Supreme Court of India
V. K. GIRIJA V. RESHMA PARAYIL & ORS.versusRESHMA PARAYIL & ORS.
- Citation
- 2018 INSC 1147
- Decided
- 4 December 2018
- Disposal
- Dismissed
- Bench
- ASHOK BHUSHAN
Holding
The vacancy must be filled by transfer under Rule 4(2) of the Kerala Education Rules, 1959; Rule 5(3) of the Kerala State and Subordinate Services Rules, 1958 does not apply.
Summary
V.K. Girija was appointed as a Higher Secondary School Teacher (Economics) by direct recruitment. Reshma Parayil, a Higher Secondary School Assistant, claimed that the vacancy should have been filled by transfer under Rule 4(2) of the Kerala Education Rules, 1959. The State Government ordered her transfer, but a Single Judge set aside that order relying on Rule 5(3) of the Kerala State and Subordinate Services Rules, 1958. The Kerala High Court Division Bench reversed, holding that the specific provisions of the Kerala Education Rules, 1959, Chapter XXXII, govern the appointment and require the vacancy to be filled first by transfer, rendering Rule 5(3) inapplicable. The Supreme Court affirmed this view, dismissing the appeal and directing the management to appoint the respondent by transfer.
Issues considered
- Whether the vacancy for the post of Higher Secondary School Teacher (Economics) should be filled by direct recruitment or by transfer as per Rule 4(2) of the Kerala Education Rules, 1959.
- Whether Rule 5 of the Kerala State and Subordinate Services Rules, 1958 (especially Note 3) applies to the appointment of Higher Secondary School Teachers.
- Whether the appointment of the appellant by direct recruitment was valid.
Legislation cited
- Kerala Education Act, 1958
- Kerala Education Rules, 1959s. Chapter XXXII, Note 1, s. Chapter XXXII, Rule 4(2), s. Chapter XXXII, Rule 4(3)
- Kerala State and Subordinate Services Rules, 1958s. Rule 5, s. Rule 5(3)
- Kerala State and Subordinate Services Rules, 1992
Subjects
appointmenttransferdirect recruitmentKerala Education RulesHigher Secondary School Teacherservice lawratio 1:3cadre strengthspecial vs general rules
Judgment
1036 SUPREME[2018]
COURT 14 REPORTS
S.C.R. 1036 [2018] 14 S.C.R.
A V. K. GIRIJA
v.
RESHMA PARAYIL & ORS.
(Civil Appeal No. 11829 of 2018)
B DECEMBER 04, 2018
[ASHOK BHUSHAN AND AJAY RASTOGI, JJ.]
Service Law:
Appointment – Whether by direct recruitment or by transfer –
C To the post of Higher Secondary School Teacher – Appellant was
appointed to the post by direct recruitment – Respondent No. 1 who
was working as Higher Secondary School Assistant in the School,
filed a complaint questioning direct recruitment – She claimed that
the post should have been filled up by her transfer – The complaint
was rejected by Deputy Director of Education – Departmental
D
appeal was dismissed by Director of Education – In Revision State
Government held that post was required to be filled up by transfer
of the respondent – Writ petition by appellant – Single Judge of
High Court relying on r. 5(3) of Kerala State and Subordinate
Services Rules, 1958 held that vacancy was to be filled up on the
E basis of cadre strength and not on the basis that first vacancy should
be filled up by transfer – In appeal Division Bench of High Court
setting aside order of Single Judge held that r. 5(3) of 1958 Rules
were not applicable and the post was to be filled up by transfer –
On appeal, held: Appointment of teachers in the school was
governed by Kerala Education Rules, 1959 – Chapter XXXII of
F
1959 Rules shall be followed for appointment – r. 5(3) of 1958
Rules is not applicable – As per r. 4(2) of 1959 Rules the post was
first to be filled up by transfer – Therefore, Division Bench of High
Court was right in directing appointment of respondent No. 1 –
Kerala Education Rules, 1959 – Chapter XXXII, r. 4(2) – Kerala
G State and Subordinate Services Rules, 1958 – r. 5(3).
Dismissing the appeal, the Court
HELD : 1. A perusal of the Rule 4(2) of Kerala Education
Rules, 1959 contemplates that post of Higher Secondary School
Teacher is to be filled up first “by transfer from Junior Lecturer
H
1036
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1037
in the subject concerned under the management / Higher A
Secondary School Teacher (Junior)”. Thus, every vacancy of
Higher Secondary School Teacher has to be filled up first by the
transfer of Higher Secondary School Teacher (Junior) in the
subject concerned. There is a purpose and object for providing
a particular scheme for filling up the post of Higher Secondary
B
School Teacher. Higher Secondary School Teacher (Junior) is
also lecturer in concerned subject and the statute required that
whenever post in Higher Secondary School Teacher arises, the
same shall be first offered to the Junior Lecturer in the subject.
Above statutory scheme serves the interests of the school,
students and the teachers already serving in the institution. A C
Junior Lecturer working in the same subject is first choice to fill
up the post, which obviates the management to take any other
steps for recruitment. [Para 12][1048-D-E]
2. The second method of recruitment under Rule 4(2) begins
with the word “in the absence of qualified hands under clause (1) D
above”. Thus, recruitment under Clause (2) shall be resorted
only when no qualified hands under clause (1), i.e. Junior Lecturer
in the concerned subject is available. Further, the second phrase
of Rule 4(2) begins with the word “the vacancies shall be
apportioned in the ratio 1:3 between appointment by transfer and
direct recruitment”. The clear intendment is that vacancy arising E
in Higher Secondary School Teacher has to be apportioned in
ratio of 1:3. There is no concept of looking to the cadre of the
post of Higher Secondary School Teacher while apportioning the
vacancy under Rule 4(2), the cadre strength is not to be looked
into in view of the method of recruitment provided under Rule F
4(2), i.e. of vacancies of Higher Secondary School Teacher is filled
up first by transfer of Junior Lecturer. A plain reading of the above
statutory provision clearly indicates that for apportioning the
vacancy, the cadre strength of the Higher Secondary School
Teacher is not to be looked into to find out as to which vacancy
will go to transfer or direct recruitment. [Para 12][1048-D-H; G
1049-A-C]
3. Above interpretation of Rule 4(2) is reinforced by looking
to Rule 4(3), which deals with recruitment of Higher Secondary
School Teacher (Junior). Higher Secondary School Teacher
H
1038 SUPREME COURT REPORTS [2018] 14 S.C.R.
A (Junior) is also to be filled up by transfer from qualified High
School Assistant in the subjects concerned. In absence of qualified
hands, by transfer from qualified Upper Primary School Assistants/
Lower Primary School Assistants in the subjects concerned under
the Educational Agency. For filling up the posts in the subjects
concerned, the direct recruitment is also provided as one mode
B
of recruitment. Note 1, provides “25% of the total posts shall be
filled up by the method specified in item (I) above on seniority-
cum-suitability basis and 75% of such post shall be filled up by
direct appointment”. Here, Note 1, uses two expressions “total
posts” and “such posts”. Thus, computation of 25% and 75% is
C to be based on that total posts of Higher Secondary School
Teacher (Junior). The language used in Note 1 when read in
contradiction to Rule 4(2)(ii), the intention is clear that whereas
for appointment in Higher Secondary School Teacher, the vacancy
shall be apportioned, whereas for filling up the post of Higher
Secondary School Teacher (Junior), “total posts” are to be
D
apportioned on the basis of cadre strength. [Para 12][1049-C-H]
4. Rule 5 of Kerala State and Subordinate Services Rules,
1958 begins with the words “where the normal method of
recruitment to any service, class or category is neither solely by
direct recruitment nor solely by transfer, but is both by direct
E recruitment and by transfer”. Rule 5 of 1958 Rules also provides
for method of recruitment and Note (3) to Rule 5 provides that
whenever a ratio or percentage is fixed for different methods of
recruitment/appointment to a post, the number of vacancies to
be filled up by candidates from each method shall be decided by
F applying the fixed ratio or percentage to the cadre strength of
the post to which the recruitment/transfer is made and not to the
vacancies existing at that time. The Special Rules are Kerala
State Subordinate Services Rules, 1992. The Kerala Education
Act, 1958 and Kerala Education Rules, 1959 both are General
Rules but in view of the fact that Chapter XXXII has been inserted
G in the Kerala Education Rules by notification dated 09.11.2001,
which makes it clear that appointment of teachers and non-
teaching staff in aided Higher Secondary School Teacher is to be
governed by Kerala Education Rules. [Para 13][1050-A-D]
H
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1039
5. Further, the recruitment under Rule 4(2) of Higher A
Secondary School Teacher is a recruitment specially statutorily
designed in a different manner providing for all vacancy in Higher
Secondary School Teacher subjects, to be first filled up by Junior
Lecturer in the subjects concerned under the management. Thus,
recruitment under Rule 4(2) cannot be said to be “normal method
B
of recruitment” to any service as contemplated by Rule 5 of 1958
Rules. Thus, 1958 Rules cannot be held to be applicable for
making recruitment under Rule 4(2) of Chapter XXXII of the
Kerala Education Rules. Further, a set of Rules of Chapter XXXII
having been brought subsequent to Special Rules, intendment is
clear that it was intended that general rule being Chapter XXXII C
shall be followed for appointment of teachers in aided institutions.
[Para 13][1050-D-F]
6. The Statutory Scheme as delineated by Chapter XXXII
of Kerala Education Rules shall alone be applicable while making
recruitment to the teaching posts and Rule 5 Note (3) of Kerala D
State and Subordinate Services Rules, 1958 is not attracted.
[Para 16][1054-A-B]
7. The Division Bench of the High Court, thus, has taken
correct view of the matter and has rightly reversed the judgment
of the Single Judge restoring back the order of the State E
Government directing the management to appoint respondent
by transfer as Higher Secondary School Teacher (Economics).
[Para 17][1054-D-E]
8. When as per Rule 4(2), the respondent was entitled for
appointment by transfer, which claim has been accepted by the F
State Government, the claim of respondent cannot be negated
on the premise that appellant has been working and satisfactorily
discharging her duties for last more than 5 years and respondent
may get another chance for being appointed by transfer when any
other vacancy arises on the post of Higher Secondary School
Teacher (Economics). [Para 18][1054-E-G] G
9. The appellant has no right to hold the post of Higher
Secondary School Teacher (Economics) and on the said post, the
respondent is to be appointed as per the direction of the State
Government and affirmed by the Division Bench. The
H
1040 SUPREME COURT REPORTS [2018] 14 S.C.R.
A management is directed to appoint the respondent on or before
31.12.2018 so as to enable the respondent to join her post of
Higher Secondary School Teacher (Economics) w.e.f. 01.01.2019.
[Para 19][1054-G-H; 1055-A-B]
10. In the ends of justice, the Court however, observed
B that the appellant, if willing to work on the post, at present held
by respondent No.1, the respondents shall adjust her and allow
her to work on the post occupied by respondent No.1 w.e.f. the
same date, i.e. 01.01.2019. In the event, the appellant does not
accept the aforesaid post, it shall be open for the respondents to
proceed in accordance with law. [Para 19][1055-A-C]
C
Maya Mathew v. State of Kerala and Others (2010) 4
SCC 498 : [2010] 3 SCR 16 – relied on.
S. Prakash and Another v. K.M. Kurian and Others
(1999) 5 SCC 624 : [1999] 3 SCR 610 ; Prasad Kurien
D and Others v. K.J. Augustin and Others (2008) 3 SCC
529 : [2008] 3 SCR 1 – Stood distinguished.
Ajithakumari v. Shamma (2009) 1 KLT 808 – referred
to.
Case Law Reference
E
(2009) 1 KLT 808 referred to Para 3.4
[2010] 3 SCR 16 relied on Para 13
[1999] 3 SCR 610 stood distinguished Para 17
[2008] 3 SCR1 stood distinguished Para 17
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11829
of 2018.
From the Judgment and Order dated 17.08.2016 of the High Court
of Kerala at Ernakulam in W.A. No. 1504 of 2015.
G Romy Chacko, Adv. for the Appellant.
P. V. Dinesh, Ms. Sindhu T. P., Mukund P. Unni, Ms. Arushi
Singh, Vipin Nair, P. B. Suresh, Anushumaan Bahadur, Karthik
Jayashankar Advs. for the Respondents.
H
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1041
The Judgment of the Court was delivered by A
ASHOK BHUSHAN, J.
1. Leave granted.
2. This appeal has been filed against the Division Bench judgment
of Kerala High Court dated 17.08.2016 in Writ Appeal No. 1504 of 2015 B
by which judgment the Writ Appeal filed by the respondent was allowed,
reversing the judgment of learned Single Judge. The learned Single Judge
has allowed the Writ Petition filed by the appellant, setting aside the
order of the State Government which had directed for appointment of
respondent Reshma Parayil.
C
3. The brief facts of the case necessary to be noted for deciding
the issue are:-
3.1 The respondent No.5 is an aided institution. Respondent
No.1 was serving as Upper Primary Assistant in the school.
The school was upgraded as Higher Secondary School in D
the year 2011-2012. Consequent to the upgradation, 13
new posts of Higher Secondary School Teacher (Junior)
were created. Out of 13 posts 4 posts of Higher Secondary
School Assistant (Junior) were filled up by transfer of
Higher Secondary School Assistant and 9 posts were filled
up by direct recruitment. In 2012-2013, a new commerce E
batch with economics was allotted vide Government order
dated 15.07.2013 by virtue of which two posts of Higher
Secondary School Teacher (Junior) and two posts of Higher
Secondary School Teacher (Commerce and
Economics) were created. Both the posts of Higher F
Secondary School Teacher were filled up by direct
recruitment by the management. The appellant was
appointed on 26.08.2013 as Higher Secondary School
Teacher (Economics) by direct recruitment.
3.2 The respondent No.1, who was working as Higher
G
Secondary School Assistant in the School, filed a complaint
to the Regional Deputy Director of Education questioning
the direct recruitment of the appellant. Respondent No.1
claimed that she being Higher Secondary School Assistant
available in the school, the post of Higher Secondary School
H
1042 SUPREME COURT REPORTS [2018] 14 S.C.R.
A Teacher (Economics) was required to be filled up by transfer
of respondent No.1. The complaint of respondent No.1 was
rejected by Deputy Director of Education vide his order
dated 22.02.2014. An appeal was filed by the respondent
No.1 to the Director of Education, which too was dismissed
on 07.07.2014.
B
3.3 Respondent No.1 filed a revision before the State
Government, which revision petition was allowed by the
State Government vide order dated 01.11.2014. The State
Government held that the post of Higher Secondary School
Teacher (Economics) was required to be filled up by transfer
C of Reshma Parayil (the respondent herein). The State
Government set aside the order of Deputy Director of
Education and directed the management to fill up the post
of Higher Secondary School Teacher (Economics) by
transfer of respondent No.1, if she is otherwise eligible.
D The order of the State Government was challenged by
appellant before the High Court by filing a Writ Petition
NO. 30707 of 2014. Learned Single Judge relying on
Rule 5(3) of the Kerala State & Subordinate Services Rules,
1958 took the view that vacancy has to be filled up on the
basis of cadre strength and not on the basis that the first
E vacancy should be filled up by transfer. The order of the
Regional Deputy Director and Director of Education was
upheld and that of the State Government was set aside.
The respondent No.1 aggrieved by the judgment of learned
Single Judge filed a Writ Appeal before the Division Bench.
F 3.4 The Division Bench vide its judgment dated 17.08.2016 has
allowed the Writ Appeal and set aside the judgment of the
learned Single Judge. The Division Bench relied on an
earlier Division Bench judgment in Ajithakumari Vs.
Shamma, (2009) 1 KLT 808, which according to Division
G Bench covered the issue. The Division Bench took the
view that Rule 5 of Kerala State and Subordinate Service
Rules, 1958 (hereinafter referred to as ‘KSS Rules) has no
application and the vacancy of Higher Secondary School
Teacher was to be filled up by transfer. Aggrieved by the
H
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1043
[ASHOK BHUSHAN, J.]
judgment of the Division Bench, the appellant has filed this A
appeal.
4. Learned counsel for the appellant submits that the Division
Bench committed error in holding that vacancy of Higher Secondary
School Teacher (Economics) was to be filled up by transfer. He submits
that as per Rule 5 of KSS Rules, Note (3), when the method of B
recruitment is both by transfer and direct recruitment, and a ratio is
fixed for different methods of recruitment, the candidate from each
method shall be decided by applying the fixed ratio or percentage of the
cadre strength of the post. He submits that vacancy in Higher Secondary
School Teacher has no relevance for deciding the mode of recruitment
and as per cadre strength, the post on which appellant was appointed C
fell into direct recruitment quota. The learned Single Judge was correct
in its view that appellant was correctly appointed. Learned counsel for
the appellant has placed reliance on two judgments of this Court namely,
S. Prakash and Another Vs. K.M. Kurian and Others, (1999) 5
SCC 624 and Prasad Kurien and Others Vs. K.J. Augustin and D
Others, (2008) 3 SCC 529.
5. The submission made by learned counsel for the appellant has
been refuted by learned counsel appearing for respondent No.1. Learned
counsel appearing for respondent No.1 submits that provisions of KSS
Rules has no application. He submits that the recruitments has to be E
made in accordance with Kerala Education Rules, 1959, Rule 4 Chapter
XXXII. He submits that Chapter XXXII has been substituted in the
Education Rules by G.O. dated 09.11.2001 published in Gazette on
12.11.2001, which is subsequent to Kerala State and Subordinate Services
Rules, 1992, hence the Kerala Education Rules regulating the appointment
of Higher Secondary School Teachers shall prevail. He submits that for F
appointment of Higher Secondary School Teachers cadre strength is not
to be looked into rather appointment has to be made in accordance with
Rule 4 of Chapter XXXII. He submits that judgment of this Court in
Maya Mathew Vs. State of Kerala and Others, (2010) 4 SCC 498
has clarified the situation and upheld that Special Rules (Kerala Education G
Rules, 1959) pertaining to recruitment, made subsequent to Kerala State
and Subordinate Services Rules, which shall prevail. The earlier two
judgments of this Court relied by learned counsel for the appellant have
also been explained and distinguished. He submits that present case is
H
1044 SUPREME COURT REPORTS [2018] 14 S.C.R.
A fully covered by this Court’s judgment in Maya Mathew (supra). He
further submits that respondent was fully eligible for appointment as
Higher Secondary School Teacher (Economics) fulfilling all the
qualifications. The post has wrongly been filled up by direct appointment
by the appellant, which deserves to be set aside. He submits that the
Division Bench rightly allowed the appeal, hence the appeal deserves to
B
be dismissed.
6. We have considered the submissions of the learned counsel for
the parties and have perused the records.
7. From the submissions of the learned counsel for the parties and
C pleadings on record, following are three issues, which arise for
consideration in the present case:-
(i) Whether the post of Higher Secondary School Teacher
(Economics) newly sanctioned in the School in the year
2012-2013 was required to be filled up by direct recruitment
D taking the cadre strength of the Higher Secondary School
Teacher or the same was required to be filled up by transfer?
(ii) Whether for filling the post of Higher Secondary School
Teacher, Rule 5 of KSS Rules were to be resorted to?
(iii) Whether the Management committed error in making
E appointment of the appellant as Higher Secondary School
Teacher (Economics) by direct recruitment?
8. The Kerala Education Act, 1958 and the Rules framed
thereunder regulate the recruitment of teaching staff in aided Higher
Secondary School. Chapter XXXII of Kerala Education Rules deals
F with method of appointment and qualifications of teachers and non-
teaching staff in aided Higher Secondary School. Rule 3 deals with
categories of posts in aided Higher Secondary School. Rule 3 contains
8 categories out of which category 1 is Principal; Category 2 is Higher
Secondary School Teacher in different subjects (total 39) and
Category 3 is Higher Secondary School Teacher (Junior) in several
G
subjects (total 39). Rule 4 deals with method of appointment. Rule 4(2)
and 4(3) deals with appointment of Higher Secondary School Teacher
and Higher Secondary School Teacher (Junior). Rules 4(2) and 4(3)
are as follows:-
H
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1045
[ASHOK BHUSHAN, J.]
Sl. Category Method of Appointment A
No.
1. Xxxxxxxxxxxxxxxx Xxxxxxxxxxx
2. Higher Secondary (1) By transfer from Junior
School Teacher Lecturer in the subject B
concerned under the
management / Higher
Secondary School Teacher
(Junior)
(2) In the absence of
C
qualified hands under clause
(1) above, the vacancies shall
be apportioned in the ratio 1:3
between appointment by
transfer and direct
appointment as detailed D
below:
(i) a)By transfer from High
School Assistants, who
possess the requisite
qualifications, under the E
Educational Agency.
b) In the absence of qualified
persons under (a) above, by
transfer from qualified Upper
Primary School Assistants/ F
Lower Primary School
Assistants who possess the
requisite qualification in the
subject concerned, under the
Educational Agency.
G
(ii) By direct appointment
Note:- (i) When qualified
persons are not available to
fill up the vacancies set apart
for appointment by transfer H
1046 SUPREME COURT REPORTS [2018] 14 S.C.R.
A
under item 2(i) above such
vacancies shall also be alloted
for direct appointment.
(ii) Appointments under item
(I) above shall be made from
B select lists of qualified persons
prepared on the basis of
seniority and merit.
3. Higher Secondary 1. (i) By transfer from
School Teacher qualified High School
C (Junior) Assistants in the subject
concerned under the
Educational Agency.
(ii) In the absence of
qualified hands under item (i)
D above, by transfer from
qualified Upper Primary
School Assistants / Lower
Primary School Assistants in
the subject concerned under
the Educational Agency.
E
2. By direct appointment
Note:- (i) 25% of the total
posts shall be filled up by the
method specified in item (I)
above on seniority - cum
F suitability basis and 75% of
such post shall be filled up by
direct appointment.
(ii) When qualified persons
are not available to fill up the
G vacancies set apart for
appointment by transfer
under item 1 above, such
vacancies also shall be
allotted for direct
appointment.
H
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1047
[ASHOK BHUSHAN, J.]
9. Another Rules, which are relevant for consideration are Kerala A
State and Subordinate Services Rules, 1992, reliance has been placed
on Rule 5 of the said Rules, which is to the following effect:-
5. Method of recruitment. ______ Where the normal method
of recruitment to any service, class or category is neither solely
by direct recruitment nor solely by transfer, but is both by direct B
recruitment and by transfer._____
(a) the proportion or order in which the Special Rules concerned
may require vacancies to be filled by persons recruited direct and
by those recruited by transfer shall be applicable only to substantive
vacancies in the permanent cadre; C
(b) person shall be recruited direct only against a substantive
vacancy in such permanent cadre, and only if the vacancy is one
which should be filled by direct recruit under the Special Rules
referred to in clause (a); and
(c) recruitment to all other vacancies shall be made by transfer. D
Note. __ (1) All permanent vacancies and temporary vacancies
except those of short duration shall be treated as substantive
vacancies.
(2) The vacancies on account of leave and deputation with a
E
duration of less than six months shall be treated as vacancies of
short duration, provided, such vacancies with a duration of three
months to six months should not be treated as vacancies of short
duration, if the vacancies are likely to last long or new vacancies
are likely to arise.
F
(3) Whenever a ratio or percentage is fixed for different methods
of recruitment/appointment to a post the number of vacancies to
be filled up by candidates from each method shall be decided by
applying the fixed ratio or percentage to the cadre strength of the
post to which the recruitment/transfer is made and not to the
vacancies existing at that time. G
10. The appellant’s submission is that for making appointment on
the post of Higher Secondary School Teacher, Rule 5(3) of the KSS
Rules are applicable and as per the said Rules, since recruitment on the
post of Higher Secondary School Teacher is provided by two methods,
i.e. by direct recruitment and transfer, for filling the post, the cadre H
1048 SUPREME COURT REPORTS [2018] 14 S.C.R.
A strength of Higher Secondary School Teacher is to be taken for
apportioning the vacancy into ratio of 1:3. He submits that the learned
Single Judge has rightly relied on Rule 5(3) of KSS Rules and has held
that ratio can only to be worked out if the cadre strength is maintained
whereas the Division bench of the Kerala High Court has reversed the
judgment of learned Single Judge.
B
11. Learned counsel for the respondent submits that for the above
recruitment on the post of Higher Secondary School Teacher, Rule 5(3)
of KSS Rules is not applicable and the appointment has to be made only
on the basis of Rule 4 of Kerala Education Rules. He further submits
that Special Rules namely Kerala State and Subordinate Services Rules,
C 1992 are Special Rules, which were framed in the year 1992, the chapter
XXXII of the Kerala Education Rules having been inserted by G.O.
dated 09.11.2001 w.e.f. 12.11.2001, there is no applicability of the KSS
Rules.
12. We may now first look into the statutory Scheme as delineated
D by Rule 4 of Kerala Education Rules. The first issue is as to whether
for filling up the post of Higher Secondary School Teacher, the vacancy
has to be allocated as per the cadre strength. A perusal of the Rule 4(2)
contemplates that post of Higher Secondary School Teacher is to be
filled up first “by transfer from Junior Lecturer in the subject concerned
E under the management / Higher Secondary School Teacher (Junior)”.
Thus, every vacancy of Higher Secondary School Teacher has to be
filled up first by the transfer of Higher Secondary School Teacher (Junior)
in the subject concerned. There is a purpose and object for providing a
particular Scheme for filling up the post of Higher Secondary School
Teacher. Higher Secondary School Teacher (Junior) is also lecturer in
F concerned subject and the Statute required that whenever post in Higher
Secondary School Teacher arises, the same shall be first offered to the
Junior Lecturer in the subject. Above statutory Scheme serves the
interests of the School, students and the teachers already serving in the
institution. A Junior Lecturer working in the same subject is first choice
G to fill up the post, which obviates the management to take any other
steps for recruitment. The second method of recruitment under Rule
4(2) begins with the word “in the absence of qualified hands under clause
(1) above”. Thus, recruitment under Clause (2) shall be resorted only
when no qualified hands under clause (1), i.e. Junior Lecturer in the
concerned subject is available. Further, the second phrase of Rule 4(2)
H begins with the word “the vacancies shall be apportioned in the ratio 1:3
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1049
[ASHOK BHUSHAN, J.]
between appointment by transfer and direct recruitment”. The clear A
intendment is that vacancy arising in Higher Secondary School Teacher
has to be apportioned in ratio of 1:3. There is no concept of looking to
the cadre of the post of Higher Secondary School Teacher while
apportioning the vacancy under Rule 4(2), the cadre strength is not to be
looked into in view of the method of recruitment provided under Rule
B
4(2), i.e. of vacancies of Higher Secondary School Teacher is filled up
first by transfer of Junior Lecturer. A plain reading of the above Statutory
Provision clearly indicates that for apportioning the vacancy, the cadre
strength of the Higher Secondary School Teacher is not to be looked
into to find out as to which vacancy will go to transfer or direct
recruitment. Now coming to the facts of the present case, in the year C
2012-2013, two new posts were created in Higher Secondary School
Teacher, i.e. Commerce and Economics, both were the new vacancies
and no Junior Lecturers, i.e. Higher Secondary School Teacher (Junior)
qualified in the subject being available, Rule 4(2) has to be resorted to.
The ratio mentioned is 1:3, which means that first vacancy is to be filled
D
up by transfer. Resorting to cadre strength, thus, was not contemplated
by plain reading of Rule 4(2). We, thus, do not find any substance in the
submission of the counsel for the appellant. Above interpretation of
Rule 4(2) is reinforced by looking to Rule 4(3), which deals with
recruitment of Higher Secondary School Teacher (Junior). Higher
Secondary School Teacher(Junior) is also to be filled up by transfer E
from qualified High School Assistant in the subjects concerned. In
absence of qualified hands, by transfer from qualified Upper Primary
School Assistants/ Lower Primary School Assistants in the subjects
concerned under the Educational Agency. For filling up the posts in the
subjects concerned, the direct recruitment is also provided as one mode
F
of recruitment. Note 1, which is very relevant, provides “25% of the
total posts shall be filled up by the method specified in item (I) above on
seniority-cum-suitability basis and 75% of such post shall be filled up by
direct appointment”. Here, Note 1, uses two expressions “total posts”
and “such posts”. Thus, computation of 25% and 75% is to be based
on that total posts of Higher Secondary School Teacher (Junior). The G
language used in Note 1 when read in contradiction to Rule 4(2)(ii), the
intention is clear that whereas for appointment in Higher Secondary
School Teacher, the vacancy shall be apportioned, whereas for filling up
the post of Higher Secondary School Teacher (Junior), “total posts” are
to be apportioned on the basis of cadre strength.
H
1050 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 13. Now, we come to the Kerala State and Subordinate Services
Rules, 1958 – Rule 5. Rule 5 begins with the words “where the normal
method of recruitment to any service, class or category is neither solely
by direct recruitment nor solely by transfer, but is both by direct
recruitment and by transfer”. Rule 5 of 1958 Rules also provides for
method of recruitment and Note (3) to Rule 5 provides that whenever a
B
ratio or percentage is fixed for different methods of recruitment/
appointment to a post the number of vacancies to be filled up by candidates
from each method shall be decided by applying the fixed ratio or
percentage to the cadre strength of the post to which the recruitment/
transfer is made and not to the vacancies existing at that time. The
C Special Rules are 1992 Rules. The Kerala Education Act, 1958 and
Kerala Education Rules both are General Rules but in view of the fact
that Chapter XXXII has been inserted in the Rules by notification dated
09.11.2001, which makes it clear that appointment of teachers and non-
teaching staff in aided Higher Secondary School Teacher is to be governed
by Kerala Education Rules. Further, the recruitment under Rule 4(2) of
D
Higher Secondary School Teacher is a recruitment specially statutorily
designed in a different manner providing for all vacancy in Higher
Secondary School Teacher subjects, to be first filled up by Junior Lecturer
in the subjects concerned under the management. Thus, recruitment
under Rule 4(2) cannot be said to be “normal method of recruitment” to
E any service as contemplated by Rule 5 of KSS Rules. Thus, KSS Rules
cannot be held to be applicable for making recruitment under Rule 4(2)
of Chapter XXXII of the Kerala Education Rules. Further, a set of
Rules of Chapter XXXII having been brought subsequent to Special
Rules, intendment is clear that it was intended that general rule being
Chapter XXXII shall be followed for appointment of teachers in aided
F
institutions. This Court in the case of Maya Mathew (supra) had
occasion to consider Kerala State and Subordinate Services Rules, 1958
in reference to a general rule namely Kerala State Homeopathy Services
Rules, 1989. Note (3) of Rule 5 of Kerala State and Subordinate Services
Rules, 1958 came up for consideration in the above case. Whereas Rule
G 3 of the Homeopathy Rules also provided for method of appointment
and ratio to be maintained in making appointment. Kerala State and
Subordinate Services Rules, 1958 were referred as General Rules in the
aforesaid judgment. The Homeopathy Rules were referred to as Special
Rules, which was repugnant to General Rules. In Para 12 of the
judgment, rules of interpretation governing two set of Rules were noticed
H to the following effect:-
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1051
[ASHOK BHUSHAN, J.]
“12. The rules of interpretation when a subject is governed by A
two sets of rules are well settled. They are:
(i) When a provision of law regulates a particular subject and
a subsequent law contains a provision regulating the same
subject, there is no presumption that the latter law repeals
the earlier law. The rule-making authority while making the B
later rule is deemed to know the existing law on the subject.
If the subsequent law does not repeal the earlier rule, there
can be no presumption of an intention to repeal the earlier
rule;
(ii) When two provisions of law—one being a general law and C
the other being a special law govern a matter, the court
should endeavour to apply a harmonious construction to the
said provisions. But where the intention of the rule-making
authority is made clear either expressly or impliedly, as to
which law should prevail, the same shall be given effect.
D
(iii) If the repugnancy or inconsistency subsists in spite of an
effort to read them harmoniously, the prior special law is
not presumed to be repealed by the later general law. The
prior special law will continue to apply and prevail in spite
of the subsequent general law. But where a clear intention
to make a rule of universal application by superseding the E
earlier special law is evident from the later general law,
then the later general law, will prevail over the prior special
law.
(iv) Where a later special law is repugnant to or inconsistent
with an earlier general law, the later special law will prevail F
over the earlier general law.”
14. Kerala State and Subordinate Services Rules, 1958 contains
Rule 2, which is to the following effect:-
“2. Relation to the Special Rules.—If any provision in the General
G
Rules contained in the part is repugnant to a provision in the Special
Rules applicable to any particular service contained in Part III,
the latter shall in respect of that service, prevail over the provision
in the General Rules in this part.”
H
1052 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 15. The earlier judgments of this Court in S. Prakash and Another
Vs. K.M. Kurian and Others, (supra) and Prasad Kurien and
Others Vs. K.J. Augustin and Others, (supra), which had considered
Note 3 of Rule 5 of Kerala State and Subordinate Services Rules, 1958
were also considered and distinguished. In Paragraph 14 to 20, following
has been laid down:-
B
“14. The question whether there can be an exception to the
primacy given to the Special Rules by Rule 2 of the General Rules,
was considered by this Court in S. Prakash and Prasad Kurien,
with particular reference to Note (3) to Rule 5 of the General
Rules.
C
15. In S. Prakash, this Court considered whether the provisions
of the Special Rules, the Kerala Agricultural Income Tax and
Sales Tax Service Rules, will have to yield to Note (3) to Rule 5
of the General Rules. This Court held: (SCC pp. 633-34, para 14)
D “14. From the aforesaid discussion, it is clear that if the intention
of the rule-making authority was to establish a rule of universal
application to all the services in the State of Kerala for which
the Special Rules are made, then the Special Rules will give
way to the General Rules enacted for that purpose. This has
to be found out from the language used in the Rules which
E may be express or by implication. If the language is clear
and unqualified, the subsequent General Rule would
prevail despite repugnancy. If the intention of the rule-
making authority is to sweep away all the Special Rules
and to establish a uniform pattern for computation of the
F ratio or percentage of direct recruits and by transfer, in
such a case, the Special Rules will give way. … The language
of Note (3) is crystal clear and is for removal of any ambiguity
by using positive and negative terms. It applies to all the Special
Rules whenever a ratio or percentage is prescribed in the Rules.
It also emphatically states that it has to be computed on the
G cadre strength of the post to which the recruitment is to be
made and not on the basis of the vacancies existing at that
time.”
(emphasis supplied)
H
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1053
[ASHOK BHUSHAN, J.]
16. In Prasad Kurien, while considering the Special Rules, the A
Kerala Excise and Prohibition Subordinate Service Rules, 1974,
vis-à-vis Note (3) to Rule 5 of the General Rules, this Court followed
the dictum in S. Prakash.
17. These decisions reiterate the position that if the intention of
the rule-making authority is to make a later general rule to apply B
to all services in the State, for which different earlier special rules
exist, then the existing special rules will give way to such later
general rule. That is, where the general rule is made subsequent
to the special rule and the language of the general rule signified
that it was intended to apply to all services and prevail over any
prior special rules, the intention of the rule-making authority should C
be given effect by applying the subsequent general rule instead of
the earlier special rule.
18. This Court held that the language of Note (3) to Rule 5 of
General Rules showed that it was intended to prevail over existing
Special Rules which indicated a contrary position. What is D
significant is that the two decisions considered the Special Rules
that were earlier in point of time to the General Rules as amended
by the 1992 Amendment rules which introduced Note (3) to Rule
5 of the General Rules.
19. This Court held, on reading the General Rules in conjunction E
with the Special Rules, that Note (3) to Rule 5 of General Rules
will prevail over the corresponding provisions in the Special Rules
showing a different intention, when deciding whether the ratio of
each feeder category should be determined with reference to the
cadre strength or existing vacancies. F
20. What logically follows from the principle enunciated in the
two decisions is that if any special rule is subsequent to the general
rule, then the question of examining whether the prior general
rule will prevail over a later special rule will not arise at all having
regard to the categorical provision contained in Rule 2 of the G
General Rules. The principle laid down in those decisions will not
apply where the special rule is made subsequent to the general
rule.”
H
1054 SUPREME COURT REPORTS [2018] 14 S.C.R.
A 16. This Court clearly held that principle laid down in S. Prakash
and Another Vs. K.M. Kurian and Others, (supra) and Prasad
Kurien and Others Vs. K.J. Augustin and Others, (supra) shall
not apply where the Special Rules are made subsequent to the General
Rules. The ratio laid down in the above case is fully applicable in the
facts of the present case. Thus, the Statutory Scheme as delineated by
B
Chapter XXXII of Kerala Education Rules shall alone be applicable
while making recruitment to the teaching posts and Rule 5 Note (3) of
Kerala State and Subordinate Services Rules, 1958 is not attracted.
17. Learned counsel for the appellant has placed reliance on
judgments of this Court in S. Prakash and Another Vs. K.M. Kurian
C and Others, (supra) and Prasad Kurien and Others Vs. K.J.
Augustin and Others, (supra). Both the above judgments had been
considered and distinguished by this Court in the case of Maya Mathew
(supra). The ratio laid down in the case of Maya Mathew (supra) is
fully attracted since Chapter XXXII of the Kerala Education Rules, which
D is under consideration was inserted in the year 2011 in the Rules, i.e.
much subsequent to Kerala State and Subordinate Services Rules, 1992.
The Division Bench of the Kerala High Court, thus, has taken correct
view of the matter and has rightly reversed the judgment of the learned
Single Judge restoring back the order of the State Government directing
the management to appoint respondent by transfer as Higher Secondary
E School Teacher (Economics).
18. Learned counsel for the appellant lastly has submitted that
appellant has been working and satisfactorily discharging her duties for
last more than 5 years and respondent may get another chance for being
appointed by transfer when any other vacancy arises on the post of
F Higher Secondary School Teacher (Economics). We do not find any
substance in the above submission when as per Rule 4(2), the respondent
was entitled for appointment by transfer, which claim has been accepted
by the State Government, the claim of respondent cannot be negated on
the premise as contended by the appellant. Learned counsel for the
G respondent, however, during submissions has fairly submitted that she
has no objection, if the appellant is adjusted on the post, which is at
present held by the respondent.
19. In view of the foregoing discussions, we are of the view that
appellant has no right to hold the post of Higher Secondary School Teacher
H (Economics) and on the said post, the respondent is to be appointed as
V. K. GIRIJA v. RESHMA PARAYIL & ORS. 1055
[ASHOK BHUSHAN, J.]
per the direction of the State Government and affirmed by the Division A
Bench. We, thus, direct the management to appoint the respondent on
or before 31.12.2018 so as to enable the respondent to join her post of
Higher Secondary School Teacher (Economics) w.e.f. 01.01.2019. In
the ends of justice, we, however, observe that the appellant, if willing to
work on the post, at present, held by the respondent No.1, the respondents
B
shall adjust her and allow her to work on the post occupied by the
respondent No.1 w.e.f. the same date, i.e. 01.01.2019. In event, the
appellant does not accept the aforesaid post, it shall be open for the
respondents to proceed in accordance with law. We make it clear that
the above direction is being given in particular circumstances of the
present case and shall not be treated as any precedent. Subject to above, C
the appeal is dismissed.
Kalpana K. Tripathy Appeal dismissed.
D
E
F
G
H
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