The primary issue involves a dispute regarding Dr. Sharmad’spromotion to Associate Professor in the Department of Neurosurgery within the Medical Education Service, Health and Family Welfare Department, Kerala. Specifically, the court examines whether Dr. Sharmad met the required teaching experience criteria for the position, particularly the question of whether experience needed to be gained after acquiring the relevant postgraduate degree, based on interpretations of Government Orders and Kerala State and Subordinate Services Rules. Civil Appeal No. 13423 addresses a similar question of required teaching experience for promotion to Assistant Professor in Paediatrics, considering the same rules and government orders. Ultimately, the Supreme Court sets aside the High Court judgments in both appeals, restoring the decisions of the Tribunal.
(A) Kerala State and Subordinate Services Rules, 1958, Part II, Rules 10 and 28 – Service Law – Promotion – From an Assistant Professor to post of an Associate Professor – Executive order – Government Order [G.O.] dated 07th April, 2008; G.O. dated 14th December, 2009 – Eligibility qualification – Five years Physical Teaching experience as Assistant Professor – Whether the High Court was justified in interfering with the order granting promotion to appellant to the post of Assistant Professor, Department of Neurosurgery on 06th February, 2013 – Respondent claimed before the High Court that notwithstanding absence words “after acquiring postgraduate degree” under the column experience for Branch – II i.e. Teaching Cadre, the said requirement has to be read into it – Reference was made by him to Rules 10 and 28, Part II of the Rules, 1958 to contend that Dr. Sharmad- appellant did not possess the requisite experience to satisfy the mandatory eligibility qualifications and was illegally appointed on promotion to the said post of Associate Professor by the official respondents – High Court held that Dr. Sharmad lacked 5 years physical teaching experience as Assistant Professor after acquiring the degree of M. Ch. and, therefore, ought not to have been promoted ahead of others who did satisfy the eligibility criteria – Held that law is settled that in the absence of rules, recourse to recruitment based on executive orders could be taken – Even without examining whether G.O. dated 14th December, 2009 had any application to the promotional appointment in question, it would be just and proper to focus on the requirements of G.O. dated 07th April, 2008 – The contents under the column ‘experience’ in G.O. dated 07th April, 2008 when given a plain and literal reading does not lead to the conclusion that 5 years’ experience of physical teaching as an Assistant Professor after acquiring M. Ch. degree is one of the requisite qualifications – Rule 10 is entirely irrelevant and immaterial for appointment on promotion in the Administrative and Teaching Cadres of the Medical Education Services – The recruitment rules with which we are concerned, i.e., G.O. dated 07th April, 2008, was issued at a point of time when Rule 10(ab) had already found its way in the KS and SSR by an amendment. G.O. dated 07th April, 2008 was issued superseding all existing rules and orders in force on the method of appointment of the faculties under medical education service – The executive must, therefore, be deemed to be aware of what the KS and SSR, which are the general rules, provided – distinction in the qualifications for posts in Branch-I and Branch-II in G.O. dated 07th April, 2008 would constitute the specification which is excluded from the purview of Rule 10(ab) and such rule had / has no application to the promotional appointment in question – The Tribunal was quite right in its observation – As on the date of occurrence of vacancy i.e. 13th November, 2012, Dr. Sharmad had physical teaching experience of more than 5 years as Assistant Professor (he having joined on 11th January, 2007) – He being eligible, in terms of the recruitment rules, there was no occasion for invoking the said note – The High Court erred in placing reliance on Rule 28(b)(1A). Impugned judgment and order of the High Court held unsustainable and liable to be set aside and the judgment and order of the Tribunal restored, with the result that the original application of respondent before Tribunal shall stand dismissed.
(Para 12, 13, 20, 23 and 29)
(B) Kerala State and Subordinate Services Rules, 1958, Part II, Rules 10 and 28 – Service Law – Promotion – From an Assistant Professor to post of an Associate Professor – Executive order – Government Order [G.O.] dated 07th April, 2008; G.O. dated 14th December, 2009 – Eligibility qualification – Five years Physical Teaching experience as Assistant Professor – Interpretation of statutes – Maxim expressio unius est exclusio alterius – Its means whatever has not been included has impliedly been excluded would apply – In G.O. dated 07th April, 2008, the words “after acquiring postgraduate degree” are specifically included in the column for experience qua eligibility criteria for appointment on the posts of Director of Medical Education and Joint Director of Medical Education/Principals of Medical Colleges, i.e., posts in Branch – I i.e. Administrative Cadre – Held that the exclusion of the words “after acquiring postgraduate degree” is deliberate and conscious and the contentions advanced by respondent, to the contrary, do not commend acceptance.
(Para 22)
Dr. Sharmad V. State Of Kerala
Supreme Court: 2025 INSC 70: (DoJ 10-01-2025)
