Supreme Court Clarifies Appointment Rules for Higher Secondary Teachers in Kerala: V.K. Girija vs. Reshma Parayil (2018)

Date of the Judgment: 04 December 2018

Citation: 2018 INSC 1060

Judges: Ashok Bhushan, J. and Ajay Rastogi, J.

Can a teacher appointed through direct recruitment be replaced by a teacher claiming a right to be appointed through transfer? This is the core question the Supreme Court addressed in this case. The dispute centered around the appointment of a Higher Secondary School Teacher in an aided school in Kerala. The court had to decide whether the appointment should be based on the cadre strength of the post or the existing vacancies and the applicable rules for appointment. The judgment was delivered by a division bench comprising Justice Ashok Bhushan and Justice Ajay Rastogi, with Justice Ashok Bhushan authoring the opinion.

Case Background

The case involves a dispute over the appointment of a Higher Secondary School Teacher (Economics) at an aided institution (Respondent No. 5). Respondent No. 1, Reshma Parayil, was working as an Upper Primary Assistant in the same school. In 2011-2012, the school was upgraded to a Higher Secondary School, creating 13 new posts for Higher Secondary School Teachers (Junior). Four of these posts were filled by transferring existing Higher Secondary School Assistants, and nine were filled through direct recruitment.

In 2012-2013, a new commerce batch with economics was introduced, leading to the creation of two additional posts for Higher Secondary School Teachers (Junior) and two posts for Higher Secondary School Teachers (Commerce and Economics). The management directly recruited the appellant, V.K. Girija, as a Higher Secondary School Teacher (Economics) on 26 August 2013.

Reshma Parayil, the respondent, filed a complaint with the Regional Deputy Director of Education, arguing that the post should have been filled by transferring her since she was already a Higher Secondary School Assistant in the school. The Deputy Director rejected her complaint on 22 February 2014, and the Director of Education dismissed her subsequent appeal on 7 July 2014.

However, the State Government allowed Reshma Parayil’s revision petition on 1 November 2014, directing the management to appoint her by transfer if she was otherwise eligible. This order was challenged by the appellant in a Writ Petition before the High Court. The Single Judge ruled in favor of the appellant, setting aside the State Government’s order. The Division Bench of the High Court reversed the Single Judge’s decision, leading to the present appeal before the Supreme Court.

Timeline

Course of Proceedings

The Regional Deputy Director of Education initially rejected Reshma Parayil’s complaint, which was further upheld by the Director of Education. However, the State Government overturned these decisions, directing the school management to appoint Reshma Parayil by transfer. The appellant, V.K. Girija, then challenged this order in the High Court.

The Single Judge of the High Court, relying on Rule 5(3) of the Kerala State & Subordinate Services Rules, 1958, sided with the appellant, stating that the vacancy should be filled based on cadre strength and not on the basis of the first vacancy being filled by transfer. The Division Bench of the High Court reversed this decision, relying on an earlier judgment in Ajithakumari Vs. Shamma, (2009) 1 KLT 808. The Division Bench held that Rule 5 of the Kerala State and Subordinate Service Rules, 1958, did not apply, and the vacancy should be filled by transfer. This led to the appeal before the Supreme Court.

Legal Framework

The appointment of teachers in aided Higher Secondary Schools in Kerala is governed by the Kerala Education Act, 1958, and the rules framed under it. Chapter XXXII of the Kerala Education Rules specifically deals with the method of appointment and qualifications of teachers and non-teaching staff in aided Higher Secondary Schools.

Rule 3 of Chapter XXXII categorizes posts in aided Higher Secondary Schools. Category 2 includes Higher Secondary School Teachers in various subjects, and Category 3 includes Higher Secondary School Teachers (Junior) in various subjects.

Rule 4 outlines the method of appointment. Specifically, Rule 4(2) and 4(3) detail the appointment of Higher Secondary School Teachers and Higher Secondary School Teachers (Junior), respectively. Rule 4(2) states:

“Higher Secondary School Teacher (1) By transfer from Junior Lecturer in the subject concerned under the management / Higher Secondary School Teacher (Junior) (2) In the absence of qualified hands under clause (1) above, the vacancies shall be apportioned in the ratio 1:3 between appointment by transfer and direct appointment as detailed below: (i) a) By transfer from High School Assistants, who possess the requisite qualifications, under the Educational Agency. b) In the absence of qualified persons under (a) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants who possess the requisite qualification in the subject concerned, under the Educational Agency. (ii) By direct appointment”

Rule 4(3) states:

“Higher Secondary School Teacher (Junior) 1. (i) By transfer from qualified High School Assistants in the subject concerned under the Educational Agency. (ii) In the absence of qualified hands under item (i) above, by transfer from qualified Upper Primary School Assistants / Lower Primary School Assistants in the subject concerned under the Educational Agency. 2. By direct appointment Note:- (i) 25% of the total posts shall be filled up by the method specified in item (I) above on seniority – cum suitability basis and 75% of such post shall be filled up by direct appointment.”

The Kerala State and Subordinate Services Rules, 1992, particularly Rule 5, also play a role. Rule 5 addresses situations where recruitment is done both by direct recruitment and transfer. Note (3) to Rule 5 states:

“Whenever a ratio or 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 the fixed ratio or percentage to the cadre strength of the post to which the recruitment/transfer is made and not to the vacancies existing at that time.”

Arguments

Appellant’s Arguments (V.K. Girija):

• The appellant contended that Rule 5(3) of the Kerala State and Subordinate Services Rules (KSS Rules) should apply.
• According to the appellant, when recruitment is done through both transfer and direct methods, the ratio should be applied to the cadre strength of the post, not the existing vacancies.
• The appellant argued that the post she was appointed to fell under the direct recruitment quota based on cadre strength.
• The appellant relied on the judgments of the Supreme Court in S. Prakash and Another Vs. K.M. Kurian and Others, (1999) 5 SCC 624 and Prasad Kurien and Others Vs. K.J. Augustin and Others, (2008) 3 SCC 529, which supported the view that cadre strength should be considered.

Respondent’s Arguments (Reshma Parayil):

• The respondent argued that the KSS Rules do not apply.
• The respondent contended that the appointment should be made according to Rule 4 of Chapter XXXII of the Kerala Education Rules, 1959.
• The respondent pointed out that Chapter XXXII was substituted in the Education Rules by a Government Order dated 9 November 2001, which is subsequent to the Kerala State and Subordinate Services Rules, 1992. Therefore, the Kerala Education Rules should prevail.
• The respondent argued that for Higher Secondary School Teacher appointments, cadre strength should not be considered. Instead, appointments should be made according to Rule 4 of Chapter XXXII.
• The respondent relied on the Supreme Court’s judgment in Maya Mathew Vs. State of Kerala and Others, (2010) 4 SCC 498, which clarified that Special Rules (Kerala Education Rules) made after the Kerala State and Subordinate Services Rules should prevail.
• The respondent argued that the post should have been filled by transfer, as she was eligible and available.

The innovativeness of the argument of the respondent lies in the fact that they were able to show that the rules of the Kerala Education Rules should prevail over the Kerala State and Subordinate Services Rules, and that the method of appointment is by transfer first.

Submissions by Parties

Issues Framed by the Supreme Court

The Supreme Court framed the following issues for consideration:

1. Whether the post of Higher Secondary School Teacher (Economics) newly sanctioned in the School in the year 2012-2013 was required to be filled up by direct recruitment taking the cadre strength of the Higher Secondary School Teacher or the same was required to be filled up by transfer?
2. Whether for filling the post of Higher Secondary School Teacher, Rule 5 of KSS Rules were to be resorted to?
3. Whether the Management committed error in making appointment of the appellant as Higher Secondary School Teacher (Economics) by direct recruitment?

Treatment of the Issue by the Court

Authorities

The Supreme Court considered the following authorities:

Cases:

• Ajithakumari Vs. Shamma, (2009) 1 KLT 808 – Division Bench of Kerala High Court.
• S. Prakash and Another Vs. K.M. Kurian and Others, (1999) 5 SCC 624 – Supreme Court of India.
• Prasad Kurien and Others Vs. K.J. Augustin and Others, (2008) 3 SCC 529 – Supreme Court of India.
• Maya Mathew Vs. State of Kerala and Others, (2010) 4 SCC 498 – Supreme Court of India.

Legal Provisions:

• Kerala Education Act, 1958
• Kerala Education Rules, 1959, Chapter XXXII, Rule 3, Rule 4(2), Rule 4(3)
• Kerala State and Subordinate Services Rules, 1992, Rule 5, Note (3)

Authorities Considered by the Court

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Division Bench judgment in Ajithakumari Vs. Shamma, (2009) 1 KLT 808* was followed by the High Court and its reasoning was upheld by the Supreme Court.
• The Supreme Court judgments in S. Prakash and Another Vs. K.M. Kurian and Others, (1999) 5 SCC 624* and Prasad Kurien and Others Vs. K.J. Augustin and Others, (2008) 3 SCC 529* were distinguished and held to be inapplicable because the Special Rules were made subsequent to the General Rules.
• The Supreme Court judgment in Maya Mathew Vs. State of Kerala and Others, (2010) 4 SCC 498* was followed, and it was held that special rules made subsequent to general rules will prevail.
• The Kerala Education Act, 1958, was used as the basis for the rules governing the appointment of teachers.
• The Kerala Education Rules, 1959, Chapter XXXII, Rule 3, Rule 4(2), Rule 4(3) were interpreted and applied to determine the method of appointment.
• The Kerala State and Subordinate Services Rules, 1992, Rule 5, Note (3) were held to be not applicable in this case.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the interpretation of the Kerala Education Rules, particularly Rule 4(2) of Chapter XXXII. The court emphasized that the rule clearly mandates that the post of Higher Secondary School Teacher should first be filled by transfer from a qualified Junior Lecturer or Higher Secondary School Teacher (Junior) in the same subject. The court noted that the rule uses the phrase “in the absence of qualified hands under clause (1) above,” which means that direct recruitment is only to be considered when no qualified candidates are available for transfer. The court also highlighted that the ratio of 1:3 for transfer and direct recruitment is to be applied to the vacancies, not the cadre strength. The court observed that the language used in Rule 4(3) for Higher Secondary School Teacher (Junior) is different, where the ratio is applied to the total posts, indicating a clear intent to differentiate between the two categories of teachers.

The court also relied heavily on the principle that special rules made subsequent to general rules will prevail. The court noted that Chapter XXXII of the Kerala Education Rules was inserted after the Kerala State and Subordinate Services Rules, and therefore, the Education Rules should take precedence. The court distinguished the cases cited by the appellant by pointing out that those cases dealt with situations where the general rules were made after the special rules.

The court also considered the object of the rule, which is to give preference to teachers already working in the institution.

The court also noted that:

“Above statutory Scheme serves the interests of the School, students and the teachers already serving in the institution. A Junior Lecturer working in the same subject is first choice to fill up the post, which obviates the management to take any other steps for recruitment.”

Sentiment Analysis of Reasons Given by the Supreme Court:

Fact:Law Ratio:

Logical Reasoning

Issue 1: Whether the post was to be filled by direct recruitment or transfer?

Judgment

The Supreme Court held that the Division Bench of the Kerala High Court was correct in reversing the judgment of the Single Judge. The court found that the appointment of the appellant, V.K. Girija, by direct recruitment was erroneous. The court emphasized that the post of Higher Secondary School Teacher (Economics) should have been filled by transfer of Reshma Parayil, the respondent, as per Rule 4(2) of Chapter XXXII of the Kerala Education Rules.

The court reasoned that the Kerala Education Rules specifically provide that the post of Higher Secondary School Teacher should first be filled by transfer from a qualified Junior Lecturer or Higher Secondary School Teacher (Junior) in the same subject. Direct recruitment is only to be considered if no such candidate is available. The court also clarified that the ratio of 1:3 between transfer and direct recruitment applies to the vacancies, not the cadre strength of the post.

The court also held that the Kerala State and Subordinate Services Rules, 1992, specifically Rule 5 and its Note (3), do not apply to the appointment of Higher Secondary School Teachers under the Kerala Education Rules. The court relied on its previous decision in Maya Mathew Vs. State of Kerala and Others, (2010) 4 SCC 498, which held that special rules made subsequent to general rules would prevail.

The court quoted the following from the judgment:

“A plain reading of the above Statutory Provision clearly indicates that for apportioning the vacancy, the cadre strength of the Higher Secondary School Teacher is not to be looked into to find out as to which vacancy will go to transfer or direct recruitment.”

“Thus, KSS Rules cannot be held to be applicable for making recruitment under Rule 4(2) of Chapter XXXII of the Kerala Education Rules. Further, a set of Rules of Chapter XXXII having been brought subsequent to Special Rules, intendment is clear that it was intended that general rule being Chapter XXXII shall be followed for appointment of teachers in aided institutions.”

“The ratio laid down in the case of Maya Mathew (supra) is fully attracted since Chapter XXXII of the Kerala Education Rules, which is under consideration was inserted in the year 2011 in the Rules, i.e. much subsequent to Kerala State and Subordinate Services Rules, 1992.”

The court did not find merit in the appellant’s argument that she had been working for five years and should not be replaced. The court stated that the respondent was entitled to the post by transfer as per the rules.

There were no dissenting opinions in this case. The bench was composed of two judges, both of whom agreed with the judgment.

The court directed the management to appoint Reshma Parayil as Higher Secondary School Teacher (Economics) by 31 December 2018, with effect from 1 January 2019. However, the court also observed that if the appellant, V.K. Girija, was willing to work on the post currently held by the respondent, the respondents should adjust her and allow her to work on that post from the same date. This direction was given in the particular circumstances of the case and was not to be treated as a precedent.

Key Takeaways

• The appointment of Higher Secondary School Teachers in aided schools in Kerala is primarily governed by the Kerala Education Rules, specifically Chapter XXXII.
• When a vacancy arises for a Higher Secondary School Teacher, the first preference should be given to qualified Junior Lecturers or Higher Secondary School Teachers (Junior) in the same subject for transfer.
• Direct recruitment should only be considered if no qualified candidates are available for transfer.
• The ratio of 1:3 for transfer and direct recruitment applies to the vacancies, not the cadre strength of the post.
• Special rules made subsequent to general rules will prevail.
• The Kerala State and Subordinate Services Rules, 1992, are not applicable when specific rules for appointment are provided in the Kerala Education Rules.

Potential Future Impact: This judgment clarifies the rules for appointment of teachers in aided Higher Secondary Schools in Kerala and will likely be used as a precedent in similar cases. It reinforces the importance of following the specific rules laid down in the Kerala Education Rules and emphasizes the preference for transfer over direct recruitment when qualified candidates are available within the institution. This decision could also influence the way other state governments frame their rules for appointment of teachers.

Directions

The Supreme Court directed the management to appoint Reshma Parayil as Higher Secondary School Teacher (Economics) on or before 31 December 2018, so that she could join her post on 1 January 2019.

The court also directed that if the appellant, V.K. Girija, was willing to work on the post currently held by the respondent, the respondents should adjust her and allow her to work on that post from the same date. This direction was given in the particular circumstances of the case and was not to be treated as a precedent.