2007 Supreme(SC) 230

2007(2) Supreme 503
SUPREME COURT OF INDIA
(From Kerala High Court)
A.K. Mathur and H.S. Bedi, JJ.
P. Raghava Kurup & Anr.—Appellants
versus
V. Ananthakumari & Ors.—Respondents
Civil Appeal No. 4459 of 2004
Decided on 22-2-2007
Counsel for the Parties :
For the Appellants : L. Nageshwar Rao, Sr. Advocate, G. Ramakrishna Prasad, Advocate.
For the Respondents : B.V. Deepak, N.R. Shonker and Ramesh Babu M.R., Advocates.

IMPORTANT POINT
The Note 1 to Rule 1 of the Kerala Education Rules 1959 read with Rule 43B of the Rules can be read harmoniously and in case, categories of persons mentioned under Rule 1, Note 1 are not available for promotion then members of the non-teaching staff can be considered for appointment to the post of High Court Assistant (Hindi).

Headnote:SERVICE LAW—Appointments— Kerala Education Act, 1958—Kerala Education Rules, 1959—Rule 1 Note (1), Rule 43B—Appointment as High School Assistant (Hindi)—Eligibility of members of non-teaching staff, in case persons for promotion are not available under Rule 43B or under Rule 43—General principle as contained in Rule 43B is that first priority will be given to categories of persons mentioned under sub-rule (1)—Note 1 to Rule 1 read with Rule 43B can be read harmoniously—Applicability of maxim, ‘Generalia specialibus non derogant’—Respondent 1 was working as a peon in Vishwabharati Model High School—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—Since other incumbents in the school were not eligible and respondent alone was eligible for being considered for appointment to the said post, she made a request to management to consider her case—District Education Officer rejected her claim—Whether on reading of Rule 43B along with Note (1) under Rule 1 of the Rules, can appointment of respondent be held to be valid—(Yes)—So long as the categories of persons mentioned in Rule 43B are available, then there is no necessity to go in for appointment by other method.

       Held : 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 43 are 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 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.(Para 3)

       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. 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.(Para 4)

       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. (Para 8)

       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.(Para 10)

       (ii) INTERPRETATION OF STATUTES—Harmonious Construction—Applicability—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—Harmonious construction should be preferred than the purposive construction—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.(Paras 4 & 11)

       (iii) WORDS AND PHRASES—Maxim ‘Generalia specialibus non derogant’—Means, particular provision will override the general provision—Kerela Education Rules—Note 1 to Rule 1 and Rule 43-B.(Para 4)