Service Law – Promotional appointment – Post-qualification experience, when not required – Vacancy for the post of Associate Professor arose on 13.11.2012 – Appellant had acquired M.Ch degree on 31.07.2008 – Completed 5 years as Assistant Professor on 30.07.2013 (was promoted as Assistant Professor on 11.01.2007) – In the meanwhile, he was Promoted as Associate Professor on 06.02.2013 – Challenged by respondent no.3, application dismissed by Kerala Administrative Tribunal – High Court set aside the promotion of the appellant to the post of Associate Professor holding that he lacked 5 years physical teaching experience as Assistant Professor after acquiring the degree of M.Ch.– Sustainability:
Held: Not sustainable, set aside – A plain and literal reading of the G.O. dated 07.04.2008, the executive order governing the recruitment in question does not show that 5 years’ experience of physical teaching as an Assistant Professor after acquiring M.Ch. degree was one of the requisite qualifications – The G.O., read as a whole, evinces the view of the Government that where the experience had to be gained posterior to the acquisition of qualification, it had directly stated so – Government did not demand such postqualification experience for the posts under consideration – Although, normally, experience gained after acquiring a particular qualification could justifiably be insisted upon by the employer, there could be exceptions and the present case is one such exception – On the date of occurrence of vacancy i.e. 13.11.2012, the appellant had physical teaching experience of more than 5 years as Assistant Professor (having joined on 11.01.2007) and thus was eligible, in terms of the recruitment rules i.e., G.O. dated 07.04.2008 – High Court erred in placing reliance on r.28(b)(1A) – Judgment of the Tribunal restored – Impugned judgment in Civil Appeal No. 13423 of 2024 also set aside – Kerala State and Subordinate Services Rules, 1958 – Note to r.28(b)(1A). [Paras 14, 26, 23, 29] Kerala State and Subordinate Services Rules, 1958 – Part – II, Rule 10(ab), Rule 10(a)(i) – Promotional appointments – Whether Rule 10(ab) has application to the promotional appointment in question – ‘Recruitment Rules’ if not defined, can mean executive Government orders where Special Rules are absent:
Held: ‘Recruitment Rules’ is used in Rule 10(ab) as an alternative to Special Rules, without the same being defined – Without ‘Recruitment Rules’ being defined, it can take colour from Rule 10(a)(i) and mean and include executive orders of the Government where Special Rules are absent – Even if the 1958 Rules were applicable, nothing turns on it because Rule 10(ab) itself consciously uses the expression “unless otherwise specified” – 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, i.e., G.O. dated 07.04.2008 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 1958 Rules, which are the general rules, provided– Notwithstanding the same, G.O. dated 07.04.2008 was issued governing recruitment in two branches i.e. Administrative and Teaching Cadres – G.O. dated 07.04.2008 is, thus, a special rule as distinguished from a general rule like the 1958 Rules – Thus, the distinction in the qualifications for posts in Branch-I and Branch-II in G.O. dated 07.04.2008 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. [Paras 17-20]
Maxims – “expressio unius est exclusio alterius” – Whatever has not been included has impliedly been excluded – Applicability – Exclusion of the words “after acquiring postgraduate degree”, if was deliberate in recruitment rules, i.e., G.O. dated 07.04.2008 for appointments on promotion to posts in Branch II i.e. Teaching Cadre:
Held: Yes – In G.O. dated 07.04.2008, the words “after acquiring postgraduate degree” were 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 – If, indeed, it were the intention of the executive that aspirants for the post of Associate Professor were also required to have physical teaching experience in the feeder posts for specified number of years “after acquiring postgraduate degree”, it defies reason as to why the same qualification was not included for appointments on promotion to posts borne in Branch II i.e. Teaching Cadre but included for the posts borne in Branch I i.e. Administrative Cadre. [Para 22]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.