Kalavathy R. vs M. Sabeena and others

Jagannadha Rao, C.J.—These two Writ Appeals are connected and arise out of 0. P. No. 2204 of 1991 and can ba disposed of together. W. A. No. 393 of 1993 Is filed by the appellant Smt. R. Kalavathy, who is a third party to the writ petition, with leave, to question the Judgment in the O.P. which has gone in favour of the respondent-writ petitioner, W, A. No. 625 of 1993 is filed by the Secretary, Local Administration Department, Government of Kerala, and others, who were the four respondents In the O. P. The point raised in the writ appeals is with regard to the mode of appointment of teachers in schools managed by panchayats and whether rule 1 (3) of Chapter X1V-A is a special provision and precludes the general provision in rule 11 of Chapter XIV- A which deals with appointment by way of transfer from the management of one Educational Agency to another school under a different Educational Agency.

The respondent-writ petitioner, has been working as a teacher In an aided school (v.z, M M, A. U. P. School, Alleppey) from 1984. She applied for the permanent vacancy in the Paachayat L. P. School at Ponnadu and sought inter-management transfer from the aided school at Alleppey to the Panchayat maintained school at Ponnadu under rule 11 of Chapter 1V-A of the Kerala Education Rules for such transfer on the presumption that the other rule, namely rule 1(3) requiring appointment of Candidates from the Employment Exchange as not being mandatory. The Panchayat approved the inter-management transfer by its resolution Ext. P3 dated 30-12-1988. But the resolution was stayed by the Secretary, Local Administration Department, Government of Kerala by Ext.P4 dated 6-1-1989. The Deputy Director of Panchayats, Kollam cancelled Est. P3 resolution by his order Ext. P6 dated 17-5-1989 on the ground that the item was not in the agenda when the resolution Ext. P3 was passed. However, the Government vacated the stay on 7-6-1990 as per the original of Ext, P7 and thereafter the Panchayat met on 10-7-1990 and approved the transfer. But the Executive Officer of the Panchayat wrote Ext. P8 dated 6-7-1990 to the District Panchayat Officer objecting to the procedure adopted by the Panchayat and thereafter Under Secretary, Government wrote Ext. P9 dated 31-1-1991 to the Panchayat that the vacancy of teacher in the Panchayat can be filled up only from among the candidates sponsored by the Employment Exchange and not by way of inter-management transfer. The respondent-writ, petitioner placed reliance on G. O. No. 88135/J1/77 (Edn dated)3-10-1978 (Ext. P 10), which according to her, permitted inter-management transfer even while filling up posts In the Panchayat.

The learned single Judge allowed the writ petition and quashed Ext. P9 by relying 04 the G. O, (Ext. P 10) referred to above and held that the writ petitioner could be appointed by way of inter-management transfer. It is against the said judgment that these appeals are preferred.

The appellant in W. A. No. 393 of 1993, Mrs. Kalavathi, has passed S.S.L.C. with P. D. C. and T. T. C, all in 1st Class and she passed the written test and Interview conducted by the Panchayat and was, in fact, appointed as a teacher temporarily on 2-9-1991 (Annexure I in W. A.) and states that the decision in the O. P. in regard to this vacancy will Jeoparadise her position. She also relies on (Annexure II) letter No.49311/H 1/91 dated 10-10-1992 Issued by the Secretary to Government, Local Administration Department and addressed to the Director of Panchayats, Thiruvananthapuram, in regard to a similar case in the Papplntssery Panchayat High School, wherein it was clarified by the Governments that "all the appointments of the employees including teachers and non-teaching staff to the schools under the management of the Panchapat should only (be made) through employment exchange and under no circumstance the appointments should continue by inter-management transfer and all Panchayats should be issued with strict instructions". This clarification of the Government as per Annexure II, it is argued, overrules Ext. P9 order of 1978.

Chapter X1V-A of the Kerala Education Rules deals with the conditions of service of Aided Teachers and rule 1 thereof deals with the mode and method of appointment of staff in the schools and enables the Managers of Private schools to appoint qualified persons in the school. It contains Note 1 dealing With eligibility of, non-teaching staff for "appointment" as teachers and Note 2 mentions the procedure for such "appointment" in case there are more eligible candidates than one in these non- teaching categories. Rule 1(2) deals with the age - limit for Appointment'' of teachers. Then comes rule 1(3) which reads:

Role 1(3): Subject to rule 51-A, the appointment of teacher in schools managed by Panchayats shall be made from among the qualified hands advised by the Employment Exchange.

Rule 1(4) deals with the subjects requirement, Rule 3 states that initial appointment shall be on probation. Rule 8 deals with the method of approval of appointments by the officers of the education department and rule 8(8) states that violation of these provisions shall be one of the grounds for withdrawal of recognition under rule 23 of chapter v and action under rule 7 of Chapter III against the Manager of the Educational Agency. Rule 8(1) requires that while forwarding the appointment order to the Educational Officer for approval, the Manager has send the details, particulars and,documents as may be required by the Director.

Under rule 8 (2), the Educational Officer may approve the appointment if it is in accordance with the provisions of the Act, the Rules and orders issued by the Government from time to time There is a right of appeal in regard to approval.

So, it is clear that rule 1 (3) requires that the mode of appointment of teachers in the Panchayat schools should be through the Employment Exchange and as per rule 8 if the condition is violated, penal action is also contemplated. Therefore, when the rules prescribe the procedure and also the penal consequence for violation of the procedure - here, we are referring to rule 1 (3)- it must be held that the procedure is mandatory and not directory.

We shall next come to rules 10 and 11. Rule 10 deals with "transfers" where more than one school is under the same. Educational Agency. In that event, the Educational Agency may transfer any teacher from one school to another and in deciding on these transfers, the principles followed In Governments schools shall be observed as far as possible. Then comes rule 11 on which the writ petitioner and the Panchayat have relied. It reads :

Rule 11 (1); A teacher serving in any school under one Educational Agency may be transferred to a school under another Educational Agency, with the previous approval of the District Educational Officer, provided the two Educational Agencies and the teacher agree in writing; and in such cases, the number and date of the order of the District Educational Officer containing the approval shall be quoted in the Last Pay Certificate.

Rule 13 states that teachers who are transferred as per these rules will continue to receive in the latter school, the pay and the scale of pay they were receiving in the former school, provided they are transferred to a post carrying the same scale of pay, and their rank In the new school will be fixed next below the junior-most teacher In that particular grade in that school, except in the case of transfer under rule 10 in which case the existing seniority will continue.

It is to be noted that under rule 10, there may be an appointment in one school and a transfer to another school under the same Educational Agency and after the transfer there is no need for a fresh appointment. But, in case the two schools are under different managements or Educational Agencies, though the transfer is permitted front one school under one management to another school under another management, the employer, on transfer being different, there is an implied need for an appointment order in the transferee school. That is why Rule-13 says that the transferee will take the lowest rank in the transferee school in that grade in the case of transfer under rule 11 as contrasted with a transfer under rule 10. In the case of rule 10 transfer'' the Educational Agency for the two schools being the same, the transfer does not affect the seniority. In the case of rule 11 transfer, the employer, on transfer, being different, there is a need for a fresh appointment order in the transferee school and the former seniority in the transferor school is not carried Into the transferee school.

These aspects make ft clear that though under rule 11, the word ''transfer'' is used, it is clear that it implies the need for a fresh ''appointment'' order on transfer to the school under the new Educational Agency.

A transfer under rule 11, from an aided school to a Panchayat school, if permissible, will accordingly also imply that there is need for an ''appointment'' by the Panchayat on transfer and it is at that juncture that role 1 (3) steps in and precludes an ''appointment'' order being given by the Panchayat in view of the procedure contained in rule 1 (3) which we have said, is mandatory. Therefore, as a matter of harmonious construction, it must be held that rule 11 which may apply to other transfers, does not and cannot apply to rule 1 (3) cases which requires appointment of teachers in Panchayat to be made only through the Employment Exchange.

There appears to be sound reason behind these rules. If rule 11 Is to be interpreted as permitting transfer from aided schools to Panchayat schools, the position would be that Managers of aided schools and Panchayats could collude and come to an understanding, while recruiting teachers who may or may not have registered with the Employment Exchange, and (he appointment in the said school will be only a passport to go to a Panchayat school on transfer. Thus, Rule 1 (3) can be totally frustrated and the vacancies arising in Panchayat schools could virtually become vacancies which Managers of aided schools could have an eye on and indirectly usurp. Having regard to the widespread malpractices by Managers while appointing teachers in aided schools, of which courts have taken judicial notice, it is not, therefore, permissible to treat aided schools as a recruiting ground for appointment in Panchayat schools, by the process of ''transfer as per Rule 11. We are, therefore In entire agreement with the view expressed by Krishnamoorthy, J, In Sreedbaran v. State of Kerala (1993 (1) KLT 334). So far as the clarification in Ext. P9 issued by the Government in 1978 is concerned, it cannot over-ride the rules. In any event, it must be deemed not in force in view of Annexure II clarification issued subsequently by the Government.

For the aforesaid reasons, the Writ Appeals are allowed and the judgment of the learned single Judge is set aside and the writ petition is dismissed. The resolution of the Panchajat for appointment of the writ petitioner goes and the appellant in WA 393 of 1993, Mrs. Kalavat by succeeds. No. costs.