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2022 DIGILAW 651 (KER)

Sabitha Cherian, W/O Roy M. D v. State of Kerala

2022-08-01

ALEXANDER THOMAS, SHOBA ANNAMMA EAPEN

body2022
JUDGMENT : ALEXANDER THOMAS, J. The subject matter of challenge in this intra-court appeal, instituted under Sec.5(i) of the Kerala High Court Act, is the judgment rendered by the learned Single Judge on 14.12.2019, dismissing the instant writ petition (civil), W.P.(C) No.8612/2016. 2. The appellant herein is the petitioner in the W.P.(C) and the respondents herein are the respondents in the W.P.(C). 3. Heard Sri. R. T. Pradeep, learned counsel appearing for the appellant in the WA, Sri. T. K. Vipindas, learned Senior Government Pleader, appearing for official respondents 1 to 4 in the writ appeal and Sri. V. A. Muhammed, learned counsel appearing for contesting respondent No.5 herein. 4. The prayers in the instant writ petition (civil), W.P.(C). No.8612/2016 are as follows:- “i) To call for the records leading upto Exhibits P1, P5 & P6 orders and quash the same by the issuance of a Writ of Certiorari or any other appropriate Writ, order or direction ii) To declare that the denial of approval of appointment of the petitioner as Lab Assistant in the school of the 5th respondent school from her actual date of appointment is violative of the fundamental rights guaranteed to her under Articles 14, 16, 19(1)(g) and 21 of the Constitution of India. iii) To issue a Writ of Mandamus commanding the respondents to approve the appointment of the petitioner as Lab Assistant in the school of the 5th respondent from the date of her actual appointment with all consequential benefits including salary, allowances and other monetary benefits. iv) To issue such other writs, orders or directions as this Hon’ble Court may deem fit and proper in the circumstances of the case.” 5. The case set up in the writ proceedings is, broadly, as follows: That, the petitioner was initially temporarily appointed as Lab Assistant in the 5th respondent aided Higher Secondary School on 08.06.2011. That, later she was regularly appointed in the 75% direct recruitment quota in the post of Lab Assistant in the 5th respondent Aided Higher Secondary School as per order dated 17.05.2013, issued by the 5th respondent, as against the post of Lab Assistant sanctioned for the said school as per Anx.I G.O.(MS) No.165/2013/G.Edn. dated 15.05.2013. That, later she was regularly appointed in the 75% direct recruitment quota in the post of Lab Assistant in the 5th respondent Aided Higher Secondary School as per order dated 17.05.2013, issued by the 5th respondent, as against the post of Lab Assistant sanctioned for the said school as per Anx.I G.O.(MS) No.165/2013/G.Edn. dated 15.05.2013. That, 5th respondent Manager had forwarded the petitioner's appointment for approval of the 4th respondent-Regional Deputy Director of Higher Secondary Education, who, by Ext.P1 order dated 10.09.2014, had declined to grant approval for the same on the ground that the appointment of the petitioner to the second post of Lab-Assistant in the School by way of direct recruitment cannot be approved as such second post has to be set apart for by-transfer appointment from eligible and qualified Class IV employees of the 5th respondent school, going by the prescriptions in the Government norms, etc. The petitioner, being aggrieved by Ext.P1 rejection order, had preferred Ext.P2 appeal dated 17.10.2014 before the 2nd respondent-Director of Higher Secondary Education, which was followed by Ext.P3 representation dated 05.01.2016 and that the said appellate plea of the petitioner has been rejected as per Ext.P5 order dated 11.02.2016, issued by the 3rd respondent on behalf of the 2nd respondent, reiterating the same ground of rejection as in Ext.P1. It is these orders at Exts.P1 & P5, refusing to grant approval to the appointment of the petitioner as Lab Assistant in the 5th respondent School in the 75% direct recruitment quota, that is under challenge in these writ proceedings. 6. The learned Single Judge after hearing both sides held that, going by the prescriptions in Rule 6 of Chapter XXXII of the Kerala Education Rules, (KER), the appointment of a Lab Assistant can be made by direct recruitment only in the absence of qualified candidates under the by-transfer quota. Further, the learned Single Judge has also noted the stand of official respondents 2 to 4, as made out in Exts.P1 & P5, that the appointment to the second post of Lab Assistant in Aided Higher Secondary School, can be effectuated only in the by-transfer quota, set apart for qualified Class IV employees in the same school, and not in the direct recruitment quota, meant for open market candidates, like the petitioner. It is the abovesaid impugned verdict of the learned Single Judge, dismissing the W.P.(C), that is under challenge in the instant writ appeal. 7. We have heard both sides in-extenso on occasions more than one and have also gone through the pleadings and materials on record. Some of the necessary materials, not produced by the parties at the W.P.(C) stage, have been subsequently produced in this appeal along with the appellant's memo dated 28.06.2022 and six documents were produced therein, which have been marked as Anxs. I to VI. 8. From the stand of the respondents, including the stand of the 5th respondent-Manager, it is clear that the Higher Secondary School system at the Plus Two stage was introduced in the State of Kerala at various stages, in lieu of the Pre-degree system of education, followed at the University level. It appears to be common ground that, when the pre-degree system was part of the University Education Scheme, which was consistently followed in the State of Kerala for a very long time, 4 posts of Lab Assistants were to be consistently sanctioned for each of the affiliated colleges, which were having Pre-Degree with science subjects and one post each was allotted to 4 different subjects of Physics, Chemistry, Zoology and Botany, thus totaling to 4 posts in a Pre-Degree course offered in a College with Science Batch. When the Higher Secondary system was introduced in the State, it appears that the overall understanding was that the abovesaid 4 posts would be continued in Higher Secondary Schools, including Aided Higher Secondary Schools, since the 4 subjects, viz., Physics, Chemistry, Zoology and Botany, were also part of the science subjects at the Plus Two level. We need not refer to the various initial Government Orders, which were issued at the earlier point of time, except to note that for the academic year 1991-92, the Government had issued G.O.(MS) No.18/91/G.Edn. We need not refer to the various initial Government Orders, which were issued at the earlier point of time, except to note that for the academic year 1991-92, the Government had issued G.O.(MS) No.18/91/G.Edn. dated 01.02.1991, whereby Higher Secondary Course (Plus Two) was introduced in few Government and Private Aided Schools during 1991-92, broadly at the rate of one Higher Secondary School in each of the Legislative Assembly Constituencies, where there are no Higher Secondary Schools, and that in the said order 4 Laboratory Assistants (one in each Laboratory in the subjects of Physics, Chemistry, Zoology and Botany), were allowed and the scale of pay of Laboratory Assistant was fixed at the rates prevailing in Government Higher Secondary Schools. It was then stated that the abovesaid posts of Laboratory Assistants could be filled up by promotions/by-transfer from qualified Class IV staff in the School/Management. Qualifications and method of appointment to the post of Laboratory Assistants were later fixed as per G.O.(MS) No.21/93/G.Edn. dated 06.02.1993 and para 2 thereof stipulated about the various methods of appointments of by-transfer from last grade employees, who have passed the Attender's test, by transfer from last grade employees who have not passed the Attender's test and by direct recruitment from those who have passed the Attender's Test, etc. 9. In the later Government Orders issued as in G.O.(MS) No.162/98/G.Edn. dated 13.05.1998, though quotas/methods of appointment in the post of Higher Secondary School Teacher from various posts were mentioned, there were no clear cut orders issued by the Government regarding the method of appointment of Laboratory Assistants in Government and Aided Higher Secondary Schools. It was later that G.O.(MS) No.260/99/G.Edn. dated 26.10.1999 was issued ordering that 25% of the total posts of Laboratory Assistants will be filled up by promotion/by-transfer from qualified Class 4 employees in the school and the rest 75% are to be filled up by direct recruitment and that 25% promotion/by-transfer quota would be filled up strictly on the basis of seniority. It is later that, statutory Rules were framed by the Government for regulating the method of appointment of various posts including that of Laboratory Assistant in both Government Higher Secondary Schools as well as in Aided Higher Secondary Schools. In the Government sector, the Government had promulgated statutory special Rules by invoking the powers under Sec.2(1) of the Special Rules for the Kerala Higher Secondary Subordinate Service Rules and G.O.(P) No.144/2001/G.Edn. In the Government sector, the Government had promulgated statutory special Rules by invoking the powers under Sec.2(1) of the Special Rules for the Kerala Higher Secondary Subordinate Service Rules and G.O.(P) No.144/2001/G.Edn. dated 16.04.2001 was issued in that regard. Rule 2 thereof deals with the various categories in the said subordinate service and Category No.4 thereof deals with Laboratory Assistant and Rule 5 thereof deals with the qualifications to various categories, including that for Laboratory Assistant. 10. Later, the Government has framed Statutory Rules for laying down the method of appointments and qualifications of teachers and non-teaching staff in Aided Higher Secondary Schools by introducing Chapter XXXII of the Kerala Education Rules, framed under the Kerala Education Act. Rule 3 thereof deals with Kerala Aided Higher Secondary Education Service and Category 6 of Rule 3 deals with Laboratory Assistant. Rule 4 of the said Rules deals with method of appointment of various categories, including that for Category No.6 Laboratory Assistant, which reads as follows:- “6. Laboratory Assistant 1. By direct appointment, and 2. By transfer from among qualified last grade employees in Schools under the Educational Agency. Note: 25% of the total posts of Laboratory Assistants shall be filled up by transfer from among qualified class IV employees in the Schools under the Educational Agency and the remaining 75% by direct appointment. Appointment to the said 25% would be on the basis of seniority. In the absence of qualified candidates under item 2 above such vacancies shall be filled up by direct appointment.” 11. Rule 6 of Chapter XXXII of the KER for Kerala Higher Secondary Subordinate Service Rules framed under the Kerala Education Rules, deals with qualifications to various categories including Category No.6 Laboratory Assistant. The qualifications laid down as per Rule 6, Category No.6 are as follows:- “(6) Laboratory Assistant (1) By Direct recruitment (1) Pass in S.S.L.C. Examination. (2) Pass in Laboratory Attender’s Test conducted by Kerala Public Service Commission. (1) By Transfer (1) Pass in VII Std. Examination. (2) Pass in Laboratory Attender’s Test conducted by Kerala Public Service Commission. Note: Pass in Laboratory Attender’s Test is not compulsory at the time of appointment. Candidates shall pass the test during the period of probation.” 12. Rule 7 thereof deals with probation. Rule 8 thereof deals with the age limit. 13. Examination. (2) Pass in Laboratory Attender’s Test conducted by Kerala Public Service Commission. Note: Pass in Laboratory Attender’s Test is not compulsory at the time of appointment. Candidates shall pass the test during the period of probation.” 12. Rule 7 thereof deals with probation. Rule 8 thereof deals with the age limit. 13. We need not quote the exact provisions contained in the Government Service Rules for Laboratory Assistants as the provisions in that regard are same and this case is concerning appointment in Aided Higher Secondary School. 14. Much after the promulgation of the statutory Rules, the Government has announced a new policy decision, as per Anx.III G.O.(MS) No.79/2003/G.Edn. dated 28.03.2003, ordering only two posts of Laboratory Assistants in the scale of pay of Rs.2650-4150 in each of the Government/Aided Higher Secondary School, which have science batches and where no posts of Laboratory Assistants were created previously. 15. Later, the Government has issued Anx.IV G.O.(MS) No.299/2004/G.Edn. dated 24.09.2004, ordering that supernumerary posts of Laboratory Assistants will be created in Higher Secondary Schools, in the Aided Sector having science batches, subject to a maximum of 4 Lab Assistants in each of the school so as regularise the appointments made till 28.03.2003, etc. It appears that, prior to the issuance of Anx.III G.O. dated 28.03.2003, it was the consistent practice of all concerned that there will be 4 posts of Laboratory Assistants for each of the four science subjects in Aided Higher Secondary Schools, having science batch. In view of the new policy decision at Anx.III G.O.(MS) dated 28.03.2003, various appointments, which were made earlier, had to be regularised and it is in this context that the Government had issued Anx.IV G.O.(MS) dated 24.09.2004, ordering that supernumerary posts could be created, subject to a maximum of only 4 posts in a school, only for saving the appointments made till 28.03.2003 (date of issuance of Anx.III G.O.), so that in such schools, where appointments were already made for 4 posts of Laboratory Assistant, there could be 2 regular posts of Laboratory Assistant covered by Anx.III and a maximum of upto 2 supernumerary posts in the same school, only for the purpose of regularising the appointments made till 28.03.2003. Later, the Government has issued Anx.V G.O.(MS) No.354/2004/G.Edn. Later, the Government has issued Anx.V G.O.(MS) No.354/2004/G.Edn. dated 26.11.2004, taking note of the request made by the Director of Higher Secondary Education as per the letter dated 15.10.2004, referred to as the 3rd paper in Anx.V G.O., for clarification on the criteria to be followed by giving approval of appointments against supernumerary posts, covered by Anx.IV G.O. dated 24.09.2004. 16. It appears that, though Anx.V G.O. dated 26.11.2004 was issued for giving clarifications on the criteria to be followed for approval of appointments against the supernumerary posts, covered by Anx.IV, the Government has issued directions in Anx.V that the person appointed as Laboratory Assistant by direct recruitment under the 75% quota will be accommodated, as against the first sanctioned posts and the second sanctioned posts will be earmarked for appointment on the basis of by-transfer appointment under the 25% quota. 17. It appears that the stand of the Government, in Clause (ii) of Anx.V G.O. dated 26.11.2004, which was issued only as an executive order, was that, after the issuance of Anx.III G.O. dated 28.03.2003, there could be only 2 regular posts of Laboratory Assistant in an Aided Higher Secondary School and the first post should be filled up by taking appointment in the 75% direct recruitment quota and the second post should be set apart under the 25% by-transfer appointment quota. Later, the 2nd respondent-Director of Higher Secondary Education has issued Anx.VI circular dated 09.12.2004, and Clause 2 thereof reiterates the abovesaid executive guidelines issued by the Government as per Clause (ii) of Anx.V G.O. dated 26.11.2004. The relevant executive guideline, issued as per Clause (ii) of Anx.V G.O.(MS) No.354/2004/G.Edn. dated 26.11.2004, reads as follows:- “(ii) The person appointed by direct recruitment, under 75% quota will be accommodated against the sanctioned post and second 1st sanctioned post will be earmarked for appointment by transfer appointment under 25% quota.” 18. It is also the case of the respondents that the abovesaid stand of the respondents, as made out in Anx.V & Anx.VI, has also been reiterated in Clause 9 of circular dated 18.07.2013, issued by the 2nd respondent-Director of Higher Secondary Education, which reads as follows:- 19. It is also the case of the respondents that the abovesaid stand of the respondents, as made out in Anx.V & Anx.VI, has also been reiterated in Clause 9 of circular dated 18.07.2013, issued by the 2nd respondent-Director of Higher Secondary Education, which reads as follows:- 19. So, in Clause No.9 of the above said circular dated 18.07.2013, it is stated that the first post of Laboratory Assistant in Aided Higher Secondary School should be filled up by appointment from the 75% direct recruitment quota and the second post should be filled up by appointment from the 25% by-transfer quota and that in the absence of qualified candidates the second post can also be filled up by direct recruitment, etc. 20. The person appointed by direct recruitment under the 75% quota will be accommodated against the first sanctioned post and the second sanctioned post will be earmarked for appointment by transfer appointment under 25% quota, was thus the stand stipulated in the executive norms. 21. Clause 2 of Anx.VI circular dated 09.12.2004 is also same as Clause (ii) of Anx.V G.O. The other aspects borne out from Anx.V & Anx.VI may not be relevant as the present school has only two posts of Laboratory Assistant or at any rate, the controversy is only regarding the second post of Laboratory Assistant, which was sanctioned for the 5th respondent school as per Sl. No.24 Anx.I G.O.(MS) No.165/2013/G.Edn. Dated 15.05.2013. 22. According to the appellant, he has requisite qualifications for securing appointment in the 75% direct recruitment quota of Laboratory Assistant in the 5th respondent school. It is common ground that the academic qualification in the 75% direct recruitment quota of Laboratory Assistant is a pass in S.S.L.C., whereas the minimum academic qualification in the 25% by-transfer appointment quota is only a pass in the 8th standard. Further, though pass in the Laboratory Assistant's test, conducted by the Kerala Public Service Commission, is stipulated for both the quotas, the Note thereunder specifically stipulates that pass in Laboratory Attender's Test is not compulsory at the time of appointment and candidate shall pass the said test during the period of probation. Further, the petitioner also would point out that, going by Anx.II S.S.L.C. Book, he has passed S.S.L.C. and that his date of birth could also be within the age limit stipulated, as per Rule 8 of the above Rules for Aided Higher Secondary schools. Further, the petitioner also would point out that, going by Anx.II S.S.L.C. Book, he has passed S.S.L.C. and that his date of birth could also be within the age limit stipulated, as per Rule 8 of the above Rules for Aided Higher Secondary schools. So also, it has to be borne in mind that, though the petitioner has got a case that he was initially appointed on temporary basis as per order dated 08.06.2011, the second post of Laboratory Assistant was sanctioned for the 5TH respondent school only as per Sl.No.24 of Anx.I G.O.(MS) No.165/2013/G.Edn. dated 15.05.2013 and that he was given regular appointment in the direct recruitment quota only as per order dated 17.05.2013, issued by the 5th respondent (as referred to in Ext.P1) as against the said sanctioned post, etc. The sole ground of rejection of petitioner's appointment, as revealed from Ext.P1 order issued by the original authority, as confirmed by Ext.P5 order issued by the appellate authority is that as the petitioner's appointment has been made in the second sanctioned posts in the 5th respondent school, in the direct recruitment quota, the same cannot be approved as the second post has to be exclusively filled up by the method of by-transfer appointment from qualified class 4 employees. 23. The main point that arises for consideration is as to whether the stand of the official respondents, as per Exts.P1 and P5 that in an aided Higher Secondary School, which has only two sanctioned posts of Laboratory Assistant, the 2nd post has to be necessarily filled up in the 25% by-transfer quota, is legally correct in the light of statutory rules mentioned above. A perusal of the abovesaid statutory rules governing the field would make it clear that two methods of appointments are 16 envisaged by the rule making authority, namely 1. direct recruitment (direct appointment) and 2. by-transfer appointment from qualified last grade employees in the schools under the educational agency. The note thereunder stipulates that 25% of the total posts of Laboratory Assistant shall be filled up by transfer method from qualified class IV employees in the schools under the educational agency and the remaining 75% by direct appointment and appointment to the said 25% could be on the basis of seniority. The note thereunder stipulates that 25% of the total posts of Laboratory Assistant shall be filled up by transfer method from qualified class IV employees in the schools under the educational agency and the remaining 75% by direct appointment and appointment to the said 25% could be on the basis of seniority. Further, it is stipulated, in the second part of the note thereunder, that in the absence of qualified candidates, under item 2 above, ie, by-transfer method, such vacancies shall be filled up by direct appointment etc. The statutory rules would make it clear that the first method of appointment shall necessarily be by direct appointment/direct recruitment and that the 2nd method of appointment that can be resorted to is by the method of by-transfer from qualified last grade employees. The note appended to the above provision and the rule regarding the priority of method of appointment for filling up the posts has to be understood from the operative portion of the said rules, whereby the 1st method of appointment can only be by direct recruitment and the 2nd method is by by-transfer. Therefore, for 17 reasons not known to us, the language employed in the note appended thereto may give an impression as if the first method of appointment is 25% by by-transfer method and the 2nd method of appointment is 75% by direct recruitment etc. Since the note is subservient to the operative portion of the rule, the provisions in the operative portion of the rule therein has to be understood that 75% provisions in the operative portion of the rule and the note thereunder has to be harmoniously understood to the effect that the 1st method of appointment shall be by resorting to 75% direct recruitment quota of open market candidates and the 2nd method of appointment is by 25% of qualified last grade employees in this school on the basis of their seniority. Identical provisions are also made out in the Rules framed under the Kerala Public Services Act for regulating the method of appointment and qualifications for the post of Laboratory Assistant in Government Higher Secondary Schools, details of which are already mentioned above. Identical provisions are also made out in the Rules framed under the Kerala Public Services Act for regulating the method of appointment and qualifications for the post of Laboratory Assistant in Government Higher Secondary Schools, details of which are already mentioned above. In that regard, it has to be cardinally borne in mind that the words consciously used by the statutory rule making authority in both the aided school sector as well as in the Government School sector is that 75% of the total posts of Laboratory Assistants shall be filled up by direct recruitment and the balance 25% of the total posts of Laboratory Assistants shall be filled up by the method of by-transfer from qualified class IV employees. The rule making authority consciously has avoided and omitted the usage of the expression 'percentage of arising vacancies of the post'. The expression, 'percentage of the total number of posts appearing in the above rules', would also find a broad resonance in Note 3 to Rule 5 of KS&SSR Part II, which primarily regulates appointments in Government services. We are making a reference to Note 3 to Rule 5 of KS&SSR Part II only for understanding the scope and ambit of the expression – percentage of the total number of posts of Laboratory Assistant, appearing in the above rules in question. Rule 5 (supra) of KS&SSR deals with the method of recruitment by various methods like direct recruitment, by transfer etc. Note 3 was introduced as an amendment to Rule 5, made effective from 02.02.1993 onwards. Note 3 to Rule 5 (supra) would mandate that whenever a ratio of percentage is fixed for different methods of recruitment/appointment to a post, the number of vacancies to be filled up by candidates from each method shall be decided by applying fixed ratio of percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time. The scope and ambit of Note 3 to Rule 5 of KS&SSR Part II has been considered by the Apex Court in the decisions as in S.Prakash and Another Vs. The scope and ambit of Note 3 to Rule 5 of KS&SSR Part II has been considered by the Apex Court in the decisions as in S.Prakash and Another Vs. K.M.Kurian and Another, ( 1999 (5) SCC 624 ), Prasad Kurian and Others Vs K.J.Augustine and Others ( 2008 (3) SCC 529 ), wherein it has been held that the intention of the Legislature for adding Note 3 to Rule 5 is clear and that it has been added to fill up the existing lacuna in the method of recruitment for abiding the special rules and that Note 3 (supra) would emphatically mandate that the ratio has to be computed on the cadre strength of the post to which recruitment is made and not on the basis of vacancies existing at that time and the language of the note is crystal clear and it is for the removal of any ambiguity and that it applies to all special rules whenever a ratio of percentage is prescribed in the rules etc. However, the Apex Court has later held, in the decision in Maya Mathew Vs. State of Kerala ( 2010 (4) SCC 498 ), that in a case where the special rules are amended after 02.02.1993 (date of introduction of Note 3 to Rule 5 (supra)), whereby it explicitly provides that the ratio is to be worked out on percentage of the arising vacancies, then the subsequent intention of the rule making authority will have to be enforced. In the facts of the present case, the exceptional scenario envisaged in Maya Mathew's case (supra) ( 2010 (4) SCC 498 ) does not arise for consideration at all. Therefore, the expression, percentage of the total number of post of Laboratory Assistant has been identically used, both in the rules for Government Higher Secondary Schools as well as in the rules for aided Higher Secondary Schools. Hence, the expression, 'percentage of the total number of posts', appearing in the above rules, will have to be understood to the effect that the same will have to be computed on the basis of the sanctioned strength of the posts and not on the basis of arising vacancies. 24. Hence, the expression, 'percentage of the total number of posts', appearing in the above rules, will have to be understood to the effect that the same will have to be computed on the basis of the sanctioned strength of the posts and not on the basis of arising vacancies. 24. In the instant case, it appears from the pleadings of both sides that all through out, it appears the previous system of having 4 posts of Laboratory Assistant in each of the four subjects of Physics, Chemistry, Zoology and Botany, at the pre-degree level were continued even later in the both Government as well as aided Higher Secondary schools. It appears from the materials that aided schools had appointed four Laboratory Assistants in most of the schools. The statutory rules for governing the mode of appointment and qualifications for the posts of Laboratory Assistant have also been made at a time when the abovesaid understanding was in vogue. It is much later that the Government has issued a new policy decision as per Annexure III GO(MS) No.79/2003/G.Edn. dated 28.03.2003, whereby it was held that only two regular posts of Laboratory Assistants could be sanctioned in each of the Aided Higher Secondary Schools having science batches. However, since, many Aided Higher Secondary Schools had made appointments to four posts of Laboratory Assistants, Government had later issued Annexure IV GO dated 24.9.2004, ordering that supernumerary posts could be created in such schools for regularizing appointments made till 28.03.2003 (date of issuance of Annexure III GO), whereby there could be upto 4 posts of Laboratory Assistants, meaning thereby, that there could be two regular posts and two supernumerary posts and presumably, the two superior posts would vanish with the vacating of the post by the incumbent concerned. In the 5th respondent School, it appears that only two regular posts of Laboratory Assistant have been sanctioned and the 2nd post to which the petitioner was appointed in the 75% direct recruitment quota was sanctioned as per Annexure I GO dated 15.05.2013. In the 5th respondent School, it appears that only two regular posts of Laboratory Assistant have been sanctioned and the 2nd post to which the petitioner was appointed in the 75% direct recruitment quota was sanctioned as per Annexure I GO dated 15.05.2013. The Government, under the guise of issuing clarification for regulating appointments to the two supernumerary posts has issued Annexure V GO dated 26.11.2004 and clause (ii) thereof appears to have gone beyond the scope of the clarification and that it has been stipulated that the person appointed by direct recruitment, under the 75% quota will have to be accommodated as against the first sanctioned post and the person appointed in the 25% by-transfer quota will have to be accommodated in the 2nd sanctioned post. This executive guideline issued by the Government, as per Clause (ii) of Annexure V, has been re-iterated by the Directorate of Higher Secondary Education as per Annexure VI circular dated 09.12.2004 as well as by clause IX of circular dated 08.07.2013. It is solely on the basis of these executive guidelines, stipulated in Annexure V GO, Annexure VI circular etc, that respondents 2 to 5 have declined to grant approval of the appointment of the petitioner in the 75% direct recruitment quota, as per the impugned Exts.P1 and P5 proceedings. The present problem would not have arisen, if the sanctioned strength of the post of Laboratory Assistant was 4 posts or above, in which case, the 75% and 25% quotas could be worked out quite easily arithmetically. We are told that the abovesaid issue may not arise in Government Higher Secondary Schools inasmuch as the unit of appointment is taken as the entire district concerned and the total number of sanctioned posts in each of the Government institutions will be pooled up together at the District level and the 75% and 25% quotas will be worked out against the total number of sanctioned posts for the District concerned, which would relatively be a much larger number. The present problem arises in a case where the sanctioned number of regular posts in an aided Higher Secondary School is only two and much less than four. 25. In a case where the total number of sanctioned posts is only two, in the instant case, then, even the arithmetics of working out the 75% and 25% quota may pose some problems. 25. In a case where the total number of sanctioned posts is only two, in the instant case, then, even the arithmetics of working out the 75% and 25% quota may pose some problems. For instance, 75% of two posts could be 1.5 post and the issue of rounding off would arise. So also, 25% of two posts could be 0.5 and so, by-transferees can also claim for rounding off. The issue as to rounding off of fraction in working out quotas has been considered by the Apex Court in the decision in State of UP and Another Vs. Pawan Kumar Tiwari & Others, ( 2005 (2) SCC 10 ). 26. In Pawan Kumar Tiwari's case (supra), the total number of posts to be filled up on the basis of general merit (open competition and communal reservation (SC, ST & OBC etc)) was 93 posts, since the State authorities had taken the stand that for working out the 50% ceiling rule for reservation, the general quota/open merit quota could be given only for 46 posts, out of the 93 posts. In that regard, the stand was that, though 50% of 93 posts would be 46.50 posts, the same will have to be rounded of as 46 posts. Thus, altogether 46 posts were allotted for general merit and 47 posts were allotted in the various reservation quotas. The Apex Court held therein that in facts of the case, application of the prescribed percentage to general and reserved categories will have to be made by applying the treatment of fraction of the vacancy and that if the fraction is one half or more, should be treated as one and if less than one half should be ignored. It is also noted that one of the predominant norms to be adhered in working out reservations is that, in no case, reservation shall exceed 50% of the total number of posts sought to be filled up. It was thus noted that, if only 46 posts and 47 posts are set apart for the general merit and reservation quotas, as against the total number of 93 posts, then the said reservation so made would exceed the 50% rule. It was thus noted that, if only 46 posts and 47 posts are set apart for the general merit and reservation quotas, as against the total number of 93 posts, then the said reservation so made would exceed the 50% rule. Thus, taking into account the objective of the reservation process as well as the application of fraction rule, it was held that the post to be allotted for general merit should be taken as 47 posts, i.e., by rounding off 46.5 as the next whole number, which is 47. The abvoesaid dictum laid down by the Apex Court in Pawan Kumar Tiwari's case (supra) ( 2005 (2) SCC 10 ) has been considered by the Apex Court in the decision in Ganesh Sukhdeo Gurule Vs. Tahasildar, Sinnar and Others ( 2019 (3) SCC 211 ). Ganesh Sukhdeo's case (supra) was one involving the application of Section 35(3) of the Maharashtra Village Panchayat's Act, 1959, which indicated the requirement of majority of not less than 2/3rd of the total number of members, who are for the time being entitled to sit and vote for the purpose of no-confidence motion etc. It was held therein that the abovesaid dictum regarding rounding off fraction in working out quotas for appointments to services cannot be imported while computing the requisite minimum number for pass of non-confidence motion etc. Hence, we are of the view that the abovesaid dictum laid down by the Apex Court in Pawan Kumar Tiwari’s case supra, regarding rounding off of fractions for working out quotas for appointment to services could be imported to the facts of this case. 27. However, the rounding off of fraction in a case where the aided school has only two posts, would pose some other problems as well. The direct recruits could claim that 75% of two posts, being 1.5 the same should be rounded off as two posts, whereas the by-transferees would also contend that 25% of 2 posts, being 0.5, should be rounded off as 1. To resolve this controversy, the only aid is to look at the intention of the rule making authority. The clear cut intention of the rule making authority is that pre-dominant representation, i.e., 75% should be given to direct recruits and only the minority representation, viz, 25% could be given for by-transfer appointments. To resolve this controversy, the only aid is to look at the intention of the rule making authority. The clear cut intention of the rule making authority is that pre-dominant representation, i.e., 75% should be given to direct recruits and only the minority representation, viz, 25% could be given for by-transfer appointments. Further, we note that the minimum academic qualification, stipulated for direct recruitment, is much inferior to the minimum qualification stipulated for by-transfer appointees, which is only a pass in standard 8. Taking note of the predominant representation mandated by the rule making authority and also taking note of the superior qualification insisted for direct recruits, we are of the view that, when there are rival claims for rounding off, the claim for direct recruitment for rounding off should have predominant priority. Hence, it has to be held that if there are only two posts, then both the two posts may have to be set apart for direct recruitment. 28. The problem of this nature becomes acute only because of the new stand of the Government as made out in Annexure III – G.O. (MS) No.79/2003/G.Edn dated 28.03.2003, wherein it was declared for the first time that the total number of posts will not be 4, but will only be 2 in all the aided Higher Secondary Schools, whereas the rules were initially statutorily framed at a time, when the overall approach was that there could be up to 4 posts. The rule making authority has not consciously made any attempt to amend the rules even after the issuance of subsequent executive orders as per Annexure III G.O. dated 28.03.2003, Annexure V GO dated 26.11.2004 etc. However, it is by now trite that the executive guidelines of the Government, as per Annexure III GO dated 28.03.2003, Annexure V GO dated 26.11.2004, Annexure VI circular dated 09.12.2004 as well as the subsequent departmental circular dated 18.07.2013, will all have to be subservient and subordinate to the statutory rules mentioned above. 29. At the same time, learned Senior Government Pleader has strongly urged that the abovesaid method of allotting the second sanctioned post to by-transfer appointees has been consistently followed by the Departmental authorities, ever since the issuance of Annexure V GO dated 26.11.2004 and that if a contra position is held by this Court, then it will create inconvenience and disturbance to the administrative arrangements. The answer to the said contention of the respondents is that the rule making authority has not chosen to amend the statutory rules and secondly, statutory rules will certainly prevail over the executive guidelines. However, we should be alive to the concerns of the official respondents, inasmuch as they have taken a stand that on the one hand, the total number of regular posts that could be sanctioned in an aided school will be only two and at the same time, minimal representation should be given for by-transferees as well, taking note of their career advancement. Hence, to deal with the abovesaid plea of the official respondents, we have to take due note of the interpretative approaches based on purposive and contextual interpretation. The Apex Court has held in decisions as in Shailesh Dhairyaman vs Mohan Balakrishna Lulla [ 2016 (3) SCC 619 para 31 at page 641] that the principle of purposive interpretation or purposive construction is based on the understanding that the Court is supposed to attach that meaning to the provisions which serve the purpose behind such a provision and the basic approach is to ascertain what it decides to accomplish. So also, the contextual approach of interpretation would require that the text of the law will have to be understood in the context of the legal provision. Since, Government has taken a subsequent decision after the promulgation of the statutory rules, that the total number of posts could be only two in each of the aided secondary schools, we are of the view that, in cases where the abovesaid statutory rule applies to such aided schools, the method of appointment should be regulated on the basis of percentage of the arising vacancies. If the Court takes a very rigid stand that the method of recruitment should be regulated solely on the basis of percentage of the total number of posts, then, so long as the total number of posts in aided Higher Secondary School is only two and not more than that, then only direct recruitment alone can be effectuated, as against both the posts in question, irrespective as to the subsequently arising vacancies. Therefore, for reasons, only known to the Government, they have not chosen to amend the statutory rules. Hence, at the same time, the requirement of representation for by-transfer appointees should also be duly reckoned. Therefore, for reasons, only known to the Government, they have not chosen to amend the statutory rules. Hence, at the same time, the requirement of representation for by-transfer appointees should also be duly reckoned. Hence, we are of the view that, by applying the rule of arising vacancies, where the total number of posts in aided school is only two posts, then the first, second and third arising vacancies in a unit of 4 arising vacancies will have to be set apart for direct recruitment and the fourth vacancy in such a unit will have to be set apart for by-transfer appointment. In the instant case, the first post/first vacancy was filled up by direct recruitment. The second post was sanctioned by Annexure I G.O. dated 15.05.2013 and the same was filled up by appointing the petitioner in the direct recruitment quota. So, the appointment of the petitioner should be reckoned as being made in the second arising vacancy/second post. Even if the abovesaid interpretation is accepted, the second arising vacancy will have to go for direct recruitment. Hence, we are of the view that, in the facts of the present case, irrespective as to whether the method of appointment will have to be computed on the basis of percentage of the total number of posts or on the basis of percentage of the arising vacancies, the rejection of the approval of the petitioner, as per the impugned orders, cannot legally be sustained. The plea of the official respondents that the second post/second vacancy should necessarily go for by-transfer appointments cannot be countenanced or acceded to, in any view of the matter, so long as the statutory rules are not amended. The abovesaid issue may not pose any serious problem in working out the percentage of the total number of posts in Government schools inasmuch as the total number of sanctioned posts of Laboratory Assistants in the District concerned, which is the unit of appointment, will be a relatively much larger number and the 75% and 25% quotas can be worked out very easily as against the said sanctioned number of posts. 30. 30. The upshot of the above discussion is that this Court is of the view that, for the purpose of harmonising the conflicting claims, in a case where the total number of sanctioned posts of Laboratory Assistant in an aided Higher Secondary School is only two posts, then the only way to reconcile the conflicting claims would be by adopting the method of percentage of arising vacancies, so that the first, second and third vacancies in a unit of 4 arising vacancies will have to go for direct recruitment and the fourth vacancy in such a unit will have to be utilized for by-transfer appointment. 31. Learned senior Government Pleader would point out that the abovesaid declaration made by this Court may pose serious problems for administration, inasmuch as the consistent view of the departmental authorities, ever since the issuance of Annexure V G.O. dated 26.11.2004, was that the second post should necessarily go for by-transfer appointment and many appointments have already been approved etc. If, as a matter of fact, appointments made on the basis of Annexure V G.O. have already been regularized and approved and the same has attained finality, then there is no question of any such finalized appointment process being disturbed by the declaration of law made by us now. It is trite that the declaration of law made by a constitutional Court cannot have the effect of unsettling past claims which are already barred by res judicata, estoppel, delay, laches, acquiescence etc and the same can have effect only as on pending claims. It is well settled that the declaration of law of this nature cannot have the effect of resurrecting stale and time barred claims. Hence, the abovesaid apprehension raised by the official respondents may not be very serious. So also, nothing in this judgment will prevent the competent authority among the official respondents to effect amendment of the rules so as to mandate that, in a case where the total number of posts of Laboratory Assistants in an aided Higher Secondary School is only two posts, then the first vacancies/first post should necessarily go for direct recruitment and the second post can go only for by-transfer appointment and the next two vacancies in a unit of 4 vacancies will go for direct recruitment, so as to maintain 75% to 25% requirement, etc. So long as the rules are not amended, the abovesaid executive guidelines cannot have overriding effect over the statutory rules. 32. The result of the above discussion is that the impugned orders at Exts.P1 and P5 cannot be sustained. In that view of the matter, it is ordered that the rejection of approval of the appointment of the petitioner, as per Exts.P1 order as confirmed by Ext.P5 appellate order, will stand quashed and set aside. The proposal for approval of the appointment of the petitioner made by the 5th respondent will stand remitted to the 4th respondent Regional Deputy Director of Higher Secondary Education, Ernakulam (Original approving authority) for consideration and decision afresh, in the light of the abovesaid position held herein above. The 4th respondent will examine as to whether the petitioner is qualified and eligible in terms of the Rules and it is made clear that approval of his appointment as Laboratory Assistant cannot be rejected on the ground that the second post should necessarily be allotted for by-transfer appointment. The 4th respondent may pass orders on the issue of approval of the appointment of the petitioner as Laboratory Assistant, without much delay at any rate, within the outer time limit of one month from the date of production of a copy of this judgment. Secretary to the Office of the Advocate General will forward copies of the judgment to respondents 1 to 4 for necessary information and further action. These crucial aspects of the matter have not been duly taken note of in the rendering of the impugned judgment. Accordingly, the impugned judgment dated 14.11.2019, dismissing the instant WP(C) No.8612/2016 will stand set aside. With these observations and directions, the above Writ Appeal will stand finally disposed of.