V.K. Girija vs Reshma Parayil

REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. Of 2018 (arising out of SLP (C) No. 27838 of 2016)

V.K. GIRIJA ...APPELLANT(S)

VERSUS

RESHMA PARAYIL & ORS. ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN,J.

Leave granted.

2. This appeal has been filed against the Division Bench

judgment of Kerala High Court dated 17.08.2016 in Writ

Appeal No. 1504 of 2015 by which judgment the Writ

Appeal filed by the respondent was allowed, reversing

the judgment of learned Single Judge. The learned

Single Judge has allowed the Writ Petition filed by the

appellant, Signature Not Verified setting aside the order of the State Digitally signed by ASHWANI KUMAR

Government Date: 2018.12.04 17:16:43 IST Reason:

which had directed for appointment of

respondent Reshma Parayil.

26 3. The brief facts of the case necessary to be noted for

deciding the issue are:-

3.1 The respondent No.5 is an aided institution.

Respondent No.1 was serving as Upper Primary

Assistant in the school. The school was upgraded

as Higher Secondary School in the year 2011-2012.

Consequent to the upgradation, 13 new posts of

Higher Secondary School Teacher (Junior) were

created. Out of 13 posts 4 posts of Higher

Secondary School Assistant (Junior) were filled

up by transfer of Higher Secondary School

Assistant and 9 posts were filled up by direct

recruitment. In 2012-2013, a new commerce batch

with economics was allotted vide Government order

dated 15.07.2013 by virtue of which two posts of

Higher Secondary School Teacher (Junior) and two

posts of Higher Secondary School Teacher

(Commerce and Economics)were created. Both the

posts of Higher Secondary School Teacher were

filled up by direct recruitment by the

management. The appellant was appointed on

26.08.2013 as Higher Secondary School Teacher 26

(Economics) by direct recruitment.

3.2 The respondent No.1, who was working as Higher

Secondary School Assistant in the School, filed a

complaint to the Regional Deputy Director of

Education questioning the direct recruitment of

the appellant. Respondent No.1 claimed that she

being Higher Secondary School Assistant available

in the school, the post of Higher Secondary

School Teacher (Economics) was required to be

filled up by transfer of respondent No.1. The

complaint of respondent No.1 was rejected by

Deputy Director of Education vide his order dated

22.02.2014. An appeal was filed by the

respondent No.1 to the Director of Education,

which too was dismissed on 07.07.2014. 3.3 Respondent No.1 filed a revision before the State

Government, which revision petition was allowed

by the State Government vide order dated

01.11.2014. The State Government held that the

post of Higher Secondary School Teacher

(Economics) was required to be filled up by

transfer of Reshma Parayil (the respondent

herein). The State Government set aside the order

of Deputy Director of Education and directed the 26

management to fill up the post of Higher

Secondary School Teacher (Economics) by transfer

of respondent No.1, if she is otherwise eligible.

The order of the State Government was challenged

by appellant before the High Court by filing a

Writ Petition NO. 30707 of 2014. Learned Single

Judge relying on Rule 5(3) of the Kerala State &

Subordinate Services Rules, 1958 took the view

that vacancy has to be filled up on the basis of

cadre strength and not on the basis that the

first vacancy should be filled up by transfer.

The order of the Regional Deputy Director and

Director of Education was upheld and that of the

State Government was set aside. The respondent

No.1 aggrieved by the judgment of learned Single

Judge filed a Writ Appeal before the Division

Bench.

3.4 The Division Bench vide its judgment dated

17.08.2016 has allowed the Writ Appeal and set

aside the judgment of the learned Single Judge.

The Division Bench relied on an earlier Division

Bench judgment in Ajithakumari Vs. Shamma, (2009)

1 KLT 808, which according to Division Bench 26

covered the issue. The Division Bench took the

view that Rule 5 of Kerala State and Subordinate

Service Rules, 1958 (hereinafter referred to as

‘KSS Rules) has no application and the vacancy of

Higher Secondary School Teacher was to be filled

up by transfer. Aggrieved by the judgment of the

Division Bench, the appellant has filed this

appeal.

4. Learned counsel for the appellant submits that the

Division Bench committed error in holding that vacancy

of Higher Secondary School Teacher (Economics) was to

be filled up by transfer. He submits that as per Rule

5 of KSS Rules, Note (3), when the method of

recruitment is both by transfer and direct recruitment,

and a ratio is fixed for different methods of

recruitment, the candidate from each method shall be

decided by applying the fixed ratio or percentage of

the cadre strength of the post. He submits that

vacancy in Higher Secondary School Teacher has no

relevance for deciding the mode of recruitment and as

per cadre strength, the post on which appellant was

appointed fell into direct recruitment quota. The 26

learned Single Judge was correct in its view that

appellant was correctly appointed. Learned counsel for

the appellant has placed reliance on two judgments of

this Court namely, 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.

5. The submission made by learned counsel for the

appellant has been refuted by learned counsel appearing

for respondent No.1. Learned counsel appearing for

respondent No.1 submits that provisions of KSS Rules

has no application. He submits that the recruitments

has to be made in accordance with Kerala Education

Rules, 1959, Rule 4 Chapter XXXII. He submits that

Chapter XXXII has been substituted in the Education

Rules by G.O. dated 09.11.2001 published in Gazette on

12.11.2001, which is subsequent to Kerala State and

Subordinate Services Rules, 1992, hence the Kerala

Education Rules regulating the appointment of Higher

Secondary School Teachers shall prevail. He submits

that for appointment of Higher Secondary School

Teachers cadre strength is not to be looked into rather 26

appointment has to be made in accordance with Rule 4 of

Chapter XXXII. He submits that judgment of this Court

in Maya Mathew Vs. State of Kerala and Others, (2010) 4

SCC 498 has clarified the situation and upheld that

Special Rules (Kerala Education Rules, 1959) pertaining

to recruitment, made subsequent to Kerala State and

Subordinate Services Rules, which shall prevail. The

earlier two judgments of this Court relied by learned

counsel for the appellant have also been explained and

distinguished. He submits that present case is fully

covered by this Court’s judgment in Maya Mathew

(supra). He further submits that respondent was fully

eligible for appointment as Higher Secondary School

Teacher (Economics) fulfilling all the qualifications.

The post has wrongly been filled up by direct

appointment by the appellant, which deserves to be set

aside. He submits that the Division Bench rightly

allowed the appeal, hence the appeal deserves to be

dismissed.

6. We have considered the submissions of the learned

counsel for the parties and have perused the records.

7. From the submissions of the learned counsel for the 26

parties and pleadings on record, following are three

issues, which arise for consideration in the present

case:-

(i) 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?

(ii) Whether for filling the post of Higher

Secondary School Teacher, Rule 5 of KSS Rules

were to be resorted to?

(iii) Whether the Management committed error in

making appointment of the appellant as Higher

Secondary School Teacher (Economics) by direct

recruitment?

8. The Kerala Education Act, 1958 and the Rules framed

thereunder regulate the recruitment of teaching staff

in aided Higher Secondary School. Chapter XXXII of

Kerala Education Rules deals with method of appointment

and qualifications of teachers and non-teaching staff

in aided Higher Secondary School. Rule 3 deals with 26

categories of posts in aided Higher Secondary School.

Rule 3 contains 8 categories out of which category 1 is

Principal; Category 2 is Higher Secondary School

Teacher in different subjects (total 39) and Category 3

is Higher Secondary School Teacher (Junior) in several

subjects (total 39). Rule 4 deals with method of

appointment. Rule 4(2) and 4(3) deals with appointment

of Higher Secondary School Teacher and Higher Secondary

School Teacher(Junior). Rules 4(2) and 4(3) are as

follows:-

Sl. Category Method of Appointment No.

1. Xxxxxxxxxxxxxxxx Xxxxxxxxxxx

2. Higher Secondary (1) By transfer from School Teacher 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.

26 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

Note:- (i) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item 2(i) above such vacancies shall also be alloted for direct appointment.

(ii) Appointments under item (I) above shall be made from select lists of qualified persons prepared on the basis of seniority and merit.

3. Higher Secondary 1. (i) By transfer from School Teacher qualified High School (Junior) 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.

26

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.

(ii) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item 1 above, such vacancies also shall be allotted for direct appointment.

9. Another Rules, which are relevant for consideration are

Kerala State and Subordinate Services Rules, 1992,

reliance has been placed on Rule 5 of the said Rules,

which is to the following effect:-

5. Method of recruitment. ______ Where the normal method of recruitment to any service, class or category is neither solely by direct recruitment nor solely by transfer, but is both by direct recruitment and by transfer._____

(a) the proportion or order in which the Special Rules concerned may require vacancies to be filled by persons recruited direct and by those recruited by transfer shall be applicable only to substantive vacancies in the permanent cadre;

(b) person shall be recruited direct only against a substantive vacancy in such permanent cadre, 26

and only if the vacancy is one which should be filled by direct recruit under the Special Rules referred to in clause (a); and

(c) recruitment to all other vacancies shall be made by transfer.

Note. __ (1) All permanent vacancies and temporary vacancies except those of short duration shall be treated as substantive vacancies.

(2) The vacancies on account of leave and deputation with a duration of less than six months shall be treated as vacancies of short duration, provided, such vacancies with a duration of three months to six months should not be treated as vacancies of short duration, if the vacancies are likely to last long or new vacancies are likely to arise.

(3) 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.

10.The appellant’s submission is that for making

appointment on the post of Higher Secondary School

Teacher, Rule 5(3) of the KSS Rules are applicable and

as per the said Rules, since recruitment on the post of

Higher Secondary School Teacher is provided by two

methods, i.e. by direct recruitment and transfer, for

filling the post, the cadre strength of Higher 26

Secondary School Teacher is to be taken for

apportioning the vacancy into ratio of 1:3. He submits

that the learned Single Judge has rightly relied on

Rule 5(3) of KSS Rules and has held that ratio can only

to be worked out if the cadre strength is maintained

whereas the Division bench of the Kerala High Court has

reversed the judgment of learned Single Judge.

11.Learned counsel for the respondent submits that for the

above recruitment on the post of Higher Secondary

School Teacher, Rule 5(3) of KSS Rules is not

applicable and the appointment has to be made only on

the basis of Rule 4 of Kerala Education Rules. He

further submits that Special Rules namely Kerala State

and Subordinate Services Rules, 1992 are Special Rules,

which were framed in the year 1992, the chapter XXXII

of the Kerala Education Rules having been inserted by

G.O. dated 09.11.2001 w.e.f. 12.11.2001, there is no

applicability of the KSS Rules.

12.We may now first look into the statutory Scheme as

delineated by Rule 4 of Kerala Education Rules. The

first issue is as to whether for filling up the post of

Higher Secondary School Teacher, the vacancy has to be

allocated as per the cadre strength. A perusal of the 26

Rule 4(2) contemplates that post of Higher Secondary

School Teacher is to be filled up first “by transfer

from Junior Lecturer 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. 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 26

when no qualified hands under clause (1), i.e. Junior

Lecturer in the concerned subject is not 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. Now coming to the facts of the present

case, in the year 2012-2013, two new posts were created

in Higher Secondary School Teacher, i.e. Commerce and

Economics, both were the new vacancies and no Junior 26

Lecturers, i.e. Higher Secondary School Teacher

(Junior) qualified in the subject being available, Rule

4(2) has to be resorted to. The ratio mentioned is

1:3, which means that first vacancy is to be filled up

by transfer. Resorting to cadre strength, thus, was

not contemplated by plain reading of Rule 4(2). We,

thus, do not find any substance in the submission of

the counsel for the appellant. 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(Junior) is also to be filled up by transfer

from qualified High School Assistant in the subjects

concerned. In absence of qualified hands, by transfer

from qualified Upper Primary School Assistants/ Lower

Primary School Assistants in the subjects concerned

under the Educational Agency. For filling up the posts

in the subjects concerned, the direct recruitment is

also provided as one mode of recruitment. Note 1,

which is very relevant, provides “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 26

appointment”. Here, Note 1, uses two expressions

“total posts” and “such posts”. Thus, computation of

25% and 75% is to be based on that total posts of

Higher Secondary School Teacher (Junior). The language

used in Note 1 when read in contradiction to Rule 4(2)

(ii), the intention is clear that whereas for

appointment in Higher Secondary School Teacher, the

vacancy shall be apportioned, whereas for filling up

the post of Higher Secondary School Teacher (Junior),

“total posts” are to be apportioned on the basis of

cadre strength.

13.Now, we come to the Kerala State and Subordinate

Services Rules, 1958 – Rule 5. Rule 5 begins with the

words “where the normal method of recruitment to any

service, class or category is neither solely by direct

recruitment nor solely by transfer, but is both by

direct recruitment and by transfer”. Rule 5 of 1958

Rules also provides for method of recruitment and Note

(3) to Rule 5 provides that 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 26

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 Special Rules are

1992 Rules. The Kerala Education Act, 1958 and Kerala

Education Rules both are General Rules but in view of

the fact that Chapter XXXII has been inserted in the

Rules by notification dated 09.11.2001, which makes it

clear that appointment of teachers and non-teaching

staff in aided Higher Secondary School Teacher is to be

governed by Kerala Education Rules. Further, the

recruitment under Rule 4(2) of Higher Secondary School

Teacher is a recruitment specially statutory designed

in a different manner providing for all vacancy in

Higher Secondary School Teacher subjects, to be first

filled up by Junior Lecturer in the subjects concerned

under the management. Thus, recruitment under Rule 4(2)

cannot be said to be “normal method of recruitment” to

any service as contemplated by Rule 5 of KSS Rules.

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 26

general rule being Chapter XXXII shall be followed for

appointment of teachers in aided institutions. This

Court in the case of Maya Mathew (supra) had occasion

to consider Kerala State and Subordinate Services

Rules, 1958 in reference to a general rule namely

Kerala State Homeopathy Services Rules, 1989. Note (3)

of Rule 5 of Kerala State and Subordinate Services

Rules, 1958 came up for consideration in the above

case. Whereas Rule 3 of the Homeopathy Rules also

provided for method of appointment and ratio to be

maintained in making appointment. Kerala State and

Subordinate Services Rules, 1958 were referred as

General Rules in the aforesaid judgment. The

Homeopathy Rules wee referred to as Special Rules,

which was repugnant to General Rules. In Para 12 of

the judgment, rules of interpretation governing two set

of Rules were noticed to the following effect:-

“12. The rules of interpretation when a subject is governed by two sets of rules are well settled. They are:

(i) When a provision of law regulates a particular subject and a subsequent law contains a provision regulating the same subject, there is no presumption that the latter law repeals the earlier law. The rule-making authority while making the later rule is deemed to know the existing 26

law on the subject. If the subsequent law does not repeal the earlier rule, there can be no presumption of an intention to repeal the earlier rule;

(ii) When two provisions of law—one being a general law and the other being a special law govern a matter, the court should endeavour to apply a harmonious construction to the said provisions. But where the intention of the rule-making authority is made clear either expressly or impliedly, as to which law should prevail, the same shall be given effect.

(iii) If the repugnancy or inconsistency subsists in spite of an effort to read them harmoniously, the prior special law is not presumed to be repealed by the later general law. The prior special law will continue to apply and prevail in spite of the subsequent general law. But where a clear intention to make a rule of universal application by superseding the earlier special law is evident from the later general law, then the later general law, will prevail over the prior special law.

(iv) Where a later special law is repugnant to or inconsistent with an earlier general law, the later special law will prevail over the earlier general law.”

14.Kerala State and Subordinate Services Rules, 1958

contains Rule 2, which is to the following effect:-

“2. Relation to the Special Rules.—If any provision in the General Rules contained in the part is repugnant to a provision in the Special Rules applicable to any particular service contained in Part III, the latter shall in respect of that service, prevail over the provision in the General Rules in this part.”

15.The earlier judgments of this Court in S. Prakash and 26

Another Vs. K.M. Kurian and Others, (supra) and Prasad

Kurien and Others Vs. K.J. Augustin and Others,

(supra), which had considered Note 3 of Rule 5 of

Kerala State and Subordinate Services Rules, 1958 were

also considered and distinguished. In Paragraph 14 to

20, following has been laid down:-

“14. The question whether there can be an exception to the primacy given to the Special Rules by Rule 2 of the General Rules, was considered by this Court in S. Prakash and Prasad Kurien, with particular reference to Note (3) to Rule 5 of the General Rules.

15. In S. Prakash, this Court considered whether the provisions of the Special Rules, the Kerala Agricultural Income Tax and Sales Tax Service Rules, will have to yield to Note (3) to Rule 5 of the General Rules. This Court held: (SCC pp.

633-34, para 14)

“14. From the aforesaid discussion, it is clear that if the intention of the rule-making authority was to establish a rule of universal application to all the services in the State of Kerala for which the Special Rules are made, then the Special Rules will give way to the General Rules enacted for that purpose. This has to be found out from the language used in the Rules which may be express or by implication. If the language is clear and unqualified, the subsequent General Rule would prevail despite repugnancy. If the intention of the rule-making authority is to sweep away all the Special Rules and to establish a uniform pattern for computation of the ratio or percentage of direct recruits and by transfer, in such a 26

case, the Special Rules will give way. … The language of Note (3) is crystal clear and is for removal of any ambiguity by using positive and negative terms. It applies to all the Special Rules whenever a ratio or percentage is prescribed in the Rules. It also emphatically states that it has to be computed on the cadre strength of the post to which the recruitment is to be made and not on the basis of the vacancies existing at that time.” (emphasis supplied)

16. In Prasad Kurien, while considering the Special Rules, the Kerala Excise and Prohibition Subordinate Service Rules, 1974, vis-à-vis Note (3) to Rule 5 of the General Rules, this Court followed the dictum in S. Prakash.

17. These decisions reiterate the position that if the intention of the rule-making authority is to make a later general rule to apply to all services in the State, for which different earlier special rules exist, then the existing special rules will give way to such later general rule. That is, where the general rule is made subsequent to the special rule and the language of the general rule signified that it was intended to apply to all services and prevail over any prior special rules, the intention of the rule-making authority should be given effect by applying the subsequent general rule instead of the earlier special rule.

18. This Court held that the language of Note (3) to Rule 5 of General Rules showed that it was intended to prevail over existing Special Rules which indicated a contrary position. What is significant is that the two decisions considered the Special Rules that were earlier in point of time to the General Rules as amended by the 1992 Amendment rules which introduced Note (3) to Rule 5 of the General Rules.

19. This Court held, on reading the General Rules 26

in conjunction with the Special Rules, that Note (3) to Rule 5 of General Rules will prevail over the corresponding provisions in the Special Rules showing a different intention, when deciding whether the ratio of each feeder category should be determined with reference to the cadre strength or existing vacancies.

20. What logically follows from the principle enunciated in the two decisions is that if any special rule is subsequent to the general rule, then the question of examining whether the prior general rule will prevail over a later special rule will not arise at all having regard to the categorical provision contained in Rule 2 of the General Rules. The principle laid down in those decisions will not apply where the special rule is made subsequent to the general rule.”

16.This Court clearly held that principle laid down in S.

Prakash and Another Vs. K.M. Kurian and Others, (supra)

and Prasad Kurien and Others Vs. K.J. Augustin and

Others, (supra) shall not apply where the Special Rules

are made subsequent to the General Rules. The ratio

laid down in the above case is fully applicable in the

facts of the present case. Thus, the Statutory Scheme

as delineated by Chapter XXXII of Kerala Education

Rules shall alone be applicable while making

recruitment to the teaching posts and Rule 5 Note (3)

of Kerala State and Subordinate Services Rules, 1958 is

not attracted.

17.Learned counsel for the appellant has placed reliance 26

on judgments of this Court in S. Prakash and Another

Vs. K.M. Kurian and Others, (supra) and Prasad Kurien

and Others Vs. K.J. Augustin and Others, (supra). Both

the above judgments had been considered and

distinguished by this Court in the case of Maya Mathew

(supra). 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 Division Bench

of the Kerala High Court, thus, has taken correct view

of the matter and has rightly reversed the judgment of

the learned Single Judge restoring back the order of

the State Government directing the management to

appoint respondent by transfer as Higher Secondary

School Teacher (Economics).

18.Learned counsel for the appellant lastly has submitted

that appellant has been working and satisfactorily

discharging her duties for last more than 5 years and

respondent may get another chance for being appointed

by transfer when any other vacancy arises on the post

of Higher Secondary School Teacher (Economics). We do 26

not find any substance in the above submission when as

per Rule 4(2), the respondent was entitled for

appointment by transfer, which claim has been accepted

by the State Government, the claim of respondent cannot

be negated on the premise as contended by the

appellant. Learned counsel for the respondent,

however, during submissions has fairly submitted that

she has no objection, if the appellant is adjusted on

the post, which is at present held by the respondent.

19.In view of the foregoing discussions, we are of the

view that appellant has no right to hold the post of

Higher Secondary School Teacher (Economics) and on the

said post, the respondent is to be appointed as per the

direction of the State Government and affirmed by the

Division Bench. We, thus, direct the management to

appoint the respondent on or before 31.12.2018 so as to

enable the respondent to join her post of Higher

Secondary School Teacher (Economics) w.e.f. 01.01.2019.

In the ends of justice, we, however, observe that the

appellant, if willing to work on the post, at present,

held by the respondent No.1, the respondents shall

adjust her and allow her to work on the post occupied

by the respondent No.1 w.e.f. the same date, i.e. 26

01.01.2019. In event, the appellant does not accept the

aforesaid post, it shall be open for the respondents to

proceed in accordance with law. We make it clear that

the above direction is being given in particular

circumstances of the present case and shall not be

treated as any precedent. Subject to above, the appeal

is dismissed.

......................J. ( ASHOK BHUSHAN )

......................J. ( AJAY RASTOGI )

New Delhi, December 04, 2018.