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CASE NO.: Appeal (civil)  1870 of 2007

PETITIONER: V.B. Prasad

RESPONDENT: Manager, P.M.D.U.P. School & Ors

DATE OF JUDGMENT: 10/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  [Arising out of S.L.P. (Civil) No. 22003 of 2005]

S.B. SINHA,  J  

       Leave granted.

       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

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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 :

"\005We 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 O.P. No.  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 August, 2005."

       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

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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 Rule 45.

       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[24]. 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."  

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       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 rules.

       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/-.