IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 2ND JULY 2009 / 11TH ASHADHA 1931 WP(C).No. 35802 of 2007(Y) -------------------------- PETITIONER(S): --------------- ASHA RANI.S., 'SANNIDHANAM', ULIYACOIL, KOLLAM. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): --------------- 1. DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 4. IGNATIUS JOSE, NON-VOCATIONAL TEACHER (ENGLISH) TKDM VOCATIONAL HIGHER SECONDARY SCHOOL, ULIYACOIL, KOLLAM 691 008. 5. JAYAPRAKASH, NON-VOCATIONAL TEACHER (ENGLISH), KKMG VOCATIONAL HIGHER SECONDARY SCHOOL, ORKATTERI, VADAKARA. 6. ANAND K.NAIR, NON-VOCATIONAL TEACHER (ENGLISH), GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, PUTHIYARA, KOZHIKODE. 7. MADHUSUDHANAN, NON-VOCATIONAL TEACHER (ENGLISH), GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, KALPETTA, WAYANAD. 8. K.CHANDRAN, NON-VOCATIONAL TEACHER (ENGLISH) GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, IDAYANNUR, KANNUR. 9. PRAKASH, NON-VOCATIONAL TEACHER (ENGLISH), GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, DEVIYAR COLONY, IDUKKI. ADV. SRI.D.KISHORE FOR R4 ADV.ELVIN PETER, FOR R9 ADV.KELU NAMBIAR, SR. ADVOCATE ADV.P.G.RAJAGOPALAN, R5 GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 2.7.09 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 35802/2007. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE RANK LIST PUBLISHED BY PSC ON 5.1.07. P2 COPY OF THE RANK LIST PUBLISHED BY PSC OF MINISTERIAL STAFF. P3. COPY OF THE INFORMATI0ON ISSUED BY THE DIRECTOR OF VOCATIONAL HIGHER SECONDARY EDUCATION DTD.12.9.07. P4. COPY OF THE REPORT PUBLISHED IN MALAYALA MANORAMA DTD.17.11.07. RESPONDENT(S)' EXHIBITS: R1A. COPY OF THE GOVT. ORDER DTD.18.3.2009. “B&C. COPY OF THE GOVT. ORDERS DTD.23.11.07 AND 17.12.07. R4A. COPY OF THE MASTER'S DEGREE CERTIFICATE. B. COPY OF THE ELIGIBILITY CERTIFICATE. C. COPY OF THE B.ED. CERTIFICATE. D. COPY OF THE EQUIVALANCY CERTIFICATE. E. COPY OF THE SET CERTIFICATE. F. COPY OF THE ORDER DTD.17.3.02 OF GOVT. G. COPY OF THE GOVT. ORDER DTD.20.2.97. H. COPY OF THE GOVT. ORDER DTD.28.10.97. I. COPY OF THE ORDER DTD.30.11.2000. J. COPY OF THE GOVT. ORDER DTD.12.3.2004. K. COPY OF THE ORDER DTD.11.12.02 OF GOVT. L. COPY OF THE ORDER DTD.14.1.2003 OF R1. M. COPY OF THE ORDER DTD.26.5.05 OF GOVT. N. COPY OF THE LETTER DTD.6.1.2005 OF R2. O. COPY OF THE JUDGMENT DTD.3.10.07 IN W.P.(C).No. 28904/07OF THIS COURT. P. COPY OF THE GOVT. ORDER DTD.18.3.09. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.35802 of 2007 ================== Dated this the 2nd day of July, 2009 J U D G M E N T A vexing question arises in this case as to the interpretation of Note 2 to Rule 3(6) of the Kerala Vocational Higher Secondary Education State Service Rules, 2004, (“the Rules” for short). This writ petition is filed by a person included in the rank list prepared by the Public Service Commission for the post of Vocational Higher Secondary School Teacher (English), by direct recruitment. The appointment to the post of Non Vocational Teachers is being made for the first time in the State. The petitioner's contention is that as per Rule 3(6) of the Rules, the only method of appointment prescribed is by transfer from the category of Non Vocational Teachers (Junior) in the concerned discipline in the subordinate service of the Department and in the absence of qualified hands under that category, by direct recruitment. Under Note 1, 10 per cent of the total posts of Non Vocational Teachers in each discipline shall be reserved for appointment by transfer from qualified ministerial staff in the subordinate service of the Department. The petitioner submits that since the only method of appointment prescribed is by transfer in the category of Non Vocational Teachers (Junior), in their absence, the entire vacancies have to be filled up by direct recruitment. Alternatively, it is contended w.p.c.35802/07 2 that even if 10 per cent are to be set apart for appointment by transfer from qualified ministerial staff, in the absence of qualified ministerial staff, the vacancies in the 10 per cent quota should also be filled up by direct recruitment. In this case the PSC, along with the rank list for direct recruitment, simultaneously prepared a rank list for appointment to the 10 per cent posts reserved for by transfer appointment from qualified ministerial staff. Only three were found to be eligible in that category. Nine posts were available for such appointment. The balance vacancies should also be filled up from the rank list for direct recruitment is the contention raised by the petitioner. The petitioner alleges that respondents 4 to 9, who do not possess the prescribed qualifications, are continuing in service as Non Vocational Teachers in those six vacancies. The contention is that their services should be terminated and the said vacancies should also be filled up from the list prepared for direct recruitment, in which case, the petitioner would come within the zone of consideration as per his position in the rank list. 2. Respondents 4 and 5 appear and contest the matter. The learned Government Pleader has filed a counter affidavit taking the contention that 10 per cent of the total posts of Non Vocational Teachers have to be reserved for appointment by transfer from qualified ministerial staff and those vacancies can be filled up only by w.p.c.35802/07 3 transfer from qualified ministerial staff and not from the rank list prepared for direct recruitment. This contention is supported by respondents 4 and 5 also. 3. I have considered the rival contentions in detail. 4. Rule 3(6) of the Rules reads thus: “3. Appointment- (a) Appointment to various categories shall be made as follows: xxx xxx xxx xxx “6 Non Vocational Teacher (i) By transfer from the category of Non Vocational Teachers (Junior) in the concerned discipline in the subordinate service of the Department. (ii) In the absence of qualified hands under item (i) above, by direct recruitment; Note:- 1. 10% of the total posts of Non Vocational Teachers in each discipline shall be reserved for appointment by transfer from qualified ministerial staff in the subordinate service of the department. 2. The direct recruitment to the various categories shall be made on statewise basis.” The only method of appointment prescribed in the main rule is by transfer from the category of Non Vocational Teachers (Junior) in the concerned discipline in the subordinate service of the Department. In the absence of qualified hands under that category, the posts have to be filled up by direct recruitment. But Note 1 prescribes that 10 per cent of the total posts of Non Vocational Teachers in each discipline w.p.c.35802/07 4 shall be reserved for appointment by transfer from qualified ministerial staff in the subordinate service of the Department. Further, Note 2 of Rule 4 of the Rules provides thus: “4. Qualifications:- xxx xxx xxx xxx Note:- 1. xxx xxx xxx 2. For appointment under Rule 3(5) and 3(6)(ii)(b) the qualified persons in the Ministerial Staff in the Subordinate Service of the Department shall qualify an Eligibility test conducted by Kerala Public Service Commission.” This Note refers to a Rule 3(6)(ii)(b). But in Rule 3(6) there is no Sub Rule (ii)(b). Therefore, obviously something is missing in Rule 3(6). In this connection, it would be advantageous to note what the rule maker provided for in the case of appointment to the post of Vocational Teacher in Rule 3(5), which reads thus: “3. Appointment- (a) Appointment to various categories shall be made as follows: xxx xxx xxx xxx “5 Vocational Teacher (i) By Transfer from qualified Vocational Instructors in the subordinate service of the Department; (ii) By Transfer from qualified Ministerial staff in the subordinate service in the department; and (iii) By direct recruitment. w.p.c.35802/07 5 Note:- The total number of posts of Vocational Teachers in each discipline shall be filled up by the methods (i), (ii) and (iii) mentioned above, in the ratio 2:1:7. If sufficient numbers of qualified persons are not available for appointment by transfer under item (i) and/or, (ii) above, such vacancies shall also be filled up by direct recruitment.” So when for Vocational teachers, one out of ten vacancies has been reserved for appointment by transfer from qualified ministerial staff, the Rule making authority must have intended a similar reservation for the post of Non Vocational Teachers also for which only Note 1 had been added. In the decision of SAMURAI ELECTRONICS PVT. LTD. v. MUNICIPAL COUNCIL AND ANOTHER [1998 (2) SCC 707], the Supreme Court has held that Note is a part of the Rule, which must be construed accordingly. In Baldev Raj v. Union of India [1980 (3) SLR 1], the Supreme Court has held as follows:- “From this Note, which is virtually a part of the rule, the respondents contend that the power of the appropriate authority in respect of Accounts Officers like the appellant has been vested in the A.G. by notification of Ministry of Finance dated 29.11.1972”. Referring to Note 1 of Fundamental Rule 56 (j) of the Fundamental Rules. In Tara Singh v. State of Rajasthan (AIR 1975 SC 1487) in paragraph 21 the Supreme Court has held thus: “21. The reason why we refer to these two decisions in Shyam Lal's and Shivachandrana Singh's cases AIR 1954 SC 369 and AIR 1965 SC 280 (supra) is that notes which are appended to rules are of aid not only in applying the rules but also in interpreting the true import of the rules.” (underlining supplied) w.p.c.35802/07 6 In view of the principles laid down in the said decisions, I must interpret Note 1 to Rule 3(6) to ascertain the true import of the rule itself. As I have already held, when for Vocational Teacher by transfer from qualified ministerial staff in the subordinate service in the department has been made as one of the methods of appointment, that too, to the extent of 10 per cent, normally there is no reason why a similar benefit should not be given to a qualified staff for the post of Non Vocational Teacher also. In fact from Note 2 to Rule 4, I gather that the rule making authority must have originally included the same rule in the main part itself, which may have subsequently happened to be inadvertently omitted, to qualify which the Note must have been added. It is trite law that in interpreting a rule, a harmonious construction giving effect to all parts of the rule should be adopted, if possible. Therefore, I am of opinion that an interpretation giving effect to the Note to Rule 3(6) and the Note 2 to Rule 4 would be in keeping with the intention of the rule making authority. Therefore, I am of opinion that the rule making authority in fact wanted to reserve 10 per cent posts of Non Vocational Teachers in each discipline for appointment by transfer from qualified ministerial staff in the subordinate service of the Department. 5. Having held thus that 10 per cent of the total posts of the Non Vocational Teachers are to be filled up by appointment by transfer w.p.c.35802/07 7 by qualified ministerial staff as a method of appointment, I have to now consider whether in the absence of qualified hands from among the ministerial staff that 10 per cent can also be filled up from the list prepared for direct recruitment. The counsel for the petitioner would argue that since the teachers are to teach students, those vacancies cannot be kept vacant and, therefore, those vacancies should also be filled up from among the rank list prepared for direct recruitment in the absence of qualified hands from among the ministerial staff. The petitioner also relies on the decision of this Court in Ajithakumari.Y.K. v. Shamma K.P. and Others [2009 (1) KHC 556 (D.B)]. According to the petitioner, vacancies can be reserved and kept apart only when Rule 5 of Part 1 of KS&SSR can be applied. I do not think that that decision has any application to the facts of this case in so far as in the Rule which was interpreted in that decision the word used was not “posts”, but, “vacancies”. When in the special rules it is specifically stated that 10 per cent of the total posts of Non Vocational Teachers in each discipline shall be reserved for appointment by transfer from qualified ministerial staff, those posts cannot be filled up otherwise than by transfer from qualified ministerial staff especially since the word used is 'total posts' and not 'vacancies'. It is not as if, if the vacancies are not filled up from the rank list prepared for direct recruitment, the vacancies cannot be filled at all. It is perfectly open to w.p.c.35802/07 8 the Government to fill up those vacancies by provisional appointment until qualified hands from ministerial staff become available. For all the above reasons, I do not find any merit in the contentions of the petitioner. Accordingly, this writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge