IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23531 of 2008(B)
1. P.SATHEESHKUMAR, DRAWING TEACHER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE DEPUTY DIRECTOR OF EDUCATION,
4. THE DISTRICT EDUCATIONAL OFFICER,
5. DISTRICT EDUCATIONAL OFFICER,
6. THE MANAGER, PALORA HIGHER SECONDARY
For Petitioner :SRI.KALEESWARAM RAJ
For Respondent :SRI.P.SREEKUMAR
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :26/06/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.23531 of 2008-B
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Dated this the 26th day of June, 2009.
JUDGMENT
An interpretation of Rule 6(4) of Chapter XXIII K.E.R. and its
provisos arises for decision in this case.
2. The petitioner was appointed by the Manager of the Palora Higher
Secondary School, the 6th respondent herein as a Drawing Teacher with
effect from 5.6.2000. He is appointed in a vacancy which arose
consequent to the retirement of one Shri S. Reghuvaran, on 31.5.2000. In
the staff fixation order of the year 2000-2001, Ext.P1, the post was
abolished for want of periods. Ext.P1 is the said order.
3. Appeals and revisions filed by the Manager as well as by the
petitioner against the same were rejected by the Deputy Director of
Education, Director of Public Instruction and then by the Government as per
Exts.P2 to P4 orders. In fact, these were rejected based on Ext.P5 order
passed by the Government dated 28.10.1995. Substantially the view taken
is that as there is a Music Teacher in the school, no second post in the Art
Group, viz. Drawing Teacher could be sanctioned. And such sanction can
be accorded only if the periods exceed 25. By Ext.P6 judgment, this court
wpc 23531/2008 2
allowed the writ petition filed by the petitioner and the 6th respondent
Manager, wherein it was held that without amending the statutory rules,
Ext.P5 Government Order cannot be enforced. Accordingly, the District
Educational Officer was directed to reconsider the question of retention of
the post of Drawing Teacher in the school. The Writ Appeal filed by the
State against Ext.P6 judgment, was also dismissed as per Ext.P7 judgment.
4. Later on, successive orders were passed by the District
Educational Officer, Deputy Director of Education and Director of Public
Instruction as per Exts.P8 to P10 refusing to sanction the post. Finally, the
Government passed Ext.P11 order taking the view that as the rules have
been amended incorporating the provisions contained in Ext.P5 with
retrospective effect, no second post of Specialist Teacher in Art Group can
be sanctioned. The above orders are under challenge in this writ petition.
5. Learned counsel for the petitioner mainly raised two contentions.
Firstly it is contended that the inter-parties judgments rendered by this court
as per Exts.P6 and P7 are binding on the respondents and therefore the
orders culminating in Ext.P11 cannot be sustained. On the interpretation of
Rule 6(4) and the third proviso, it is contended by the learned counsel for
the petitioner that the proviso actually restricts the sanctioning of a second
post in Art Group, viz. the post of Music Teacher or a post in the Craft
wpc 23531/2008 3
Group and therefore as far as the post of Drawing Teacher is concerned,
merely because a Music Teacher is there in the school, the petitioner who
was appointed in a retirement vacancy of the Drawing Teacher, cannot be
denied the benefit of approval.
6. Heard Shri Kaleeswaram Raj, learned counsel for the petitioner,
Shri T.T. Muhamood, learned Govt. Pleader an Shri P. Sreekumar, learned
counsel for the 5th respondent Manager.
7. Learned counsel for the petitioner relied upon various judgments
of the Apex Court and this court in support of his arguments, viz. Dwarka
Prasad v. Dwarka Das Saraf {(1976) 1 SCC 128}, A.N. Sehgal and
others v. Raje ram Sheoram and others (AIR 1991 SC 1406) and
Director General, Council of Scientific and industrial Research v. Dr.
K. Narayanaswami and others (AIR 1995 SC 2318). He also relied upon
the principles delineated in the decisions of the Apex Court in Sunu v.
Union of India (2000 (2) KLT 747), Jacob v. Regional Transport
Officer (2002 (1) KLT 411), Peirce Leslie India Ltd. V. Secretary,
C.I.T.U. (2006 (1) KLT 869) Raghava Kurup v. Ananthakumari (2007
(1) KLT 1054 (SC)) = {(2007) 9 SCC 179}. Learned Govt. Pleader relied
upon an unreported judgment of this court in W.P.(C) No.4918/2004 and
wpc 23531/2008 4
connected case.
8. Before going into the rival contentions, the scope and ambit of the
rules have to be considered. Rule 6(4) and Rule 7 of chapter XXIII KER
are extracted below:
“6(4) Notwithstanding anything contained in rule 7, in High
School section of every complete High School there shall be:-
(a) One full time post of Physical Education Teacher and
one full time post of Drawing Teacher irrespective of the
number of periods of work per week in each of the concerned
subject.
(b) One full time post of Music Teacher irrespective of
the number of periods of work pr week for Music.
) One full time post of Sewing Teacher if there is no
craft Teacher provided that there are not less than 200 girls in
High School Classes.
Provided that the existing part time post of Physical
Education, Drawing, Music, Sewing or Needle-work shall not
be converted into full time posts unless the incumbents holding
the posts are fully qualified to hold the full time posts.
Provided further that no full-time post of specialist
teacher under any category mentioned above shall be
sanctioned, if the number of periods of work per week in the
converted subject is less than 5.
Provided also that if there is already a post of Drawing
Teacher under the Art Group the second post in the Art Group,
wpc 23531/2008 5
namely a post of Music Teacher or a post in the Craft Group
will be sanctioned only when the periods under each group
exceeds 25 periods per week.
7. (1) The post of a language Teacher or High School Assistant
– Language as the case may be or of a specialist Teacher or
Craft Teacher created for less than 15 periods of work per week
in the concerned language or subject shall be part-time.
Provided that no part time post shall be sanctioned if the
number of periods of work per week is less than four in the
case of Hindi, Urdu, Sanskrit and Arabic and less than 5 in
other cases.
Exception:- If there is only one post under any of the
undermentioned designations in the particular type or grade of
school noted there against, such post shall be a full time post
even though the number of periods of work is less than 15.
Provided that the teachers holding such posts were
appointed prior to the date of issue of these Rules and provided
further that they were treated as full time.”
9. Going by sub-rule 4(a), in High School section there shall be one
full time post of Drawing Teacher irrespective of the number of periods of
work per week. Similar is the case of one Music Teacher which is covered
by sub-rule 4(b). In the case of Sewing Teacher there shall be one full time
post if there is no Craft teacher provided there are not less than 200 girls in
High School classes.
wpc 23531/2008 6
10. There are three provisos to Rule 6. The first proviso concerns
conversion of the existing part-time post of Physical Education, Drawing,
Music, Sewing or Needle Work Teacher into full time post. It is stipulated
that unless the incumbents holding post are fully qualified to hold the full
time post, it shall not be converted. The second proviso is to the effect that
for sanctioning of such a full time post in these categories the number of
periods in the concerned subject per week shall be not less than five.
11. The third proviso is important for the purpose of this case. It is
clear from this provision that if there is already a post of Drawing Teacher
under the Art Group, the proviso permits the sanctioning of the second post
of Music Teacher in the Art Group or a post in the Craft Group only when
the periods under each group exceeds 25 per week.
12. The tricky question that arises here is whether, the argument of
the respondents that, this proviso applies in the case of a Drawing Teacher
also, when there is already a Music Teacher in the school and hence for
sanctioning such a post of Drawing Teacher in the Art Group a minimum
25 periods is required, is right.
13. The cardinal rule of interpretation is that the words of the statute
have to be understood in their natural, popular or ordinary sense, unless that
leads to some absurdity. We may have to refer to the enacting part of sub-
wpc 23531/2008 7
rule (4) to understand the scope and effect of the proviso to see whether it
controls the enacting part or it is only an exception. Going by sub-rule 4(a)
irrespective of the number of periods per week a full time post of Drawing
Teacher shall be there. When the enacting part is clear in terms that one full
time post shall be there “irrespective” of the “number” of periods, it cannot
be imagined that the proviso curtails the same by introducing a particular
number of periods for sanctioning a full time post of Drawing Teacher.
Plainly, the answer is clear in that the proviso cannot restrict the enacting
part of the rule. Going by sub-rules 4(a) and 4(b) of Rule 6, as regards the
post of Drawing, Music and Physical Education Teachers, they have to be
sanctioned irrespective of the number of periods in the concerned subject.
Of course, this is applicable only in the case of one full time post each.
Therefore, a High School is entitled to have one full time post each in these
three different subjects irrespective of the number of periods. The same
cannot be denied, by resort to the third proviso..
14. Then the scope and object of the three provisos have to be gone
into. One thing that is discernible is that mainly these provisions govern the
conversion of part-time post into a full time one and the second post in
specified subjects.. Going by the first proviso, a part-time post can be
converted into a full time one if the incumbent holding the post is fully
wpc 23531/2008 8
qualified. The second proviso only provides a further rider regarding the
conversion of the said part-time post into a full time one by specifying that
if the number of periods is less than five, no full time post of Specialist
teacher “under any category mentioned above” shall be sanctioned. The
words “under any category mentioned above shall be sanctioned” has clear
nexus with the first proviso alone and not in respect of sub clauses (a), (b)
and (c) of Rule 6(4).
15. Then we may have to come to the third proviso to understand its
scope. The important words therein provides a clue undoubtedly. It
envisages a case where “if there is already a post of Drawing Teacher under
the Art Group”, the second post in the Art Group, “namely, a post of Music
Teacher or a post in the Craft Group will be sanctioned” only when “the
periods under each group exceeds 25periods per week.” Therefore, what is
envisaged under the proviso is only sanctioning of a second post in the Art
Group, i.e Music Teacher or a post in the Craft Group. The proviso does
not refer to sanctioning of the second post of Drawing Teacher, when one
post of Music Teacher is sanctioned already as per the staff fixation. Great
emphasis is made in the third proviso to the post of Music Teacher which is
clear from the word “namely”. Therefore, the proviso was carving out an
exception as far as sanctioning of a second post of Music Teacher when
wpc 23531/2008 9
there is already a post of Drawing Teacher. The contrary position as
propounded by the respondents that when there is a sanctioned post of
Music Teacher, the post of Drawing Teacher cannot be sanctioned unless
there are 25 periods, is not envisaged by it. Therefore, we cannot add
anything in the proviso which is not intended by the rule making authority.
It is well settled that the court cannot add words to the provisions of a
statute or a piece of subordinate legislation.
16. Learned Govt. Pleader vehemently argued that the said position
as emerging from the the facts of this case is also covered by the proviso. It
is contended that when the Drawing Teacher retired from service, one post
of Music Teacher was already there. The filling up of the retirement
vacancy of Drawing Teacher will result in the filling up of the second post
in the Art Group, viz. the post of Drawing Teacher, since already there is a
Music Teacher. It is therefore submitted that the third proviso will curtail
the power to sanction the said post of Drawing Teacher if the periods under
each group is below 25.
17. Plainly, the said interpretation cannot be accepted for more
reasons than one as indicated already. Going by sub-rule 4(a), one full time
post of Drawing Teacher “irrespective of the number of periods of the
work” has to be there. Therefore, the said argument cannot be accepted.
wpc 23531/2008 10
Secondly, as already indicated, the third proviso concerns only sanctioning
of a specific post of Music Teacher or a post in the Craft Group. Therefore,
it is clear that the rule making authority was clearly bearing in mind the
effect of sub-rules 4(a) and 4(b) wherein one full time post of Drawing
Teacher and that of Music Teacher has to be there irrespective of the
number of periods.
18. Herein, going by the admitted facts, the vacancy arose due to
retirement of the existing Drawing Teacher which was a sanctioned post.
Therefore, irrespective of the number of periods, being in a High School, a
full time post of Drawing Teacher had to be sanctioned. In that view of the
matter, the staff fixation order, Ext.P1 refusing to sanction the post for want
of periods cannot be sustained.
19. I will now come to the rules of interpretation as regards a
proviso. In Dwarka Prasad’s case {(1976) 1 SCC 128), the scope of a
proviso was examined. V.R. Krishna Iyer, J. held thus in paragraphs 16 and
18:
“If on a fair construction, the principal provision is clear, a proviso
cannot expand or limit it. Sometimes a proviso is engrafted by an
apprehensive draftsman to remove possible doubts, to make matters
plain, to light up ambiguous edges.
A proviso must be limited to the subject-matter of the
wpc 23531/2008 11
enacting clause. It is a settled rule of construction that a
proviso must prima facie be read and considered in relation to
the principal matter to which it is a proviso. It is not a separate
or independent enactment. Words are dependent on the
principal enacting words, to which they are tacked as a proviso.
They cannot be read as divorced from their context.
A proviso ordinarily is but a proviso, the golden rule is to
read the whole section, inclusive of the proviso, in such manner
that they mutually throw light on each other and result in a
harmonious construction.”
In A.N. Sehgal’s case (AIR 1991 SC 1406), K. Ramaswamy, J. explained
the legal position as follows, in paragraphs 14 and 15:
“It is a cardinal rule of interpretation that a proviso to a
particular provision of a statute only embraces the field which
is covered by the main provision. It carves out an exception to
the main provision to which it has been enacted by the proviso
and to no other. The proper function of a proviso is to except
and deal with a case which would otherwise fall within the
general language of the main enactment, and its effect is to
confine to that case. Where the language of the main
enactment is explicit and unambiguous, the proviso can have
no repercussion on the interpretation of the main enactment, so
as to exclude from it, by implication what clearly falls within
its express terms. The scope of the proviso, therefore, is to
carve out an exception to the main enactment and it excludes
wpc 23531/2008 12
something which otherwise would have been within the the
rule. It has to operate in the same field and if the language of
the main enactment is clear, the proviso cannot be torn apart
from the main enactment nor can it be used to nullify by
implication what the enactment clearly says nor set at naught
the real object of the main enactment, unless the words of the
proviso are such that it is its necessary effect.”
In the subsequent decision in Sales Tax Commissioner’s case (AIR 1995
SC 865), it was held that the proviso has to be construed harmoniously with
the main provision. In Romesh Kumar Sharma v. Union of India and
others {(2006) 6 SCC 510}, Arijit Pasayat, J., after examining the relevant
principles held that “normally a proviso does not travel beyond the
provision to which it is a proviso. It carves out an exception to the main
provision to which it has been enacted as a proviso and no other.” (para 12)
20. It is therefore clear that a proviso cannot expand or limit the
contents of the principal provision. It cannot be separated from the main
provision. It is also well settled that the proviso cannot be used to nullify
what the enactment clearly says nor set at naught the real object of the
enactment.
21. If the above principles are borne in mind, there cannot be any
doubt regarding the scope of the third proviso to Rule 6(4) of Chapter XXIII
wpc 23531/2008 13
K.E.R. If the interpretation that is placed by the respondents is accepted,
then sub-rule 4(a) will be come otiose. Such a conclusion is not envisaged
by the third proviso. The correct interpretation of the third proviso will
lead to the only one conclusion as already indicated. It cannot have the
effect of treating the post of a Drawing Teacher which has become vacant
due to retirement as the second post in the Art Group in the light of an
existing post of Music Teacher warranting total number of periods
exceeding 25 for its sanction. Therefore, the view taken by the respondents
cannot be sustained.
22. Learned Govt. Pleader relied upon an unreported decision of this
court in Writ Petition No.4918/2004 in support of his argument. The facts
of the said case show that a drawing teacher was appointed in a retirement
vacancy. A Music Teacher was working in the school on protection and she
was available to be appointed against the post of Music Teacher. The
Director of Public Instruction cancelled the staff fixation orders for the
relevant year finding that the post of Drawing Teacher could not have been
sanctioned and it is the post of Music Teacher which should have been
sanctioned. After referring to the arguments on either side, this court was
of the view that when a protected teacher was working, it was not correct on
the part of the authorities to sanction a Staff Fixation Order without
wpc 23531/2008 14
providing for the post of Music Teacher, which is one of the posts under the
Arts Group and it is this anomaly which was corrected by the orders passed
by the authority concerned. Accordingly, the writ petition was dismissed.
The facts of the case and the question considered therein are totally
different. The interpretation of the third proviso to Rule 6(4) did not arise
for consideration therein.
23. The principles stated in the other decisions cited by the learned
counsel for the petitioner relates to the well known principles regarding
harmonious construction.
24. One more aspect to be mentioned herein is that sub-rule(4) starts
with a non-obstante clause, that the said provision is notwithstanding
anything contained in Rule 7. In fact, rule 7(1) provides that when the
periods are less than 15 per week, then the post sanctioned should be a part-
time one. This is applicable in the case of language teacher or a specialist
teacher or craft teacher. Going by the non-obstante clause the said
provision will not apply as far as sanctioning of full time posts of Drawing,
Music and Physical Education teachers are concerned in the High School.
This also strengthens the view that in High School section one full time post
of Drawing Teacher has to be sanctioned irrespective of the number of
periods of work per week as provided in sub-rule 4(a).
wpc 23531/2008 15
25. Therefore, the petitioner is entitled to succeed in the writ petition
and the same is allowed. Exts.P8 to P11 orders are quashed. There will be
a direction to the 4th respondent to grant approval of appointment of the
petitioner as Drawing Teacher on his appointment in the retirement vacancy
which arose on 31.5.2000. Appropriate orders shall be passed within a
period of six weeks from the date of receipt of a copy of this judgment. The
petitioner will be entitled for grant of all monetary benefits. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/