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2014 DIGILAW 803 (KER)

P. Valsamma v. State of Kerala

2014-10-15

A.K.JAYASANKARAN NAMBIAR, A.M.SHAFFIQUE, ASHOK BHUSHAN

body2014
JUDGMENT ASHOK BHUSHAN, J. 1. This Full Bench has been constituted to answer the reference dated 27.07.2012 made by a Division Bench while hearing W.A. Nos. 797 and 1302 of 2012. The Division Bench in the reference doubted the correctness of the ratio of another Division Bench judgment in D. Madhuriletha vs. Secretary to Government and others, W.A. No. 3249 of 2001 dated on 15.11.2002. Facts necessary to be noticed for deciding both the appeals and reference are as follows. 2. Both the writ appeals were filed by Smt. P. Valsamma, who shall hereinafter be referred to as the petitioner. The 5th respondent was the contesting respondent, against whom seniority is claimed by the petitioner, who shall hereinafter be referred to as the respondent. 3. In an institution, namely ABV HSS, Muhamma, Alappuzha, the respondent was appointed as Upper Primary School Assistant (for short UPSA) on 09.08.1982. The respondent was promoted as High School Assistant (for short HSA) on 01.08.1983. The Date of Birth of the respondent is 28.11.1956. The petitioner's date of birth is 24.11.1954 and was directly appointed as HSA on 01.08.1983 in the institution. A post of Headmaster fell vacant in the institution in which the respondent was appointed on 01.04.2008, who subsequently, after attaining the age of superannuation, has retired on 31.03.2012. 4. W.P. (C) No. 21605 of 2010 was filed by the respondent (Smt. V.R. Sheela) challenging Ext.P7 order passed by Government on the representation of the petitioner in which it was stated – in case of teachers in the same grade in the same Unit whose date of first appointment is the same, seniority will be decided with reference to the age, the older being the senior. Citing the aforesaid order (G.O. (P) No. 112/78/G.Edn. Dated 22.08.1978), Government directed the District Educational officer to revise his order assigning seniority and to make a fresh seniority list. 5. W.P. (C) No. 25105 of 2010 has been filed by the petitioner challenging Exts.P5 and P6 orders and praying for a declaration that, appointment of the respondent overlooking the seniority of the petitioner, is illegal. Following are the prayers which have been made by the petitioner: "(a) Issue a writ of certiorari quashing Ext.P5 and P6. 5. W.P. (C) No. 25105 of 2010 has been filed by the petitioner challenging Exts.P5 and P6 orders and praying for a declaration that, appointment of the respondent overlooking the seniority of the petitioner, is illegal. Following are the prayers which have been made by the petitioner: "(a) Issue a writ of certiorari quashing Ext.P5 and P6. (b) Declare that the appointment of the 5th respondent as H.M. Overlooking the seniority of the petitioner is illegal and violative of Rule 44 r/w Rule 37 of Chapter XIV A K.E.R. and that the petitioner is entitled for appointment as H.M. in preference to the 5th respondent w.e.f. 01.04.2008 and therefore the petitioner is entitled for all service benefits of H.M. notionally w.e.f. 01.04.2008. (c) Issue a consequential direction to grant the service benefits of H.M. to the petitioner, notionally w.e.f. 01.04.2008." 6. Learned Single Judge, by a common judgment dated 20.01.2012, allowed W.P. (C) No. 21605 of 2010 filed by the respondent and dismissed W.P. (C) No. 25105 of 2010 filed by the petitioner. These two appeals have been filed by the petitioner, Valsamma P. challenging the judgment dated 20.01.2012. The learned Single Judge in the judgment has referred to Rule 37(1) and 37(2) of Chapter XIV A of the Kerala Education Rules, 1959 (for short KER) and relying on the judgment of a Division Bench dated 15.11.2002 in W.A. No. 3249 of 2001, held that promotion of the respondent as Headmistress (for short HM) is valid. The Division Bench, in paragraphs 3 and 4 of the reference order, has expressed its doubt over the correctness of the earlier Division Bench judgment dated 15.11.2002. 7. Learned counsel for the petitioner/appellant in support of the reference contended that in accordance with Rule 37(2), since the appointment of petitioner/appellant as HSA was on the same date and petitioner being older in age, she is to be treated as senior. He submits that the words, date of first appointment as referred to in Rule 37(2) is the date of first appointment in the same grade i.e. HSA. He submits that since the date of first appointment in HSA grade of both the petitioner and 5th respondent was 01.08.1983 and the petitioner being older in age had to be declared as senior. Ignoring the said fact, the respondent was appointed as HM. He submits that since the date of first appointment in HSA grade of both the petitioner and 5th respondent was 01.08.1983 and the petitioner being older in age had to be declared as senior. Ignoring the said fact, the respondent was appointed as HM. He submits that it is well established that interpretation of a rule and the plain meaning of the words in the provisions have to be taken in a manner in which it is understood in ordinary common parlance. In support of this contention learned counsel has placed reliance on Rohitash Kumar and others vs. Om Prakash Sharma and others, AIR 2013 SC 30 . He further submits that the same interpretation is also followed in the Kerala State and Subordinate Services Rules, 1958. He has referred to Rule 27 of the said Rules in support of his contention. 8. Learned counsel appearing for the intervenor has also supported the reference order and contended that there cannot be any classification pursuant to the same grade on the basis of source of recruitment. He submits that a person who is directly appointed and has no earlier services is discriminated in the matter of seniority for the next higher post which is arbitrary and violative of Article 14 of the Constitution. He has placed reliance on the judgment reported in The General Manager, South Central Railway, Secunderabad and another vs. A.V.R. Siddhanti and others, AIR 1974 SC 1755 and B. Manmad Reddy and others vs. Chandra Prakash Reddy and others, (2010) 3 SCC 314 . 9. Learned counsel appearing for the respondent submitted that the earlier Division Bench judgment dated 15.11.2002 laid down the correct law and the Division Bench making the reference has expressed a doubt which cannot be substantiated. He submits that as per Rule 37 (2), the question of determination of seniority by age arises only when first appointment of both the claimants is the same. He submits that in the present case, both the appellant and the respondent were appointed as HSA on 01.08.1983 but the respondent has been appointed as UPSA from 09.08.1982 in the same unit. Petitioner's first appointment was in another school and the determination of such seniority by age does not arise. He further submits that the long standing seniority of the respondent would not have been interfered. Petitioner's first appointment was in another school and the determination of such seniority by age does not arise. He further submits that the long standing seniority of the respondent would not have been interfered. He submits that the respondent was appointed as H.M. when a vacancy arose and on attaining the age of superannuation she retired in 2011. 10. Learned Government Pleader has also supported the contention raised by the respondent and has submitted that in Rule 37 the word unit is used with regard to the school under one management. He has referred to Chapter XXXV of K.E.R. He also submits that different grades in different classes, i.e. HSA, UPSA and other lower grades are explained in Rule 2 of Chapter II K.E.R. He submits that Rule 37(2) that is determination of seniority on the basis of age arises only when the date of first appointment of both the claimants is same. 11. We have considered the submissions of learned counsel for the parties and perused the record. The main issue to be answered is whether the earlier Division Bench judgment dated 15.11.2002 in W.A. No. 3249 of 2001 lays down the correct law or the view which has been expressed in the reference order dated 27.07.2012 doubting the correctness of the earlier judgment is correct. 12. Before we proceed to consider the submissions of parties, it is relevant to refer to Rule 37, which is quoted below:- "37. (1) Seniority of a teacher in any grade in any unit shall be decided with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. Provided that the period of service rendered in the parent school or in another school by a teacher, who is relieved under rule 52, shall be reckoned for seniority on his re-appointment to the parent school. (2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior." 13. (2) In the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. If the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior." 13. In the present case Rule 37(1) talks about how seniority of a teacher in any unit is to be decided with reference to the length of service in that grade. The said sub rule (1) of Rule 37 deals with the seniority of a teacher in any grade in any unit with reference to the length of continuous service in that grade in that unit provided he is duly qualified for the post. Rule 37(2) further provides that if, in the case of teachers in the same grade in the same unit have same continuous service to their credit, their seniority shall be decided in the following manner: (i) With reference to the date of first appointment. (ii) In the event, the date of first appointment is also same, then the seniority will be decided with reference to the age, the older being the senior. 14. The submission which has been pressed by learned counsel for the appellant that the date of the first appointment, according to Rule 37(2), by which seniority is to be determined, i.e. in the present case, the post of HSA has to be taken into account and both the petitioner and the respondent had been appointed on the same date 01.08.1983, as the petitioner being older in age, she is to be treated as senior. 15. For the statutory interpretation learned counsel for the appellant has placed reliance on Rohitash Kumar's case (supra), in which the apex court, while laying down the principle of statutory interpretation has held that the words used in the statutory provision must be understood in the same way in which they are usually understood, in ordinary common parlance with respect to the area in which, the said law is in force. Paragraph 7 of the said judgment is quoted below: "7. This Court applied the rule of contemporanea expositio, as the Court found that the same is a well established rule of the interpretation of a statute, with reference to the exposition that it has received from contemporary authorities. Paragraph 7 of the said judgment is quoted below: "7. This Court applied the rule of contemporanea expositio, as the Court found that the same is a well established rule of the interpretation of a statute, with reference to the exposition that it has received from contemporary authorities. However, while doing so, the Court added words of caution to the effect that such a rule must give way, where the language of the statute is plain and unambiguous. This Court applied the said rule of interpretation by holding that contemporanea expositio as expounded by administrative authorities, is a very useful and relevant guide to the interpretation of the expressions used in a statutory instrument. The words used in a statutory provision must be understood in the same way, in which they are usually understood, in ordinary common parlance with respect to the area in which, the said law is in force or, by the people who ordinarily deal with them." 16. As noted above, Rule 37(2) contemplates determination of seniority when the continuous service in the grade by both the teachers is same. The first part of sub-rule (2) explains how seniority is to be determined if the date of commencement of continuous service is the same. The second part says, if the date of first appointment is also same, then seniority shall be decided with reference to age, the older being the senior. Thus, in Rule 37(2) two concepts have been used namely the date of commencement of continuous service and thereafter the date of first appointment. In the event the submission of learned counsel for the appellant is to be accepted, both expressions should mean that the first appointment in the service should be in the same grade i.e. HSA. The legislature has used two expressions for covering two different continuous service. The date of commencement of continuous service refers to the date of commencement of actual service to determine the seniority. Whereas the date of first appointment referred to in the sub rule envisages two different concepts and cannot be equated with the date of commencement of continuous service as used in sub rule (2). Both covers different contingencies. It is useful to refer to the Division Bench judgment in which correctness has been doubted in the reference order. 17. Whereas the date of first appointment referred to in the sub rule envisages two different concepts and cannot be equated with the date of commencement of continuous service as used in sub rule (2). Both covers different contingencies. It is useful to refer to the Division Bench judgment in which correctness has been doubted in the reference order. 17. The Division Bench judgment arose out of D. Madhuriletha vs. Secretary to Government, O.P. No. 16574 of 2001, dated 06.06.2001, where Rule 37 of Chapter XIV A K.E.R came up for consideration. In the said case the date of appointment of petitioner as HSA was 08.06.1984 where as the first appointment of 6th respondent as UPSA was 13.09.1982. The learned Single Judge after referring to Rule 37(2) held that the 6th respondent is senior to the petitioner. Paragraph 4, 5 and 6 of the judgment are relevant, which are quoted below: "4. The sixth respondent had a date of first appointment as UPSA earlier than 08.06.1984, whereas the petitioner's first appointment was only on 08.06.1984. But the petitioner contends that the first appointment contemplated in Rule 37(2) shall be in the same unit, which means the High School Section itself. High School section shall be regarded as one unit. When that is a different unit, as compared to U.P. Section of the very same school, the first appointment of the sixth respondent as UPSA under the same management cannot come to her aid to determine her seniority over the petitioner. In such case the petitioner submits that the next sentence in Rule 37 (23) that "if the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior" is relevant. As the petitioner is older, she shall be regarded as senior. Therefore, the decision taken by the authorities upholding the claim of the sixth respondent, in Exts.P5 and P8 is unsustainable, the petitioner contends. 5. Learned counsel for the petitioner also made an attempt to fortify this contention relying on the decision reported in Mary vs. Deputy Director, 1979 KLT SN 64 (case No. 138). That was a case relating to the seniority dispute in a corporate management. Before its formation, the seniority of teachers in different schools was separate unitwise. 5. Learned counsel for the petitioner also made an attempt to fortify this contention relying on the decision reported in Mary vs. Deputy Director, 1979 KLT SN 64 (case No. 138). That was a case relating to the seniority dispute in a corporate management. Before its formation, the seniority of teachers in different schools was separate unitwise. It was made clear therein that one among the constituent sections of that corporation educational agency before its formation was a separate unit. That shows that school is the unit and not different sections of a same school. Therefore, that decision, does not, in any way improve the case of the petitioner. 6. As per the first sentence in Rule 37(2) when the date of first appointment of two teachers is one and the same, seniority shall be decided with reference to the date of first appointment. It is not mentioned there that the first appointment shall be in that category where the seniority dispute has arisen. Rule 43 of KER provides for promotion. Therefore, it is possible that a teacher might have got her first appointment in any other lower category as well. In such a situation the first appointment referred to in first sentence in Rule 37(2) shall be an appointment to any other category, in which the seniority is not disputed. It is not disputed by the petitioner that sixth respondent had been in service earlier than 08.06.1984, in the very same school itself, as U.P. School Assistant. Therefore, her date of first appointment is earlier than the date of first appointment of the petitioner." Against the aforesaid judgment, an appeal was filed which has been dismissed by Division Bench on 15.11.2002. The Division Bench, after referring to Rule 37, held as follows:- "The grade in question is the grade of HAS. The length of continuous service as HSA is also the same i.e., 08.06.1984 onwards. Rule 37(2) says that if the date of first appointment is also the same, seniority shall be decided with reference to age, the older being the senior. According to the appellant, she is older and, therefore, she should be appointed as Headmistress. Rule 37(2) provides that in the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. According to the appellant, she is older and, therefore, she should be appointed as Headmistress. Rule 37(2) provides that in the case of teachers in the same grade in the same unit whose date of commencement of continuous service is the same, seniority shall be decided with reference to the date of first appointment. In this case first appointment of the 6th respondent in the same school was on 13.09.1982, in other words she was in the same school on 1982. So, even though she became HSA on 08.06.1984, her first appointment in the same school is from 1982 and therefore, the educational authority stated she is senior. The learned Single Judge also agreed with the same." 18. The interpretation which has been put by the Division Bench after referring to Rule 37 is that Rule 37 clearly envisages that if appointment of two teachers in one particular cadre, for example HSA, is made on the same date, then their seniority is to be determined on the basis of first appointment in the same unit and if both being the same, age is to be reckoned. In the facts of the present case, the respondent having been appointed earlier as UPSA, then the date of her first appointment is to be taken as 09.08.1992 and reckoning the said date, she will obviously become senior. Present is not a case where the first appointment of both the teachers is the same. Sub-rule (2) come into play only when the continuous service in the HSA grade is the same. The first date of appointment in HSA grade is therefore the same as the commencement of continuous service. Therefore, the date of first appointment has to be the date of appointment in the school and not in any particular grade. Thus, we are not persuaded by the submission of learned counsel for the appellant. 19. Learned counsel for the intervenor has placed reliance on the judgment of Apex Court in B. Manmad Reddy and others vs. Chandra Prakash Reddy and others, (2010) 3 SCC 314 . Specific reliance has been made to paragraph 17 of the judgment which is quoted below: "17. 19. Learned counsel for the intervenor has placed reliance on the judgment of Apex Court in B. Manmad Reddy and others vs. Chandra Prakash Reddy and others, (2010) 3 SCC 314 . Specific reliance has been made to paragraph 17 of the judgment which is quoted below: "17. In the light of the above pronouncements, the Tribunal and the High Court were, in our view, justified in holding that Note 6 to Rule 3 was unconstitutional inasmuch as the same classified officers eligible for appointment against Class II category 1 posts depending upon whether they were direct recruits or promotees. Such a classification based on the birthmark that stood obliterated after integration of officers coming from different sources into a common cadre/category would be wholly unjustified and discriminatory." In the above case the classification which was held to be illegal was for the purpose of appointment against Class II category depending on the source of recruitment, whether they were direct recruitees or promotees. Present is a case of determination of seniority. The said judgment is clearly distinguishable and not applicable to the present case. 20. In the case of General Manager, South Central Railway (supra), the Apex Court has specifically noted in paragraph 35 as follows: "35. The impugned directions of 1957 and 1961, in so far as they pertain to categories (ii) and (iii), are hit by the rule in Roshan Lal Tandon vs. Union of India (1968) 1 SCR 185 : AIR 1967 SC 1889 , according to which once the persons coming or recruited to the service, from two different sources - in that case promotees and direct recruits -are absorbed into one integrated class with identical service conditions, they cannot be discriminated against with reference to the original source, for the purposes of further promotion to the higher grade. What was said about further promotion in Roshan Lal Tandon's case (supra) is equally applicable to absorption and seniority in the instance case." In the above case the court considered the claim of two persons coming from two sources for the purpose of further promotion. It was laid down that when persons are coming or recruited to the service from two different sources and are absorbed into one integrated class with identical service conditions, they cannot be discriminated against with reference to the original source, for the purpose of further promotion to the higher grade. It was laid down that when persons are coming or recruited to the service from two different sources and are absorbed into one integrated class with identical service conditions, they cannot be discriminated against with reference to the original source, for the purpose of further promotion to the higher grade. The said judgment was also not considering the case of inter se seniority between persons coming from two sources, but it considers the case of direct recruitees and promotees, thus it does not help the appellant. The submission made by the appellant on the basis of Rule 27 of the Kerala State and Subordinate Services Rules also cannot give any assistance to him and a specific rule is to be interpreted in the manner and scheme as delineated in the rule. 21. In view of the foregoing reasons, the Division Bench judgment dated 15.11.2002 in W.A. No. 3249 of 2001 has laid down the correct law and we do not approve the doubt expressed by the Division Bench in the reference order. We affirm the judgment of the learned Single Judge in O.P. No. 16574 of 2001 which was followed by the earlier Division Bench in W.A. No. 3249 of 2001. Hence we also affirm the impugned judgment of the learned Single Judge and both the appeals are dismissed.