P.Raghava Kurup & Anr Vs. V.Ananthakumari & Ors  Insc 187 (22 February 2007)
A.K.MATHUR & H.S.BEDI
A.K. MATHUR, J.
This appeal is directed against the order passed by the Division Bench of
Kerala High Court in W.A.No.413 of 2001 dated 11.1.2001 whereby the appeal
filed by the respondent No.1 herein was allowed by the Division Bench and the
judgment of learned Single Judge of the High Court was set aside.
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
Aggrieved against aforesaid order present appeal was filed.
Service condition of such employees is regulated by The Kerala Education
Rules, 1959 (hereinafter to be referred to as "the Rules") and we are
concerned with Chapter XIV which deals with conditions of service of aided
school teachers. The Rules were framed under the Kerala Education Act, 1958
(hereinafter to be referred to as "the Act"). Rule 1 empowers the
Managers of the Private Schools to make appointment of a candidate who
possesses prescribed qualification. Rule 1 reads as under :
" (1) Managers of Private Schools shall appoint only candidates who
possess the prescribed qualification. As far as High School classes are
concerned the appointment shall be made with due regard to the requirement of
subjects as determined by Director of Public Instruction with reference to the
curricula of studies. Whenever vacancy occurs, the manager shall follow the
directions issued by Government from time to time, for ascertaining the
availability of qualified hand and for filling up vacancy.
A member of the non-teaching staff
under the category of Clerks, Peons, Sweepers and other staff shall also be
eligible for appointment as teacher provided he has the prescribed
qualifications and that there is no teacher eligible for promotion or for
appointment to such post under these rules.
If there are more than one claimant
for appointment as teacher under these categories, preference shall be given in
the order of clerks, peons, sweepers and other staff. If there are more than one
claimant under a particular category, the order of preference shall be according
to the date of their first appointment. If their date of first appointment be
the same, then preference shall be given with reference to age, the older being
given first preference.
The age limit and the relaxation
thereof for appointment applicable to teachers of Government Schools shall apply
mutatis mutandis to teachers of aided schools. The date of determination of age
for eligibility for appointment shall be the 1st January of the year in which
the appointment is to be made.
Subject to rule 51-A, the appointment of teachers in schools managed by Panchayats shall be made from among the qualified hands advised by the
In determining the requirement of
subjects, the Director shall also issue such instructions as he may deem
necessary for giving protection to teachers-
who are in service and would have
continued in service; and
who stand relieved as per rule 49 or
52 or on account of termination of vacancies and who would have been eligible
for reappointment under rule 51A had there been no change in requirement of
Rule 43B deals with appointment of a language teacher to which we are
concerned. Rule 43 is a general rule but Rule 43B especially deals with the
appointment of a particular category I.e. language teacher in such schools.
Rule 43B reads as under :
Notwithstanding anything contained in
rule 43, posts of full time High School Assistants in a particular Language
shall be filled up by promotion in the following order of preference:-
Lower Grade Language
Teachers who have the prescribed qualifications in that Language for promotion
to the post of High School Assistants in that language at the time of
occurrence of the vacancy and who had given option in writing as per G.O.(Ms)
612/Edn. Dated 10-11-1964 to continue as Lower Grade Language Teachers;
Part time High School Assistant in
Other Lower Grade Language Teachers
in that Language;
Regular Primary Teachers having the
Craft and Specialist teachers having
the prescribed qualifications;
If no teacher with the prescribed
qualifications is available in the categories mentioned above, Lower Grade
Language Teachers in any other Language having the prescribed qualifications.
Note:- Promotion under this sub-rule shall be made according to seniority
from person possessing the prescribed qualifications at the time of occurrence
If qualified teachers as mentioned in
sub- rule (1) are not available in schools under the same Educational Agency fir
promotion to the post of High School Assistants in that language, qualified
candidates from outside may be appointed to that post."
Note:-1 to Rule 1 contemplates that members of the non-teaching staff shall
also be eligible for appointment as a teacher provided he has the prescribed
qualifications and there is no teacher eligible for promotion or for
appointment to such post under these Rules. That means non teaching staff like
Clerks, Peons, Sweepers and other staff if they possess necessary
qualifications they would also be eligible for being appointed as teacher
provided there is no teacher eligible for promotion or for appointment to such
post under these rules. Rule 43B which starts with non-obstante clause clearly
contemplates that notwithstanding anything contained in rule 43, posts of full
time High School Assistants in a particular language shall be filled up by
promotion in the following order of preference i.e. from a Lower Grade Language
Teacher to the higher post and if a person is not available in the category (i)
then category (ii) i.e. part time High School Assistant in that Language and
likewise the descending order as per Rule 43B. Therefore, on reading of Rule
43B with Note(i) to Rule 1, it transpires that in case candidates in all these
categories mentioned in Rule 43B are not available, then persons from the non-
teaching staff are also made eligible for consideration for appointment. The
Manager of the School proceeded for recruitment from outside when he found that
the persons mentioned in category Rule 43B are not available. This was
protested by the respondent herein. But this was overruled by the District
Education Officer and ultimately the Director of Public Instruction accepted
the contention of the respondent herein. Therefore, the question is whether on
reading of Rule 43B along with Note (1) under Rule 1 of the Rules, can such
appointment be held to be valid. It may also be relevant to mention here that
Note(1) was inserted by the amendment of the Rule 1 on 19.10.1982 and the Rules
were framed way back 1959. Therefore, it was subsequent amendment to the
original Rules and the idea behind this insertion of the Note (1) was that in
case candidates mentioned in Rule 43B or under Rule 43are not available, then
in that case one more category is also added to, i.e. member of non- teaching
staff under the category of Clerks, Peons, Sweepers, and other staff.
Therefore, reading of the note (1) under Rule 1 with Rule 43B harmoniously it
transpires that if persons mentioned in the categories mentioned in Rule 43B
are not available, then any non- teaching staff who possesses all necessary
qualifications being available, can be considered for appointment of Language
This has been done by the Director of Public Instruction when he allowed the
petition of the respondent and appointed her as a Language teacher. In fact
Note (1) to Rule 1 covers all appointments not only under Rule 43B but Rule 43
Mr.Rao, learned senior counsel for the appellants has strenuously urged
before us that when there is general rule which lays down that if persons
mentioned in Rule 43B (1) are not available then reading along with Note (2)
appended to Rule 43B, appointment can be made from open market. Learned counsel
submitted that general provisions would prevail over the particular rule. We
considered the submissions of learned counsel but we regret to say that this
submission is not sustainable. The maxim, general principle of "Generalia
specialibus non derogant" means, particular provision will override the
general provision. In the present case, appointment of a teacher in language is
a special provision in Rule 43B and the Rule 43 deals with appointment of
teacher other than language teacher. In fact, language teacher is a specific
category. Rule 1 empowers Manager of private school to make appointment of
teachers who possess requisite qualification. Note 1 is enabling provision. If
the note had not been there, then perhaps the argument of Mr.Rao would have
been accepted. But the note which was specifically inserted with the avowed
purpose to make non-teaching staff eligible for appointment, in case persons
for promotion are not available and if they possess necessary qualifications
required for the post then such members of the non-teaching staff can be
considered. Thus, Note :-1 contemplates a particular contingency that in the
event the persons are not available by way of promotion, under Rule 43B or
under Rule 43, then in that case, such class of persons can be considered for
appointment provided they fulfil the requisite qualifications. But so long as
the categories of persons mentioned in Rule 43B are available, then there is no
necessity for the Manager of the Private Schools to go in for appointment by
other method under the Rules. In fact, learned Division Bench has quoted the
object for insertion of this rule which makes it abundantly clear that in order
to achieve the above purpose, this Note (1) was added by notification dated
19.10.1982. The purpose reads as under :
" Since there is no avenues for promotions of non-teaching staff
Government have decided to make provisions for promotion of qualified non-
teaching staff to the post of Clerk and teachers. The amendment is intended to
achieve this object."
Therefore, the intention of the rule framing authority can be brought forth
by reading these two provisions harmoniously. The settled principle of
interpretation of statute is that if two rules can be read harmoniously and the
object sought to be achieved can be achieved without violation to any rule then
it should be so read. Secondly, it may also be relevant to mention that the
Note (1) to Rule 1 was inserted in 1982 subsequently knowing fully well that
Rule 43B starts with non-obstante clause. Therefore, the note which is
subsequent to the Rules of 1959 can be read harmoniously without doing any
violence to Rule 43B.
Mr.Rao has invited our attention to a decision of this Court in Shrimati
Hira Devi & Ors. v. District Board, Shahjahanpur [(1952) S.C.R.1122]. In
that case, their Lordships observed that when express powers have been given to
the Board in terms of this Section it would not be legitimate to resort to
general or implied powers under the law of master and servant or under section
16 of the U.P.General Clauses Act. This was a case in which when the general
power is already there then it was not legitimate to resort to general or
implied powers. That is not the case here.
Mr.Rao placed reliance on a decision of this Court in Nalinakhya Bysack v.
Shyam Sunder Haldar & Ors. [(1953) S.C.R.
533], their Lordships observed as follows:
" In construing a statute it is not competent to any court to proceed
upon the assumption that the Legislature has made a mistake and even if there
is some defect in the phraseology used by the Legislature, the Court cannot aid
the defective phrasing of an Act or add and amend, or by construction, make up
deficiencies which are left in the Act."
No attempt is made in this case to add or subtract any word. It is only
after reading the two provisions of the Rules harmoniously the result can be
achieved without any violence to any of the provisions of the Act or Rule. The
object as already indicated above, was to provide promotional avenues to the
non-teaching staff for the post of teacher provided they fulfil requisite
qualifications. Therefore, this case is of no help to the appellants.
In the case of Delhi Financial Corporation & Anr. v. Rajiv Anand &
Ors. [ (2004) 11 SCC 625], their Lordships in paragraph 17 observed that the
Court must proceed on the assumption that the legislature did not make a
mistake and that it intended to say what it said. Even if assuming there is a
defect or an omission in the words used by the legislature, the court cannot
correct or make up the deficiency. As already mentioned above, there is no such
defect because the intention of the Legislature is clear and that can be
achieved by reading Note (1) under Rule 1 with Rule 43B. Neither the Rule
framing authority has made any mistake nor is this Court going to assume
anything more than what has been intended by the rule framing authorities.
Learned counsel for the appellants invited our attention to a decision of
this Court in Maharaja Pratap Singh Bahadur v. Thakur Manmohan Deo& Ors.
( 3 S.C.R.663). In this case a comparative study of two Acts i.e. The
Bengal Ghatwali Lands Act, 1859 and the Courts of Wards Act, 1870 were
considered and their Lordships observed that the Act of 1859 namely the Bengal
Ghatwali Lands Act, 1859 was a special Act dealing with ghatwali lands. The
Court of Wards Act, 1870 was a general enactment. Their Lordships held that
special statute will override the general statute. In that context, their
Lordships quoted from Maxwell on the Interpretation of Statutes which reads as
" A general later law does not abrogate an earlier special one by mere
implication. Generalia specialibus non derogant, or in other words, ' where
there are general words in a later Act capable of reasonable and sensible
application without extending them to subjects specially dealt with by earlier
legislation, you are not to hold that earlier and special legislature
indirectly repealed, altered, or derogated from merely by force of such general
words, without any indication of a particular intention to do so. In such cases
it is presumed to have only general cases in view, and not particular cases
which have been already otherwise provided for by the special Act'."
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 the non-teaching staff an
opportunity, in case eligible persons from the promotional quota are not
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 under sub-rule (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 eligible.
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 application.
Their Lordships have further held by referring to an earlier decision of this
Court in Ajoy Kumar Banerjee & Ors.v. Union of India & Ors. [(1984) 3
SCC 127] as follows"
"The general rule to be followed in case of conflict between two
statutes is that the later abrogates the earlier one. In other words, a prior
special law would yield to a later general law, if either of the two following
conditions is satisfied:
The two are inconsistent with each
There is some express reference in
the later to the earlier enactment.
If either of these two conditions is fulfilled, the later law, even though
general, would prevail."
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 the non-teaching category could be considered
provided they possess necessary qualification.
Our attention was invited to a decision of this Court in The Bengal Immunity
Company Limited v. The State of Bhiar & Ors.
( 2 S.C.R.603). In this case their Lordships have clearly mentioned at
page 791 as follows:
" It is a cardinal rule of construction that when there are in a
Statute two provisions which are in conflict with each other such that both of
them cannot stand, they should, if possible, be so interpreted that effect can
be given to both, and that a construction which renders either of them
inoperative and useless should not be adopted except in the last resort. This
is what is known as the rule of harmonious construction."
Both these provisions appear in Chapter XIV and both are dealt with the
method of recruitment and so far as non-teaching 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 of
non-teaching 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 43B.
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 two sub-sections 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.
As a result of our above discussion, we are of the opinion that the view
taken by the Division Bench of the Karnataka High Court appears to be
justified. Hence, we find no merit in this appeal and the same is dismissed. No
order as to costs.