Jenany J.R vs S.Rajeevan & Ors

REPORTABLE IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.4046 OF 2010 [Arising out of SLP(C) No.23777 of 2008]

Jenany J.R. .....Appellant

Versus

S.Rajeevan & Ors. ....Respondents

J U D G M E N T

Deepak Verma, J.

1. Leave granted.

2. Short but important question of law, having great

impact is required to be considered by us in this

appeal. The question is with regard to

interpretation of Note 2 appended to Rule 43 in

Chapter XIV A of Kerala Education Rules, 1959

(hereinafter shall be referred to as 'the Rules')

framed under Kerala Education Act, 1953. The

relevant Note (2), is reproduced herein below:

"Note:(2) Promotion under this rule shall be made from persons possessing the prescribed qualifications at the time of occurrence of vacancy."

(Emphasis supplied by us) C.A. @ SLP(C) No.23777 of 2008 2

3. The question to be considered by us is, which would

be the relevant date for possessing prescribed

qualification whether at the time of occurrence of

vacancy or at the time the appointment is to be made.

4. To decide the aforesaid controversy, factual matrix

required to be mentioned is as under:

5. A vacancy to the post of High School Assistant, (in

short, H.S.A.) (Hindi) arose on 1.7.2003, in the

Guhanandapuram School run by Devaswom Committee. On

10.8.2003, an advertisement for selection of a

teacher for the said post was issued by the

management. On coming to know about the vacancy, the

appellant herein applied for the said post, since

according to her, she possessed all the requisite

qualifications on the relevant date. She was called

for interview. She was appointed H.S.A (Hindi) vide

appointment order dated 11.9.2003, issued by the

Manager of the School. The appointment order

indicated that she was to join duty within 15 days.

Since appellant was under medical rest, on account of

her recent delivery, she requested the management C.A. @ SLP(C) No.23777 of 2008 3

for grant of further time to join duty, which was

acceded to by the management.

6. Respondent No.1, S. Rajeevan was already working as

Lower Grade Hindi Teacher in the said school but had

not passed the test which would have enabled him to

possess requisite qualification and had applied for

re-evaluation. However, he was declared 'pass' on

23.9.2003, which would enable him also to stake his

claim for appointment to the said post of H.S.A on

which appellant was given appointment. The aforesaid

date would clearly reveal that on the date vacancy

had arisen i.e. 1.7.2003, respondent No.1 was not a

duly qualified candidate.

7. Appellant, ultimately after grant of extension for

joining duties, reported for duty on 23.10.2003. It

is stated that after joining duty, she was obstructed

by respondent No.1 herein and other anti-social

elements hired by him. She and her husband both were

physically assaulted and their entry in the school

was obstructed. She had also sustained injuries in

the assault and was required to be admitted in

Government Hospital. Police registered a criminal C.A. @ SLP(C) No.23777 of 2008 4

case against many and respondent No.1 was arrayed as

accused No.7 in the said case.

8. Aggrieved by the appointment of the appellant,

respondent No.1 filed W.P(C)No. 33575 of 2003 before

the High Court of Kerala. Vide order dated

27.10.2003, High Court disposed of the Writ Petition

filed by respondent No.1 on the admission made by

Government Counsel that his representation would be

considered on merits in accordance with law. This

was first round of litigation. Pursuant to the order

passed by the High Court, his representation was

decided.

9. The District Education Officer passed an order on

5.1.2004 rejecting the contention of respondent No.1.

The District Education Officer held as under:

"From the circumstantial evidences, the Manager made maximum attempt to appoint Sri S. Rajeevan who is working as LG-Hindi Teacher of the School and he who had appeared for the LTT examination while the vacancy was originated as on 1.7.2003. As per Note 2 to Rule 43 Chapter XIV A KER, promotion under the Rule shall be made from persons processing the prescribed qualifications at the time of occurrence of vacancy."

10.Feeling aggrieved by the said order passed by C.A. @ SLP(C) No.23777 of 2008 5

District Education Officer, respondent No.1 filed

Revision Petition before the Government but it also

met the fate of dismissal. The relevant part of the

order dated 04.02.2005 is reproduced hereinbelow:

"To claim promotion under Rule 43 one should have a valid claim, and to have a valid claim one should be duly qualified at the time of occurrence of the vacancy."

11.Thereafter, respondent No.1 filed second W.P(C) No.

4948 of 2005 (L) before learned Single Judge of High

Court of Kerala at Ernakulam challenging the order of

appointment of appellant as well as the orders passed

by District Education Officer and the State

Government. Learned Single Judge, after perusal of

records and after hearing parties at length, came to

the conclusion that no case was made out for

interference against the order of appointment of the

appellant, mainly on the following grounds:

(i) Cut-off date has to be taken as

1.7.2003, the date on which vacancy had arisen.

(ii) On the date vacancy had arisen,

respondent No.1 was not having requisite

qualification, for being appointed on the post C.A. @ SLP(C) No.23777 of 2008 6

of H.S.A (Hindi).

(iii) Reference to Note No.2 reproduced herein

above was made and opined that on the given

date admittedly respondent No. 1 was not duly

qualified.

(iv) He also found that District Education

Officer had already considered the case of

respondent No.1 and found that he was not

eligible to be promoted, on the contrary, the

appointment of appellant was approved.

(v) The said order passed by District

Education Officer was further confirmed by

State Government in revision preferred by

respondent No.1.

12. For the aforesaid reasons, writ petition filed

by respondent No.1 came to be dismissed by learned

Single Judge.

13. Feeling aggrieved thereof, respondent No.1 filed

a writ appeal before Division Bench of the said Court.

Vide judgment and order dated 6.8.2008 in W.A. No.2425

of 2005, the order passed by learned Single Judge has C.A. @ SLP(C) No.23777 of 2008 7

been set aside and quashed and direction has been

issued to appoint respondent No.1 as H.S.A (Hindi)

w.e.f. 16.9.2003, the date on which he became qualified

to hold the post. Necessary directions were issued

that within 30 days from the date of receipt of the

order, his appointment order be issued. Further

direction was given for disbursement of salary and

allowances payable to him within further period of 30

days thereafter. Thus, the writ appeal filed by

respondent No.1 was allowed, order of learned Single

Judge, dismissing his writ petition was set aside and

quashed and all the reliefs claimed in his writ

petition were granted to him.

14. Feeling aggrieved by the said order, this appeal

has been preferred by the appellant, challenging the

same on variety of grounds.

15. As has been mentioned hereinabove, the only

question which is required to be considered by us in

this appeal is whether on the date, vacancy had

occurred i.e. on 1.7.2003, respondent No.1 was having

requisite qualification or not to be appointed on the

post of H.S.A. (Hindi).

C.A. @ SLP(C) No.23777 of 2008 8

16. It is not disputed that respondent No.1 was not

qualified to be promoted as H.S.A on the date when the

vacancy arose. It was conceded before learned Single

Judge that in July, 2003, when the results of the

examination were published, he had failed. However, he

had applied for re-evaluation. Only after re-

evaluation was done, he was declared pass in September,

2003 as per the communication sent to him by Secretary,

Board of Public Examinations. Thus, there was no

dispute that on 1.7.2003, when the vacancy arose,

admittedly, respondent No.1 was not duly qualified to

be appointed as H.S.A (Hindi) as contemplated under

Note 2 appended to Rule 43 of the Rules. This aspect of

the matter has been dealt with by learned Single Judge

in detail in para 5 of the judgment.

17. We have accordingly heard learned counsel for

parties. Perused the record.

18. Vide the impugned order passed by Division

Bench, it was unduly impressed by the fact that the

appellant herein was appointed only on 23.10.2003 (the

date when she actually joined service) and before that

date respondent No.1 had already acquired basic C.A. @ SLP(C) No.23777 of 2008 9

requisite qualification for being appointed as H.S.A

(Hindi). According to the Division Bench, 1.7.2003

would only signify with regard to vacancy of the post

of H.S.A but relevant date would be the date when

appellant had actually joined. This appears to be

misconception of the Division Bench of the High Court.

Note No. 2 is clear, unambiguous and leaves no amount

of doubt that relevant date would be when the vacancy

occurs. Division Bench of the High Court has

completely misread the said Note No.2.

19. In our considered opinion, giving a true and

literal meaning to Note No. 2, the relevant date would

be the date when the vacancy had arisen i.e., 1.7.2003

and not the date when the appellant actually joined the

service.

20. We may profitably quote a passage from Craies

on Statute Law:-

" '.....It is the duty of courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of he statute to be construed'... that in each case you must look to the subject-matter, consider the importance of the provision and the C.A. @ SLP(C) No.23777 of 2008 10

relation of that provision to the general object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or only directory."

21. At this point of time we may further usefully

quote the words of Oliver Wendell Holme:

"It is sometimes more important to emphasize the obvious than to elucidate the obscure"

To reiterate, we may once again emphasise that

after careful scanning of Note (2), the obvious is the

date when the vacancy occurs and not subsequent events

that might have taken place after the date vacancy had

occurred.

22. In fact, this aspect of the matter was duly

considered by District Education Officer as also by

State Government, who held against respondent No.1.

Learned Single Judge had also correctly considered this

aspect of the matter and thus, dismissed the writ

petition filed by respondent No. 1.

23. Thus, looking to the matter from all angles, we

are of the considered view that the impugned order

passed by Division Bench cannot be sustained. The same C.A. @ SLP(C) No.23777 of 2008 11

is hereby set aside and quashed, instead the order

passed by learned Single Judge is restored meaning

thereby that the writ petition preferred by respondent

No.1 stands dismissed.

24. The appeal therefore, is allowed. Parties to

bear their respective costs.

..................J. [D.K. JAIN]

..................J. [DEEPAK VERMA]

New Delhi.

May 03, 2010.