PETITIONER:
JUTHIKA BHATTACHARYA
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH & ORS.
DATE OF JUDGMENT01/09/1976
BENCH:
CHANDRACHUD, Y.V.
GOSWAMI, P.K.
GUPTA, A.C.
CITATION:
1976 AIR 2534 1977 SCR (1) 477
1976 SCC (4) 96
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
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.
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
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
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-
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