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TMI Blog2007 (4) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 super ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 Respond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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