JENANY J.R.versusS. RAJEEVAN & ORS.

                       [2010] 5 S.C.R. 694

A                          JENANY J.R.
                                V.
                      S. RAJEEVAN & ORS.
                 (Civil Appeal No. 4046 of 2010)
                           MAY 3, 2010
B
             [O.K. JAIN AND DEEPAK VERMA, JJ~]

        Service Law:

c        Kera/a Education Rules, 1959- Chapter XIV-Ar. 43 Note
    2 - Relevant date for possessing prescribed qualification -
    Wht#her is the date of occurrence of vacancy or the date on
    which appointment made - Held: The relevant date would be
    the date when the vacancy arises.
D      Appellant was appointed to the post of High School
  Assistant (Hindi) [H.S.A. (Hindi)]. Respondent No. 1 who
  was already working in the school on the post of Lower
  Grade Hindi Teacher, did not possess requisite
  qualification for the post on the date when the vacancy
E had arisen. He attained the qualification thereafter
  Respondent no.1 thereafter challenged the appointment
  of appellant, which was rejected by the authorities. He
  filed writ petition challenging the appointment and the
  orders of the authorities. Single Judge of High Court
F dismissed the writ petition. Writ appeal against the same
  was allowed by Division Bench of High Court. Hence the
  present appeal.

        Allowing the appeal, the Court
G       HELD: On the date when the vacancy arose,
    admittedly, respondent No.1 was not duly qualified to be
    appointed on the post in question, as contemplated
  · under Note 2 appended to Rule 43 of Kerala Education
    Rules, 1959. Note No. 2 is clear, unambiguous and leaves
H                              694
       JENANY J.R. v. S. RAJEEVAN & ORS.                  695


no amount of doubt that relevant date would be when the A
vacancy occurs. According to the impugned judgment
the relevant date would be the date when appellant had
actually joined. Division Bench of the High Court has
completely misread the said Note No. 2. Giving a true and
literal meaning to Note No. 2, the relevant date would be B
the date when the vacancy had arisen and not the date
when the appellant actually joined the service. [Paras 16,
18 and 19) [699-F-G; 700-B-D]
    Statute Law by Craies, referred to.
                                                                c
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
4046 of 2010.
    From the Judgment & Order dated 6.8.2008 of the High
Court of Kerala at Ernakulam in W.A. No. 2425 of 2005.
                                                                D
    Prashant P., Prachi Bajpai, T. Harish Kumar for the
Appellant.
      C.S. Rajan, A. Raghunath, V.K. Sidharthan, P.V. Dinesh
for the Respondents.
                                                                E
    The Judgment of the Court was delivered by
    OEEPAK 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 F
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:                                                    G
    "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) H
        696      SUPREME COURT REPORTS                   [2010] 5 S.C.R.


    A       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
    B
        required to be mentioned is as under:

             5. A vacancy to the post of High School Assistant, (in
        short, H.S.A.) (Hindi) arose o"n 1.7.2003, in the
        Guhanandapuram School run by Devaswom Committee. On
    C   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 sa_id
        post, since according to her, she possessed all the requisite
        qualifications on the relevant date. She was called for int§!Niew.
    D   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 for grant
    E   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
    F   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
    G   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
    H   joining duty, she was obstructed by respondent No.1 herein and
        JENANY J.R. v. S. RAJEEVAN & ORS.                   697
              [DEEPAK VERMA, J.)
other anti-social elements hired by him. She and her husband       A'\
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 case against many and respondent No.1
was arrayed as accused No.7 in the said case.                      B

     8. Aggrieved by the appointment of the appellant,
respondent No.1 filed W.P(C)No. 33575 of 2003 before the
High Court of Kera la. Vide order dated 27 .10.2003, High Court
disposed of the Writ Petition filed by respondent No.1 on the C
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 D
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              E
    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."          F

     10. Feeling aggrieved by the said order passed by 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 G
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 t-ime of occurrence of the vacancy."
                                                                   H
    698      SUPREME COURT REPORTS                 [201 O] 5 S.C.R.


A        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
8   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
c         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 of H.S.A (Hindi).
D
          (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
E         already considered the case of respondent No.1 and
          found that he was not eligible to be promoted, on the
          contrar¥, the appointment of appellant was approved.

          (v) The said order passed by District Education Officer
F         was further confirmed by State Government in revision
          preferred by respon_dent No.1.

        12. For the aforesaid reasons, writ petition filed by
    respondent No.1 came to be dismissed by learned Single
    Judge.
G
                                                              a
        13. Feeling aggrieved thereof, respondent No.1 filed 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 been set aside and
H   quashed and direction has been issued to appoint respor.dent
        JENANY J.R. v. S. RAJEEVAN & ORS.                     699
              [DEEPAK VERMA, J.]
No.1 as H.S.A (HindiY w.e.f. 16.9.2003, the date on which he          A
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     B
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         C
been preferred by the appellant, challenging the same on
variety of grqunds.

    15. As has been mentioned hereinabove, the only question
which is required to be considered by us in this appeal is            D
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).

      16. It is not disputed that respondent No.1 was not qualified
                                                                      E
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 ;:is per the communication sent to him by Secretary,             F
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       G
Single Judge in detail in para 5 of the judgment.

    17. We have accordingly heard learned counsel for parties.
Perused the record.
                                                                      H
    700        SUPREME COURT REPORTS                         [2010] 5 S.C.R.


A      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 requisite qualification for being
B 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,
c unambiguous and leaves no amount of doubt that relevant date
  would be wheh 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
D 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:-
E
          " ' ..... 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 relation of that
F         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."

G       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"

H         To reiterate, we may once again emphasise that after
          JENANY J.R. v. S. RAJEEVAN & ORS.                  701
                [DEEPAK VERMA, J.]
careful scanning of Note (2), the obvious is the date when the      A
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      B
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    C
  Bench cannot be sustained. The same 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.
                                                                    D
     24. The appeal therefore, is allowed. Parties to bear their
 respective costs.

 K.K.T.                                        Appeal allowed.