Case: P. Raghava Kurup  Vs. V. Ananthakumari

Brief facts which are necessary for disposal of this appeal are that the respondent No.1 - V.Ananthakumari (hereinafter referred to as respondent) was working as a Peon in Viswabharathi Model High School. She was appointed as a Peon on 19.6.1984 and the appointment was approved. She possessed all necessary qualification for being considered for appointment as High School Assistant (Hindi). On account of retirement, a vacancy in High School Assistant (Hindi) arose in the School on 1.4.2000. Since other incumbents in the School were not eligible and respondent alone was eligible for being considered for appointment to the said post, therefore, she made a request to management to consider her case but the Management did not accede to her request and rejected the same. Appointment was given to one P.Rajeev- the appellant herein vide Ext.P1 dated 1.8.2000. This appointment of the appellant herein was approved by the District Education Officer by order dated 23.9.2000. Thereafter the respondent (herein) approached the Kerala High Court by filing a writ petition and direction was given by the Court in O.P. No.19512 of 2000 to the District Education Officer to consider the candidature of the respondent. The District Education Officer rejected her claim. The matter was taken up in appeal before the Director of Public Instructions and the Director of Public Instructions allowed the appeal of the respondent and set aside the appointment of appellant herein. Aggrieved against the order of the Director of Public Instructions, the appellants herein filed a writ petition before the High Court of Kerala. Learned Single Judge allowed the writ petition and quashed the order of the Director of Public Instructions. Aggrieved against the order passed by learned Single Judge, the respondent herein filed a writ appeal before the Division Bench. The Division Bench set aside the order of learned Single Judge and held that the respondent herein was qualified to be appointed as High School Assistant (Hindi). Aggrieved against aforesaid order present appeal was filed.

Reasoning: 12. Therefore, the general principle which emerges is that the general law does not abrogate any special law by mere implication. This principle so far as the present case is concerned, is not of much relevance because here the intention of the Rule framing authority was to provide for theg staff an opportunity, in case eligible persons from the promotional quota are not available. Therefore, it is a particular provision for particular contingency which does not run counter to the general principles. The general principle as contained in Rule 43B is that first priority will be given to the categories of persons mentioned undere (1). In case, persons are not available, then this class of persons will also be eligible for promotion. This does not override the general provisions, it only caters for a particular contingency i.e. in the event the particular class of persons are not available, then another category of persons has also been made eligible13. Our attention was invited to a decision of this Court in S. Prakash & Anr. v. K.M.Kurian & Ors. [(1999) 5 SCC 624] their Lordships have very clearly held that if language of general provision is clear and unqualified, it prevails over special provision, and special provision must give way to general provision if legislative intent was to establish a rule of universal application14. But so far as the present case is concerned, there is no such conflict. In fact the situation is to the contrary i.e. the particular law has followed the general law. The general law was to fill up the post mentioned in Rule 43B and in case if any person is not available in the category mentioned in Rule 43B, then persons belonging to theg category could be considered provided they possess necessary qualification15. Our attention was invited to a decision of this Court in The Bengal Immunity Company Limited v. The State of Bhiar & Ors. ([1955] 2 S.C.R.603).16. Both these provisions appear in Chapter XIV and both are dealt with the method of recruitment and so far asg staff is concerned it is provided under Note (1) to Rule 1 as a particular provision but that is not derogatory to Rule 43B. It is rather supplemental that if persons mentioned in Rule 43B are not available for promotion then persons in the category ofg staff are available with requisite qualification then such person can be considered for appointment. These two provisions can be read together and the purpose for which this rule has been made can be achieved. Therefore, the Note 1 to Rule 1 read with Rule 43B can be read harmoniously, it will effectuate the intention of the rule framing authority. Therefore, this rule which was inserted in 1982, can be harmoniously read and it is not derogatory to Rule 43B17. In the case of P.S. Sathappan (Dead) by LRs. v. Andhra Bank Ltd. & Ors. [(2004) 11 SCC 672] this Court held that harmonious construction should be preferred than the purposive construction and in the guise of purposive construction one cannot interpret a section in a manner which would lead to a conflict between twos of the same section. Therefore, the Constitution Bench by majority held that as far as possible harmonious construction should be preferred and this is what has been held by us above.