TaxTMI 
TaxTMI 
2025 (1) TMI 1654
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....kulam [High Court] allowing a writ petition [OP (KAT) No. 1360 of 2013] presented by the third respondent [Dr. Jyothish] . The High Court set aside the judgment and order dated 15th March, 2013 of the Kerala Administrative Tribunal at Thiruvananthapuram [Tribunal], which dismissed the original application [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 [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. ....
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....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: Professor Associate Professor Assistant Professor One year Physical Teaching experience as Associate Professor. Five years Physical Teaching experience as Assistant Professor. Three years Physical Teaching experience 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....
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....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 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....
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....equirements 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 ....
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....e 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 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 post....
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....t 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 Karale [1991 Supp (1) SCC 367] 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....
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....dent 5 who did not have a degree in superspeciality." 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 dismi....