The statutory right of Peons in Aided Upper Primary Schools to be considered for appointment as teachers under the Kerala Education Act and Rules, and the interpretation of provisions to harmonize contradictory provisions.

JUDGMENT :

DEVAN RAMACHANDRAN, J.

1. The petitioner faces a paradoxical complexity in her career but from it arises a matter of forensic importance of general application, within the confines of the Kerala Education Act and Rules (hereinafter referred to as ‘the Act’ and ‘KER’ respectively for short).

2. The petitioner is stated to be a graduate in Economics and in Education and she has been appointed as a Peon in a vacancy that became available in the Aided U.P. School, Vallikode - of which the 4th respondent is the Manager. However, when the proposal for approval of her appointment was forwarded by the Manager to the competent Educational Authority, it was rejected for the reason that she is overqualified, since, going by the provisions of Chapter XXIVB of the KER, only a person whose qualifications adhere to the prescriptions made by the Government for posts under its services, will be eligible to be so appointed.

3. The petitioner says that the reasons stated by the Educational Authorities are untenable because only the provisions of Chapter XXIVA of the KER are applicable to her and not that of Chapter XXIVB and alternatively contends that even if Chapter XXIVB is applicable, the denial of approval to her appointment on the ground that she is a graduate is flawed, since the mandatory provisions of Rule 1 of Chapter XIVA of the KER, in particular the Notes thereunder, would be rendered otious and redundant. She, therefore, prays that Exts.P4 and P6 orders, issued by the official respondents, be set aside and respondents 2 and 3 be directed to approve her appointment as a Peon in the School dehors the objections recorded in the said orders.

4. I have heard Dr. George Abraham, learned counsel for the petitioner; Sri. P. Gopal, learned counsel appearing for the 4th respondent-Manager and Sri. P.M. Manoj, learned Senior Government Pleader appearing on behalf of respondents 1 to 3.

5. Dr. George Abraham began his submissions by showing me that Chapter XXIVB of the KER was brought into effect on 23.02.1965, wherein, many of the provisions of Chapter XXIVA have been specifically made applicable. He pointed out that, as per Chapter XXIVA of the KER, the sole qualification fixed for a Peon in an Upper Primary School is that he/she should be literate, without fixing any upper limit of education; and he asserts that this is apposite, since the said person can aspire to be appointed as a Clerk/Teacher in the school depending upon his/her educational qualifications, under the mandate of Note No. 1 to Rule 1 of Chapter XIVA of the KER - under which a member of the non-teaching staff in the category of Clerks/Peons/Sweepers will also be eligible for being appointed as a Teacher, provided he/she possesses the prescribed qualifications and there is no other eligible teacher for promotion or appointment to such post.

6. Dr. George Abraham then submitted that the impugned orders have, however, been issued by the Educational Authorities solely because Rule 4 of Chapter XXIVB of the KER stipulate that qualifications of the non-teaching staff in Aided Schools will be the same as the qualifications prescribed for non-teaching staff in Government Schools. He then conceded that, as far as the Government Schools are concerned, the Rules which apply are the ‘Special Rules for the Kerala Last Grade Service, 1966’ (hereinafter referred to as ‘the Last Grade Rules’ for short), which, after the amendment dated 04.06.2016, prescribes that a person seeking to be appointed as a Peon (which post has now been re-designated in the said Rules as ‘Office Attendant’) ‘should have passed Class 7 and should not have acquired graduation’ (sic).

7. Dr. George Abraham reiteratingly contended that these provisions are, however, not applicable to Peons in aided Upper Primary Schools because, as said above, on the strength of the first Note to Rule 1 of Chapter XIVA of the KER, such persons obtain a statutory right to be appointed as a Teacher, subject to him/her having the req