IMPORTANT POINT
Five years teaching experience after acquiring degree of B.Ed for the post of Head Master under Kerala Education Rules was a sine qua non.

Headnote:Kerala Education Act — Kerala Education Rules — Rule 44 and 45 — Post of Headmaster — School in question was said to be a minority institution — Essential qualification for post of Headmaster — Person was to be a graduate with B.Ed and at least five years’ experience in teaching after acquisition of B.Ed degree — A note appended to a statutory provision or the subordinate legislation has to be read in context of substantive provision and not in derogation thereof — Five years’ teaching experience for the post was a sine qua non — Appellant being a Drawing teacher though was a specialist teacher and claimed to come within purview of the ‘note’ appended to Rule 45 he did not have five years teaching experience after acquisition of B.Ed degree when post fell vacant in 1994 — Contention that Rule 45 would not govern the minority institution could not be entertained in this appeal.
       Held : 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. (Para 9)
       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. (Para 10)
       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. (Para 14)
       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. (Para 15)

JUDGMENT

S.B. Sinha, J. — 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 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.

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 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.”

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 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.

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.

6. 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

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2007 Supreme(SC) 491

IMPORTANT POINTFive years teaching experience after acquiring degree of B.Ed for the post of Head Master under Kerala Education Rules was a sine qua non.

Cases Referred (1)

IMPORTANT POINT
Five years teaching experience after acquiring degree of B.Ed for the post of Head Master under Kerala Education Rules was a sine qua non.