Case: V.K. GIRIJA Vs. RESHMA PARAYIL

3. The brief facts of the case necessary to be noted for deciding the issue are: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 yearConsequent 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. Ina 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 onas Higher Secondary School Teacher26 (Economics) by direct recruitment.An appeal was filed by the respondent No.1 to the Director of Education, which too was dismissed on 07.07.2014.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 the26 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.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 Bench26 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.

Reasoning:
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.