V. K. GIRIJA V. RESHMA PARAYIL & ORS. versus RESHMA PARAYIL & ORS. on 4 December 2018

1036 SUPREME COURT REPORTS [2018] 14 S.C.R.[2018] 14 S.C.R. 1036

[2018] 14 S.C.R. 1036

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V. K. GIRIJA

v.

RESHMA PARAYIL & ORS.

(Civil Appeal No. 11829 of 2018)

BDECEMBER 04, 2018

[ASHOK BHUSHAN AND AJAY RASTOGI, JJ.]

Service Law:

Appointment – Whether by direct recruitment or by transfer –CTo the post of Higher Secondary School Teacher – Appellant wasappointed to the post by direct recruitment – Respondent No. 1 whowas working as Higher Secondary School Assistant in the School,filed a complaint questioning direct recruitment – She claimed thatthe post should have been filled up by her transfer – The complaintwas rejected by Deputy Director of Education – DepartmentalDappeal was dismissed by Director of Education – In Revision StateGovernment held that post was required to be filled up by transferof the respondent – Writ petition by appellant – Single Judge ofHigh Court relying on r. 5(3) of Kerala State and SubordinateServices Rules, 1958 held that vacancy was to be filled up on theEbasis of cadre strength and not on the basis that first vacancy shouldbe filled up by transfer – In appeal Division Bench of High Courtsetting aside order of Single Judge held that r. 5(3) of 1958 Ruleswere not applicable and the post was to be filled up by transfer –On appeal, held: Appointment of teachers in the school wasgoverned by Kerala Education Rules, 1959 – Chapter XXXII ofF1959 Rules shall be followed for appointment – r. 5(3) of 1958Rules is not applicable – As per r. 4(2) of 1959 Rules the post wasfirst to be filled up by transfer – Therefore, Division Bench of HighCourt was right in directing appointment of respondent No. 1 –Kerala Education Rules, 1959 – Chapter XXXII, r. 4(2) – KeralaGState and Subordinate Services Rules, 1958 – r. 5(3).

Dismissing the appeal, the Court

HELD : 1. A perusal of the Rule 4(2) of Kerala EducationRules, 1959 contemplates that post of Higher Secondary SchoolTeacher is to be filled up first “by transfer from Junior LecturerH

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in the subject concerned under the management / HigherSecondary School Teacher (Junior)”. Thus, every vacancy ofHigher Secondary School Teacher has to be filled up first by thetransfer of Higher Secondary School Teacher (Junior) in thesubject concerned. There is a purpose and object for providinga particular scheme for filling up the post of Higher SecondarySchool Teacher. Higher Secondary School Teacher (Junior) isalso lecturer in concerned subject and the statute required thatwhenever post in Higher Secondary School Teacher arises, thesame 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. AJunior Lecturer working in the same subject is first choice to fillup the post, which obviates the management to take any othersteps for recruitment. [Para 12][1048-D-E]

2. The second method of recruitment under Rule 4(2) beginswith the word “in the absence of qualified hands under clause (1)above”. Thus, recruitment under Clause (2) shall be resortedonly when no qualified hands under clause (1), i.e. Junior Lecturerin the concerned subject is available. Further, the second phraseof Rule 4(2) begins with the word “the vacancies shall beapportioned in the ratio 1:3 between appointment by transfer anddirect recruitment”. The clear intendment is that vacancy arisingin Higher Secondary School Teacher has to be apportioned inratio of 1:3. There is no concept of looking to the cadre of thepost of Higher Secondary School Teacher while apportioning thevacancy under Rule 4(2), the cadre strength is not to be lookedinto in view of the method of recruitment provided under Rule4(2), i.e. of vacancies of Higher Secondary School Teacher is filledup first by transfer of Junior Lecturer. A plain reading of the abovestatutory provision clearly indicates that for apportioning thevacancy, the cadre strength of the Higher Secondary SchoolTeacher is not to be looked into to find out as to which vacancywill go to transfer or direct recruitment. [Para 12][1048-D-H;1049-A-C]

3. Above interpretation of Rule 4(2) is reinforced by lookingto Rule 4(3), which deals with recruitment of Higher SecondarySchool Teacher (Junior). Higher Secondary School Teacher A

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A(Junior) is also to be filled up by transfer from qualified HighSchool Assistant in the subjects concerned. In absence of qualifiedhands, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subjects concerned underthe Educational Agency. For filling up the posts in the subjectsconcerned, the direct recruitment is also provided as one modeBof recruitment. Note 1, provides “25% of the total posts shall befilled up by the method specified in item (I) above on seniority-cum-suitability basis and 75% of such post shall be filled up bydirect appointment”. Here, Note 1, uses two expressions “totalposts” and “such posts”. Thus, computation of 25% and 75% isCto be based on that total posts of Higher Secondary SchoolTeacher (Junior). The language used in Note 1 when read incontradiction to Rule 4(2)(ii), the intention is clear that whereasfor appointment in Higher Secondary School Teacher, the vacancyshall be apportioned, whereas for filling up the post of HigherSecondary School Teacher (Junior), “total posts” are to beDapportioned on the basis of cadre strength. [Para 12][1049-C-H]

4. Rule 5 of Kerala State and Subordinate Services Rules,1958 begins with the words “where the normal method ofrecruitment to any service, class or category is neither solely bydirect recruitment nor solely by transfer, but is both by directErecruitment and by transfer”. Rule 5 of 1958 Rules also providesfor method of recruitment and Note (3) to Rule 5 provides thatwhenever a ratio or percentage is fixed for different methods ofrecruitment/appointment to a post, the number of vacancies tobe filled up by candidates from each method shall be decided byFapplying the fixed ratio or percentage to the cadre strength ofthe post to which the recruitment/transfer is made and not to thevacancies existing at that time. The Special Rules are KeralaState Subordinate Services Rules, 1992. The Kerala EducationAct, 1958 and Kerala Education Rules, 1959 both are GeneralRules but in view of the fact that Chapter XXXII has been insertedGin the Kerala Education 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 begoverned by Kerala Education Rules. [Para 13][1050-A-D]

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5. Further, the recruitment under Rule 4(2) of HigherSecondary School Teacher is a recruitment specially statutorilydesigned in a different manner providing for all vacancy in HigherSecondary School Teacher subjects, to be first filled up by JuniorLecturer in the subjects concerned under the management. Thus,recruitment under Rule 4(2) cannot be said to be “normal methodof recruitment” to any service as contemplated by Rule 5 of 1958Rules. Thus, 1958 Rules cannot be held to be applicable formaking recruitment under Rule 4(2) of Chapter XXXII of theKerala Education Rules. Further, a set of Rules of Chapter XXXIIhaving been brought subsequent to Special Rules, intendment isclear that it was intended that general rule being Chapter XXXIIshall be followed for appointment of teachers in aided institutions.[Para 13][1050-D-F]

6. The Statutory Scheme as delineated by Chapter XXXIIof Kerala Education Rules shall alone be applicable while makingrecruitment to the teaching posts and Rule 5 Note (3) of KeralaState and Subordinate Services Rules, 1958 is not attracted.[Para 16][1054-A-B]

7. The Division Bench of the High Court, thus, has takencorrect view of the matter and has rightly reversed the judgmentof the Single Judge restoring back the order of the StateGovernment directing the management to appoint respondentby transfer as Higher Secondary School Teacher (Economics).[Para 17][1054-D-E]

8. When as per Rule 4(2), the respondent was entitled forappointment by transfer, which claim has been accepted by theState Government, the claim of respondent cannot be negatedon the premise that appellant has been working and satisfactorilydischarging her duties for last more than 5 years and respondentmay get another chance for being appointed by transfer when anyother vacancy arises on the post of Higher Secondary SchoolTeacher (Economics). [Para 18][1054-E-G]

9. The appellant has no right to hold the post of HigherSecondary School Teacher (Economics) and on the said post, therespondent is to be appointed as per the direction of the StateGovernment and affirmed by the Division Bench. The ABC

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Amanagement is directed to appoint the respondent on or before31.12.2018 so as to enable the respondent to join her post ofHigher Secondary School Teacher (Economics) w.e.f. 01.01.2019.[Para 19][1054-G-H; 1055-A-B]

10. In the ends of justice, the Court however, observedBthat the appellant, if willing to work on the post, at present heldby respondent No.1, the respondents shall adjust her and allowher to work on the post occupied by respondent No.1 w.e.f. thesame date, i.e. 01.01.2019. In the event, the appellant does notaccept the aforesaid post, it shall be open for the respondents toproceed in accordance with law. [Para 19][1055-A-C]CMaya Mathew v. State of Kerala and Others (2010) 4SCC 498 : [2010] 3 SCR 16 – relied on.

S. Prakash and Another v. K.M. Kurian and Others(1999) 5 SCC 624 : [1999] 3 SCR 610 ; Prasad KurienDand Others v. K.J. Augustin and Others (2008) 3 SCC529 : [2008] 3 SCR 1 – Stood distinguished.

Ajithakumari v. Shamma (2009) 1 KLT 808 – referred to.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11829of 2018.

From the Judgment and Order dated 17.08.2016 of the High Courtof Kerala at Ernakulam in W.A. No. 1504 of 2015.

GRomy Chacko, Adv. for the Appellant.

P. V. Dinesh, Ms. Sindhu T. P., Mukund P. Unni, Ms. ArushiSingh, Vipin Nair, P. B. Suresh, Anushumaan Bahadur, KarthikJayashankar Advs. for the Respondents.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. Leave granted.

2. This appeal has been filed against the Division Bench judgmentof Kerala High Court dated 17.08.2016 in Writ Appeal No. 1504 of 2015by which judgment the Writ Appeal filed by the respondent was allowed,reversing the judgment of learned Single Judge. The learned Single Judgehas allowed the Writ Petition filed by the appellant, setting aside theorder of the State Government which had directed for appointment ofrespondent Reshma Parayil.

3. The brief facts of the case necessary to be noted for decidingthe issue are:- 3.1The respondent No.5 is an aided institution. RespondentNo.1 was serving as Upper Primary Assistant in the school.The school was upgraded as Higher Secondary School inthe year 2011-2012. Consequent to the upgradation, 13new posts of Higher Secondary School Teacher (Junior)were created. Out of 13 posts 4 posts of Higher SecondarySchool Assistant (Junior) were filled up by transfer ofHigher Secondary School Assistant and 9 posts were filledup by direct recruitment. In 2012-2013, a new commercebatch with economics was allotted vide Government orderdated 15.07.2013 by virtue of which two posts of HigherSecondary School Teacher (Junior) and two posts of HigherSecondary School Teacher (Commerce andEconomics) were created. Both the posts of HigherSecondary School Teacher were filled up by directrecruitment by the management. The appellant wasappointed on 26.08.2013 as Higher Secondary SchoolTeacher (Economics) by direct recruitment.

3.2The respondent No.1, who was working as HigherSecondary School Assistant in the School, filed a complaintto the Regional Deputy Director of Education questioningthe direct recruitment of the appellant. Respondent No.1claimed that she being Higher Secondary School Assistantavailable in the school, the post of Higher Secondary School A

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Teacher (Economics) was required to be filled up by transferof respondent No.1. The complaint of respondent No.1 wasrejected by Deputy Director of Education vide his orderdated 22.02.2014. An appeal was filed by the respondentNo.1 to the Director of Education, which too was dismissedon 07.07.2014.

3.3Respondent No.1 filed a revision before the StateGovernment, which revision petition was allowed by theState Government vide order dated 01.11.2014. The StateGovernment held that the post of Higher Secondary SchoolTeacher (Economics) was required to be filled up by transferof Reshma Parayil (the respondent herein). The StateGovernment set aside the order of Deputy Director ofEducation and directed the management to fill up the postof Higher Secondary School Teacher (Economics) bytransfer of respondent No.1, if she is otherwise eligible.The order of the State Government was challenged byappellant before the High Court by filing a Writ PetitionNO. 30707 of 2014. Learned Single Judge relying onRule 5(3) of the Kerala State & Subordinate Services Rules,1958 took the view that vacancy has to be filled up on thebasis of cadre strength and not on the basis that the firstvacancy should be filled up by transfer. The order of theRegional Deputy Director and Director of Education wasupheld and that of the State Government was set aside.The respondent No.1 aggrieved by the judgment of learnedSingle Judge filed a Writ Appeal before the Division Bench.

3.4The Division Bench vide its judgment dated 17.08.2016 hasallowed the Writ Appeal and set aside the judgment of thelearned Single Judge. The Division Bench relied on anearlier Division Bench judgment in Ajithakumari Vs.Shamma, (2009) 1 KLT 808, which according to DivisionBench covered the issue. The Division Bench took theview that Rule 5 of Kerala State and Subordinate ServiceRules, 1958 (hereinafter referred to as ‘KSS Rules) has noapplication and the vacancy of Higher Secondary SchoolTeacher was to be filled up by transfer. Aggrieved by the H

judgment of the Division Bench, the appellant has filed thisappeal.

4. Learned counsel for the appellant submits that the DivisionBench committed error in holding that vacancy of Higher SecondarySchool Teacher (Economics) was to be filled up by transfer. He submitsthat as per Rule 5 of KSS Rules, Note (3), when the method ofrecruitment is both by transfer and direct recruitment, and a ratio isfixed for different methods of recruitment, the candidate from eachmethod shall be decided by applying the fixed ratio or percentage of thecadre strength of the post. He submits that vacancy in Higher SecondarySchool Teacher has no relevance for deciding the mode of recruitmentand as per cadre strength, the post on which appellant was appointedfell into direct recruitment quota. The learned Single Judge was correctin its view that appellant was correctly appointed. Learned counsel forthe appellant has placed reliance on two judgments of this Court namely,S. Prakash and Another Vs. K.M. Kurian and Others, (1999) 5SCC 624 and Prasad Kurien and Others Vs. K.J. Augustin andOthers, (2008) 3 SCC 529.

5. The submission made by learned counsel for the appellant hasbeen refuted by learned counsel appearing for respondent No.1. Learnedcounsel appearing for respondent No.1 submits that provisions of KSSRules has no application. He submits that the recruitments has to bemade in accordance with Kerala Education Rules, 1959, Rule 4 ChapterXXXII. He submits that Chapter XXXII has been substituted in theEducation Rules by G.O. dated 09.11.2001 published in Gazette on12.11.2001, which is subsequent to Kerala State and Subordinate ServicesRules, 1992, hence the Kerala Education Rules regulating the appointmentof Higher Secondary School Teachers shall prevail. He submits that forappointment of Higher Secondary School Teachers cadre strength is notto be looked into rather appointment has to be made in accordance withRule 4 of Chapter XXXII. He submits that judgment of this Court inMaya Mathew Vs. State of Kerala and Others, (2010) 4 SCC 498has clarified the situation and upheld that Special Rules (Kerala EducationRules, 1959) pertaining to recruitment, made subsequent to Kerala Stateand Subordinate Services Rules, which shall prevail. The earlier twojudgments of this Court relied by learned counsel for the appellant havealso been explained and distinguished. He submits that present case is A

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Afully covered by this Court’s judgment in Maya Mathew (supra). Hefurther submits that respondent was fully eligible for appointment asHigher Secondary School Teacher (Economics) fulfilling all thequalifications. The post has wrongly been filled up by direct appointmentby the appellant, which deserves to be set aside. He submits that theDivision Bench rightly allowed the appeal, hence the appeal deserves toBbe dismissed.6. We have considered the submissions of the learned counsel forthe parties and have perused the records.

7. From the submissions of the learned counsel for the parties andCpleadings on record, following are three issues, which arise forconsideration in the present case:-

(i) Whether the post of Higher Secondary School Teacher(Economics) newly sanctioned in the School in the year2012-2013 was required to be filled up by direct recruitmentDtaking the cadre strength of the Higher Secondary SchoolTeacher or the same was required to be filled up by transfer?

(ii) Whether for filling the post of Higher Secondary SchoolTeacher, Rule 5 of KSS Rules were to be resorted to?

(iii) Whether the Management committed error in makingEappointment of the appellant as Higher Secondary SchoolTeacher (Economics) by direct recruitment?

8. The Kerala Education Act, 1958 and the Rules framedthereunder regulate the recruitment of teaching staff in aided HigherSecondary School. Chapter XXXII of Kerala Education Rules dealsFwith method of appointment and qualifications of teachers and non-teaching staff in aided Higher Secondary School. Rule 3 deals withcategories of posts in aided Higher Secondary School. Rule 3 contains8 categories out of which category 1 is Principal; Category 2 is HigherSecondary School Teacher in different subjects (total 39) andCategory 3 is Higher Secondary School Teacher (Junior) in severalGsubjects (total 39). Rule 4 deals with method of appointment. Rule 4(2)and 4(3) deals with appointment of Higher Secondary School Teacherand Higher Secondary School Teacher (Junior). Rules 4(2) and 4(3)are as follows:-

V. K. GIRIJA v. RESHMA PARAYIL & ORS.[ASHOK BHUSHAN, J.]

ASl.CategoryMethod of AppointmentNo.1.XxxxxxxxxxxxxxxxXxxxxxxxxxx2.Higher Secondary(1) By transfer from JuniorSchool TeacherLecturer in the subjectBconcerned under themanagement / HigherSecondary School Teacher(Junior)(2) In the absence ofCqualified hands under clause(1) above, the vacancies shallbe apportioned in the ratio 1:3between appointment bytransfer and directappointment as detailedDbelow:(i) a)By transfer from HighSchool Assistants, whopossess the requisitequalifications, under theEEducational Agency.b) In the absence of qualifiedpersons under (a) above, bytransfer from qualified UpperPrimary School Assistants/FLower Primary SchoolAssistants who possess therequisite qualification in thesubject concerned, under theEducational Agency.G(ii) By direct appointmentNote:- (i) When qualifiedpersons are not available tofill up the vacancies set apartfor appointment by transferH

Aunder item 2(i) above suchvacancies shall also be allotedfor direct appointment.(ii) Appointments under item(I) above shall be made fromBselect lists of qualified personsprepared on the basis ofseniority and merit.3.Higher Secondary1. (i) By transfer fromSchool Teacherqualified High SchoolC(Junior)Assistants in the subjectconcerned under theEducational Agency.(ii) In the absence ofqualified hands under item (i)Dabove, by transfer fromqualified Upper PrimarySchool Assistants / LowerPrimary School Assistants inthe subject concerned underthe Educational Agency.E2. By direct appointmentNote:- (i) 25% of the totalposts shall be filled up by themethod specified in item (I)above on seniority - cumFsuitability basis and 75% ofsuch post shall be filled up bydirect appointment.(ii) When qualified personsare not available to fill up theGvacancies set apart forappointment by transferunder item 1 above, suchvacancies also shall beallotted for directappointment.H

9. Another Rules, which are relevant for consideration are KeralaState and Subordinate Services Rules, 1992, reliance has been placedon Rule 5 of the said Rules, which is to the following effect:-

5. Method of recruitment. ______ Where the normal methodof recruitment to any service, class or category is neither solelyby direct recruitment nor solely by transfer, but is both by directrecruitment and by transfer._____

(a) the proportion or order in which the Special Rules concernedmay require vacancies to be filled by persons recruited direct andby those recruited by transfer shall be applicable only to substantivevacancies in the permanent cadre; (b) person shall be recruited direct only against a substantivevacancy in such permanent cadre, and only if the vacancy is onewhich should be filled by direct recruit under the Special Rulesreferred to in clause (a); and

(c) recruitment to all other vacancies shall be made by transfer.

Note. __ (1) All permanent vacancies and temporary vacanciesexcept those of short duration shall be treated as substantivevacancies.

(2) The vacancies on account of leave and deputation with aduration of less than six months shall be treated as vacancies ofshort duration, provided, such vacancies with a duration of threemonths to six months should not be treated as vacancies of shortduration, if the vacancies are likely to last long or new vacanciesare likely to arise.

(3) Whenever a ratio or percentage is fixed for different methodsof recruitment/appointment to a post the number of vacancies tobe filled up by candidates from each method shall be decided byapplying the fixed ratio or percentage to the cadre strength of thepost to which the recruitment/transfer is made and not to thevacancies existing at that time.

10. The appellant’s submission is that for making appointment onthe post of Higher Secondary School Teacher, Rule 5(3) of the KSSRules are applicable and as per the said Rules, since recruitment on thepost of Higher Secondary School Teacher is provided by two methods,i.e. by direct recruitment and transfer, for filling the post, the cadre A

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Astrength of Higher Secondary School Teacher is to be taken forapportioning the vacancy into ratio of 1:3. He submits that the learnedSingle Judge has rightly relied on Rule 5(3) of KSS Rules and has heldthat ratio can only to be worked out if the cadre strength is maintainedwhereas the Division bench of the Kerala High Court has reversed thejudgment of learned Single Judge.B

11. Learned counsel for the respondent submits that for the aboverecruitment on the post of Higher Secondary School Teacher, Rule 5(3)of KSS Rules is not applicable and the appointment has to be made onlyon the basis of Rule 4 of Kerala Education Rules. He further submitsthat Special Rules namely Kerala State and Subordinate Services Rules,C1992 are Special Rules, which were framed in the year 1992, the chapterXXXII 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 KSSRules.

12. We may now first look into the statutory Scheme as delineatedDby Rule 4 of Kerala Education Rules. The first issue is as to whetherfor filling up the post of Higher Secondary School Teacher, the vacancyhas to be allocated as per the cadre strength. A perusal of the Rule 4(2)contemplates that post of Higher Secondary School Teacher is to befilled up first “by transfer from Junior Lecturer in the subject concernedEunder the management / Higher Secondary School Teacher (Junior)”.Thus, every vacancy of Higher Secondary School Teacher has to befilled up first by the transfer of Higher Secondary School Teacher (Junior)in the subject concerned. There is a purpose and object for providing aparticular Scheme for filling up the post of Higher Secondary SchoolTeacher. Higher Secondary School Teacher (Junior) is also lecturer inFconcerned subject and the Statute required that whenever post in HigherSecondary School Teacher arises, the same shall be first offered to theJunior Lecturer in the subject. Above statutory Scheme serves theinterests of the School, students and the teachers already serving in theinstitution. A Junior Lecturer working in the same subject is first choiceGto fill up the post, which obviates the management to take any othersteps for recruitment. The second method of recruitment under Rule4(2) begins with the word “in the absence of qualified hands under clause(1) above”. Thus, recruitment under Clause (2) shall be resorted onlywhen no qualified hands under clause (1), i.e. Junior Lecturer in theconcerned subject is available. Further, the second phrase of Rule 4(2)Hbegins with the word “the vacancies shall be apportioned in the ratio 1:3

between appointment by transfer and direct recruitment”. The clearintendment is that vacancy arising in Higher Secondary School Teacherhas to be apportioned in ratio of 1:3. There is no concept of looking tothe cadre of the post of Higher Secondary School Teacher whileapportioning the vacancy under Rule 4(2), the cadre strength is not to belooked into in view of the method of recruitment provided under Rule4(2), i.e. of vacancies of Higher Secondary School Teacher is filled upfirst by transfer of Junior Lecturer. A plain reading of the above StatutoryProvision clearly indicates that for apportioning the vacancy, the cadrestrength of the Higher Secondary School Teacher is not to be lookedinto to find out as to which vacancy will go to transfer or directrecruitment. Now coming to the facts of the present case, in the year2012-2013, two new posts were created in Higher Secondary SchoolTeacher, i.e. Commerce and Economics, both were the new vacanciesand no Junior 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 filledup by transfer. Resorting to cadre strength, thus, was not contemplatedby plain reading of Rule 4(2). We, thus, do not find any substance in thesubmission of the counsel for the appellant. Above interpretation ofRule 4(2) is reinforced by looking to Rule 4(3), which deals withrecruitment of Higher Secondary School Teacher (Junior). HigherSecondary School Teacher(Junior) is also to be filled up by transferfrom qualified High School Assistant in the subjects concerned. Inabsence of qualified hands, by transfer from qualified Upper PrimarySchool Assistants/ Lower Primary School Assistants in the subjectsconcerned under the Educational Agency. For filling up the posts in thesubjects concerned, the direct recruitment is also provided as one modeof recruitment. Note 1, which is very relevant, provides “25% of thetotal posts shall be filled up by the method specified in item (I) above onseniority-cum-suitability basis and 75% of such post shall be filled up bydirect appointment”. Here, Note 1, uses two expressions “total posts”and “such posts”. Thus, computation of 25% and 75% is to be basedon that total posts of Higher Secondary School Teacher (Junior). Thelanguage used in Note 1 when read in contradiction to Rule 4(2)(ii), theintention is clear that whereas for appointment in Higher SecondarySchool Teacher, the vacancy shall be apportioned, whereas for filling upthe post of Higher Secondary School Teacher (Junior), “total posts” areto be apportioned on the basis of cadre strength.

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1050 SUPREME COURT REPORTS [2018] 14 S.C.R.

A13. Now, we come to the Kerala State and Subordinate ServicesRules, 1958 – Rule 5. Rule 5 begins with the words “where the normalmethod of recruitment to any service, class or category is neither solelyby direct recruitment nor solely by transfer, but is both by directrecruitment and by transfer”. Rule 5 of 1958 Rules also provides formethod of recruitment and Note (3) to Rule 5 provides that whenever aBratio or percentage is fixed for different methods of recruitment/appointment to a post the number of vacancies to be filled up by candidatesfrom each method shall be decided by applying the fixed ratio orpercentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time. TheCSpecial Rules are 1992 Rules. The Kerala Education Act, 1958 andKerala Education Rules both are General Rules but in view of the factthat Chapter XXXII has been inserted in the Rules by notification dated09.11.2001, which makes it clear that appointment of teachers and non-teaching staff in aided Higher Secondary School Teacher is to be governedby Kerala Education Rules. Further, the recruitment under Rule 4(2) ofDHigher Secondary School Teacher is a recruitment specially statutorilydesigned in a different manner providing for all vacancy in HigherSecondary School Teacher subjects, to be first filled up by Junior Lecturerin the subjects concerned under the management. Thus, recruitmentunder Rule 4(2) cannot be said to be “normal method of recruitment” toEany service as contemplated by Rule 5 of KSS Rules. Thus, KSS Rulescannot be held to be applicable for making recruitment under Rule 4(2)of Chapter XXXII of the Kerala Education Rules. Further, a set ofRules of Chapter XXXII having been brought subsequent to SpecialRules, intendment is clear that it was intended that general rule beingChapter XXXII shall be followed for appointment of teachers in aidedFinstitutions. This Court in the case of Maya Mathew (supra) hadoccasion to consider Kerala State and Subordinate Services Rules, 1958in reference to a general rule namely Kerala State Homeopathy ServicesRules, 1989. Note (3) of Rule 5 of Kerala State and Subordinate ServicesRules, 1958 came up for consideration in the above case. Whereas RuleG3 of the Homeopathy Rules also provided for method of appointmentand ratio to be maintained in making appointment. Kerala State andSubordinate Services Rules, 1958 were referred as General Rules in theaforesaid judgment. The Homeopathy Rules were referred to as SpecialRules, which was repugnant to General Rules. In Para 12 of thejudgment, rules of interpretation governing two set of Rules were noticedHto the following effect:- “12. The rules of interpretation when a subject is governed bytwo sets of rules are well settled. They are:

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(i) When a provision of law regulates a particular subject anda subsequent law contains a provision regulating the samesubject, there is no presumption that the latter law repealsthe earlier law. The rule-making authority while making theBlater rule is deemed to know the existing law on the subject.If the subsequent law does not repeal the earlier rule, therecan be no presumption of an intention to repeal the earlierrule;

(ii) When two provisions of law—one being a general law andthe other being a special law govern a matter, the courtshould endeavour to apply a harmonious construction to thesaid provisions. But where the intention of the rule-makingauthority is made clear either expressly or impliedly, as towhich law should prevail, the same shall be given effect.

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(iii) If the repugnancy or inconsistency subsists in spite of aneffort to read them harmoniously, the prior special law isnot presumed to be repealed by the later general law. Theprior special law will continue to apply and prevail in spiteof the subsequent general law. But where a clear intentionto make a rule of universal application by superseding theearlier special law is evident from the later general law,then the later general law, will prevail over the prior speciallaw.

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(iv) Where a later special law is repugnant to or inconsistentwith an earlier general law, the later special law will prevailover the earlier general law.”

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14. Kerala State and Subordinate Services Rules, 1958 containsRule 2, which is to the following effect:- “2. Relation to the Special Rules.—If any provision in the GeneralRules contained in the part is repugnant to a provision in the SpecialRules applicable to any particular service contained in Part III,the latter shall in respect of that service, prevail over the provisionin the General Rules in this part.”

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A15. The earlier judgments of this Court in S. Prakash and AnotherVs. K.M. Kurian and Others, (supra) and Prasad Kurien andOthers Vs. K.J. Augustin and Others, (supra), which had consideredNote 3 of Rule 5 of Kerala State and Subordinate Services Rules, 1958were also considered and distinguished. In Paragraph 14 to 20, followinghas been laid down:-B

“14. The question whether there can be an exception to theprimacy 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 GeneralRules.

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15. In S. Prakash, this Court considered whether the provisionsof the Special Rules, the Kerala Agricultural Income Tax andSales Tax Service Rules, will have to yield to Note (3) to Rule 5of the General Rules. This Court held: (SCC pp. 633-34, para 14)

“14. From the aforesaid discussion, it is clear that if the intentionof the rule-making authority was to establish a rule of universalapplication to all the services in the State of Kerala for whichthe Special Rules are made, then the Special Rules will giveway to the General Rules enacted for that purpose. This hasto be found out from the language used in the Rules whichmay be express or by implication. If the language is clearand unqualified, the subsequent General Rule wouldprevail despite repugnancy. If the intention of the rule-making authority is to sweep away all the Special Rulesand to establish a uniform pattern for computation of theratio or percentage of direct recruits and by transfer, insuch a case, the Special Rules will give way. … The languageof Note (3) is crystal clear and is for removal of any ambiguityby using positive and negative terms. It applies to all the SpecialRules whenever a ratio or percentage is prescribed in the Rules.It also emphatically states that it has to be computed on thecadre strength of the post to which the recruitment is to bemade and not on the basis of the vacancies existing at thattime.”

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(emphasis supplied)

16. In Prasad Kurien, while considering the Special Rules, theKerala Excise and Prohibition Subordinate Service Rules, 1974,vis-à-vis Note (3) to Rule 5 of the General Rules, this Court followedthe dictum in S. Prakash.

17. These decisions reiterate the position that if the intention ofthe rule-making authority is to make a later general rule to applyto all services in the State, for which different earlier special rulesexist, then the existing special rules will give way to such latergeneral rule. That is, where the general rule is made subsequentto the special rule and the language of the general rule signifiedthat it was intended to apply to all services and prevail over anyprior special rules, the intention of the rule-making authority shouldbe given effect by applying the subsequent general rule instead ofthe earlier special rule.

18. This Court held that the language of Note (3) to Rule 5 ofGeneral Rules showed that it was intended to prevail over existingSpecial Rules which indicated a contrary position. What issignificant is that the two decisions considered the Special Rulesthat were earlier in point of time to the General Rules as amendedby the 1992 Amendment rules which introduced Note (3) to Rule5 of the General Rules.

19. This Court held, on reading the General Rules in conjunctionwith the Special Rules, that Note (3) to Rule 5 of General Ruleswill prevail over the corresponding provisions in the Special Rulesshowing a different intention, when deciding whether the ratio ofeach feeder category should be determined with reference to thecadre strength or existing vacancies.

20. What logically follows from the principle enunciated in thetwo decisions is that if any special rule is subsequent to the generalrule, then the question of examining whether the prior generalrule will prevail over a later special rule will not arise at all havingregard to the categorical provision contained in Rule 2 of theGeneral Rules. The principle laid down in those decisions will notapply where the special rule is made subsequent to the generalrule.”

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A16. This Court clearly held that principle laid down in S. Prakashand Another Vs. K.M. Kurian and Others, (supra) and PrasadKurien and Others Vs. K.J. Augustin and Others, (supra) shallnot apply where the Special Rules are made subsequent to the GeneralRules. The ratio laid down in the above case is fully applicable in thefacts of the present case. Thus, the Statutory Scheme as delineated byBChapter XXXII of Kerala Education Rules shall alone be applicablewhile making recruitment to the teaching posts and Rule 5 Note (3) ofKerala State and Subordinate Services Rules, 1958 is not attracted.

17. Learned counsel for the appellant has placed reliance onjudgments of this Court in S. Prakash and Another Vs. K.M. KurianCand Others, (supra) and Prasad Kurien and Others Vs. K.J.Augustin and Others, (supra). Both the above judgments had beenconsidered and distinguished by this Court in the case of Maya Mathew(supra). The ratio laid down in the case of Maya Mathew (supra) isfully attracted since Chapter XXXII of the Kerala Education Rules, whichDis 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 correctview of the matter and has rightly reversed the judgment of the learnedSingle Judge restoring back the order of the State Government directingthe management to appoint respondent by transfer as Higher SecondaryESchool Teacher (Economics).

18. Learned counsel for the appellant lastly has submitted thatappellant has been working and satisfactorily discharging her duties forlast more than 5 years and respondent may get another chance for beingappointed by transfer when any other vacancy arises on the post ofFHigher Secondary School Teacher (Economics). We do not find anysubstance in the above submission when as per Rule 4(2), the respondentwas entitled for appointment by transfer, which claim has been acceptedby the State Government, the claim of respondent cannot be negated onthe premise as contended by the appellant. Learned counsel for theGrespondent, however, during submissions has fairly submitted that shehas no objection, if the appellant is adjusted on the post, which is atpresent held by the respondent.

19. In view of the foregoing discussions, we are of the view thatappellant has no right to hold the post of Higher Secondary School TeacherH(Economics) and on the said post, the respondent is to be appointed as

V. K. GIRIJA v. RESHMA PARAYIL & ORS.[ASHOK BHUSHAN, J.]

per the direction of the State Government and affirmed by the DivisionABench. We, thus, direct the management to appoint the respondent onor before 31.12.2018 so as to enable the respondent to join her post ofHigher Secondary School Teacher (Economics) w.e.f. 01.01.2019. Inthe ends of justice, we, however, observe that the appellant, if willing towork on the post, at present, held by the respondent No.1, the respondentsBshall adjust her and allow her to work on the post occupied by therespondent No.1 w.e.f. the same date, i.e. 01.01.2019. In event, theappellant does not accept the aforesaid post, it shall be open for therespondents to proceed in accordance with law. We make it clear thatthe above direction is being given in particular circumstances of thepresent case and shall not be treated as any precedent. Subject to above,Cthe appeal is dismissed.

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Kalpana K. Tripathy

Appeal dismissed.

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