Holding

Eligibility under Rule 45, including five years of post‑B.Ed. teaching experience, must be satisfied before consideration for promotion, and the appellant did not meet this requirement.

Summary

The case concerned a primary school, a minority institution, where the post of Headmaster became vacant in 1994. Two teachers, Respondent No.2 and Respondent No.6, were the only contenders; Respondent No.2 was appointed, a decision later set aside by the Kerala High Court in favour of Respondent No.6. V.B. Prasad, a drawing teacher, who was not a party to the earlier proceedings, filed an intra‑court appeal claiming that, as a specialist teacher, he should have been considered for the Headmaster post under the note appended to Rule 45 of the Kerala Education Rules. The Supreme Court examined whether the eligibility conditions—particularly the requirement of five years of teaching experience after obtaining a B.Ed.—had to be satisfied before a candidate could be considered, and whether the note could broaden the pool of eligible teachers. The Court held that the note must be read in the context of the substantive rule, that study leave does not count as teaching experience, and that the rule applies equally to minority institutions. Since the appellant lacked the requisite teaching experience, his appeal was dismissed.

Issues considered

Whether the eligibility conditions prescribed in Kerala Education Rules 44/45 must be satisfied before a person can be considered for promotion to Headmaster.
Whether the note appended to Rule 45 can be used to include specialist teachers such as a drawing teacher for promotion.
Whether period of study leave counts as teaching experience for the purpose of the five‑year experience requirement.
Whether Rule 45 is applicable to a minority educational institution under Article 30 of the Constitution.
Whether the Court can entertain a question not raised in the earlier proceedings.

Legislation cited

Kerala Education Act

Subjects

promotioneligibilityKerala Education Rulesminority institutionArticle 30teaching experiencestatutory interpretationnote to rulestudy leave

Judgment

-·., V.B.PRASAD A
v.
MANAGER, P.M.D.U.P. SCHOOL AND ORS

APRIL I0, 2007

[S.B. SINHA AND MARKANDEY KA TJU, JJ.] B

>
~
Service Law:

Promotion/Appointment-Eligibility condition-Held: Must be satisfied
before a person is considered for promotion/appointment in respect of a c
particular post-Kera/a Education Rules-rr.45 and 44-Kera/a Education
; Act.

Promotion/Appointment-To post of Headmaster in primary school-
Two contenders, Respondent No.2 and No.6-Respondent No.2 appointed
Challenge by Respondent No.6 upheld by Single Judge of High Court-
D
''°"-i Appellant who was never considered for the said post and was not a party
in any of the proceedings between Respondent No.2 and 6 filed intra-Court
appeal contending that he should have been considered for the post of
Headmaster-Held: Appellant was nowhere in the picture at the relevant
time-At his instance, the Court cannot embark upon a larger question E
which had not been raised for its consideration directly-What cannot be
done directly, cannot be done indirectly-Kera/a Education Rules-rr. 45
and 44-Kera/a Education Act.

Interpretation of Statutes-Note appended to a statutory provision-
-+. Held: To be read in context ofthe substantive provision and not in derogation F
} thereof

The primary school in question is a minority institution within the
meaning of clause (1) of Article 30 of the Constitution. For the post of
Headmaster in the school there were two contenders, viz. Respondent No. 2
and Respondent No.6. Rule 45 of the Kerala Education Rules framed under G
the Kerala Education Act stipulated the eligibility conditions viz. essential
qualifications/teaching experience required for the post of Headmaster.
-..-\ Respondent No.2 was appointed which was challenged by Respondent No.6 by
filing writ petition. The latter claimed preferential right of appointment vis-
1077 H
·'f.-.
1078 SUPREME COURT REPORTS [2007) 4 S.C.R.
'
A a-vis the former. The petition was allowed by a Single Judge of High Court.
Appellant, a Drawing teacher in the school, was not a party in any of
the proceedings initiated by Respondent No.2 or 6 and his case was never
considered by Management of the school or by the Government or by the Court.
He filed an intra-Court appeal, contending that he should have been considered
B for appointment in the post of Headmaster, as he had the requisite
qualifications therefore. According to him, being a specialist teacher, his case
came within the purview of the note appended to Rule 45.

The question which arose for consideration in the present appeal is
C whether Appellant is entitled to be considered for promotion to the post of
Headmaster.

Dismissing the appeal, the Court

HELD: 1. Appellant joined the school as a Drawing teacher on
17.07.1978 and has been working on a regular basis only with effect from
D 02.06.1980. While discharging his duties as a teacher, Appellant applied for
and granted study leave for higher studies for two years with effect frorr
01.06.1991. He remained on leave upto 28.02.1993. 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
E fell for consideration either by the management of the school or by the
Government or by the High Court. (Para 8) (1081-G-H; 1082-A-B]

2. For the time being, it may be assumed that in view of fact that he had
also acquired the qualification of B.Ed. in April 1980, his case also could be
considered in terms of Rule 45; although it is well-settled principles of law
F 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. (Para 10) (1083-C)

G Punjab State Electricity Board Ltd. v. Zora Singh and Ors., (2005) 6
SCC 776 and A. P. SRTC v. STATILR (2001) AP 1, referred to

3. Appellant was on study leave for the period 01.06.1991to28.02.1993..
During the said period, he was not teaching. He did not gain any teaching
H experience during the said period. If the said period is excluded for the purpose
V.B. PRASAD v. MANAGER, P.M.D.U.P. SCHOOL 1079

of computing teaching experience as envisaged under Rule 45 of the Rules, A
the question of his being considered for promotion to the post of Headmast~r
would not arise. Eligibility condition must be satisfied before a person is
considered for promotion/appointment in respect of a particular post.
[Para 14} [1084-B}

4.1. The contention of the Appellant that the High Court failed to notice B
that Rule 45 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 would 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· C
character protected under clause (1) of Article 30 of the Constitution of India,
therefore, does not fall for consideration. [Para 15} {1084-C-D}

4.2. The argument 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 D
would enable the authorities to consider his case for promotion thereto, cannot
be accepted. 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 E
embark upon a larger question which had not been raised for its consideration
directly. What cannot be done directly, it is weH-settled, cannot be done
indirectly. [Para 16, 17) [1084-E-F)

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1870 of2007.
F
From the Judgment and Order dated 07.06.2005 of the High Court of
Kerala at Emakulam in W.A. No. 1163 of 2002.

V. Shekhar, P. Sreekumar, S. Ganesh, R.P. Wadhwani and Pradeep K.
Dubey for the Appellant.
G
C.S. Rajan, Ramesh Babu M.R. (NP), A. Raghunath, C.K. Sasi, G. Prakash
and Beena Prakash for the Respondents.

The Judgment of the Court was delivered by
H
I 080 SUPREME COURT REPORTS [2007] 4 S.C.R.
y'-
A S.B. SINHA, J. I. Leave granted.

2. 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
B Headmaster in the said institution governed by the said Act and the rules was
to be filled up in tenns of Rules 44 and 45 of the Rules. The School in question
is said to be a minority institution within the meaning of clause (I) 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,
C 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.

D 3. 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-a-vis Respondent No.2 was allowed by a learned
SingleJudge of the Kerala High Court by a judgment and order dated 08.04.2002,
directing:
E
"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
F 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
G respondent in accordance with law."

4. 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
H he had the requisite qualifications therefor. The Manager of the School also
V.B. PRASADv. MANAGER, P.M.D.U.P. SCHOOL [S.B. SINHA,J.] 1081

-·~
preferred a writ appeal against that part of the judgment wherein an observation A
in relation to the recovery of the amount paid to Respondent No. 2 had been
made by the learned Single Judge.

5. 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. B

6. The Division Bench despite noticing that though Respondent No. 2
"' ~. was wrongly appointed, in view of the fact that she had been perfonning 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 c
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
D
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. PS notice in O.P. No. 39254 of2003 ordering
recovery of alleged loss from the manager is set aside. Ext. P4 passed E
by the Government in O.P. No. 3409of1999 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 of2002 within three months from the date of receipt
of a copy of this judgment and she should be posted as headmistress
F
.._
I and appointment order with effect from l.6.1994 shall be issued on or
before lst August, 2005."

7. The Manager of the School has not preferred any petition for grant
of special leave before us.
G
8. 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
, --·r
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 0 l.06.1989. While H
1082 SUPREME COURT REPORTS (2007] 4 S.C.R.

A 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
B 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 th-e
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
c 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
D 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.
E issued by the Kamataka 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.
F
Note : The language/specialist teachers, according to their seniority _. F
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
G vacancy."

9. 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 __,___..
'I •

other equivalent qualification and must have at least five years' experience
H in teaching after acquisition of B.Ed. degree. The second part of the rule
V.B. PRASADv. MANAGER, P.M.D.U.P. SCHOOL [S.B. SINHA, J.] 1083

provides for consider~tion of such teachers only in the event a graduate A
-·Jo.
teacher is not available. Indisputably, Respondent No. 6 fulfils the educational
qualification as also five years' experience in teaching after acquisition of
REd. 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 B
case comes within the purview of the 'note' appended to Rule 45.

JO. 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 oflaw that C
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.

11. In Punjab State Electricity Board Ltd v. Zora Singh and Ors., D
(2005] 6 SCC 776, this Court noticing a decision of a Full Bench of the Andhra
Pradesh in A.P. SRTC v. STATILR (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)
E
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." F
12. 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 ofKerala 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/ G
promotion accumulation of HPL but would not be counted towards seniority/
promotion and accumulation of earned leave.

13. 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/ H
promotion. It had been issued by the Finance Department and not by the
1084 SUPREME COURT REPORTS [2007) 4 S.C.R.

A Education Department. It does not and in law cannot supersede the statutory
rules.

14. 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
B 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.

·C 15. Submission of Mr. Shekhar that the High Court failed to notice that
Rule 45 of the rules wou.ld 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
D Respondent No. 2 could validly be appointed by the management in view of
its minority character protected under clause (1) of Articlt: 30 of the
Constitution of India, therefore, does n.ot fall for our consideration.

16. 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
E 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.

17. 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
.. F 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
G be done indirectly.

18. 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/-.

H BBB. Appeal dismissed: