V. K. GIRIJA V. RESHMA PARAYIL & ORS. versus RESHMA PARAYIL & ORS.

Citation: [2018] 14 S.C.R. 1036 · Decided: 04-12-2018 · Supreme Court of India · Bench: ASHOK BHUSHAN · Disposal: Dismissed

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Judgment (excerpt)

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1036                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
V. K. GIRIJA
v.
RESHMA PARAYIL & ORS.
(Civil Appeal No. 11829 of 2018)
DECEMBER 04, 2018
[ASHOK BHUSHAN AND AJAY RASTOGI, JJ.]
Service Law:
Appointment – Whether by direct recruitment or by transfer –
To the post of Higher Secondary School Teacher – Appellant was
appointed to the post by direct recruitment – Respondent No. 1 who
was working as Higher Secondary School Assistant in the School,
filed a complaint questioning direct recruitment – She claimed that
the post should have been filled up by her transfer – The complaint
was rejected by Deputy Director of Education – Departmental
appeal was dismissed by Director of Education – In Revision State
Government held that post was required to be filled up by transfer
of the respondent – Writ petition by appellant – Single Judge of
High Court relying on r. 5(3) of Kerala State and Subordinate
Services Rules, 1958 held that vacancy was to be filled up on the
basis of cadre strength and not on the basis that first vacancy should
be filled up by transfer – In appeal Division Bench of High Court
setting aside order of Single Judge held that r. 5(3) of 1958 Rules
were not applicable and the post was to be filled up by transfer –
On appeal, held: Appointment of teachers in the school was
governed by Kerala Education Rules, 1959 – Chapter XXXII of
1959 Rules shall be followed for appointment – r. 5(3) of 1958
Rules is not applicable – As per r. 4(2) of 1959 Rules the post was
first to be filled up by transfer – Therefore, Division Bench of High
Court was right in directing appointment of respondent No. 1 –
Kerala Education Rules, 1959 – Chapter XXXII, r. 4(2) – Kerala
State and Subordinate Services Rules, 1958 – r. 5(3).
Dismissing the appeal, the Court
HELD : 1. A perusal of the Rule 4(2) of Kerala Education
Rules, 1959 contemplates that post of Higher Secondary School
Teacher is to be filled up first “by transfer from Junior Lecturer
[2018] 14 S.C.R. 1036
1036
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1037
in the subject concerned under the management / Higher
Secondary School Teacher (Junior)”. Thus, every vacancy of
Higher Secondary School Teacher has to be filled up first by the
transfer of Higher Secondary School Teacher (Junior) in the
subject concerned.  There is a purpose and object for providing
a particular scheme for filling up the post of Higher Secondary
School Teacher.  Higher Secondary School Teacher (Junior) is
also lecturer in concerned subject and the statute required that
whenever post in Higher Secondary School Teacher arises, the
same shall be first offered to the Junior Lecturer in the subject.
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. [Para 12][1048-D-E]
2. The second method of recruitment under Rule 4(2) begins
with the word “in the absence of qualified hands under clause (1)
above”. Thus, recruitment under Clause (2) shall be resorted
only when no qualified hands under clause (1), i.e. Junior Lecturer
in the concerned subject is available.  Further, the second phrase
of Rule 4(2) begins with the word “the vacancies shall be
apportioned in the ratio 1:3 between appointment by transfer and
direct recruitment”. The clear intendment is that vacancy arising
in Higher Secondary School Teacher has  to be apportioned in
ratio of 1:3. There is no concept of looking to the cadre of the
post of Higher Secondary School Teacher while apportioning the
vacancy under Rule 4(2), the cadre strength is not to be looked
into in view of the method of recruitment provided under Rule
4(2), i.e. of vacancies of Higher Secondary School Teacher is filled
up first by transfer of Junior Lecturer. 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. [Para 12][1048-D-H;
1049-A-C]
3. Above interpretation of Rule 4(2) is reinforced by looking
to Rule 4(3), which deals with recruitment of Higher Secondary
School Teacher (Junior). Higher Secondary School Teacher
V. K. GIRIJA v. RESHMA PARAYIL & ORS.
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1038                    SUPREME COURT REPORTS            [2018] 14 S.C.R.
(J

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