IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN FRIDAY,THE1T DAY OF NOVEMBER201310TH KARTHIKA, 1935 W.P.(C).No.17893 of 2013 (J) -------------------------------------------------- PETITIONER:- --------------------- THE NAIR SERVICE SOCIETY, REPRESENTED BY ITS GENERAL SECRETARY N.S.S.HEAD OFFICE, PERUNNAI, CHANGANACHERRY. BY ADVS.SRI.P.GOPAL SRI.B.MURALEEDHARAN. RESPONDENTS:- ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3. THE DIRECTOR OF PUBLIC INSTRUCTION, OFFICE OF THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, THIRUVANANTHAPURAM - 695 014. R1 TO R3 BY SPECIAL GOVERNMENT PLEADER SRI.T.T.MUHAMOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON0111-2013, ALONG WITH W.P.(C).NO.21035/2013-D, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- WP(C).No.17893 of 2013 (J) -------------------------------------- APPENDIX PETITIONER'S EXHIBITS:- ------------------------------------- EXT.P1 TRUE COPY OF THE
ORDEROF THE GOVERNMENT G.O.(P)NO.104/2008/G.EDN DATED1006-2008. EXT.P2 TRUE COPY OF THE
JUDGMENTDATED84-2009 IN W.P.(C).NO.21067 OF2008 EXT.P3 TRUE COPY OF THE
ORDEROF THE GOVERNMENT DATED262-2011. EXT.P4 TRUE COPY OF THE
ORDEROF THE GOVERNMENT G.O.(P)NO.144/2013/G.EDN.DATED224-2013. RESPONDENTS' EXHIBITS:- ---------------------------------------- NIL. ( true copy ) K. Vinod Chandran, J ----------------------------------------------------------------- W.P.(C).Nos.17893 of 2013-J & 21035 of 2013-D ----------------------------------------------------------------- Dated this the 1st day of November, 2013
JUDGMENTSince common question arise for consideration in these writ petitions, they are heard and disposed of by this common judgment. I have heard learned Senior Counsel Sri.K.Ramakumar and learned counsel Sri.P.Gopal for the petitioners and Sri.T.T.Muhamood, learned Special Government Pleader, for the respondents. The facts and documents referred to are those in W.P.(C).No.17893 of 2013.
2. An order issued by the Government by Exhibit P4, purportedly with the intention of furthering the directions of the Hon'ble Supreme Court in State of Kerala v. Sneha Cheriyan [2013 (1) KLT755(SC)], is challenged in the above writ petitions. While the petitioners assail Exhibit P4 as not being in consonance with the judgment of the Supreme Court, the provisions of the Kerala Education Rules, 1959 (for brevity "KER") and being totally divorced from the issue dealt with and considered by the Supreme Court in Sneha Cheriyan; the learned Special Government Pleader seeks to sustain it on a complete reading of the Supreme Court judgment and the provisions of the KER. WP(C).Nos.17893/2013 & - 2 - 21035 of 2013 3. According to Sri.P.Gopal, learned counsel appearing for the petitioner, Exhibit P4 at best is in interpretation of the Supreme Court judgment which evidently, is a wrong interpretation. The petitioner is a Corporate Educational Agency under the Kerala Education Act, 1958 (hereinafter referred to as "the Act"), having established 102 aided schools within the State and has been functioning as a single unit for very many years. The controversy arose since Exhibit P4 made sub-rule (3) to Rule 7A applicable to vacancies arising in established posts; which fall vacant or are sanctioned in accordance with the staff strength during the course of an academic year. The obvious difficulty expressed by the petitioners is that they have 102 schools under them and the continuance of staff in each academic year is based on the staff fixation orders issued by the Department as per Rule 12 of Chapter XXIII KER. Rule 12 of Chapter XXIII KER mandates staff fixation orders to be passed on the basis of the student strength as on the 6th working day of an academic year. The staff fixation orders passed in a particular year are also declared to be applicable and in force till the 14th July of the next academic year; since it is contemplated by the Rule making authority itself that a staff fixation order based on the student strength on the 6th working day of the academic year could be finalised by the WP(C).Nos.17893/2013 & - 3 - 21035 of 2013 Department only by the 15th July of that academic year.
4. In the case of the petitioner, having around 102 schools, it is submitted that it is well-nigh impossible to anticipate vacancies which occur in the established posts and which would be sanctioned in the academic year at the commencement of the academic year itself. In fact, there was no dispute raised by the Government all these years and appointments were made after the staff fixation orders are received and the same were approved on regular scale of pay. It is also to be noticed that the learned counsels appearing for the petitioners assert that for the last three years no staff fixation orders have been passed by the Government. The petitioners in the other writ petition are Managers of individual schools in the aided sector.
5. For the smooth working of the school; in an academic year; when staff fixation order is received, especially in a Corporate Educational Agency, it has to first identify the excess hands in each of the schools who are to be accommodated in the established vacancies which arise in the other schools. After determination of the same, promotions as per Rule 43 of Chapter XIV-A KER have to be carried out and then Rule 51A claimants are to be appointed to the vacancies in the established posts; as is disclosed from the staff fixation orders. Only after this exercise, could the Educational Agency WP(C).Nos.17893/2013 & - 4 - 21035 of 2013 go ahead in filling up the vacancies to the established posts. The time required for such exercise needs no elaboration. In making such appointments to regular vacancies, earlier, there was no restriction and it was an accepted practise of appointing persons from the general merit at any time during the course of the academic year. In an established vacancy, such appointments were being approved in a regular scale of pay and the same was continued thereafter. The only restriction was in so far as drawal of vacation salary, for which Rule 49 of Chapter XIV-A would apply, and a teacher would be entitled to draw vacation salary only if the appointment has been made in such a manner as to keep the teacher in employment for a minimum of 8 months in the said academic year. Needless to say, in the next academic year the appointment would be continued, despite there being no vacation salary paid for the previous year and the teacher would be allowed to continue regularly in the scale of pay, subject, however, to the staff fixation orders issued in the subsequent year. However, with Exhibit P4 order; wherein the Government allegedly attempted to harmonize the directions issued by the Supreme Court, no appointment to an established vacancy could be made by any schools in the course of an academic year, more particularly a Corporate Educational Agency, like the petitioner, who has under it WP(C).Nos.17893/2013 & - 5 - 21035 of 2013 102 schools.
6. Sri.T.T.Muhamood, learned Special Government Pleader, however, would contend that this particular situation has been taken into consideration by the Rule making authority and has been noticed by the Hon'ble Supreme Court also. The learned Special Government Pleader would take me through Rule 12B of Chapter XXIII, which permits appointments to be made in anticipation of vacancies and the approval of such appointments from the date of appointment, even though the sanction may be later. This has been noticed, according to the learned Special Government Pleader, in Sneha Cheriyan (supra), which is evident by direction No.(v). Direction No.(v) entitles a Manager to appoint teachers on a regular basis from the re-opening date itself against regular established vacancies and such appointments need not wait till the completion of staff fixation as per the KER.
7. Per contra, the petitioners contend that it is one thing to say that Managers are entitled to make appointments in anticipation and quite another to do it on the practical working of the provisions of the KER as also the manner in which the Department functions. The petitioners contend that such anticipated vacancies can only be that of retirement; and resignation, death, etc. during the course of the WP(C).Nos.17893/2013 & - 6 - 21035 of 2013 academic year also creates vacancies in sanctioned posts; which obviously cannot be anticipated.
8. To resolve the issue, necessarily, this Court has to examine the genesis of the controversy; which is G.O.(P). No.169/04/G.Edn. dated 15.06.2004. The said Government Order sought to regulate the appointments under Rule 51A of Chapter XIV-A. As per the Rules that existed at that point of time, more specifically sub-rule (3) of Rule 7A of Chapter XIV-A, any appointment made in a vacancy for two months would give rise to a claim under Rule 51A, KER. This led to appointments being made to short term vacancies, thus creating a statutory claim under Rule 51A, which eventually the Government would be liable to compensate by way of salary, pension and so on and so forth. In this context, amendments were proposed to sub-rule (3) to Rule 7A and it was stipulated that the vacancies, the duration of which is less than one academic year, shall not be filled up. This was the general purport of the Government Order of 2004. Pursuant to the Government Order, amendments were also made to sub-rule (3) of Rule 7A and simultaneously amendments were made to Rule 51A, introducing a proviso which provided that a teacher who was relieved under Rule 49 or Rule 52 shall not be entitled to preference for appointment under this rule unless such WP(C).Nos.17893/2013 & - 7 - 21035 of 2013 teacher has a minimum continuous service of one academic year as on the date of relief.
9. Thenceforth, if a leave vacancy arose, say, after one day of the commencement of the academic year and an appointment was made immediately to the said leave vacancy, even then a claim under Rule 51A could not be raised by the concerned appointee, since he could not satisfy sub-rule (3) of Rule 7A and any such claim would be hit by the proviso to Rule 51A. The introduction of such a rule was not challenged and the same is being complied with by the aided schools functioning under the KER. Subsequently, Exhibit P1 order was brought in, purportedly to further alleviate the evils, sought to be remedied by the amendments made to Rule 7A and Rule 51A. In fact what the Government intended by Exhibit P1 was to make the restriction provided in sub-rule (3) of Rule 7A applicable to both leave vacancies and regular vacancies, as has been specifically noticed in Exhibit P1. The general purport of the directions also indicate that the Government thought it fit that the restriction of minimum continuous period of one academic year has to be made mandatory even for a regular appointment. Though the genesis is in the Government Order of 2004, the controversy arose with the introduction of Exhibit P1.
10. The offending directions in Exhibit P1, against which WP(C).Nos.17893/2013 & - 8 - 21035 of 2013 litigations were filed before this Court, are clauses (i) and (ii), which are extracted hereunder: "(i) If the period of appointments does not cover one academic year (i.e., from the re-opening day of the school after summer vacation to the closing day of summer vacation), the appointment shall be made only on daily wages. (ii) If the period of appointment commences after the beginning of the re-opening day but extends over the next academic year/years, the period up to the first vacation shall be approved on daily wages only. Re-appointment can be approved on regular basis, only if the duration of the period of re-appointment completes one academic year. If the period of re-appointment is also less than one academic year, that re-appointment will also be considered only on daily wages basis. In short, tractions of an academic year will not be considered for approval on regular basis". Hence, the amendment made to sub-rule (3) of Rule 7A that vacancies, the duration of which is less than one academic year, shall not be filled up; by introduction of Exhibit P1 was sought to be extended to regular appointments also. Any regular appointment made after the re-opening of the school would have to be continued up to the closing of the academic year on daily wage basis and the further WP(C).Nos.17893/2013 & - 9 - 21035 of 2013 re-appointment would also be approved on regular basis only if the duration of the re-appointment is for one completed academic year. Clause (iii) of Exhibit P1 provided that in the case of Rule 51A claimants and promotion of Rule 43 claimants approval will be granted on regular basis if the period of appointment is more than 2 months. Hence, the regular appointments to established vacancies were attempted to be bifurcated into two categories. One being those made under Rule 51A and Rule 43; wherein the stipulation of one completed year would not apply. All other regular appointments to established vacancies being controlled by sub-rule (3) of Rule 7A.
11. The challenge made to Exhibit P1 herein, in a batch of writ petitions, was considered by a Division Bench of this Court in Unni Narayanan v. State of Kerala [2009 (2) KLT604. The short facts of the writ petition, which were noticed by the Division Bench, were that a High School Assistant (English) proceeded on leave between 8.7.2008 and 7.7.2013 and in the consequent vacancy, one Sneha Cheriyan was appointed on 6.10.2008. Her appointment was to continue till the leave expires on 7.7.2013. When the appointment order was forwarded for approval to the District Educational Officer, approval was granted only on daily wages between 6.10.2008 and 31.3.2009. The Division Bench found that sub-rule (3) of Rule 7A WP(C).Nos.17893/2013 & - 10 - 21035 of 2013 speaks of vacancies, the duration of which is less than one academic year, and the term of appointment need not be co-terminus with the term of the vacancy. Since the restriction as per the sub-rule was only in filling up of vacancies, the duration of which is less than one academic year, the Division Bench held that it is only the duration of the vacancy that has to be looked into and not the duration of the appointment. Hence, the actual appointment or the continuance in the post in a leave vacancy pales into insignificance and as per the Division Bench decision if the duration of the vacancy is more than one academic year, then necessarily the appointment shall be approved in the time scale of pay, from the date of appointment. The Division Bench also specifically noticed that in the batch of writ petitions the vacancies arose as a result of the retirement or long term leave, which extended to more than one academic year. Hence there were two types of writ petitions, challenging Exhibit P1. Some of the petitioners were appointed in leave vacancies, for whom there would be a valid claim under Rule 51A KER, later on. The others were appointed to vacancies in the established post, which arose on the retirement or otherwise of incumbents in such posts. The Government Order of 2008 (produced herein as Exhibit P1), was held to be unenforceable without consequential amendments in the Rules and WP(C).Nos.17893/2013 & - 11 - 21035 of 2013 the writ petitions were allowed, setting aside the approval granted on daily wage basis and directing approval in the regular time scale of pay.
12. The State was before the Supreme Court in appeal, which appeals were disposed of by judgment reported in Sneha Cheriyan (supra). As was noticed in paragraph 2 of the judgment, what came up for decision before the Supreme Court in Sneha Cheriyan was whether a minimum continuous service in an academic year is a pre-requisite for raising a claim for re-appointment under Rule 51A of Chapter XIV-A KER, in view of sub-rule (3) of Rule 7A. Having noticed the contention of the respondent first, as also the relevant Government Orders and the amendments made to sub-rule (3) of Rule 7A, the Hon'ble Supreme Court noticed the contention of the State in paragraphs 12 and 13. The notification dated 14.06.2005 amending sub-rule (3) of Rule 7A, followed by the Government Order dated 10.06.2008, was projected by the State, as a measure brought in to avoid the unhealthy practice of making appointments to short spells under Rule 51A. It was the categoric submission of the State that there is no restriction in the matter of appointment of teachers in anticipated vacancies due to retirements, promotions resignations, etc., provided it is an established vacancy which could be anticipated WP(C).Nos.17893/2013 & - 12 - 21035 of 2013 well in advance.
13. The freedom of Managers to appoint teachers on regular basis from the start of the academic year against regular or established vacancies without waiting for staff fixation orders was also acknowledged. To that end, Rule 12B of Chapter XXIII was specifically pointed out, to contend that such anticipated appointments would also be approved, if the staff fixation orders subsequently issued, permit such vacancies or creation of posts. It was also specifically stated, as is noticed in paragraph 13, that permanency/promotional vacancy which were in existence on the beginning of the academic year though filled up during the academic year was also not covered by the impugned notification, as also the vacancies which arise due to death. The Supreme Court having considered the issue in toto, especially keeping in mind the mischief or evil sought to be remedied; being creation of multiple claimants under Rule 51A to anticipated vacancies, imposing huge financial commitment to the Government, upheld the notification. In paragraph 22 it was specifically held:- "Sub-rule (3) to R.7 does not restrict the right of the managers of various schools in making the regular appointments in the established vacancies, what it does is WP(C).Nos.17893/2013 & - 13 - 21035 of 2013 to prevent the misuse of that provision and to prevent the aided school managers in creating short-term vacancies and appointing several persons in those vacancies so as to make them claimants under R.51A. Looking to the mischief or evil sought to be remedied, we have to adopt a purposive construction of sub-r.(3) of R.7A read with proviso to R.51A of Chapter XIV-A of the K.E.R." 14. Adopting such a construction, it was also specified that the duration of vacancies, as is used in sub-rule (3) of Rule 7A, has to be read with the expression "academic year" in Rule 2A of Chapter VII KER, so as to remedy the mischief of making appointments in short term vacancies creating multiple claims under Rule 51A. For the sake of completeness a subsequent Government Order, G.O.(P) No.56/11/Gen.Edn. dated 26.02.2011 in clarification of the earlier Government Order, was also noticed, wherein the operative portion reads as follows: "1. Approval can be granted subject to the conditions under Rule 49 Chapter XIV-A of the K.E.R. for the appointments to the vacancies arising due to the existing teachers' retirement, resignation, death, long leave, etc., and to the approved vacancies arising and continuing beyond 31st March due to sanctioning of additional divisions. WP(C).Nos.17893/2013 & - 14 - 21035 of 2013 2. Appointments for a duration of less than 8 months in an academic year can be approved on daily wage basis and appointments of a duration of more than that are to be approved as regular (on pay scale)".
15. What was intended by the Government Order dated 26.02.2011 was to water down the earlier Government order dated 10.06.2008 (Exhibit P1), so as to take regular appointments out of the ambit of sub-rule (3) of Rule 7A. This was in consonance with the proclaimed intention of bringing in the amendments to sub-rule (3) of Rule 7A and Rule 51A, followed up by Government Order of 10.06.2008. This was also in consonance with the specific statements on the application of the Government Order dated 10.06.2008, made by the State, before the Hon'ble Supreme Court, noticed above.
16. The appeals filed by the State were allowed, with the following directions: "i) A teacher, who was relieved from service under Rr.49 and 53 of Chapter XIV-A of the K.E.R., is entitled to get preference for appointment under R.51A only if the teacher has a minimum prescribed continuous service in an academic year as on the date of relief. WP(C).Nos.17893/2013 & - 15 - 21035 of 2013 ii) The Manager of an aided school can, however, appoint teachers in vacancies occurred due to death, retirement, promotion, resignation, long-term leave, etc., provided they are established vacancies and the approval can be granted subject to the conditions under R.49 of Chapter XIV-A of the K.E.R. iii) Approval can also be granted to appointments made to the approved vacancies arising and continuing beyond 31st March due to sanctioning of additional divisions. iv) The Manager can make appointments in school even if the duration of which is less than one academic year but on daily wages basis and if the duration of vacancy exceeds one academic year that can be filled up on scale of pay basis. v) The Manager is free to appoint teachers on a regular basis from the re-opening date itself against regular established vacancies and need not wait for the appointments till completion of the staff fixation as per the K.E.R. vi) Teachers who have been appointed in the midst of the academic year and not completed the requisite minimum continuous service before vacation will not be entitled to get vacation salary". The judgment of the Supreme Court, no doubt, applies to all under Article 141 of the Constitution of India. WP(C).Nos.17893/2013 & - 16 - 21035 of 2013 17. It was at this juncture that Government brought in Exhibit P4, which again reverted back to the original stand of the Government, that Exhibit P1 applies to both leave vacancies and regular vacancies. In fact the Government Order of 26.02.2011, noticed by the Hon'ble Supreme Court, was also cancelled by Exhibit P4. Exhibit P4 listed out the directions of the Hon'ble Supreme Court, extracted above, and dilated on the reasoning behind the Supreme Court judgment and eventually said so in paragraph 6: "6. In the above circumstances, Government are pleased to reiterate the conditions stipulated in Government Order dated 10.6.2008 regarding approval of appointments of teachers. The clauses (vi) of para 26 of the Hon'ble Supreme Court judgment prescribes the conditions for vacation salary, i.e., teachers who have been appointed in the midst of the academic year and not completed the requisite minimum continuous service of one academic year before vacation will not be entitled to get vacation salary. Since clause (ii) and (vi) of the judgment is to be complementary to one another, in view of the judgment, Govt. are pleased to order that the admissibility of vacation salary as provided in Rule 49 Chapter XIV-A KER will be applicable only to those appointments made on regular basis as per sub rule (3) to Rule 7A read with proviso to section 51A Chapter XIV-A KER. Also the conditions for vacation salary will hereafter be applicable to WP(C).Nos.17893/2013 & - 17 - 21035 of 2013 those who are appointed both in permanent and non permanent vacancies. As such Government Order read as 4th paper above stands cancelled with immediate effect and has relevance only up to the date of this order".
18. The reiteration of the conditions stipulated in Government Order dated 10.06.2008 was in fact against the stand taken by the State before the Supreme Court; that the Government Order was introduced only and solely for the purpose of remedying the mischief in making appointments to short term vacancies, thus creating multiple claims under Rule 51A. Direction Nos.(ii) and (vi) of the Supreme Court were held to be complementary to one another, which, at best, is the understanding of the officer who passed the said order; to which this Court cannot subscribe. Direction No.(ii) issued by the Supreme Court stands by itself and relates to regular established vacancies and does not call for any harmonization with direction No. (vi). After finding direction Nos.(ii) and (vi) to be complementary to one another, it was also prescribed that the admissibility of the vacation salary "as provided in Rules 49 Chapter XIV-A KER will be applicable only to those appointments made on regular basis as per sub rule (3) to Rule 7A read with proviso to section 51A Chapter XIV-A KER". This is incongruous, as there cannot be any regular appointment under WP(C).Nos.17893/2013 & - 18 - 21035 of 2013 sub-rule (3) to Rule 7A read with proviso to Rule 51A; nor can a regular appointment be governed by the proviso to Rule 51A. Then again the order makes the conditions for vacation salary applicable to those appointed to permanent and non-permanent vacancy. To achieve this object, the Government Order read as 4th paper, being the Government Order dated 26.02.2011, noticed by the Supreme Court, also stood cancelled.
19. The State though proclaimed the Government Order to be applicable to both leave vacancies and regular vacancies, as is revealed in Exhibit P1, took a specific stand before the Supreme Court that it applies only to leave vacancies. The Government Order was sought to be sustained on the sole ground that it sought to remedy the mischief of short spell appointments, creating multiple Rule 51A claimants. A purposive construction was adopted by the Supreme Court specifically noticing the mischief that was sought to be remedied by the Government notification. The subsequent clarificatory Government Order of 2011 in tune with the submissions of the State, regarding vacancies in established posts, was also noticed and directions issued. Those directions also treated regular appointments made to vacancies in established posts as different and distinct. Hence, any vacancy in the regular establishment filled in the course of WP(C).Nos.17893/2013 & - 19 - 21035 of 2013 the academic year would have to be approved in the regular scales of pay with the sole rider of the entitlement of vacation salary being confined to only those teachers who have worked for more than 8 months, as provided in Rule 49 of Chapter XIV-A KER.
20. There cannot be any watering down of the directions issued by the Supreme Court by treating the directions issued with respect to different category of teachers as complementary to each other. The distinctiveness in appointments made to established posts and leave vacancies, is the background in which the Supreme Court issued the directions. The directions issued by the Supreme Court cannot be interpreted in such a manner as to attempt to put the clock back; in so far as applicability of Exhibit P1 Government Order is concerned. In Exhibit P4 order the Government does a complete volte-face from the submissions made before the Supreme Court. The Government cannot be resiling from such specific averments made before the Supreme Court and specifically noticed by the Supreme Court in its judgment.
21. The contention of the learned counsel for the petitioner that such a reading of the direction of the Supreme Court as has been attempted by Exhibit P4 would cause a complete breakdown of the system; going by the provisions of the Kerala Education Act and the WP(C).Nos.17893/2013 & - 20 - 21035 of 2013 Rules, has to be sustained.
22. Having held so, this Court cannot shut its eyes to the obvious conflict in the provisions of the KER. Sub-rule (3) of Rule 7A of Chapter XIV-A, KER specifically provides that vacancies, the duration of which is less than one academic year, shall not be filled up. Rule 12 of Chapter XXIII, on the contrary, provides for staff fixation orders of previous year to continue till the 15th of July of the next year and also provides for issuance of new staff fixation orders for the year having effect from the 15th July of that year, based on the student strength on the 6th working day from the re-opening of the school. As has been noticed earlier, anticipated vacancies form only one category of vacancies in the established posts and not all vacancies in established posts could be anticipated by the management. Learned counsel Sri.P.Gopal would urge that this is a typical situation in which the provisions ought to be harmonized by this Court to bring in practicable solution. To this end, the learned counsel also places two decisions of the Hon'ble Supreme Court, reported in Sultana Begum v. Prem Chand Jain [AIR1997SC1006 and Afjal Imam v. State of Bihar [(2011) 5 SCC729.
23. Sultana Begum (supra) was a case in which there was a conflict in Section 47 and Order 21, Rule 2 of the Code of Civil WP(C).Nos.17893/2013 & - 21 - 21035 of 2013 Procedure. While Section 47 provided that all questions relating to the execution, discharge or satisfaction of the decrees shall be determined by the executing Court; Order 21 Rule 2 provided for certification by the Court which passed the decree, of payment of money or adjustment of the decree. The Hon'ble Supreme Court found that the said provisions have to be harmonized to provide that adjustment of satisfaction of decree, whole or in part, could be taken note of by the executing Court only if it is recorded and/or certified by the Court passing the decree. Discussing the case law on the point, the following principles were culled out: "(1) It is the duty of the Courts to avoid a head on clash between two Sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them. (2) The provisions of one Section of a statute cannot be used to defeat the other provisions unless the Court, in spite of its efforts, finds it impossible to effect reconciliation between them. (3) It has to be borne in mind by all the Courts all the time that when there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, is possible, effect should be given to both. This is the essence of the rule of "harmonious construction". WP(C).Nos.17893/2013 & - 22 - 21035 of 2013 (4) The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction. (5) To harmonize is not to destroy any statutory provision or to render it otiose". In the present case also, the two inconsistent provisions needs to be interpreted in such a manner as to harmonize them so as to give effect to both the provisions, thus avoiding either of them being rendered a dead letter. It is to be noticed that this interpretation was adopted by the State itself before the Hon'ble Supreme Court in Sneha Cheriyan (supra).
24. The State sought to sustain Exhibit P1 before the Hon'ble Supreme Court on the ground that the Government Order was intended at effacing multiple Rule 51A claims by appointments made to short spells of leave. The Hon'ble Supreme Court also decided the matter in the background of the evils sought to be remedied and the directions extracted herein above were issued. There cannot be any mixing up of the directions.
25. This is an apt situation where contextual glasses are to be worn by the Court to look at the texture of the text. As has been laid WP(C).Nos.17893/2013 & - 23 - 21035 of 2013 down in RBI v. Peerless General Finance and Investment Co. Ltd. [(1987) 1 SCC424, "interpretation must depend on the text and the context ... One may well say if the text is the texture, context is what gives the colour... That interpretation is the best which makes the textual interpretation match the contextual". To understand the context, we have to go back to the genesis of the controversy, which is in the 2004 order, which culminated in the amendments made to sub-rule (3) of Rule 7A and the proviso introduced to Rule 51A. This was again to remedy the evil of short spell appointments and creation of multiple claims under Rule 51A. The regular appointments were never sought to be governed by the said amendments. When the Government brought in the 2008 Government Order (Exhibit P1), it referred to both "leave vacancies " and "regular vacancies". The application to regular vacancies was resiled from, before the Supreme Court, while seeking to sustain Exhibit P1 order on the basis of the objects sought to be achieved by the said order. In fact, even before the case came up before the Supreme Court, the Government had passed G.O.(P).No.56/11/Gen.Edn. dated 26.02.2011 clarifying Exhibit P1; which was specifically noticed by the Supreme Court. It is pertinent that the attempt is to put the clock back. By Exhibit P4, Government Order of 2011 was also cancelled. The Government itself WP(C).Nos.17893/2013 & - 24 - 21035 of 2013 has made the harmonized interpretation and clarified it by the Government Order of 2011 and the same is evident by the submission of the State before the Supreme Court as recorded in Sneha Cheriyan (supra). In view of the findings above, G.O.(P).No.144/2013/G.Edn. dated 22.04.2013, Exhibit P4 in W.P.(C).No.17893 of 2013 and Exhibit P3 in W.P.(C).No.21035 of 2013, stands set aside and the writ petitions are allowed. No costs. Sd/- K.Vinod Chandran Judge. vku/- ( true copy )