Case: V.K. GIRIJA Vs. RESHMA PARAYIL

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 a26 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 Rules26 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 reliance26 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 do26 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]A perusal of the26 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. 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). Thus, recruitment under Clause (2) shall be resorted only26 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. 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 yeartwo new posts were created in Higher Secondary School Teacher, i.e. Commerce and Economics, both were the new vacancies and no Junior26 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 onbasis and 75% of such post shall be filled up by direct26. 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., 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. 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 or26 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 andstaff 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 that26 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.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.Learned counsel for the appellant has placed reliance26 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).Learned counsel for the appellantlastly 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 do26 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. Learnedcounsel 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.