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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,  setting  aside  the  order  of  the  State

Government  which  had  directed  for  appointment  of

respondent Reshma Parayil.  

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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

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(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

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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

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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

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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

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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

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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

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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. No.

Category Method of Appointment

1. Xxxxxxxxxxxxxxxx Xxxxxxxxxxx 2. 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.

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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 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.

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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,

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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.

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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.