(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 taking the
cadre strength of the Higher Secondary School Teacher or the same was required to be filled
up by transfer? and (ii) Whether for filling the post of Higher Secondary School Teacher, Rule 5 of KSS Rules were to be resorted to?
Apex court held that Thus, 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 State and Subordinate Services Rules, 1958 is
not attracted. - The ratio laid down in the case of Maya Mathew (supra) is fully attracted since Chapter XXXII of the Kerala Education Rules, which 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 School Teacher (Economics).
26
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. Of 2018
(arising out of SLP (C) No. 27838 of 2016)
V.K. GIRIJA ...APPELLANT(S)
VERSUS
RESHMA PARAYIL & ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
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 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.
26
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 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 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 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
26
(Economics) by direct recruitment.
3.2 The respondent No.1, who was working as Higher
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 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.
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 of Reshma Parayil (the respondent
herein). The State Government set aside the order
of Deputy Director of Education and directed the
26
management to fill up the post of Higher
Secondary School Teacher (Economics) by transfer
of respondent No.1, if she is otherwise eligible.
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 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.
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 Bench
26
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 judgment of the
Division Bench, the appellant has filed this
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
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 fell into direct recruitment quota. The
26
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 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 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 appointment of Higher Secondary School
Teachers cadre strength is not to be looked into rather
26
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 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 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 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
26
parties and 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 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 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 with method of appointment
and qualifications of teachers and non-teaching staff
in aided Higher Secondary School. Rule 3 deals with
26
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
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:-
Sl.
No.
Category Method of Appointment
1. Xxxxxxxxxxxxxxxx Xxxxxxxxxxx
2. Higher Secondary
School Teacher
(1) By transfer from
Junior Lecturer in the
subject concerned under
the management / Higher
Secondary School Teacher
(Junior)
(2) In the absence of
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
below:
(i) a)By transfer from
High School Assistants,
who possess the requisite
qualifications, under the
Educational Agency.
26
b) In the absence of
qualified persons under
(a) above, by transfer
from qualified Upper
Primary School Assistants/
Lower Primary School
Assistants who possess the
requisite qualification in
the subject concerned,
under the Educational
Agency.
(ii) By direct appointment
Note:- (i) When qualified
persons are not available
to fill up the vacancies
set apart for appointment
by transfer under item
2(i) above such vacancies
shall also be alloted for
direct appointment.
(ii) Appointments under
item (I) above shall be
made from select lists of
qualified persons prepared
on the basis of seniority
and merit.
3. Higher Secondary
School Teacher
(Junior)
1. (i) By transfer from
qualified High School
Assistants in the subject
concerned under the
Educational Agency.
(ii) In the absence of
qualified hands under item
(i) above, by transfer
from qualified Upper
Primary School
Assistants / Lower Primary
School Assistants in the
subject concerned under
the Educational Agency.
26
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
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 vacancies
set apart for appointment
by transfer under item 1
above, such vacancies also
shall be allotted for
direct appointment.
9. Another Rules, which are relevant for consideration are
Kerala 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
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;
(b) person shall be recruited direct only against
a substantive vacancy in such permanent cadre,
26
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.
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 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.
(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.
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 strength of Higher
26
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.
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, 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 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
26
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 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 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 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
26
when no qualified hands under clause (1), i.e. Junior
Lecturer in the concerned subject is not 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 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 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 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
26
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 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
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 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
26
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 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.
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 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
26
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
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 Higher Secondary School
Teacher is a recruitment specially statutory 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
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
26
general rule being Chapter XXXII shall be followed for
appointment of teachers in aided 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 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 wee 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 to the following effect:-
“12. The rules of interpretation when a subject
is governed by 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
later rule is deemed to know the existing
26
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 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.
(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 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
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 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.”
15.The earlier judgments of this Court in S. Prakash and
26
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:-
“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.
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)
“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 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 ratio or percentage of
direct recruits and by transfer, in such a
26
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 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)
16. In Prasad Kurien, while considering the
Special Rules, the 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 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 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
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
26
in conjunction 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.
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
General Rules. The principle laid down in those
decisions will not apply where the special rule
is made subsequent to the general rule.”
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 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
26
on 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). 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 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
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 Higher Secondary School Teacher (Economics). We do
26
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 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 (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. 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 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.
26
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, the appeal
is dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( AJAY RASTOGI )
New Delhi,
December 04, 2018.
School in the year 2012-2013 was required to be filled up by direct recruitment taking the
cadre strength of the Higher Secondary School Teacher or the same was required to be filled
up by transfer? and (ii) Whether for filling the post of Higher Secondary School Teacher, Rule 5 of KSS Rules were to be resorted to?
Apex court held that Thus, 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 State and Subordinate Services Rules, 1958 is
not attracted. - The ratio laid down in the case of Maya Mathew (supra) is fully attracted since Chapter XXXII of the Kerala Education Rules, which 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 School Teacher (Economics).
26
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. Of 2018
(arising out of SLP (C) No. 27838 of 2016)
V.K. GIRIJA ...APPELLANT(S)
VERSUS
RESHMA PARAYIL & ORS. ...RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
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 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.
26
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 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 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 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
26
(Economics) by direct recruitment.
3.2 The respondent No.1, who was working as Higher
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 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.
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 of Reshma Parayil (the respondent
herein). The State Government set aside the order
of Deputy Director of Education and directed the
26
management to fill up the post of Higher
Secondary School Teacher (Economics) by transfer
of respondent No.1, if she is otherwise eligible.
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 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.
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 Bench
26
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 judgment of the
Division Bench, the appellant has filed this
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
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 fell into direct recruitment quota. The
26
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 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 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 appointment of Higher Secondary School
Teachers cadre strength is not to be looked into rather
26
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 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 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 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
26
parties and 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 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 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 with method of appointment
and qualifications of teachers and non-teaching staff
in aided Higher Secondary School. Rule 3 deals with
26
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
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:-
Sl.
No.
Category Method of Appointment
1. Xxxxxxxxxxxxxxxx Xxxxxxxxxxx
2. Higher Secondary
School Teacher
(1) By transfer from
Junior Lecturer in the
subject concerned under
the management / Higher
Secondary School Teacher
(Junior)
(2) In the absence of
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
below:
(i) a)By transfer from
High School Assistants,
who possess the requisite
qualifications, under the
Educational Agency.
26
b) In the absence of
qualified persons under
(a) above, by transfer
from qualified Upper
Primary School Assistants/
Lower Primary School
Assistants who possess the
requisite qualification in
the subject concerned,
under the Educational
Agency.
(ii) By direct appointment
Note:- (i) When qualified
persons are not available
to fill up the vacancies
set apart for appointment
by transfer under item
2(i) above such vacancies
shall also be alloted for
direct appointment.
(ii) Appointments under
item (I) above shall be
made from select lists of
qualified persons prepared
on the basis of seniority
and merit.
3. Higher Secondary
School Teacher
(Junior)
1. (i) By transfer from
qualified High School
Assistants in the subject
concerned under the
Educational Agency.
(ii) In the absence of
qualified hands under item
(i) above, by transfer
from qualified Upper
Primary School
Assistants / Lower Primary
School Assistants in the
subject concerned under
the Educational Agency.
26
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
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 vacancies
set apart for appointment
by transfer under item 1
above, such vacancies also
shall be allotted for
direct appointment.
9. Another Rules, which are relevant for consideration are
Kerala 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
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;
(b) person shall be recruited direct only against
a substantive vacancy in such permanent cadre,
26
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.
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 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.
(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.
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 strength of Higher
26
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.
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, 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 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
26
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 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 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 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
26
when no qualified hands under clause (1), i.e. Junior
Lecturer in the concerned subject is not 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 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 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 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
26
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 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
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 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
26
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 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.
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 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
26
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
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 Higher Secondary School
Teacher is a recruitment specially statutory 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
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
26
general rule being Chapter XXXII shall be followed for
appointment of teachers in aided 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 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 wee 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 to the following effect:-
“12. The rules of interpretation when a subject
is governed by 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
later rule is deemed to know the existing
26
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 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.
(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 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
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 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.”
15.The earlier judgments of this Court in S. Prakash and
26
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:-
“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.
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)
“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 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 ratio or percentage of
direct recruits and by transfer, in such a
26
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 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)
16. In Prasad Kurien, while considering the
Special Rules, the 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 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 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
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
26
in conjunction 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.
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
General Rules. The principle laid down in those
decisions will not apply where the special rule
is made subsequent to the general rule.”
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 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
26
on 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). 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 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
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 Higher Secondary School Teacher (Economics). We do
26
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 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 (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. 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 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.
26
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, the appeal
is dismissed.
......................J.
( ASHOK BHUSHAN )
......................J.
( AJAY RASTOGI )
New Delhi,
December 04, 2018.
