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Synopsis

The Supreme Court has said in the absence of rules, recourse to recruitment based on executive orders can be taken, as it set aside a Kerala High Court judgment that had quashed the appointment and promotion of appellant Dr. Sharmad to the position of Associate Professor.

The High Court had 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.

The appeal by special leave carried by the appellant, Dr Sharmad took exception to the judgment and order of January 20, 2017, of a division bench of the Kerala High Court.

The question that arose for decision in the appeal was 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 on February 6, 2013.

Examining the matter, the bench of Justices Dipankar Datta and Prashant Kumar Mishra relied upon interpretation of Statutes to point out, "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".

The court also said, "The intention of the rule framer has to be assessed on both parameters i.e. the words used and that of necessary implication."

Citing a legal maxim, 'expressio unius est exclusio alterius' meaning thereby whatever has not been included has impliedly been excluded, the bench noted Kerala State and Subordinate Services Rules, 1958 was cited by respondent Dr Jyothish 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.

The bench, however, said Rule 10 was entirely irrelevant and immaterial for appointment on promotion in the Administrative and Teaching Cadres of the Medical Education Services.

"‘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). 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 and in the absence of rules, recourse to recruitment based on executive orders could be taken," the bench said.

The court said, 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 court said the submission on behalf of respondent that posts borne in the Administrative Cadre had responsibilities different from those borne in the Teaching Cadre, though attractive at first blush, paled 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 seemed 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 to the contrary, do not commend acceptance," the bench said.

As on the date of occurrence of vacancy i.e. November 13, 2012, Dr Sharmad had physical teaching experience of more than 5 years as Assistant Professor (he joined on January 11, 2007). He being eligible, in terms of the recruitment rules, there was no occasion for invoking the said note, the bench said, adding the High Court erred in placing reliance on Rule 28(b)(1A), the bench held.

In the case, the bench said, 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. November 13, 2012, Dr Jyotish did not have the requisite experience of 5 years physical teaching as an Assistant Professor (he admittedly had 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 was concerned, it said.

As an upshot, the bench found the High Court's judgment as unsustainable.

In a connected civil appeal by Dr Sheela T A and others, the court found again as unsustainable the High Court's judgment concerning promotion from the post of Senior Lecturer to the post of Assistant Professor in Paediatrics.

Case Title: Dr Sharmad Vs State of Kerala & Others