KRISHNA VARMA RAJA Vs. DIST EDUCATIONAL OFFICER KASARAGOD

JUDGEMENT

(1.) The question arising for consideration in this appeal is who as between respondents Nos. 3 and 4 was entitled to preference in the matter of reappointment to the post of a High School Assistant (Hindi) that arose in an aided High School managed by the appellant. Admittedly, both the competing claimants, namely respondents Nos. 3 and 4, have put in previous approved service in the school as Hindi Teacher and are therefore entitled to the benefit conferred by R.51A of Chap.14(A) of the Kerala Education Rules. The said rule as it originally stood did not contain any indication as to the principle to be adopted when two or more persons are found to have preferential claims for reappointment to a vacancy arising in the same school. Under those circumstances a Division Bench of this court held in Mary Oomman v. Manager, M.G.M. School, Kuruppampady, 1973 KLT 538 , that since the rule did not provide for any priority as between persons who are found to entitle to the benefit of its provisions there is no fetter on the right of the Manager to choose and appoint any one from amongst the persons who are found to have a right to preference under the said rule (R.51A.) This, position has now undergone a change by reason of the amendment made in R.51A as per a notification dated 4-7-1972 published in the Kerala gazette dated 18-7-1972. By that amendment the following Note was added in R.51A:-

(2.) Counsel appearing on behalf of the appellant contended before us that the Note added to R.51A as per the amendment introduced by the notification dated 4-7-1972 cannot control the ambit of the provision contained in the body of the rule and in as much as that provision has been interpreted by this court as not fettering the right of the Manager to freely pick and choose as between persons who had acquired a claim for preference under R.51A the action taken by the Manager in exercising the said right and in appointing the 4th respondent in the exercise of the said right of choice recognised by this court ought not to have been interfered with by the District Educational Officer or by the Regional Deputy Director. The same argument was advanced before us on behalf of the 4th respondent who vigorously supported the contentions advanced by the appellant. We do not, however, find it possible to accept the said contention. What was done by the notification dated 4-7-1972 was to amend R.51A in the exercise of the rule-making power that has been conferred by the Act on the State Government and the Note that has been added by that amendment now forms an integral part of R.51A. The provision contained in the Note has therefore as much vigour, vitality and force as the provision contained in the main body of the rule itself. We are no doubt aware of instances where executive instructions ie the shape of notes are often found incorporated in manuals underneath the statutory rules. Such instructions do not have any legislative sanction and cannot therefore control the scope or operation of the rule. But, where the rule itself has been amended by adding an explanatory note its scope has necessarily to be judged in the light of the clarification given by the rule-making body in the note which has been incorporated with obvious intent to clear up any possible ambiguity existing in the main body of the rule or to fill up any lacuna or gap. That such a purpose can be legitimately discharged by a note added to a rule is now placed beyond doubt by the following observation of the Supreme Court in Tara Singh v. State of Rajasthan, AIR 1975 SC 1487 at pp. 1490 and 1491:-

(3.) We accordingly confirm the judgment of the learned single Judge and dismiss this writ appeal. The parties will bear their respective costs.