Sararmma v. D. E. O. Kothamangalam — 1991 DIGILAW 490 (KER)

Judgment :- Viswanatha Iyer, J. These three appeals involve a common question of construction of R.51A of Chapter XIV-A of the Kerala Education Rules (the Rules, for brevity). This rule had been the subject of consideration in two decisions of this court in Gopalakrishnan Nair v. District Educational Officer, 1988 (1) KLT 644 and Sreekumari Amma v. State of Kerala, 1988 (2) KLT 359, both by the same Division Bench. Appellants however contend that these decisions require reconsideration as, according to them, all aspects relating to the rule have not been considered in those decisions, and also because the Bench had not taken note of an unreported judgment in Writ Appeal Nos. 160 and 197 of 1972, which is stated to tale a contrary view. 2. We shall briefly state the facts in the three cases. W.ANo.64j6 of 1991: The appellant was appointed as a lower grade Hindi teacher in the Upper Primary section of the school, of which the fourth respondent is the Manager, in a leave vacancy from 10-11-1976 to 14-1-1977. The appointment was approved. She is fully qualified for the post of High School Assistant (Hindi) (H.S.A. for short). In the year 1989-90 one post of H.S.A fell vacant when the incumbent one Sosamma entered on leave. The fourth respondent advertised the vacancy as if it were to be filled upby outside hands. The appellant staked her claim for the post by the letter Ext. P1 dated 16-8-1989 sent to the Manager, by virtue of her service in 1976-77. Nevertheless the fifth respondent was appointed. Appellant made a representation Ext.P2 before the District Educational Officer who rejected it by the proceedings Exl.P3. Appeal to the second respondent Deputy Director of Education was however successful, the latter holding by the proceedings Ext. PS that the appellant was the rightful claimant for the post by virtue of R. S1A. The fifth respondent, filed revision petition before Government, who allowed the revision petition by the proceedings Ext. PS dated 30-1-1991. In passing this order, government stated that having regard to the law declared by this court in the two decisions, Gopalakrishnan Nair and Sreekutari Amrna, appellant cannot claim preference In appointment. The fifth respondent's appointment was accordingly approved. 3. The fifth respondent, filed revision petition before Government, who allowed the revision petition by the proceedings Ext. PS dated 30-1-1991. In passing this order, government stated that having regard to the law declared by this court in the two decisions, Gopalakrishnan Nair and Sreekutari Amrna, appellant cannot claim preference In appointment. The fifth respondent's appointment was accordingly approved. 3. This order was challenged in the original petition with the contention that the appellant was entitled to preference in appointment as H.S.A. (Hindi) by virtue of her having functioned as a lower grade Hindi teacher in the Upper Primary section of the school in 1976-77. The learned judge dismissed the petition following the decisions of the Division Bench, after holding that there was no identity between the posts of lower grade Hindi teacher occupied by the appellant in 1976-77 and the post of H.S.A. to which she aspired to be appointed now. The writ petitioner has therefore filed this appeal. 4- A2 no 1975 of 1991. is by the fourth respondent in the original petition. The appellant had worked as lower grade Hindi teacher for two short spells in the first respondent school in leave vacancies in 1983 and later. but both the appointments were not approved by the Department, Later he had two short stints of service as lower division Clerk in the same school, both of which were approved by the Department. Later and on 15-7-1988 two posts, one of lower division clerk and one of a Sower grade Hindi teacher were sanctioned for the school by the staff fixation for the year 1988-89. The first respondent appointed one Mini K. John, a fresh hand to the post of lower grade Hindi teacher. The post of Jower division clerk was not filled up. The appellant represented to the authorities claiming appointment to one of these posts in view of his past service in the school. The District Educational Officer gave a direction accordingly to the first respondent Manager to appoint the appellant either as lower grade Hindi teacher or as lower division clerk. Consequently the appellant was appointed as lower division clerk on 24-4-1989. Not being satisfied with t as clerk (despite his earlier request), the appellant represented to the of Education to have him appointed to the vacancy of lower grade Hindi teacher replacing the manager's appointee Mini K. John. Consequently the appellant was appointed as lower division clerk on 24-4-1989. Not being satisfied with t as clerk (despite his earlier request), the appellant represented to the of Education to have him appointed to the vacancy of lower grade Hindi teacher replacing the manager's appointee Mini K. John. While so, government issued a direction Ext.R4(g) to protect the claims of the appellant for appointment as lower grade Hindi teacher, which was sought to be implemented by a consequential direction issued by the Deputy Director. The writ petition was thereupon filed by the Manager to quash these proceedings and for directions to approve the appointment of Mini K. John. The learned Single judge allowed the writ petition and granted the reliefs prayed for. He held that the appellant's anterior service as lower grade Hindi teacher, not having been approved, it cannot avail him to claim preference under R.51A of Chapter XIVA of the Rules. Note 1 to R. I of the Chapter was also held inapplicable. The writ petition was accordingly allowed. The fourth respondent in the writ petition has therefore filed this appeal. 5. W.A.NO.977 of 1991 is by the petitioner in O.P.No. 8297 of 1991 who is qualified for appointment as a High School Assistant. She had seven years of approved service as H.S. A. in the third respondent's school when she was "thrown out" on 3-6-1985 for want of vacancy. The fourth respondent had in the meanwhile worked as Upper Primary School Assistant in a leave vacancy. In a subsequent vacancy which arose in the Upper Primary section of the school in 1986-87 the Manager appointed the fourth respondent. The appellant was ignored for appointment to that post of U.P.S.A. On her objections, all the statutory authorities including the government refused to approve the appointment of the fourth respondent, on the ground that the appellant had preference for appointment to the vacancy under R.51A. The fourth respondent challenged the adverse orders in this court by filing writ petition O.P.No. 9183 of 1989. The writ petition was disposed of with a direction to government to deal with the revision petition before it taking note of the decisions of this court in the cases of Gopalakrishnan Nair and Sreekumari Amma. The revision petition is still pending after the remit. 6. The writ petition was disposed of with a direction to government to deal with the revision petition before it taking note of the decisions of this court in the cases of Gopalakrishnan Nair and Sreekumari Amma. The revision petition is still pending after the remit. 6. Another vacancy of Upper Primary School Assistant arose in 1989 to which the fifth respondent was appointed on a regular basis. There wee further vacancies in the years 1990 and 1991, all of which were filled up by outside hands ignoring the claims of the appellant. The appellant challenged these appointments with representations before the statutory authorities setting forth her claim under R.51A. Since she could not expect to get relief from the statutory authorities in the face of the decisions of this court, in the two decisions aforesaid, she filed the writ petition challenging the correctness of these decisions and praying for preferential appointment to one of the vacancies of U.P.S.A which had arisen. The learned single judge dismissed the writ petition and hence the appeal by the petitioner. 7. In all these cases the claim of the respective appellants had been rejected on the ground that the posts to which they aspired to be appointed were different from those from which they had been "thrown out" earlier. Since there was no identity of the posts, rule 51A was held inapplicable having regard to the decisions cited above. 8. Counsel for the appellants Sri.A.R. Prakasam and Sri. Abraham Vakkanal submit that these decisions require reconsideration as they go against the very tenor and language of R.51A, and also since they have been rendered without taking note of the decision in Writ Appeal Nos. 160 and 197 of 1972 relating to an analogous provision namely R.5 of Chapter XIV-A of the rules. R.51A prescribes for preference to future vacancy in the school. The contention is that in the absence of any other qualification regarding the nature of the vacancy, insistence on identity of the posts is not warranted. It may be a vacancy of any nature which need not be identical with the one from which the teacher was "thrown out". Since it is the construction of R.51A that arises for consideration, it will be advantageous to extract the rule. "51 A. Qualified teachers, who are relieved as per Rr. It may be a vacancy of any nature which need not be identical with the one from which the teacher was "thrown out". Since it is the construction of R.51A that arises for consideration, it will be advantageous to extract the rule. "51 A. Qualified teachers, who are relieved as per Rr. 49 of 52 or on account of termination of vacancies shall have preference for appointment to future-vacancies in schools under the same Educational Agency, provided they have not been appointed in permanent vacancies in schools under any other Educational Agency. Note:--If there are more than one claimant under this rule the order of preference shall be according to the date of first appointment. If the date of first appointment is the same, then preference shall be decided with reference to age, the older being given first preference. In making such appointments, due regard should be given to requirement of subjects and to the instructions issued by the Director under sub-rule (4) of R.1 as far as High Schools are concerned. Note2:-Manager should issue an order of appointment to the teacher by Registered Post acknowledgement due and give a period of 14 (fourteen) clear days to the teacher to join duty. If the teacher does not join duty in time the Manager should give a further notice to the teacher stating that another person would be appointed instead and that the preferential right under this rule would be forfeited if not exercised within another 7 (seven) clear days. If nothing is heard during that time also, the preferential right under the rule will be regarded as forfeited." The rule provides a rule of preference for appointments to future vacancies for qualified teachers who had been relieved from service as per Rr. 49 or 52 or on account of termination of vacancies. R 49 requires the termination of service of qualified teachers on the closing date for summer vacation if their continuous service as on that date is less than eight months. The other rule namely R.52 really does not deal with any termination of service or relief of a teacher. It is in fact a provision protecting the pay of relieved teachers on re-employment. The other rule namely R.52 really does not deal with any termination of service or relief of a teacher. It is in fact a provision protecting the pay of relieved teachers on re-employment. It states that teachers who are relieved on account of any reduction in the number of posts under departmental orders shall on re-appointment in the same school or in another school under the same management or a different management start on the same pay as they were getting at the time of relief whether the new appointment is permanent or not. Sub-rule (2) states that teachers thrown out from service due to withdrawal of recognition of schools by the department shall also be eligible to draw the same pay which they were getting at the time of withdrawal of recognition of the school, on reappointment in another school. The position under R.51A is therefore that teachers who had some approved service in a school, but whose services stood terminated for one reason or another, other than by virtue of disciplinary action, are entitled to preference for appointment to future vacancies arising in that school. Counsel for the appellants stress on the expression 'future vacancies' with the submission that a teacher who is thrown out is entitled to re-appointment in the school irrespective of the nature of the post which falls vacant, provided only that he is qualified for the post, and the requirements of subjects are also satisfied. The first of the two cases, correctness of which is challenged, namely Gopalakrishnan Nair v. District Educational Officer, 1988 (1) KLT 644, dealt with the claim of a non-teaching staff, an erstwhile clerk, to be appointed as a peon in the school. The petitioner in that case had functioned as a clerk in the school in the year 1976-77. A vacancy of peon subsequently arose in the school and the petitioner was appointed to that post. The departmental authorities refuses to approve the appointment for the reason that the fourth respondent who was a full-time menial in the school, was entitled to be considered for promotion as peon. The petitioner rested his claim for the post of peon under R.51A read with R.7 of Chapter XXIV B of the Rules. The Bench noted that the intention of the rule was to restore to the person thrown out the appointment which he had lost for want of vacancy or otherwise. The petitioner rested his claim for the post of peon under R.51A read with R.7 of Chapter XXIV B of the Rules. The Bench noted that the intention of the rule was to restore to the person thrown out the appointment which he had lost for want of vacancy or otherwise. The attempt was to put him back in the same position which he would have occupied but for termination of his service. It was observed:- "The intention of the rule is to restore to the person the appointment which he lost for want of vacancy etc. In other words, an attempt is made to put him back in the same position which he would have occupied but for termination for want of vacancy etc. If a person is once appointed in a particular vacancy for a particular post and his services get terminated on account of want of vacancy or for other similar causes, the rule enables him to lay a preferential claim for appointment when a vacancy in respect of a similar post arises on a future occasion. In other words, there must be identity in regard to the nature of the post. The preferential right conferred by R.51-A of Chapter XIV-A thus stands restricted to the nature of the post held earlier by the person concerned. Therefore if a person held the post of a Clerk on an earlier occasion and if he was relieved on termination of that vacancy, he becomes entitled to preference in the matter of appointment in future vacancies only of the post of clerk. He would not be entitled to a preferential right in respect of a superior or inferior post." 9. In the subsequent decision in Sreekumari Amma v. State of Kerala, 1988 (2) KLT 359, the appellant Sreekumari Amma had functioned as Upper Primary School Assistant in the school for different short periods between 1979 and 1981. In the year 1982, vacancy of an Upper Primary School Assistant arose to which the Manager appointed Sreekumari Amrna. But the appointment was not approved on the ground that there were other High School Assistants who were entitled to preference under R.51A. Sreekumari Amma challenged these orders in writ petition in this court, but the learned Single Judge dismissed the petition affirming the view taken by the department. But the appointment was not approved on the ground that there were other High School Assistants who were entitled to preference under R.51A. Sreekumari Amma challenged these orders in writ petition in this court, but the learned Single Judge dismissed the petition affirming the view taken by the department. On appeal the question arose whether the appellant who could claim preference under R.51 As should yield her claim to High School Assistants who had prior service in the same school. The Bench reiterated the principles laid down in Gopalakrishnan Hair's case and observed:- "Though what was considered in this case was the right of a clerk who had the preferential right under R.51-A to be appointed to the post of a peon in an aided educational institution, the principle laid down in the said decision is of general application and governs appointment to the posts of High School Assistants and Upper Primary School Assistants, for, it has been laid down that for invoking the protection under R.51-A, there must be identity in regard to the nature of the post. Following the said decision it has to be held that as the vacancy in this case is that of an Upper Primary School Assistant, a High School Assistant who has a preferential right conferred by R.51-A cannot exercise that preferential right for seeking appointment to the post of Upper Primary School Assistant as there is no identity in regard to the nature of the two posts. It is only the Upper Primary School Assistants who have acquired a preferential right under R.51-A that can claim protection for appointment to the said post and not High School Assistants who have acquired a preferential right under 51-A." 10. Counsel for the appellants are not satisfied with these emphatic pronouncements. According to them, the import of the expression "future vacancies" in R.51-A is that it means any future vacancy arising in the school irrespective of its nature or quality or its identity with the post from which the teacher was thrown out. The only exception which counsel would concede is in relation to subject requirements, because of the prescriptions contained in the Note to the rule. 11. Having heard counsel, we are of the view that the decisions cited above do not require reconsideration for any of the reasons stated by the appellants. The only exception which counsel would concede is in relation to subject requirements, because of the prescriptions contained in the Note to the rule. 11. Having heard counsel, we are of the view that the decisions cited above do not require reconsideration for any of the reasons stated by the appellants. The words "future vacancies" in R.51 A, though of wide import, have to be read in the context, as vacancies of the same nature as that from which the teacher was "thrown out" (to adopt the jargon of the rules ) and not any and every vacancy that may arise in the school. It is not possible to carry the width and ambit of she expression "future vacancies" to its logical extent and apply it to all vacancies of whatever nature or quality that may arise ) in the school. There are constraints in the appointment of teachers like subject requirements and language requirements. These are taken care of by Hotel to the rule. Equally, the other rules in the Chapter have also to be taken note of in construing R.51 A. R.43 is one such. The interpretation of R.51A has to be consistent and harmonious with the other provisions in the Chapter. R.43 obliges filling up of vacancies in a higher grade of pay in a school, by promotion of qualified hands in the lower grade subject to rules 44 and 45, considerations of efficiency and seniority. Efficiency is thus a criterion for promotion to a post in the higher grade. It is now well settled that the right under R.43 overrides the right under R.51A (vide Babu v. S.NV. High School, MR 1978 (2) Kerala 40, and Chandu v. State, ILR1981 (1) Kerala 208)1 If R.51 A is applied in the manner canvassed by the appellants, it would result in very anomalous and illogical consequences. It is now well settled that the right under R.43 overrides the right under R.51A (vide Babu v. S.NV. High School, MR 1978 (2) Kerala 40, and Chandu v. State, ILR1981 (1) Kerala 208)1 If R.51 A is applied in the manner canvassed by the appellants, it would result in very anomalous and illogical consequences. We may illustrate with an example: If in a given case, there are vacancies each in the High School and Upper Primary sections of a school, and a person who has applied for both is found unfit and inept for the post of H.S.A„ but sufficient enough for an U.P.S.A. and is appointed as such and he is "thrown out" later from that post of U.P.S.A. he will nevertheless be entitled to be appointed as H.S.A. in a future vacancy, if the construction placed by the appellants in R.51A is accepted as correct and this, despite the fact that he was found unfit and inept for the post of H.S.A. While R.43 contemplates a test of efficiency, and enables a lower grade teacher to be promoted as higher grade only subject to efficiency, the position will be that a rule 51A claimant based on his functioning as U.P.S.A. earlier will have to be posted as H.S.A. without any regard to the question of efficiency, when he work! have had no such chance had he continued as U.P.S.A. A person who is thus found insufficient for the post of H.S.A. will nevertheless have to be appointed as H.S.A. as of right only because of R.51 A. In other words he will enter as H.S.A. indirectly though his entry directly is not possible. 12. We may also refer to R.52 as per which, a teacher on reappointment is entitled to start on the same pay which he was getting at the time of relief. In case an H.S.A. is reappointed as U.P.S.A. on the strength of R.51A (which will be possible on the interpretation placed upon the rule by the appellants), the anomalous result will follow that the U.P.S.A, lias to be paid the higher scale of the H.S.A. It is not possible to visualise the rule making authority intending such a result by the application of R.51A, leading in she event also to loss to the exchequer by a U.P.S.A. being paid the higher salary of High School Assistant. 13. 13. These aspects were put to counsel in the course of arguments, but their contention remained that "future vacancies" in R.51A must receive its full extended meaning uninhibited by any other consideration or the other rules. No satisfactory explanation was offered for the anomalies. 14. The purpose of statutory interpretation is no doubt to reach the true intent of the lawmaker with reference to the plain terms of the enactment. But the court is not bound by the literal construction (unless it is unavoidable) if that will lead to anomalous or absurd results, or results which, on a reasonable view, could not have been intended by the legislature or the rule making authority. The court should address itself the question whether the legislature or the rule making authority would have intended any absurd or anomalous consequences to ensue. The court seeks in such circumstances to avoid a construction that produces an anomaly or absurdity or an irrational or illogical result since this is unlikely to have been intended by the legislature or the rule maker. The court's powers of construction in such cases are not confined to strictly applying the written words of the enactment without reference to the consequences that will follow on a literal interpretation of the provisions in question unless of course there are overriding reasons for applying such a construction, for example where Parliament really intended it or the literal meaning is too strong. (See Francis Bennion's Statutory Interpretation, Ss.141 and 323 at pages 336 and 688 respectively). It is also well settled that the various sections in an Act or the provisions in the Rules are not to be treated as self contained codes to be interpreted in vacuum. On the other hand, they constitute parts of an integrated whole, pan of a scheme of things, evolved for the purpose of achieving the object of the statute. The court has therefore to see the meaning of the expression used, not merely with reference to the particular provision, but with reference to the statute as a whole. All the parts of the statute have to be harmoniously construed, "each portion, throwing light, if need be, on the rest". The court has therefore to see the meaning of the expression used, not merely with reference to the particular provision, but with reference to the statute as a whole. All the parts of the statute have to be harmoniously construed, "each portion, throwing light, if need be, on the rest". InSfate of West Bengal v. Union of India, AIR 1963 3.C.1241, Sinha, C. J. speaking for the majority observed at page 1265: "In considering the true meaning of words or expressions used by the legislature, the court must have regard to the aid, object and scope of the statute to be read in its entirety. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute. it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs." In Sanjeevayya v. Election Tribunal, AIR 1967 S.C.1211, the Supreme Court quoted with approval the following passage from Crawford on Statutory Construction: "Hence the court should, when it seeks the legislative intent, construe ail the constituent parts of a statute together and seek to ascertain the legislative intention from the whole Act, considering every provision thereof in the light of the general purpose and object of the Act itself, and endeavoring to make every part effective, harmonious and sensible. This means of course, that the court should avoid absurd consequences in any part of the statute " (See also Commissioner of Wealth Tax v. Officer-in-charge (Court of Wards) (1976) 3 S.C.C. 864). 15. The words of a statute or statutory instrument must therefore take their colour and meaning from the statute or instrument as a whole, by a process of harmonious and sensible construction, avoiding absurdities and anomalies. It is such an interpretation that is called for in these cases, It is not possible to construe rule 51A as if it stands alone as a self-contained code in relation to preferences in appointments. The impact of the construction placed on it, on the other rules in the Chapter, particularly rules 43 and 52 has also to be taken in to account. This is obligatory in order to avoid absurd, anomalous or illogical results. The impact of the construction placed on it, on the other rules in the Chapter, particularly rules 43 and 52 has also to be taken in to account. This is obligatory in order to avoid absurd, anomalous or illogical results. We have therefore no hesitation in holding that R.51A requires an identity of posts, identity in the sense that the nature of the post to which re-appointment is sought is the same as that from which the services of the teacher were terminated earlier. Unless this condition is satisfied, preference in re-appointment cannot be sought under R.51A. A "thrown out" teacher cannot therefore aspire to be appointed to a post which is different in nature from that from which he was thrown out. We however make it clear that it need not be the same vacancy or a vacancy of the same character, in the sense that it is permanent or temporary. But the post should be identical. 16. Writ Appeal Nos. 160 and 197 of 1972 were concerned with R.5 of Chapter XIV-A of the rules. True, the language of the rule is similar to that of R.51A It deals with unqualified teachers who have otherwise no right to be re-appointed in the school. We do not however consider it necessary to dwell on this decision despite the similarity in language, as it is one rendered under R.5 and we are concerned with R.51 A with all the anomalies and absurdities that will follow on our accepting the appellants' contention. The decision has not had occasion to consider whether any such situations arose in relation to R.S, so that it is not possible to apply that decision rendered under a different provision to the cases on hand. The question of referring these cases to a Full Bench does not therefore arise. 17. We do not find any reason to differ from the decisions of the earlier Division Bench on R.51A despite the fervent plea made by counsel for the appellants, highlighting the hardship that is stated to have been caused to the appellants in the various cases. We express our entire agreement with the decisions in Gopalakrishnan Nair v. District Educational Officer, 1988 (1) KLT 644 and Sreekumari Amma v. State of Kerala, 1988(2) KLT 359. 18. We express our entire agreement with the decisions in Gopalakrishnan Nair v. District Educational Officer, 1988 (1) KLT 644 and Sreekumari Amma v. State of Kerala, 1988(2) KLT 359. 18. Coming to the merits of the cases, the appellant in Writ Appeal No. 646 of 1991 was previously working as a lower grade Hindi Teacher. But she is staking her claim for appointment as H.S.A. (Hindi). The two posts are not identical in nature. The rejection of the appellant's claim for preference under R.51 A was therefore justified. But the appellant has a further contention that the posts of lower grade Hindi Teacher and High School Assistant (Hindi) are posts of the same category, and therefore she was entitled to preference under R.51A even as per our decision. According to her, the post becomes lower grade or higher grade based on the number of classes available for teaching. But it is admitted that the two posts carry different scales of pay and that the post of H.S.A(Hindi) is an avenue of promotion for a lower grade Hindi Teacher (vide R.43B). In these circumstances, it is impossible to hold that the two posts are the same in nature or that they are identical and that the erstwhile holder of one is entitled to preference for appointment to the other. 19. In Writ Appeal No, 975 of 1991 the appellant was working as a clerk, a non-teaching staff. But he is claiming to be appointed as a lower grade Hindi Teacher. R.51 A is clearly inapplicable. It is true that he can by virtue of the proviso to R. I of Chap. XIV -Aof the Rules seek appointment to a teaching post. But the rule does not provide any rule of preference, but only one of eligibility, a right to be considered for the post. There is no case for the appellant that his case was not considered for the post. In the circumstances, there is no basis for the claim made by the appellant for being appointed as a lower grade Hindi Teacher. 20. Writ Appeal No.977 of 1991 concerns a High School Assistant who desires to be appointed as an Upper Primary School Assistant, Since these two posts are not identical, we do not find any merit in the appellant's contention. The appellants are therefore not entitled to any relief in these appeals. The Writ Appeals are therefore dismissed. 20. Writ Appeal No.977 of 1991 concerns a High School Assistant who desires to be appointed as an Upper Primary School Assistant, Since these two posts are not identical, we do not find any merit in the appellant's contention. The appellants are therefore not entitled to any relief in these appeals. The Writ Appeals are therefore dismissed. No costs.