Suma R. vs State Of Kerala
2021 Latest Caselaw 1987 Ker

                                                           CR
                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

    TUESDAY, THE 19TH DAY OF JANUARY 2021 / 29TH POUSHA, 1942

                       WP(C).No.34486 OF 2019(I)


PETITIONER/S:

                SUMA R., PEON,
                AIDED UP SCHOOL,
                VALLIKODE P.O.,
                PALAKKAD - 678 593.

                BY ADV. DR.GEORGE ABRAHAM


RESPONDENTS:

      1         STATE OF KERALA,
                REPRESENTED BY THE SECRETARY TO GOVERNMENT,
                GENERAL EDUCATION DEPARTMENT,
                THIRUVANANTHAPURAM - 695 001.

      2         DIRECTOR OF GENERAL EDUCATION,
                JAGATHY, THIRUVANANTHAPURAM - 695 033.

      3         ASSISTANT EDUCATIONAL OFFICER,
                PALAKKAD - 678 001.

      4         THE MANAGER, AIDED UP SCHOOL,
                VALLIKODE P.O., PALAKKAD - 678 593.

                R4 BY ADV. SRI.P.GOPAL
                R4 BY ADV. SRI.B.MURALEEDHARAN
                SRI. P.M.MANOJ - SR.GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD        ON
19.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 34486/19
                                      2



                                                                                 CR
                                   JUDGMENT

The petitioner faces a paradoxical

complexity in her career; but from it arises a

matter of forensic importance of general

application, within the confines of the Kerala

Education Act and Rules (hereinafter referred

to as 'the Act' and 'KER' respectively for

short).

2. The petitioner is stated to be a

graduate in Economics and in Education and she

has been appointed as a Peon in a vacancy that

became available in the Aided U.P. School,

Vallikode - of which the 4th respondent is the

Manager. However, when the proposal for

approval of her appointment was forwarded by

the Manager to the competent Educational

Authority, it was rejected for the reason that

she is overqualified, since, going by the

provisions of Chapter XXIVB of the KER, only a WPC 34486/19

person whose qualifications adhere to the

prescriptions made by the Government for posts

under its services, will be eligible to be so

appointed.

3. The petitioner says that the reasons

stated by the Educational Authorities are

untenable because only the provisions of

Chapter XXIVA of the KER are applicable to her

and not that of Chapter XXIVB; and

alternatively contends that even if Chapter

XXIVB is applicable, the denial of approval to

her appointment on the ground that she is a

graduate is flawed, since the mandatory

provisions of Rule 1 of Chapter XIVA of the

KER, in particular the Notes thereunder, would

be rendered otious and redundant. She,

therefore, prays that Exts.P4 and P6 orders,

issued by the official respondents, be set

aside and respondents 2 and 3 be directed to

approve her appointment as a Peon in the WPC 34486/19

School dehors the objections recorded in the

said orders.

4. I have heard Dr.George Abraham,

learned counsel for the petitioner;

Sri.P.Gopal, learned counsel appearing for

the 4th respondent-Manager and Sri.P.M.Manoj,

learned Senior Government Pleader appearing on

behalf of respondents 1 to 3.

5. Dr.George Abraham began his

submissions by showing me that Chapter XXIVB

of the KER was brought into effect on

23.02.1965, wherein, many of the provisions of

Chapter XXIVA have been specifically made

applicable. He pointed out that, as per

Chapter XXIVA of the KER, the sole

qualification fixed for a Peon in an Upper

Primary School is that he/she should be

literate, without fixing any upper limit of

education; and he asserts that this is

apposite, since the said person can aspire to WPC 34486/19

be appointed as a Clerk/Teacher in the school

depending upon his/her educational

qualifications, under the mandate of Note No.1

to Rule 1 of Chapter XIVA of the KER - under

which a member of the non-teaching staff in

the category of Clerks/Peons/Sweepers will

also be eligible for being appointed as a

Teacher, provided he/she possesses the

prescribed qualifications and there is no

other eligible teacher for promotion or

appointment to such post.

6. Dr.George Abraham then submitted that

the impugned orders have, however, been issued

by the Educational Authorities solely because

Rule 4 of Chapter XXIVB of the KER stipulate

that qualifications of the non-teaching staff

in Aided Schools will be the same as the

qualifications prescribed for non-teaching

staff in Government Schools. He then conceded

that, as far as the Government Schools are WPC 34486/19

concerned, the Rules which apply are the

'Special Rules for the Kerala Last Grade

Service, 1966' (hereinafter referred to as

'the Last Grade Rules' for short), which,

after the amendment dated 04.06.2016,

prescribes that a person seeking to be

appointed as a Peon (which post has now been

redesignated in the said Rules as 'Office

Attendant') 'should have passed Class 7 and

should not have acquired graduation' (sic).

7. Dr.George Abraham reiteratingly

contended that these provisions are, however,

not applicable to Peons in aided Upper Primary

Schools because, as said above, on the

strength of the first Note to Rule 1 of

Chapter XIVA of the KER, such persons obtain a

statutory right to be appointed as a Teacher,

subject to him/her having the requisite

qualifications and therefore, that the

stipulations in the 'Last Grade Rules' - that WPC 34486/19

a person seeking appointment as a Peon should

not acquire graduation - is inconsistent with

the scheme of the Act and the KER. He,

therefore, prayed that Exts.P4 and P6 be set

aside and his client's proposal for approval

of appointment be directed to be granted by

the competent Educational Authorities.

8. Sri.P.Gopal, learned counsel appearing

for the 4th respondent-Manager of the School,

while endorsing the afore submissions of

Dr.George Abraham, further explained that a

learned Division Bench of this Court has

affirmatively declared in Ananthakumari v.

Raghava Kurup [2002(1) KLT 787] that a Peon in

an Aided School obtains a vested right for

being appointed even as a language Teacher, on

the strength of the first and second Notes to

Rule 1 of Chapter XIVA of the KER and that the

apparent prohibition in offering such

promotion to the post of a language Teacher WPC 34486/19

under Rule 43B of Chapter XIVA, will have to

yield to the affirmative right guaranteed by

the former Rule. He, therefore, submitted that

since this Court has thus declared that a Peon

in an aided school obtains a statutory right

to be considered for promotion as a Teacher,

it would be totally incongruent to even

suggest that a person who seeks to be so

appointed, would stand disqualified solely

because of the acquisition of graduation.

9. Sri.P.Gopal further pointed out that

even in the case of compassionate appointments

to the dependants of employees who die while

in harness - as provided by Rule 51B of

Chapter XIVA of the KER - whatever be the

qualifications that a candidate may have,

he/she can be only appointed to a post under

Class III or Class IV as per the Scheme for

Compassionate Appointment, published by the

Government through their order WPC 34486/19

No.GO(P)No.12/99/P&ARD, dated 25.04.1999. He

thus argued that when a Peon has a vested

right to be appointed as a Teacher and when a

person can be appointed only as a Last Grade

Servant under the Dying-in-Harness Scheme who

then gets entitlement to be appointed as a

Teacher, under the sanction of the first and

second Notes to Rule 1 of Chapter XIVA, it

would stand to no intelligible reason or logic

that such a candidate must not have acquired

graduation.

10. Sri.Gopal fortified his submissions by

relying upon the judgment of another learned

Division Bench of this Court in Rajendran v.

State of Kerala [1993(1) KLT 893], which has

ingeminatingly declared that the Act and KER

provide a complete scheme as far as aided

schools are concerned and that the non-

teaching staff under the category of Clerks,

Peons, Sweepers and others are also eligible WPC 34486/19

to be appointed as Teachers, subject to

him/her having or acquiring the prescribed

qualifications. He thus predicated that the

ratio of the afore cited judgments and the

sweep of the Notes under Rule 1 of Chapter

XIVA of the KER would make it irrefragable

that no upper qualificational limit can be

prescribed for the purpose of appointment of

Peons in Aided Upper Primary Schools, even

though the 'Last Grade Rules' may prescribe

so. He thus prayed that this Writ Petition be

allowed and the prayer sought for by the

petitioner be granted.

11. In response to the afore submissions

made on behalf of the petitioner and the

Manager of the School, Sri.P.M.Manoj - learned

Senior Government Pleader, submitted that

there can be no contest that, as far as non-

teaching staff in Aided Schools who are

appointed after 01.10.1964 are concerned, only WPC 34486/19

the provisions of Chapter XXIVB of the KER

applies, since it makes it so clear therein

itself. He submitted that, therefore, when

this Chapter is the only one that would apply

to the non-teaching staff of Aided Schools who

are appointed after 01.10.1964, necessarily,

Rule 4 thereof will also have to be fully

applied, which mandates that the

qualifications of the non-teaching staff

'shall be the same as the qualification

prescribed for the non-teaching staff in

Government Schools'.

12. Sri.P.M.Manoj elaborated his

submissions by saying that the qualifications,

as far as the non-teaching staff in Government

Schools are concerned, are governed by the

'Last Grade Rules', which, through the

amendment affected as per Ext.P8 on

01.07.2011, makes it incumbent that any such

person must pass the 7th standard, but should WPC 34486/19

not acquire graduation. He submitted that the

unmistakable intent in bringing in the said

amendment to the 'Last Grade Rules', through

Ext.P8, is to protect the right of lesser

qualified candidates for appointments to posts

in Category III and Category IV and therefore,

that the petitioner cannot seek that her

approval in the post of Peon in the School in

question be granted dehors the said Rules. He,

therefore, prayed that this Writ Petition be

dismissed.

13. As I have said in the prefatory

paragraph of this judgment, any declaration

that this Court makes in this Writ Petition

will have a general application, since what is

posed for my consideration is whether a person

who aspires to be a Peon in an Aided Upper

Primary School, governed by the KER, would be

restricted by the qualifications prescribed in

the 'Last Grade Rules'.

WPC 34486/19

14. Even though Dr.George Abraham, learned

counsel for the petitioner, contends that

Chapter XXIVB of the KER has no application to

the petitioner and that only Chapter XXIVA

thereof should apply, I cannot find favour

with it because, even going by Rule 1 of the

former, it is made clear that all non-teaching

staff of Aided Schools who are appointed after

01.10.1964 will be governed only by its

provisions. This is unmistakable because

Chapter XXIVA of the KER was brought into

force on 30.06.1959; while Chapter XIVB was

endrafted only on 23.02.1965, giving an option

to those non-teaching staff of Aided Schools,

who were in service as on 01.10.1964, to opt

to be governed by the Rules under it or to

continue under the former.

15. Ineluctably, therefore, I cannot

countenance the submissions of the petitioner

that she is governed by Chapter XXIVA of the WPC 34486/19

KER, which provides that the qualification of

a Peon is only that he/she should be literate.

16. Thus moving on with the precept that

Chapter XXIVB alone will apply to the

petitioner, the pertinent question is whether

the qualifications, as prescribed in Rule 4

thereof, would restrict the right of a

graduate to seek appointment as a Peon in an

Aided Upper Primary School.

17. As rightly stated by Dr.George Abraham

and Sri.P.Gopal, Note 1 to Rule 1 of Chapter

XIVA of the KER conclusively declare that the

members of the non-teaching staff, who are

educationally qualified, are entitled to seek

to be appointed as a Teacher of the School in

the absence of an eligible teacher for

promotion or appointment to such post.

Further, in the case of compassionate

appointments under Rule 51B of Chapter XIVA of

the KER, the Government has published a scheme WPC 34486/19

called the 'Dying-in-Harness Scheme' on

25.04.1999, under which, appointments are to

be confined to Class III and Class IV posts in

the Subordinate Service, Last Grade Service or

in Part-time Contingent Service, to which

direct recruitment is one of the methods of

appointment.

18. Hence, when a person secures

employment either on merit or under the Dying-

in-Harness scheme as a Peon in an Aided Upper

Primary School, he/she immediately acquires a

vested statutory right to be considered for

appointment as a teacher under the sweep of

Note 1 of Rule 1 of Chapter XIVA of the KER.

This position can now brook no doubt because,

as rightly stated by Dr.George Abraham and

Sri.P.Gopal, in Ananthakumari (supra), a

learned Division Bench of this Court has held

that even when Rule 43B of the KER did not

prescribe specifically that a Peon is eligible WPC 34486/19

to be appointed as a language Teacher, it will

have to be read into it, on account of the

requirements under the Notes to Rule 1 of

Chapter XIVA of the KER.

19. When one so notices the singular

scheme of the KER, where, in contradistinction

to the Government service, even Peons obtain a

right to be considered for appointment as

teachers, it becomes indubitable that the

educational prescriptions in the 'Last Grade

Rules', which otherwise will apply to non-

teaching staff in aided schools because of

Rule 4 of Chapter XXIVB of the KER, have to be

read down as far as Peons are concerned. This

is necessary because the Act and the KER are

special statutes, which are intended to

exclusively govern schools in the aided sector

and the provisions thereof will necessarily

have to be read in such a manner, so as to

enliven every provision of its, without WPC 34486/19

rendering them redundant in any manner.

20. My opinion above is guided by the acme

tenet of interpretation of statues that Courts

should interpret contradictory provisions in a

manner to harmonise them, so that the purpose

of the statute can be given full effect to.

The celebrated judgment of the Hon'ble Supreme

Court in Sultana Begum v Premchand Jain [1979

SCC 1006], speaks of this unexpendable

obligation of Courts, in the context of Part

II of the Code of Civil Procedure, in the

words below:

10. Part II of the Code of Civil Procedure, comprising of Sections 36 to 74, as also the whole of Order XXI consisting of Rules 1 to 106, deal with the execution of decree, Section 47, as also Order XXI, Rule 2 are, therefore, part of the same legal or statutory system dealing with the same subject, namely, execution of decree. That being so, the rule of interpretation requires that while interpreting two inconsistent, or obviously repugnant provisions of an Act, the Courts should make an effort so that the purpose of the Act may be given effect to and both the provisions may be allowed to operate without rendering either of them otiose.

11. The statute has to be read as a whole to find out the real intention of the legislature.

In the afore perspective, there can be WPC 34486/19

little doubt left that the Peon of an Aided

Upper Primary School obtains the right to be

appointed as a Teacher, provided he/she has

the requisite educational qualification.

21. Apodictically, therefore, to say that

a person should not secure graduation, if he

is to be appointed as Peon in an aided Upper

Primary School, solely because the "Last Grade

Rules" so say, would cause severe violence to

the statutory Scheme of the Act and the KER

and cannot be therefore, granted imprimatur

by this Court.

22. Needless to say, therefore, even

though Rule 4 of Chapter XXIVB of the KER

makes the qualifications prescribed for non-

teaching staff of Government Schools

applicable to non-teaching staff of Aided

Schools also, the amendments brought into the

'Last Grade Rules' through Ext.P8, to the

extent to which it prescribes an upper WPC 34486/19

educational limit of qualification for Peons,

cannot apply, since otherwise, the very Scheme

of the KER would collapse.

23. When the undeniable intent of the KER

is to provide a promotional avenue to Peons,

even to the post of Teachers, it would be

egregiously illogical and inconsistent to even

propose that only persons who are not holding

graduation can be so appointed, thus defeating

a statutory right wholly and without any

rationale.

24. In summation, as far as the Peons in

Aided Upper Primary Schools are concerned,

though the lower qualification as prescribed

in the 'Last Grade Rules' may apply - which I

am, however, not declaring affirmatively,

being not called upon to do so - the upper

limit of educational qualification fixed

therein would obtain no application.

25. I am certain that this Court is WPC 34486/19

therefore, now enjoined to read down the

provisions to such effect and to declare so.

Resultantly, I declare that the upper

educational qualification stipulated in the

Special Rules for the Kerala Last Grade

Service, 1966, would not apply to the

appointment of a Peon in an Aided Upper

Primary School, since it would otherwise cause

violence to the prescriptions of Notes 1 and 2

of Rule 1 of Chapter XIVA; and I

consequentially, set aside Exts.P4 and P6

orders, with a direction to the 3rd respondent

to reconsider the proposal for approval of

appointment of the petitioner as a Peon in the

Aided U.P.School, Vallikode, de hors the

objections edificed on her having acquired

graduation.

The afore exercise shall be completed by

the 3rd respondent as expeditiously as is

possible, but not later than two months from WPC 34486/19

the date of receipt of a copy of this judgment

and the resultant order shall be issued within

the time frame.

Sd/-

                               DEVAN RAMACHANDRAN
       RR                            JUDGE
 WPC 34486/19




                            APPENDIX
       PETITIONER'S/S EXHIBITS:

       EXHIBIT P1        TRUE COPY OF THE APPOINTMENT ORDER
                         ISSUED BY THE MANAGER DATED
                         1/9/2018.

       EXHIBIT P2        TRUE COPY OF THE DEGREE CERTIFICATE
                         ISSUED BY THE UNIVERSITY DATED
                         10/5/2006.

       EXHIBIT P3        TRUE COPY OF THE COMMUNICATION

ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER DATED 9/11/2018.

EXHIBIT P4 TRUE COPY OF THE ORDER ISSUED BY THE 3RD RESPONDENT DATED 25/1/2019.

EXHIBIT P5 TRUE COPY OF THE SECONDARY SCHOOL'S LEAVING CERTIFICATE EXAMINATION.

EXHIBIT P6 TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.5143/2019/GEN. EDN. DATED 27/11/2019.

EXHIBIT P7 TRUE COPY OF THE G.O.(MS) NO.21/2011/P&ARD DATED 1/7/2011.

EXHIBIT P8 TRUE COPY OF THE AMENDMENT BROUGHT IN BY THE GOVERNMENT AND PUBLISHED IN THE KERALA GAZETTE.

EXHIBIT P9 TRUE COPY OF THE AMENDMENT ISSUED BY THE GOVERNMENT TO THE SPECIAL RULES.