Service Law:
Appointment – Whether by direct recruitment or by transfer – To the post of Higher Secondary School Teacher – Appellant was appointed to the post by direct recruitment – Respondent No. 1 who was working as Higher Secondary School Assistant in the School, filed a complaint questioning direct recruitment – She claimed that the post should have been filled up by her transfer – The complaint was rejected by Deputy Director of Education – Departmental appeal was dismissed by Director of Education – In Revision State Government held that post was required to be filled up by transfer of the respondent – Writ petition by appellant – Single Judge of High Court relying on r. 5(3) of Kerala State and Subordinate Services Rules, 1958 held that vacancy was to be filled up on the basis of cadre strength and not on the basis that first vacancy should be filled up by transfer – In appeal Division Bench of High Court setting aside order of Single Judge held that r. 5(3) of 1958 Rules were not applicable and the post was to be filled up by transfer – On appeal, held: Appointment of teachers in the school was governed by Kerala Education Rules, 1959 – Chapter XXXII of 1959 Rules shall be followed for appointment – r. 5(3) of 1958 Rules is not applicable – As per r. 4(2) of 1959 Rules the post was first to be filled up by transfer – Therefore, Division Bench of High Court was right in directing appointment of respondent No. 1 – Kerala Education Rules, 1959 – Chapter XXXII, r. 4(2) – Kerala State and Subordinate Services Rules, 1958 – r. 5(3). Dismissing the appeal, the Court
HELD : 1. A perusal of the Rule 4(2) of Kerala Education Rules, 1959 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 (Junior)”. 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. [Para 12][1048-D-E]
2. The second method of recruitment under Rule 4(2) begins with the word “in the absence of qualified hands under clause (1) above”. Thus, recruitment under Clause (2) shall be resorted only when no qualified hands under clause (1), i.e. Junior Lecturer in the concerned subject is 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 recruitment”. 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. [Para 12][1048-D-H; 1049-A-C]
3. 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, provides “25% of the total posts shall be filled up by the method specified in item (I) above on senioritycum-suitability basis and 75% of such post shall be filled up by direct appointment”. 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. [Para 12][1049-C-H]
4. Rule 5 of Kerala State and Subordinate Services Rules, 1958 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 transfer”. 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 or 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 Kerala State Subordinate Services Rules, 1992. The Kerala Education Act, 1958 and Kerala Education Rules, 1959 both are General Rules but in view of the fact that Chapter XXXII has been inserted in the Kerala Education Rules by notification dated 09.11.2001, which makes it clear that appointment of teachers and nonteaching staff in aided Higher Secondary School Teacher is to be governed by Kerala Education Rules. [Para 13][1050-A-D]
5. Further, the recruitment under Rule 4(2) of Higher Secondary School Teacher is a recruitment specially statutorily 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 1958 Rules. Thus, 1958 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 that general rule being Chapter XXXII shall be followed for appointment of teachers in aided institutions. [Para 13][1050-D-F]
6. 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. [Para 16][1054-A-B]
7. The Division Bench of the High Court, thus, has taken correct view of the matter and has rightly reversed the judgment of the Single Judge restoring back the order of the State Government directing the management to appoint respondent by transfer as Higher Secondary School Teacher (Economics). [Para 17][1054-D-E]
8. 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 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). [Para 18][1054-E-G]
9. The appellant has no right to hold the post of Higher Secondary School Teacher (Economics) and on the said post, the respondent is to be appointed as per the direction of the State Government and affirmed by the Division Bench. The management is directed to appoint the respondent on or before 31.12.2018 so as to enable the respondent to join her post of Higher 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, observed that the appellant, if willing to work on the post, at present held by respondent No.1, the respondents shall adjust her and allow her to work on the post occupied by respondent No.1 w.e.f. the same date, i.e. 01.01.2019. In the event, the appellant does not accept the aforesaid post, it shall be open for the respondents to proceed in accordance with law. [Para 19][1055-A-C] Maya Mathew v. State of Kerala and Others (2010) 4 SCC 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 Kurien and Others v. K.J. Augustin and Others (2008) 3 SCC
529 : [2008] 3 SCR 1 – Stood distinguished.
Ajithakumari v. Shamma (2009) 1 KLT 808 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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