Supreme Court of India
DR. SHARMADversusSTATE OF KERALA AND OTHERS
- Citation
- 2025 INSC 70
- Decided
- 9 January 2025
- Disposal
- Appeal(s) allowed
- Bench
- DIPANKAR DATTA
Holding
The promotion of Dr. Sharmad to Associate Professor was valid because the 2008 Government Order did not mandate post‑qualification teaching experience for teaching cadre promotions, and Rule 10(ab) was inapplicable.
Summary
Dr. Sharmad, an Assistant Professor of Neurosurgery in Kerala's Medical Education Service, was promoted to Associate Professor on 6 February 2013. The promotion was challenged by a third respondent who argued that the promotion required five years of physical teaching experience as an Assistant Professor after obtaining an M.Ch. degree, a requirement the High Court accepted and set aside the promotion. The Supreme Court examined the governing Government Order dated 7 April 2008, which specified experience requirements for teaching and administrative cadres, and found that it did not require post‑qualification experience for teaching posts. The Court held that Rule 10(ab) of the Kerala State and Subordinate Services Rules was inapplicable because the 2008 Order was a special rule superseding earlier rules, and the express exclusion of the phrase “after acquiring postgraduate degree” indicated no such requirement. Consequently, the High Court’s judgment was unsustainable, the Tribunal’s decision was restored, and the promotion stood. Both Civil Appeals (Nos. 13422 and 13423 of 2024) were allowed, dismissing the challenges.
Issues considered
- Whether the High Court was justified in setting aside Dr. Sharmad's promotion to Associate Professor on the ground of lacking five years of post‑M.Ch. teaching experience.
- Whether Rule 10(ab) of the Kerala State and Subordinate Services Rules, 1958 applies to promotional appointments in the Medical Education Service.
- Whether the Government Order dated 7 April 2008 requires post‑qualification teaching experience for posts in the teaching cadre (Branch‑II).
- Whether the phrase “after acquiring postgraduate degree” in the recruitment rules is a mandatory qualification for Associate Professor appointments.
Legislation cited
Subjects
Promotional appointmentPost-qualification experienceAssociate ProfessorAssistant ProfessorDepartment of NeurosurgeryMedical Education ServiceHealth and Family Welfare DepartmentKerala5 years physical teaching experience as Assistant ProfessorDegree of M.Ch.Executive orderRequisite qualificationsKerala State and Subordinate Services RulesAdministrative TribunalExperience posterior to the acquisition of qualificationAdministrative and Teaching CadresRecruitment rulesGeneral rulesSpecial rulesSpecified number of yearsAfter acquiring postgraduate degreeEligibility criteriaFeeder postsExpressio unius est exclusio alteriusMaximsLecturerSenior LecturerPaediatricsPost Graduate qualification
Judgment
[2025] 1 S.C.R. 414 : 2025 INSC 70
Dr. Sharmad
v.
State of Kerala and Others
(Civil Appeal No. 13422 of 2024)
10 January 2025
[Dipankar Datta* and Prashant Kumar Mishra, JJ.]
Issue for Consideration
Whether the High Court was justified in interfering with the order
granting promotion to the appellant to the post of Associate
Professor, Department of Neurosurgery, Medical Education Service,
Health and Family Welfare Department, Kerala on 06.02.2013.
Headnotes†
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 post-
qualification 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
* Author
[2025] 1 S.C.R. 415
Dr. Sharmad v. State of Kerala and Others
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 –
416 [2025] 1 S.C.R.
Digital Supreme Court Reports
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]
Case Law Cited
Shesharao Jangluji Bagde v. Bhaiyya s/o Govindrao Karale,
1990 INSC 288 : [1990] Supp. 1 SCR 521 : (1991) Supp. 1 SCC
367 – referred to.
Arun Kumar Agarwal (Dr.) v. State of Bihar, 1991 INSC 115 :
[1991] 2 SCR 491 : (1991) Supp. 1 SCC 287; Indian Airlines Ltd.
v. S Gopalakrishnan, 2000 INSC 590 : [2000] Supp. 5 SCR 548 :
(2001) 2 SCC 362; Sirajudheen v. Public Service Commission,
1999 (1) LLN 408; Rabi v. State of Kerala, 2007 SCC OnLine
Ker 418; A. Basheer v. Saiful Islam A., 2014 SCC OnLine Ker
18469 – distinguished.
List of Acts
Kerala State and Subordinate Services Rules, 1958; Administrative
Tribunals Act, 1985.
List of Keywords
Promotional appointment; Post-qualification experience; Associate
Professor; Assistant Professor; Department of Neurosurgery;
Medical Education Service, Health and Family Welfare Department,
Kerala; 5 years physical teaching experience as Assistant Professor;
Degree of M.Ch.; Executive order; Requisite qualifications; Kerala
[2025] 1 S.C.R. 417
Dr. Sharmad v. State of Kerala and Others
Administrative Tribunal; Experience posterior to the acquisition
of qualification; Medical education service; Administrative and
Teaching Cadres, Branch-I and Branch-II; Recruitment rules; General
rules; Special rules; Specified number of years; “After acquiring
postgraduate degree”; Experience; Eligibility criteria; Feeder posts;
“Expressio unius est exclusio alterius”; Maxims; Lecturer; Senior
Lecturer; Paediatrics; Post Graduate (PG) qualification.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13422 of 2024
From the Judgment and Order dated 20.01.2017 of the High Court
of Kerala at Ernakulam in O.P. No. 1360 of 2013
With
Civil Appeal No. 13423 of 2024
Appearances for Parties
V Giri, Sr. Adv., K. Rajeev, Rahul Narang, Ms. Niveditha R Menon,
Pranav Krishna, Aditya Verma, Tarun Kumar, Advs. for the Appellant.
V Chitambaresh, Sr. Adv., C. K. Sasi, Ms. Meena K Poulose,
M Gireesh Kumar, Ankur S. Kulkarni, Ms. Puspita Basak, Tarun,
Advs. for the Respondents.
Romy Chacko, Sr. Adv., Anup Kumar, Ashwin Romy, Mrs. Neha
Jaiswal, Ms. Shruti Singh, Ms. Pragya Chaoudhary, Akshat Singh,
Advs. for the Intervenor.
Judgment / Order of the Supreme Court
Judgment
Dipankar Datta, J.
CIVIL APPEAL NO. 13422 of 2024
1. This appeal, by special leave, carried by the appellant1 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 allowing
1 Dr. Sharmad
2 High Court
418 [2025] 1 S.C.R.
Digital Supreme Court Reports
a writ petition3 presented by the third respondent4. The High Court set
aside the judgment and order dated 15th March, 2013 of the Kerala
Administrative Tribunal at Thiruvananthapuram5, which dismissed
the original application6 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, Kerala7 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 Appointed as Lecturer, with
(with MBBS) on 22.10.1999. M. Ch degree, on 09.03.2005.
Promoted as Assistant Professor Promoted as Assistant
on 11.01.2007. Professor on 22.07.2008.
Acquired M. Ch degree on -------
31.07.2008.
Completed 5 years on the post Completed 5 years on the
of Assistant Professor, after post of Assistant Professor on
acquisition of M. Ch degree, on 21.07.2013.
30.07.2013.
Promoted as Associate Promoted as Associate
Professor on 06.02.2013. Professor in May, 2023.
Promoted as Professor on Promoted as Professor on
09.05.2023. 11.11.2024.
To retire on 31.05.2029. To retire on 30.04.2031.
3 OP (KAT) No.1360 of 2013
4 Dr. Jyothish
5 Tribunal
6 OA 476 of 2013
7 the said post
[2025] 1 S.C.R. 419
Dr. Sharmad v. State of Kerala and Others
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 Order8
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 DNB (Neurosurgery). The experience criteria
required for the said three posts, however, vary. The same are set
out hereunder:
8 G.O.
420 [2025] 1 S.C.R.
Digital Supreme Court Reports
Associate
Professor Assistant Professor
Professor
One year Physical Five years Physical Three years Physical
Teaching experience Teaching experience Teaching experience
as Associate Professor. as Assistant Professor. as Senior Lecturer/
Lecturer.
7. If the experience criteria required for appointment on the posts
under Branch - I i.e. – Administrative Cadre are juxtaposed with the
experience criteria required for appointment on the teaching posts
of Professor/Associate Professor/Assistant Professor, what stands
out is that in case of posts in the teaching cadre, the words “after
acquiring postgraduate degree” are conspicuous by its absence
under the column ‘experience’.
8. Dr. Jyothish claimed before the High Court that notwithstanding
absence of such words 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 Kerala State
and Subordinate Services Rules, 19589 to contend that Dr. Sharmad
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. On the
contrary, Dr. Sharmad claimed, in light of the criteria for experience
for appointment in Branch - I i.e. Administrative Cadre, that it is not
the requirement of G.O. dated 07th April, 2008 that an aspirant ought
to have 5 (five) years physical teaching experience as an Assistant
Professor (regular) after acquiring postgraduate degree. In such view
of the matter, the official respondents did not commit any illegality in
promoting Dr. Sharmad as an Associate Professor even before efflux
of 5 (five) years since acquisition of the degree of M. Ch.
9. The official respondents sought to defend the promotion of
Dr. Sharmad to the said post of Associate Professor by referring to
G.O. dated 14th December, 2009 issued by the Health and Family
Welfare Department on the subject of pay and allowances, inter alia,
of the members of the Kerala Medical Education Service. According
to them, G.O. dated 14th December, 2009 abrogated G.O dated 07th
9 KS and SSR
[2025] 1 S.C.R. 421
Dr. Sharmad v. State of Kerala and Others
April, 2008 and in terms of the former, Dr. Sharmad did satisfy the
eligibility criteria for promotion to the said post of Associate Professor.
While providing for revised scale of pay for Associate Professors,
G.O. dated 14th December, 2009 laid down as follows:
1.5 Revised scale of Associate Professors
a) Medical & Dental
i) ***
ii) Incumbent Assistant Professors with five years
(for teachers with Super specialty degree in the
concerned discipline this will be two years after
acquiring Superspeciality degree) teaching experience
as Assistant Professor in the current pay scale of
Rs. 12000-18300 including Time Bound Higher Grade
service and a total service of 8 years after acquiring
Post Graduate Degree (5 years for Superspeciality
degree holders) in all grades put together will be
promoted and placed in the pay band of Rs.37,400-
67,000 with Academic Grade Pay of Rs.9,000 and
shall be redesignated as Associate Professors;
however they will have to publish two Research
papers within a period of two years promotion in
Peer Indexed/National Journals as per MCI/DCI
regulations; however for teachers of Dental Colleges,
as per the Dental Council of India regulations, only
Post PG teaching experience will be reckoned as
eligible service for placement as Associate Professor.
iii) Incumbent Assistant Professors who have not
completed 5 years teaching service (or having less
than 2 years service for superspeciality degree
holders) in the cadre of Assistant Professor (including
TBCP/CAP grade) as on 01.01.2006 will be placed in
the appropriate stage in the pay band of Rs.15,600-
39,100 and Academic Grade Pay of Rs.8,000/-,
till they complete the required period of 5/2 years
respectively. Thereafter on completion of 5 years
service as Assistant Professor, including Time Bound
Cadre Promotion grade in pre-revised scale (2 years
422 [2025] 1 S.C.R.
Digital Supreme Court Reports
for superspeciality degree holders) and a total service
of 8 years after acquiring Post graduate Degree
(5 years for superspeciality degree holders) in all
grades put together, they will be promoted and placed
in the appropriate stage in the Pay band of Rs.37,400-
67,000 with Academic Grade pay of Rs.9,000/- and
redesignated as Associate Professor, subject to
fulfilling academic performance requirements to be
specified. However they will have to publish two
Research papers within a period of two years in Peer
Indexed/National Journals as per MOI regulations;
provided that for Dental College teachers, only post
PG teaching experience will be reckoned as per
Dental Council of India norms for promotion.”
10. Though the claim of Dr. Jyothish failed before the Tribunal, as
noticed above, he succeeded before the High Court which went on
to hold that reliance placed by the official respondents on G.O. dated
14th December, 2009 was absolutely misplaced. The High Court further
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. Arguments of Dr. Jyotish relying on
Rules 10 and 28 of the KS and SSR were accepted. Accordingly, the
High Court set aside the appointment on promotion of Dr. Sharmad
to the said post of Associate Professor and directed the official
respondents to convene a review Departmental Promotion Committee
meeting for the purpose of drawing an appropriate select list to fill
up the said post of Associate Professor. It was also observed that
while preparing the select list, the relevant recruitment rules in force,
namely, G.O. dated 07th April, 2008 and the relevant provision of
Rule 28 of Part II, KS and SSR shall be looked into while excluding
G.O. dated 14th December, 2009 from consideration.
11. We have heard Mr. Giri and Mr. Chitambaresh, learned senior counsel
representing Dr. Sharmad and Dr. Jyotish, respectively. We have also
heard Mr. C.K. Sasi, learned counsel for the official respondents.
12. The eligibility criteria for appointment on posts borne in Branch – I
i.e. Administrative Cadre and in Branch – II i.e. Teaching Cadre, in
the absence of recruitment rules framed under Article 309 of the
[2025] 1 S.C.R. 423
Dr. Sharmad v. State of Kerala and Others
Constitution, are provided by G.O. dated 07th April, 2008 which is the
executive order governing recruitment. That is a position, which is
accepted even by Dr. Jyotish. According to him, Dr. Sharmad does
not qualify in terms thereof.
13. 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.
14. The contents under the column ‘experience’ in G.O. dated 07th April,
2008, extracted supra, have been read. 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.
15. Strong reliance has been placed by Mr. Chitambaresh on Rule 10(ab)
of Part – II, KS and SSR. A perusal of certain provisions of the
KS and SSR would be of profit:
2 (15) “Service” means a group of persons classified by
the State Government as a State or a Subordinate Service
as the case may be.
2 (16) “Special Rules” shall mean the rules in Part III
applicable to each service or class of service.
10. Qualifications - (a)(i) The educational or other
qualifications, if any, required for a post shall be as specified
in the Special Rules applicable to the service in which that
post is included or as specified in the executive orders of
Government in cases where Special Rules have not been
issued for the post/service.
(ii) Notwithstanding anything contained in these rules or
in the Special Rules, the qualifications recognised by
executive orders or standing orders of Government as
equivalent to a qualification specified for a post, in the
Special Rules or found acceptable by the Commission as
per rule 13(b)(i) of the said rules in cases where acceptance
of equivalent qualifications is provided for in the rules
and such of those qualifications which pre-suppose the
424 [2025] 1 S.C.R.
Digital Supreme Court Reports
acquisition of the lower qualification prescribed for the
post, shall also be sufficient for the post.
***
16. Turning to Rule 10(ab), it appears to have been incorporated in 1993
by an amendment. The text of Rule 10(ab) reads:
“Where the Special Rules or Recruitment Rules for a post
in any service prescribe qualification of experience, it shall,
unless otherwise specified, be one gained by persons on
temporary or regular appointment in capacities other than
paid or unpaid apprentices, trainees and casual labourers
in Central or State Government service or in Public Sector
Undertaking or Registered Private Sector Undertaking,
after acquiring the basic qualification for the post:
Provided that the experience gained as factory workers
on daily wages of a permanent nature may be accepted,
if the service is continuous and not of a casual nature.”
17. ‘Recruitment Rules’ is used in Rule 10(ab) as an alternative to
Special Rules, without the same being defined. To understand
what ‘Recruitment Rules’ would mean in the context, one may
simultaneously read Rule 10(a)(i) extracted supra.
18. Thus, without ‘Recruitment Rules’ being defined, it can take colour
from Rule 10(a)(i) and be understood to mean and include executive
orders of the Government in a case where Special Rules are absent.
19. Even if the KS and SSR were applicable, nothing turns on it because
Rule 10(ab) itself consciously uses the expression “unless otherwise
specified”. The Tribunal briefly assigned a reason as to how such
expression was material for dislodging the argument of Dr. Jyotish.
While we concur with the Tribunal, we wish to elaborate a little further
for the sake of clarity.
20. Our reading of Rule 10 of the KS SSR, as originally framed in 1958,
together with the amendments incorporated in it from time to time,
including Rule 10(ab), leads us to the irresistible conclusion that 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
[2025] 1 S.C.R. 425
Dr. Sharmad v. State of Kerala and Others
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. Notwithstanding the same, G.O. dated
07th April, 2008 was issued governing recruitment in two branches
i.e. Administrative and Teaching Cadres. G.O. dated 07th April, 2008
is, thus, a special rule as distinguished from a general rule like the
KS and SSR. Rule 10(ab), on its own showing, having referred to
the expression “unless otherwise specified”, the same has to be
given some meaning or else it would be rendered redundant. It is
well settled that no word, no phrase and no expression used in a
legislation should be excluded as surplusage, while the courts embark
on a course of interpretation. In our reading, the 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.
21. We also propose to assign one other reason, in continuation of the
one discussed above, to support the view of the Tribunal that the
original application of Dr. Jyotish did deserve in limine dismissal.
22. This is a case where the maxim expressio unius est exclusio alterius
(meaning 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. If, indeed, it were the intention of the
executive that aspirants for the said post of Associate Professor,
or, for that matter, for the post of Professor were 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. The submission on behalf of Dr. Jyotish that posts borne
426 [2025] 1 S.C.R.
Digital Supreme Court Reports
in the Administrative Cadre have responsibilities different from
those borne in the Teaching Cadre, though attractive at first blush,
pales into insignificance primarily for the reason that insistence of
physical teaching experience of a specified number of years with
a particular postgraduate or super speciality degree would seem
to be more required and demanding for appointment on posts in
the Teaching Cadre rather than those in the Administrative Cadre.
We are, thus, minded to hold that the exclusion of the words “after
acquiring postgraduate degree” is deliberate and conscious and the
contentions advanced by Mr. Chitambaresh, to the contrary, do not
commend acceptance.
23. Note to Rule 28(b)(1A) of Part – II, KS and SSR also does not come
to the rescue of Dr. Jyotish. The provision therein would apply if on
the relevant date there is no qualified candidate for promotion. That
is not the case here. 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).
24. It is now time to consider the decisions cited by Mr. Chitambaresh.
25. Shesharao Jangluji Bagde v. Bhaiyya s/o Govindrao Karale10
was relied on for the proposition that experience gained has to be
subsequent to the acquisition of qualification. What this Court in
paragraph 3 held is this:
“3. *** Normally when we talk of an experience, unless
the context otherwise demands, it should be taken as
experience after acquiring the minimum qualifications
required and, therefore, necessarily will have to be posterior
to the acquisition of the qualification. However, in the case
of a promotion the same interpretation may not be just or
warranted. It would depend on the relevant provisions as
also the particular type of experience which is required. ***”
(emphasis supplied)
10 [1990] Supp. 1 SCR 521 : (1991) Supp. 1 SCC 367
[2025] 1 S.C.R. 427
Dr. Sharmad v. State of Kerala and Others
26. It is clear as daylight that what this Court held and what is argued
as a proposition of law are at variance. The particular type of
experience required by G.O. dated 07th April, 2008 was possessed
by Dr. Sharmad; hence, this decision does not come to the rescue of
Dr. Jyotish. Furthermore, an examination of the ratio of the decision
favours the case of Dr. Sharmad. Not only does the passage begin with
‘(N)ormally’ leaving room for cases which are other than normal, this
Court also qualified that experience required should be deemed to be
experience gained after acquiring the minimum qualifications, unless
the context otherwise demands. This is crucial. Also, such a general
interpretation may not arise in case of promotional appointments.
G.O. dated 07th April, 2008, read as a whole, evinces without any
ambiguity the view of the Government that where the experience
had to be gained posterior to the acquisition of qualification, it had
directly stated so. Thus, in the context of this case, absence of such
a stipulation gives rise to but one conclusion, that the Government
did not demand such post-qualification experience for the posts
under consideration here. 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. It is well settled that the intention of the rule
framer has to be assessed on both parameters i.e. the words used
and that of necessary implication. The requisite of post-qualification
experience being present in Branch – I, and absent from Branch – II,
necessarily implies that it was not a requirement for appointments
on promotion to posts borne in Branch – II.
27. The next decision cited is Arun Kumar Agarwal (Dr.) v. State of
Bihar 11 for the proposition that if a candidate is available with super
speciality, he should be given preference. We need to read paragraph
12 of the decision to understand what precisely was held by this
Court. The relevant sentence reads:
“12. *** Thus the appellant having a degree in superspeciality
and also having research work or working experience has
been rightly given preference in the matter of appointment
to the post of Assistant Professor in Neurosurgery over
respondent 5 who did not have a degree in superspeciality.”
11 [1991] 2 SCR 491 : (1991) Supp. 1 SCC 287
428 [2025] 1 S.C.R.
Digital Supreme Court Reports
28. Arun Kumar Agarwal (Dr.) (supra) is distinguishable on facts. Since
‘preference’ has been referred to, it goes without saying that the
ratio thereof could apply where other qualifications / things being
equal, preference is given to an aspirant having higher qualification.
In the case before us, although both Dr. Sharmad and Dr. Jyotish
were holders of M. Ch. degrees, as on date of occurrence of the
vacancy on the said post of Associate Professor i.e. 13th November,
2012, Dr. Jyotish did not have the requisite experience of 5 years
physical teaching as an Assistant Professor (he admittedly having
been promoted to such post only on 22nd July, 2008). Question of
preferring Dr. Jyotish to Dr. Sharmad did not arise at all since the
former was deficient insofar as experience on the post of Assistant
Professor is concerned.
29. The upshot of the aforesaid discussion leaves us with no option but
to hold that the impugned judgment and order of the High Court is
unsustainable. The same is set aside and the judgment and order
of the Tribunal restored, with the result that the original application
of Dr. Jyotish shall stand dismissed.
30. Civil Appeal No. 13422 of 2024 is, thus, allowed. Parties shall,
however, bear their own costs.
31. Pending application, if any, stands disposed of.
Civil Appeal No. 13423 of 2024
32. The High Court, vide the impugned judgment and order dated 4th
April, 2017, modified the order dated 9th January, 2015 of the Tribunal
under challenge before it and disposed of the original petition12
preferred by Dr. R. Jayaprakash. This appeal, by special leave, is
directed against the said judgment and order.
33. Promotion from the post of Senior Lecturer to the post of Assistant
Professor in Paediatrics was the subject matter of consideration in the
original application before the Tribunal. Whether three years’ physical
teaching experience gained after acquisition of Post Graduate (PG)
qualification is the prescribed condition that an aspirant was required
to fulfil, fell for examination. The Tribunal held that experience gained
only after acquiring PG qualification would count.
12 O.P. (KAT) No.148 of 2015
[2025] 1 S.C.R. 429
Dr. Sharmad v. State of Kerala and Others
34. The operative part of the High Court’s order reads as follows:
“In the said circumstances, the impugned order passed
by the Tribunal in T.A. No.4858/12 to the extent it held
that Rule 10(ab) of the General Rules is applicable in the
matter of promotion to the post of Assistant Professor in
the Medical Education Department is confirmed. However,
the consequential direction issued by the Tribunal to the
first respondent to review promotion of the applicant and
respondent Nos.4 to 6 and assign the dates of promotion
to the post of Assistant Professor, having due regard to
the date of occurrence of the vacancy and the date of
acquisition of Post Graduate qualification in the feeder
category, stand set aside.”
35. The decisions cited by Mr. Romy Chacko, learned senior counsel
for the impleading applicants have been considered.
36. Indian Airlines Ltd. v. S Gopalakrishnan13 laid down the law upon
consideration of the general information instructions which clearly
indicated that the experience would be computed after the date of
acquiring necessary qualifications. That is not the case here. The
requirements in Indian Airlines Ltd. (supra) are strikingly dissimilar
to the recruitment rules governing promotional appointments, which
are under consideration. This decision, therefore, is of no assistance
to Mr. Chacko.
37. The decisions of the High Court, viz., Sirajudheen v. Public Service
Commission,14 Rabi v. State of Kerala15 and A. Basheer v. Saiful
Islam A.,16 once again did not have the occasion to consider G.O.
dated 07th April, 2008 since the recruitment in question in all three
cases were in different departments of the Govt. of Kerala. The said
decisions having been rendered upon examination of rules governing
appointments on the posts of Assistant Motor Vehicle Inspector,
Reader in Political Science and Assistant Professor in the Kerala
Dental Education Service, respectively, which are at variance with
13 [2000] Supp. 5 SCR 548 : (2001) 2 SCC 362
14 1999 (1) LLN 408
15 2007 SCC OnLine Ker 418
16 2014 SCC OnLine Ker 18469
430 [2025] 1 S.C.R.
Digital Supreme Court Reports
G.O. dated 07th April, 2008, these three decisions of the High Court
also do not help Mr. Chacko.
38. Having regard to the findings and conclusions that we have recorded
while allowing Civil Appeal No. 13422 of 2024, the judgment and
order under challenge dated 4th April, 2017 cannot be sustained in
law. The same is set aside with the result that the original application
of Dr. R. Jayaprakash shall stand dismissed.
39. Thus, Civil Appeal No. 13423 of 2024 too stands allowed.
40. Pending application, if any, stands disposed of.
Result of the case: Appeals allowed.
†
Headnotes prepared by: Divya Pandey
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Promotional appointment"Sign in to search