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REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.4046  OF 2010

[Arising out of SLP(C) No.23777 of 2008] Jenany J.R.   .....Appellant

Versus S.Rajeevan & Ors. ....Respondents

J U D G M E N T Deepak Verma, J. 1.    Leave granted. 2.   Short but important question of law, having great  

impact is required to be considered by us in this  appeal.   The  question  is  with  regard  to  interpretation  of  Note  2  appended  to  Rule  43  in  Chapter  XIV  A  of  Kerala  Education  Rules,  1959  (hereinafter shall be referred to as 'the  Rules')  framed  under   Kerala  Education  Act,  1953.   The  relevant Note (2), is reproduced herein below:

“Note:(2) Promotion under this rule shall  be  made  from  persons  possessing  the  prescribed qualifications  at the time of  occurrence of vacancy.”   

(Emphasis supplied by us)

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3. The question to be considered by us is, which would  be  the  relevant  date  for  possessing  prescribed  qualification whether at the time of occurrence of  vacancy or at the time the appointment is to be made.  

4. To decide the aforesaid controversy, factual matrix  required to be mentioned is as under:

5. A  vacancy to the post of High School Assistant, (in  short,  H.S.A.)  (Hindi)  arose  on  1.7.2003,  in  the  Guhanandapuram School run by Devaswom Committee.  On  10.8.2003,  an  advertisement  for  selection  of  a  teacher  for  the  said  post  was  issued  by  the  management. On coming to know about the vacancy, the  appellant herein applied for the said post, since  according to her, she possessed all the requisite  qualifications on the relevant date.   She was called  for interview.  She was appointed H.S.A (Hindi) vide  appointment order dated  11.9.2003, issued by the  Manager  of  the  School.   The  appointment  order  indicated that she was to join duty within 15 days.  Since appellant was under medical rest, on account of  her recent delivery, she  requested the management

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for grant of further time to join duty, which was  acceded to by the management.   

6.  Respondent No.1, S. Rajeevan was already working as  Lower Grade Hindi Teacher in the said school but had  not passed the test which would have enabled him to  possess requisite qualification and had applied for  re-evaluation.  However,  he  was  declared  'pass'  on  23.9.2003, which would enable him also to stake his  claim for appointment to the said post of H.S.A on  which appellant was given appointment. The aforesaid  date would clearly reveal that on the date vacancy  had arisen i.e. 1.7.2003, respondent No.1 was not a  duly qualified candidate.

7. Appellant, ultimately after grant of extension for  joining duties, reported for duty on 23.10.2003.  It  is stated that after joining duty, she was obstructed  by  respondent  No.1  herein  and  other  anti-social  elements hired by him.  She and her husband both were  physically assaulted  and their entry in the school  was obstructed. She had also sustained injuries in  the  assault  and  was  required   to  be  admitted  in  Government  Hospital.  Police  registered  a  criminal

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case against many and respondent No.1 was arrayed as  accused No.7 in the said case.    

8. Aggrieved  by  the  appointment  of  the  appellant,  respondent No.1 filed W.P(C)No. 33575 of 2003 before  the  High  Court  of  Kerala.  Vide  order  dated  27.10.2003, High Court disposed of the Writ Petition  filed by respondent No.1 on the admission made by  Government Counsel that his representation would be  considered on merits in accordance with law.  This  was first round of litigation.  Pursuant to the order  passed  by  the  High  Court,  his  representation  was  decided.

9. The District Education Officer passed an order on  5.1.2004 rejecting the contention of respondent No.1.  The District Education Officer held as under:  

“From  the  circumstantial  evidences,  the  Manager made maximum attempt to appoint Sri  S.  Rajeevan  who  is  working  as  LG-Hindi  Teacher  of  the  School  and  he  who  had  appeared for the LTT examination while the  vacancy was originated as on 1.7.2003.  As  per Note 2 to Rule 43 Chapter XIV A KER,  promotion under the Rule shall be made from  persons  processing  the  prescribed  qualifications at the time of occurrence of  vacancy.”

10.Feeling  aggrieved  by  the  said  order  passed  by

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District  Education  Officer,  respondent  No.1  filed  Revision Petition before the Government but it also  met the fate of dismissal.  The relevant part of the  order dated 04.02.2005 is reproduced hereinbelow:

“To claim promotion under Rule 43 one should  have  a  valid  claim,  and  to  have  a  valid  claim one should be duly qualified at the  time of occurrence of the vacancy.”

11.Thereafter, respondent No.1 filed second W.P(C) No.  4948 of 2005 (L) before learned Single Judge of High  Court of Kerala at Ernakulam challenging the order of  appointment of appellant as well as the orders passed  by  District  Education  Officer  and  the  State  Government.  Learned Single Judge, after perusal of  records and after  hearing parties at length, came to  the  conclusion  that  no  case  was  made  out  for  interference against the order of appointment of the  appellant, mainly on the following grounds:  

(i) Cut-off  date  has  to  be  taken  as  1.7.2003, the date on which vacancy had arisen. (ii) On  the  date  vacancy  had  arisen,  respondent  No.1  was  not  having  requisite  qualification, for being appointed  on the post

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of H.S.A (Hindi).    (iii) Reference to Note No.2 reproduced herein  above was made and opined that on the given  date admittedly respondent No. 1 was not duly  qualified.  (iv) He  also  found  that  District  Education  Officer  had  already  considered  the  case  of  respondent  No.1  and  found  that  he  was  not  eligible to be promoted, on the contrary, the  appointment of appellant was approved. (v) The  said  order  passed  by  District  Education  Officer  was  further  confirmed  by  State  Government  in  revision  preferred  by  respondent No.1.

  12. For the aforesaid reasons, writ petition filed  by  respondent  No.1  came  to  be  dismissed  by  learned  Single Judge.   13. Feeling aggrieved thereof, respondent No.1 filed  a writ appeal before Division Bench of the said Court.  Vide judgment and order dated 6.8.2008 in W.A. No.2425  of 2005, the order passed by learned Single Judge has

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been  set  aside  and  quashed  and  direction  has  been  issued  to  appoint  respondent  No.1  as  H.S.A  (Hindi)  w.e.f. 16.9.2003, the date on which he became qualified  to hold the post.  Necessary directions were issued  that within 30 days from the date of receipt of the  order,  his  appointment  order  be  issued.  Further  direction  was  given  for  disbursement  of  salary  and  allowances payable to him within further period of 30  days  thereafter.   Thus,  the  writ  appeal  filed  by  respondent No.1 was allowed, order of learned Single  Judge, dismissing his writ petition was set aside and  quashed  and  all  the  reliefs  claimed  in  his  writ  petition were granted to him. 14. Feeling aggrieved by the said order, this appeal  has been preferred by the appellant, challenging the  same on variety of grounds. 15. As  has  been  mentioned  hereinabove,  the  only  question which is required to be considered by us in  this  appeal  is  whether  on  the  date,  vacancy  had  occurred i.e. on 1.7.2003, respondent No.1 was having  requisite qualification or not to be appointed on the  post of H.S.A. (Hindi).

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16. It is not disputed that respondent No.1 was not  qualified to be promoted as H.S.A on the date when the  vacancy arose.  It was conceded before learned Single  Judge  that  in  July,  2003,  when  the  results  of  the  examination were published, he had failed.  However, he  had  applied  for  re-evaluation.   Only  after  re- evaluation was done, he was declared pass in September,  2003 as per the communication sent to him by Secretary,  Board  of  Public  Examinations.   Thus,  there  was  no  dispute  that  on  1.7.2003,  when  the  vacancy  arose,  admittedly, respondent No.1 was not duly qualified to  be  appointed  as  H.S.A  (Hindi)  as  contemplated  under  Note 2 appended to Rule 43 of the Rules. This aspect of  the matter has been dealt with by learned Single Judge  in detail in para 5 of the judgment.    17. We have accordingly heard learned counsel for  parties. Perused the record.   18. Vide  the  impugned  order  passed  by  Division  Bench, it was unduly  impressed by the fact that the  appellant herein was appointed only on 23.10.2003 (the  date when she actually joined service) and before that  date   respondent  No.1  had  already  acquired  basic

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requisite qualification for being appointed as H.S.A  (Hindi).   According  to  the  Division  Bench,  1.7.2003  would only signify with regard to vacancy of the post  of  H.S.A  but  relevant  date  would  be  the  date  when  appellant  had  actually  joined.   This  appears  to  be  misconception of the Division Bench of the High Court.  Note No. 2 is clear, unambiguous and leaves no amount  of doubt that relevant date would be when the vacancy  occurs.   Division  Bench  of  the  High  Court  has  completely misread the said Note No.2. 19. In our considered opinion, giving a true and  literal meaning to Note No. 2, the relevant date would  be the date when the vacancy had arisen i.e., 1.7.2003  and not the date when the appellant actually joined the  service.   20. We may profitably quote a passage from  Craies  on Statute Law:-

“  '.....It  is   the  duty  of  courts  of  justice to try to get at the real intention  of the legislature by carefully attending  to  the  whole  scope  of  he  statute  to  be  construed'...  that  in  each  case  you  must  look  to  the  subject-matter,  consider  the  importance  of  the  provision  and  the

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relation of that provision to the general  object intended to be secured by the Act,  and  upon  a  review  of  the  case  in  that  aspect decide whether the enactment is what  is called imperative or only directory.”   

21. At this point of time we may further usefully  quote the words of Oliver Wendell Holme:  

“It  is  sometimes  more  important  to  emphasize the obvious than to elucidate the  obscure”    

To reiterate, we may once again emphasise that  after careful scanning of Note (2), the obvious is  the  date when the vacancy occurs  and not subsequent events  that might have taken place after the date vacancy had  occurred. 22. In  fact,  this  aspect  of  the  matter  was  duly  considered  by  District  Education  Officer  as  also  by  State  Government,  who  held  against  respondent  No.1.  Learned Single Judge had also correctly considered this  aspect  of  the  matter  and  thus,  dismissed  the  writ  petition filed by respondent No. 1.   23. Thus, looking to the matter from all angles, we  are  of  the  considered  view  that  the  impugned  order  passed by Division Bench cannot be sustained.  The same

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is  hereby  set  aside  and  quashed,  instead  the  order  passed  by  learned  Single  Judge  is  restored  meaning  thereby that the writ petition preferred by respondent  No.1 stands dismissed.  24. The appeal therefore, is allowed.  Parties to  bear their respective costs.

     ..................J.       [D.K. JAIN]

               ..................J.       [DEEPAK VERMA]

New Delhi. May 03, 2010.