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CASE NO.: Appeal (civil)  4459 of 2004

PETITIONER: P.Raghava Kurup & Anr

RESPONDENT: V.Ananthakumari   & Ors

DATE OF JUDGMENT: 22/02/2007

BENCH: A.K.MATHUR & H.S.BEDI

JUDGMENT: J U D G M E N T  

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 \026 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.                   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

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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.   (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.  

Note:- (1)      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. Note:-(2) 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.

       (2)     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.         (3)     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  Employment Exchange.         (4)     In determining the requirement of subjects,  the Director shall also issue such instructions as he  may deem necessary for giving protection to  teachers-                 (i)     who are in service and would have  continued in service; and                 (ii)    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 subjects."

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 :

               " 43B. (1)      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)     Lower Grade Language Teachers  who have the prescribed   qualifications in that

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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;                 (ii)    Part time High School Assistant in  that Language;                 (iii)   Other Lower Grade Language  Teachers in that Language;                 (iv)    Regular Primary Teachers having the  prescribed qualifications;                 (v)     Craft and Specialist teachers having  the prescribed qualifications;                 (vi)    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 of  vacancy.         (2)     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

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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 teacher.  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 also.

               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

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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. ([1966] 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 under :

               " 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

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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 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 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:                 (i)     The two are inconsistent with each  other.                 (ii)    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.  ([1955] 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

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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.