IMPORTANT POINTS
(1) Promotion – In absence of rules, recourse to recruitment based on executive orders could be taken.
(2) Interpretation of Statute – No word, no phrase and no expression used in a legislation should be excluded as surplusage.

JUDGMENT :

Dipankar Datta, J.

CIVIL APPEAL NO. 13422 of 2024

1. This appeal, by special leave, carried by the appellant¹[Dr. Sharmad] to this Court takes exception to the judgment and order dated 20th January, 2017 of a Division Bench of the High Court of Kerala at Ernakulam²[High Court] allowing a writ petition ³[OP (KAT) No.1360 of 2013] presented by the third respondent ⁴[Dr. Jyothish]. The High Court set aside the judgment and order dated 15th March, 2013 of the Kerala Administrative Tribunal at Thiruvananthapuram ⁵[Tribunal], which dismissed the original application ⁶[OA 476 of 2013] of Dr. Jyothish filed under Section 19 of the Administrative Tribunals Act, 1985 in limine.

2. A short question arises for decision in the appeal. It is, whether the High Court was justified in interfering with the order granting promotion to Dr. Sharmad to the post of Assistant Professor, Department of Neurosurgery, Medical Education Service, Health and Family Welfare Department, Kerala ⁷[the said post] on 06th February, 2013.

3. For the purpose of a decision on this appeal, it would be appropriate to note the respective profile of Dr. Sharmad and Dr. Jyothish. The same is indicated in a tabular form hereunder:

4. It is not in dispute that the vacancy on the said post of Associate Professor, which is the bone of contention in this appeal, arose on 13th November, 2012. For recruitment in the Medical Education Service under the Health and Family Welfare Department, Govt. of Kerala, rules under the proviso to clause (2) of Article 309 of the Constitution of India have not been framed. However, recruitment from time to time has been made in terms of Government Orders issued by the relevant department. At the time of occurrence of the vacancy on the said post of Assistant Professor, Government Order ⁸[G.O.] dated 07th April, 2008 was in force. It was issued in “supersession of all existing rules and orders in force regarding qualification and method of appointment of the faculties under Medical Education Services”. The said G.O. provided qualifications for appointment in Branch – I i.e. Administrative Cadre and Branch – II i.e. Teaching Cadre. The discipline of neurosurgery was included under Head ‘C’ of Branch - II i.e. medical (super specialties). The categories of faculties covered by the said G.O. were (i) Professor, (ii) Associate Professor, and (iii) Assistant Professor.

5. Insofar as Branch – I i.e. Administrative Cadre is concerned, the same bore two posts i.e. Director of Medical Education and Joint Director of Medical Education/Principals of Medical Colleges. Under the column experience, we find the requirement for appointment on the posts of Director of Medical Education and Joint Director of Medical Education/Principals to be common. The same reads as under:

“Minimum 10 years of Physical Teaching Experience in Government Medical Colleges (under Medical Education Department in Kerala) after acquiring postgraduate degree”.

(emphasis supplied)

6. For recruitment and appointment on the posts of Professor, Associate Professor and Assistant Professor, the educational qualifications appear to be the same. An aspirant must have the degree of M. Ch in Neurosurgery or D