Summary
The Supreme Court restored a promotion to Associate Professor (Neurosurgery) in Kerala's Medical Education Service, holding that G.O. dated 07.04.2008, which governs recruitment in the absence of Article 309 rules, requires five years' teaching experience as Assistant Professor but not experience gained after acquiring the postgraduate degree, and that Rules 10(ab) and 28 of the Kerala State and Subordinate Services Rules did not import that condition.
Issues
- Whether, for promotion to Associate Professor in the teaching cadre under G.O. dated 07.04.2008, the five years' physical teaching experience as Assistant Professor must be gained after acquiring the M.Ch. degree.
- Whether Rule 10(ab) of Part II of the Kerala State and Subordinate Services Rules, 1958, which counts experience after acquiring the basic qualification 'unless otherwise specified', applied to these promotions.
- Whether the Note to Rule 28(b)(1A) of Part II of those Rules could be invoked.
- Whether the High Court was right to set aside the Tribunal's in limine dismissal of the challenge to the promotion.
Provisions considered
- Rule 10(a)(i) and Rule 10(ab), Kerala State and Subordinate Services Rules, 1958 (Part II)'Recruitment Rules' in Rule 10(ab), read with Rule 10(a)(i), can include executive orders where Special Rules are absent; but Rule 10(ab) applies 'unless otherwise specified', and the deliberate distinction between the two branches in G.O. dated 07.04.2008, a special rule, is such a specification, so Rule 10(ab) did not apply. (¶¶ 15, 16, 17, 18, 19, 20)
- Note to Rule 28(b)(1A), Kerala State and Subordinate Services Rules, 1958 (Part II)Held to apply only when no qualified candidate is available for promotion on the relevant date; the appellant was eligible when the vacancy arose on 13.11.2012, so the High Court erred in relying on it. (¶ 23)
- Article 309, proviso, Constitution of IndiaNo rules had been framed under the proviso for the Medical Education Service; in their absence recruitment may be made under executive orders, here G.O. dated 07.04.2008. (¶¶ 4, 12, 13)
Held
- In the absence of rules under Article 309, recruitment may be governed by executive orders; G.O. dated 07.04.2008 was the operative recruitment order, and the Court decided the case on it without examining whether the pay-revision G.O. dated 14.12.2009 applied. (¶¶ 12, 13)
- On a plain and literal reading, G.O. dated 07.04.2008 does not require five years' physical teaching experience as Assistant Professor after acquiring the M.Ch. degree for promotion to Associate Professor. (¶ 14)
- Applying expressio unius est exclusio alterius, the words 'after acquiring postgraduate degree' were specifically included for the administrative cadre posts but omitted for the teaching cadre posts; the omission was deliberate and conscious, and post-qualification experience cannot be read into the teaching cadre criteria. (¶¶ 7, 22, 26)
- G.O. dated 07.04.2008, issued after Rule 10(ab) was inserted and superseding all earlier orders, is a special rule as against the general KS and SSR; the expression 'unless otherwise specified' in Rule 10(ab) must be given meaning, and the distinction drawn in the G.O. takes the promotion outside Rule 10(ab). (¶¶ 19, 20)
- Shesharao Jangluji Bagde v. Bhaiyya does not lay down that experience must always follow the qualification: it states the normal rule subject to context and notes that it may not apply to promotions; read as a whole, the G.O. stated expressly where post-qualification experience was required. Arun Kumar Agarwal v. State of Bihar was distinguishable because preference for a higher qualification arises only when other things are equal, and the third respondent lacked five years' experience as Assistant Professor when the vacancy arose. (¶¶ 25, 26, 27, 28)
- In the connected appeal on promotion from Senior Lecturer to Assistant Professor in Paediatrics, the High Court's view that Rule 10(ab) applied could not stand in light of these findings; Indian Airlines Ltd. v. S. Gopalakrishnan and the Kerala High Court decisions cited concerned differently worded rules and did not help. (¶¶ 33, 34, 36, 37, 38)
Result
Both appeals allowed. In Civil Appeal No. 13422 of 2024, the High Court's judgment set aside and the Tribunal's order restored, dismissing the third respondent's original application; parties to bear their own costs. In Civil Appeal No. 13423 of 2024, the High Court's judgment dated 04.04.2017 set aside and the original application dismissed.