1. Promotion dispute in Medical Education Service — eligibility for Associate Professor — requirement of physical teaching experience post-acquisition of super-specialty degree. (Para 1 , 2 , 4 , 6 )
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2025 Supreme(SC) 83
SUPREME COURT OF INDIA
Dipankar Datta, Prashant Kumar Mishra, JJ.
Dr. Sharmad – Appellant
Versus
State of Kerala And Others – Respondents
Civil Appeal No. 13422 of 2024 [Arising out of SLP(C) No. 18592 of 2017]
With
Dr. Sheela T.A. And Others – Appellants
Versus
State Of Kerala And Others – Respondents
Civil Appeal No. 13423 of 2024 [Arising out of SLP(C) No. 24851 of 2019]
Decided On : 10-01-2025
Important Points
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.
(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.
Subject
Service Law - Promotion and Eligibility
Act Referred
Headnote
(A) Service Law – Promotion – In absence of rules, recourse to recruitment based on executive orders could be taken – Although, normally, experience gained after acquiring a particular qualification could justifiably be insisted upon by employer, there could be exceptions and present case is one such exception – Intention of rule framer has to be assessed on both parameters i.e. words used and that of necessary implication – Impugned judgment and order of High Court is unsustainable – Same is set aside and judgment and order of Tribunal restored. (Paras 13, 26 and 29)
(B) Interpretation of Statute – No word, no phrase and no expression used in a legislation should be excluded as surplusage, while courts embark on a course of interpretation. (Para 20)
Facts of the case:
Short question arises for decision in appeal is, whether High Court was justified in interfering with order granting promotion to appellant to post of Assistant Professor, Department of Neurosurgery, Medical Education Service, Health and Family Welfare Department, Kerala, on 06th February, 2013.
Findings of Court:
Judgment and order under challenge dated 4th April, 2017 cannot be sustained in law. Same is set aside with result that original application of Dr. R. Jayaprakash shall stand dismissed.
Result : Civil Appeal allowed.
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) : Mr. V. Giri, Sr. Adv. Mr. K. Rajeev, AOR Mr. Shinoj K.narayanan, Adv. Mr. Bijo M Joy, Adv. Mr. Pranav Krishna, Adv. Ms. Niveditha R Menon, Adv. Mr. Aditya Verma, Adv. Mr. Tarun Kumar, Adv.
For the Respondent(s): Mr. C. K. Sasi, AOR Ms. Meena K Poulose, Adv. Mr. V. Chitambaresh, Sr. Adv. Mr. M. Gireesh Kumar, Adv. Mr. Ankur S. Kulkarni, AOR Ms. Puspita Basak, Adv. Mr. Tarun, Adv. Mr. Anup Kumar, AOR Mrs. Shruti Singh, Adv.
For the Appellant(s) : Mr. V. Giri, Sr. Adv. Mr. K. Rajeev, AOR Mr. Shinoj K.narayanan, Adv. Mr. Bijo M Joy, Adv. Mr. Pranav Krishna, Adv. Ms. Niveditha R Menon, Adv. Mr. Aditya Verma, Adv. Mr. Tarun Kumar, Adv.
For the Respondent(s): Mr. C. K. Sasi, AOR Ms. Meena K Poulose, Adv. Mr. V. Chitambaresh, Sr. Adv. Mr. M. Gireesh Kumar, Adv. Mr. Ankur S. Kulkarni, AOR Ms. Puspita Basak, Adv. Mr. Tarun, Adv. Mr. Anup Kumar, AOR Mrs. Shruti Singh, Adv.
Table of Contents
2. Whether experience requirements in executive orders must be read as post-qualification experience by applying general service rules or by interpreting the specific order. (Para 8 , 9 )
3. Contrast between administrative and teaching cadre requirements in the executive order indicates that post-qualification experience was deliberately not required for teaching posts. (Para 7 , 14 , 20 , 22 )
4. Special recruitment orders specifying post-qualification experience for some cadres but omitting it for others override general service rules via the principle of deliberate exclusion. (Para 20 , 22 , 26 )
5. Appeals allowed — High Court judgments set aside — Tribunal orders restored — original applications dismissed. (Para 29 , 30 , 38 , 39 )
6. Does a general rule requiring experience after basic qualification apply if a special executive order is silent on the timing of experience?
No, if the special order specifies such requirements for some posts but not others, the omission is deemed deliberate. The phrase unless otherwise specified in general rules allows special orders to deviate from the post-qualification experience requirement. (Para 19 , 20 )
7. How does the maxim expressio unius est exclusio alterius apply to the interpretation of qualification criteria in different service cadres?
If a specific qualification, such as post-postgraduate experience, is explicitly required for one cadre but omitted for another within the same executive order, the omission implies that the qualification is not a requirement for the latter cadre. (Para 22 )
8. Is experience for promotional appointments necessarily required to be posterior to the acquisition of minimum qualifications?
Not necessarily. While experience is normally taken as posterior to qualification, in promotional appointments, the interpretation depends on the relevant provisions and the particular type of experience required by the rules. (Para 25 , 26 )
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:
| Dr. Sharmad | Dr. Jyothish |
| Appointed as Lecturer (with MBBS) on 22.10.1999. | Appointed as Lecturer, with M. Ch degree, on 09.03.2005. |
| Promoted as Assistant Professor on 11.01.2007. | Promoted as Assistant Professor on 22.07.2008. |
| Acquired M. Ch degree on 31.07.2008. | -------- |
| Completed 5 years on the post of Assistant Professor, after acquisition of M. Ch degree, on 30.07.2013. | Completed 5 years on the post of Assistant Professor on 21.07.2013. |
| Promoted as Associate Professor on 06.02.2013. | Promoted as Associate Professor in May, 2023. |
| Promoted as Professor on 09.05.2023. | Promoted as Professor on 11.11.2024. |
| To retire on 31.05.2029. | To retire on 30.04.2031. |
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
