degree obtained after graduation and  which  a         graduate  alone  can obtain.  But that is not the  sense  in         which  the Memorandum uses  the particular  expression.   By         "post-graduate  degree" is meant a Master’s degree like  the         M.A. or M.Sc. and not a Bachelor’s degree like  the B.T.  In         other words, the expression connotes the successful  comple-         tion  of a course of studies at a higher level in  any  spe-         ciality,  after the acquisition of a basic qualification  at         the  graduate   level.  The B.T. course of studies,  we  are         informed, is open only to graduates and in dictionary manner         of  speaking,  the degree of "Bachelor of Teaching"  may  be         said  to be a "post"-graduate degree in the sense  that  the         degree  is obtainable only "after" graduation.  That is  the         sense  in which the word "post" is used in expressions  like         "post-nuptial", "post-prandial",           481            "post-operative",  "post-mortem" and so forth.  In  these         expressions,     "post" means simply "after",  the  emphasis         being on the happening of an event after a certain point  of         time,    But  the   expression   "postgraduate  degree"  has         acquired in the educational world a special significance,  a         technical  content.  A Bachelor’s degree like the  B.T.,  or         the LL.B is not considered to be a post-graduate degree even         though those    degrees can be taken only after  graduation.         In the refined and elegant    world of education, it is  the         holder of a Master’s degree like the M.Ed.  or the LL.M. who         earns  ,recognition as the holder of a post-graduate     de-         gree.  That is the sense in which the expression is used  in         the Memorandum.  Mr. Sen says that in some foreign universi-         ties even a Bachelor’s degree, obtainable only after gradua-         tion,  is considered as a post-graduate  qualification.   We         are  concerned with the interpretation of     an  indigenous         instrument  and  must  have regard for  local  parlance  and         understanding.  Such awareness and understanding compel  the         construction  for  which we have indicated  our  preference.         Indeed,  everyone concerned understood the rule in the  same         sense as is evident from the permission sought by the appel-         lant herself to appear for the M.A. examination.  She  asked         for that permission in order to qualify for the  Principal’s         post.             The  appellant’  made a serious grievance that  she  was         discriminated against in comparison with several others  who         have  been  appointed  as  principals  in  higher  secondary         schools run by the Government.  On the record is a statement         (Annexure P-VIII) which does show that in schools which were         from their inception run by the Government, several teachers         were  appointed as Principals though they did not  hold  the         Master’s  degree.  Mr. Panjwani appearing on behalf  of  the         state  Government  has given a valid  explanation  for  this         differentiation.  Speaking generally, in schools which  were         always  under Government control, a teacher could aspire  to         become  a  Principal only after a long  period  of  service.         Most  of the 19 teachers whose names appear in  Annexure  P-         VIII had served for about 20  years before being   appointed         as principals.  On the other hand, private schools like  the         one in which the appellant was working as a Head Mistress or         a principal did not follow any such convention and  appoint-         ments to the post of the head of the school were made there-         in directly and straightway without insistence on any worth-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

       while  experience  of teaching.  The appellant  herself  was         appointed  to  the post of a Head Mistress directly  in  the         year  1958.   The  state Government had  therefore  a  valid         reason  for prescribing comparatively  stringent  qualifica-         tions for the post of Principal in schools taken over by  it         from private institutions.  It may be added that in its  own         schools,  the Government  appointed persons  holding  merely         the  qualification of B.A.B.T., to the post of Principal  by         reason of the long and valuable experience gained by them as         teachers  and not on the supposition that they held a  post-         graduate degree.             Reliance  was  placed  by  the  appellant’s  counsel  on         "Regulations  of  the Board of Secondary  Education,  Madhya         Pradesh", in support  of his submission that the  qualifica-         tions  of the teaching staff in any institution have  to  be         the  same as prescribed for the corresponding staff in  Gov-         ernment  institutions.  But these Regulations have no  rele-         vance  in the present case.  They were framed under  section         28(4)  of the         482         Madhya  Pradesh Madhyamik Shiksha Adhiniyam, 1965.   Regula-         tion  61  and the allied regulations on  which  reliance  is         placed  show  that they were framed in  order  to  prescribe         conditions  with  which an  educational institution  had  to         comply before  seeking recognition  of the Board of  Second-         ary  Education.   The various conditions prescribed  by  the         Regulations do not constitute conditions of service and  can         create no rights and obligations, contractual or  statutory,         as between a school and its employees whether the school  is         a Government institution non-Government institution.             Before  concluding we would like to say that  the  State         Government  ought to consider the request which was made  by         the  appellant long since for permission to appear  for  the         final  M.A.  Examination. She has already passed Part  I  of         that  examination with Political Science as her subject  but         she  was refused permission to complete. the course  on  the         ground  that  she had not yet completed one  year’s  service         under  the State Government.  That objection. can no  longer         hold  good.  We are confident that the proceedings taken  by         the appellant for vindicating her rights will not be allowed         to stand in her way if and when she is found fit and  quali-         fied  for further’ promotion in accordance with  the’  rele-         vant rules.             For  these reasons we confirm the judgment of  the  High         Court  and dismiss the appeal but there will be no order  as         to costs.         P.B.R.                                     Appeal dismissed.         483