Dr. Jyothish L.S. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **FRIDAY, THE 20TH DAY OF JANUARY 2017/30TH POUSHA, 1938** **OP(KAT).No. 1360 of 2013 (Z) -----------------------------** **AGAINST THE ORDER IN OA 476/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 15-03-2013** ## **PETITIONER/APPLICANT:** ## **-------------** **DR. JYOTHISH.L.S.** **ASSOCIATE PROFESSOR OF NEUROSURGERY (CAP), GOVERNMENT MEDICAL COLLEGE, THIRUVANANTHAPURAM-695011.** **BY ADVS.DR.K.P.SATHEESAN (SR.) SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.ANOOP.V.NAIR SRI. ELDOV THOMAS** ## **RESPONDENTS/RESPONDENTS:** ## **--------------------------** ## **1. STATE OF KERALA** **REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **2. THE DIRECTOR OF MEDICAL EDUCATION MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.** ## **3. DR.SHARMAD** **ASSOCIATE PROFESSOR OF NEUROSURGERY (REGULAR), GOVERNMENT MEDICAL COLLEGE, THIRUVANANTHAPURAM-695011.** **O.P.(KAT)NO.1360/2013** **2** **R3 BY ADV. SRI.BABU KARUKAPADATH R3 BY ADV. SMT.M.A.VAHEEDA BABU R3 BY ADV. SRI.P.G.PRAMOD R3 BY ADV. SRI.KANDAMPULLY RAHUL R3 BY ADV. SRI.A.P.EBRAHIM R1,R 2 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 20-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(KAT).No. 1360 of 2013 (Z)** **-----------------------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **----------------------EXHIBIT-P1: TRUE COPY OF THE O.A.NO.476/2013 FILED BY THE PETITIONER BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ENCH.** **EXHIBIT-P2: TRUE COPY OF THE ORDER DATED 15.03.2013 IN O.A.NO.476/2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** **EXT.P3 TRUE COPY OF THE RECRUITMENT RULES PUBLISHED BY GOVT. OF KERALA AS G.O.(MS)NO.100/2008/H & FWD DATED 7.4.2008** **EXT.P4 TRUE COPY OF THE MINIMUM QUALIFICATION FOR TEACHERS IN MEDICAL INSTITUTIONS REGULATIONS 1998 AS AMENDED UPTO NOVEMBER 2010 PUBLISHED BY MEDICAL COUNCIL OF INDIA.** **EXT.P5 TRUE COPY OF THE GOVT. ORDER G.O.(P) NO.89/2012/H & FWD DATED 14.3.2012** **EXT.P6 TRUE COPY OF THE GOVT. ORDER G.O.(RT)NO.219/2015/H & FWD DATED 23.1.2015** **THIRD RESPONDENT'S EXHIBITS** **-----------------------** **EXT.R3(A) TRUE COPY OF THE RELEVANT PORTION OF NOTIFICATION DATED 18.7.1995 INVITING APPLICATIONS FROM ELIGIBLE CANDIDATES FOR APPOINTMENT TO THE POST OF LECTURER IN NEURO SURGERY UNDER THE DEPARTMENT OF MEDICAL EDUCATION** **EXT.R3(B) TRUE COPY OF THE ORDER OF APPOINTMENT DATED 22.10.1999 ISSUED BY THE 2ND RESPONDENT, APPOINTING 3RD RESPONDENT AS LECTURER IN NEUROSURGERY** **EXT.R3(C) A TRUE COPY OF THE SELECT LIST OF LECTURERS FIT FOR PROMOTION TO THE CATEGORY OF ASSISTANT PROFESSORS IN THE DEPARTMENT OF NEUROSURGERY UNDER MEDICAL EDUCATION SERVICE, PUBLISHED AS PER G.O.DATED 19.10.2006** **EXT.R3(D) A TRUE COPY OF THE ORDER DATED 16.4.2012 OF THE FIRST RESPONDENT RE-DESIGNATING ME AS ASSOCIATE PROFESSOR W.E.F.1.8.2010** **O.P.(KAT)NO.1360/2013** **2** ## **SECOND RESPONDENT'S EXHIBITS** **EXT.R2(A) TRUE COPY OF THE G.O.(P)NO.272/2005/H & FWD DATED 27.10.2005** **EXT.R2(B) TRUE COPY OF THE G.O.(P) NO.122/06/H & FWD DATED 7.7.2006** **EXT.R2(C) A TRUE COPY OF THE MINUTES OF THE DEPARTMENTAL PROMOTION COMMITTEE HELD ON 14.11.2012 FOR PREPARING THE SELECT LIST OF ASSISTANT PROFESSOR.** **EXT.R2(D) A TRUE COPY OF THE GO(P) NO.425/2009/H & FWD DATED 14.12.2009** **/TRUE COPY/** **PS TO JUDGE** ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** - - - - - - - - - - - - - - - - - - - - - ## **O.P.(KAT)No.1360 OF 2013** - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of January, 2017 ## **JUDGMENT** ## Ravikumar, J. The petitioner assails Ext.P2 order dated 15.03.2013 of the Kerala Administrative Tribunal passed in O.A.No.476/2013. The bone of contention therein was the legality of the promotion granted to the third respondent as per Annexure A9 order in Ext.P1 order viz., GO(Rt) No.408/2013/H & FWD dated 6.02.2013, as Associate Professor on regular basis. Ext.P1 is the copy of the Original Application filed by the Tribunal along with its Annexures. As per Ext.P2 order the said original application filed by the petitioner challenging Annexure A9 was dismissed inlimine. 2. We have heard the learned Senior Counsel appearing for the petitioner, the learned counsel appearing for the third respondent and also the learned Government Pleader. O.P.(KAT)No.1360/2013 2 3. The facts, in succinct, which culminated in Ext.P2 are as follows :- The third respondent was working as Associate Professor in Neuro Surgery under the Medical Education Service along with the petitioner. The petitioner reached the said post by way of a Career Advancement Promotion (CAP) and the third respondent was promoted on regular basis as against the said post under Annexure A9 in Ext.P1 while working as Associate Professor (CAP). Annexure A9, the order of promotion of the third respondent would reveal that he was promoted from the post of Assistant Professor in Neuro Surgery to Associate Professor on regular basis thereunder. The petitioner's case is that career advancement promotion as Associate Professor cannot be treated as a regular promotion. There is no dispute with respect to this position and it is in fact indisputable. In this context, it is to be noted that the learned counsel for the third respondent submitted that the third respondent was promoted as Associate Professor (CAP) as per order dated 3.4.2010 with effect from 01.08.2010. If the Career 3 O.P.(KAT)No.1360/2013 Advancement Promotion as Associate Professor itself is a regular promotion, there would not have been any necessity to issue Annexure A9 in Ext.P1 promoting the third respondent, who in the meanwhile got a career advancement promotion as Associate Professor, to the very same post on regular basis The grievance of the petitioner is that as per Annexure A9 (in Ext.P1) the third respondent was promoted on regular basis as Associate Professor without strictly complying with the mandatory procedures for effecting regular promotion inasmuch as his promotion was effected without convening a DPC for preparing a select list and also without assessing the eligibility of all the eligible candidates including the third respondent, for being promoted as Associate Professor of Neuro Surgery on regular basis. The provisions under Rule 10 (ab) of Part II of the Kerala State & Subordinate Services Rules, 1958 ( KS & SSR) along with Ext.P3 which is the full text of Annexure A8 besides the indisputable fact that the third respondent was not having five years physical teaching experience in the post of Assistant Professor after acquisition of the super specialty O.P.(KAT)No.1360/2013 4 viz., M.Ch at the time of promotion, form the basis for the said contention. The learned counsel appearing for the third respondent submitted that Rule 10 (ab) of Part II of KS & SSR is totally inapplicable in this case and therefore the said contention is bereft of any basis or merit. 4. After adverting to the rival contentions it is only proper and profitable to refer to the service particulars of both the petitioner and the third respondent to have a proper appreciation of the contentions put forth based on the basic contention referred hereinbefore, in the light of the relevant provisions of law as well as the position of law. Their service particulars are given in a tabular form as hereunder : |**Relevant Post**|**_As regards the_**<br>**_petitioner_**|**_As regards the third_**<br>**_respondent_**| |---|---|---| |Date of entry as<br>lecturer/Sr. Lecturer|09/03/2005<br>as<br>Sr.Lecturer<br>with<br>MBBS, MS and M.Ch|27.10.1999<br>as<br>Lecturer with MBBS<br>Promoted as Senior<br>Lecturer as per order<br>dated<br>21.02.2005<br>with effect from<br>24.01.2005,<br>on<br>acquisition of MS on<br>24.01.2005.| O.P.(KAT)No.1360/2013 5 |**Relevant Post**|**_As regards the_**<br>**_petitioner_**|**_As regards the third_**<br>**_respondent_**| |---|---|---| |Promotion<br>as<br>Assistant Professor|22.07.2008|10.01.2007. Later re-<br>assigned the date of<br>promotion<br>as<br>24.01.2005 as per<br>Annexure A5 in<br>Ext.P1. <br>Acquired<br>M.Ch on 31.07.2008| |Promotion<br>as<br>Associate Professor<br>(CAP)|16/09/2010|01/08/2010<br>as<br>revealed from Ext.R3<br>(d)| |Promotion<br>as<br>Associate Professor<br>on regular basis||as per order dated<br>06/02/2013<br>( Annexure A9 in<br>Ext.P1)| 5. Before proceeding further it is relevant to refer to the provisions governing promotion to the post of Associate Professor. Annexure A3 dated 22.12.1976 was the earlier executive order governing method of appointments and qualifications of the various faculties in Medical Education Service. The qualifications and teaching experience required for appointment and promotion to various teaching posts covered by Annexure A3 were subsequently revised under Annexure A8 in Ext.P1 viz., G.O.(Ms) No.100/2008/H & FWS O.P.(KAT)No.1360/2013 6 dated 07.04.2008. Ext.P3 is the full text of Annexure A8. Entry No.32 (B) under Rule 4 in Ext.P3 provides the method of appointment, qualifications including experience as regards the post of Associate Professor in Neuro Surgery. It would reveal that the method of appointment to the said post is by promotion from the category of Assistant Professor in Neuro Surgery. The qualification prescribed as per Ext.P3 for such promotion is M.Ch (Neuro Surgery)/DNB ( Neuro Surgery) and the experience required therefor, is “ five years physical teaching experience as Assistant Professor ( regular) in Neuro Surgery.” 6. Evidently, Ext.P3 did not specifically mention as to whether the physical teaching experience prescribed thereunder for the post of Assistant Professor ( regular) should be one obtained after acquisition of the requisite qualification which is super specialty viz., M.Ch ( Neuro Surgery)/ DNB ( Neuro Surgery). It is in the said circumstances that conflicting contentions have been raised regarding the experience prescribed for promotion as Associate Professor ( Neuro Surgery). It is contended by the learned counsel for the petitioner that O.P.(KAT)No.1360/2013 7 going by the provisions under Rule 10 (ab) of Part II of KS & SSR when the Special Rules or Recruitment Rules for a post in any service prescribe qualification of experience, in the absence of anything specified in the Special Rules or Recruitment Rules, it should be one gained after acquiring the basic qualification prescribed for the post. In short, the contention is that since it is not specifically stated in Ext.P3 that the requisite experience need not be one after acquiring the super specialty viz., M.Ch (Neuro Surgery) DNB (Neuro Surgery) by the application of the provisions under Rule 10 (ab) of Part II of KS & SSR, it should, necessarily, be one gained after acquisition of the said basic qualification viz., M.Ch or DNB. 7. Per contra, learned counsel appearing for the third respondent submitted that the said contention is devoid of any merit. It is contended that while considering the said question the earlier relevant Special Rules or Recruitment Rules as also the other provisions in the relevant rules governing promotion to the other posts should also be looked into. The learned counsel submitted that the O.P.(KAT)No.1360/2013 8 method of appointment, qualifications and experience for various posts including Associate Professor in Medical Education Service were earlier governed by Annexure A3. The learned counsel for the third respondent drew our attention to the experience required for promotion to the post of Associate Professor in different disciplines under the medical education service in terms of Annexure A3. A perusal of Annexure A3 would reveal that for promotion to the post of Professor/Associate Professor on all disciplines, five years experience as reader/Assistant Professor in the concerned discipline in a medical college after the requisite post graduate qualification was prescribed. Evidently, the endeavour of the learned counsel for the third respondent is that a comparison of Annexure A3 in Ext.P1 and Ext.P3, the extant rules would reveal that as against the previous position revealed from Annexure A3 a deviation in regard to experience was made in Ext.P3. Firstly, it is submitted that in Ext.P3 different periods of experience was prescribed for promotion to the post of Professor and Associate Professor and in the case of Associate Professor in deviation of the O.P.(KAT)No.1360/2013 9 experience prescribed under Annexure A3 the requirement to possess the prescribed length of service after acquisition of the post graduate degree was done away with under Ext.P3. In other words, it is submitted that a deviation from Annexure A3 was brought in under Ext.P3 and instead of the requirement to have the prescribed experience after acquisition of super specialty degree in the concerned discipline only five years physical teaching experience as Assistant Professor in the concerned discipline was prescribed under Ext.P3 without specifically making a mention as to whether it should be one after acquiring the basic qualification. It is therefore contended that merely because in Ext.P3 it is not stated specifically that the length of experience prescribed thereunder should be one gained after acquisition of the prescribed qualification that by itself would not attract the provisions under Rule 10(ab) of Part II of KS & SSR. According to the third respondent while issuing Ext.P3 such a prescription was purposefully avoided. In short, the contention is that in the light of the position obtained from a conjoint reading of Annexure A3 in Ext.P1 O.P.(KAT)No.1360/2013 10 and Ext.P3 it is evident that the condition requiring possession of prescribed length of 5 years of service after acquiring the prescribed qualification of super specialty post graduate degree of M.Ch ( Neuro Surgery)/ DNB ( Neuro Surgery) was purposefully excluded in Ext.P3 and therefore, one need to possess only the prescribed period of experience as Assistant Professor ( regular) and it need not be one that gained after acquisition of the aforesaid prescribed basic qualification. 8. In the light of the aforesaid rival contentions taken up by the petitioner and the third respondent, it is only proper to look into the precise stand of respondents 1 and 2. In paragraph 8 of the counter affidavit filed by the first respondent dated 19.09.2013, it is stated thus : “8. Terms and conditions for promotion in G.O. (P)100/08/H & FWD dated 7.4.2008 for the post of Associate Professor & Professor were abrogated by the issuance of the pay revision order in force. After the issuance of pay revision order in force, for a promotion O.P.(KAT)No.1360/2013 11 to the post of Associate Professor in Neuro Surgery, terms and conditions stipulated in the pay revision order in force alone can be considered. The 3[rd] respondent was promoted in the post of Associate Professor in accordance with the rules and regulations stipulated in the pay revision order in force. Hence the preparation of DPC select list of Associate Professor by including the 3[rd] respondent is in order in all aspects. As per the said pay revision in force, an Assistant Professor having 2 years experience after acquiring super specialty PG degree and total experience of 5 years is eligible for promotion to the post of Associate Professor. In the pay revision order in force, there is no stipulation that 5 years physical teaching experience as Assistant Professor is a requisite qualification for to the of Associate Professor.” promotion post ( emphasis supplied) O.P.(KAT)No.1360/2013 12 9. Thus, it is obvious from the counter affidavit filed on 19.09.2013 that the stand of the first respondent was that the terms and conditions for promotion prescribed in Ext.P3 Government Order dated 07.04.2008 for the post of Associate Professor and Professor were abrogated by a pay revision order and thereafter the terms and conditions for promotion to the said post are being governed by the terms and conditions in the said pay revision order. Essentially, what was referred thereunder is G.O.(P)No.425/2009/H & FWD dated 14.12.2009 viz., Ext.R2(d). Virtually, the said stand was reiterated in the counter affidavit dated 13.11.2016 filed by the second respondent. Along with the said counter affidavit, Ext.R2(a) to Ext.R2(o) were also produced besides Ext.R2(d) dated 14.12.2009. Ext.R2(a) pertains to Dental Education Service. The attempt of the first respondent is to canvass the position that in the light of Ext.R2(b) which is virtually a clarification to Ext.R2(a), it cannot, any further, be contended that possession of the experience of 5 years as Assistant Professor prescribed for promotion to the post of Associate Professor in the O.P.(KAT)No.1360/2013 13 Medical Education Service should be one gained after acquisition of the super specialty post graduation prescribed therefor though it is required in Dental Education Service. Obviously Ext.R2(a) deals with the prescription of teaching experience required for promotion to the post of Assistant Professor in Kerala Dental Education Service and Ext.R2(b) is a clarification issued by the Government dated 7.7.2006 regarding its applicability in the matter of promotion to the post of Assistant Professor in Kerala Medical Education Service, at the instance of the Kerala Public Service Commission. It was answered in the negative. It is to be noted that after issuing Ext.R2(b) dated 7.7.2006 in respect of promotion to the post of Assistant Professor in Kerala Medical Education Service the the Government took the view that after the issuance of Ext.R2(d) which is a pay revision order, it should govern the terms and conditions regarding promotion of faculties in Medical Education Service as well. As noticed hereinbefore, in the counter affidavits filed separately by the first and second respondents it was stated that promotion of the third respondent O.P.(KAT)No.1360/2013 14 was effected strictly looking into his eligibility with respect to experience in the light of the said pay revision order. Evidently, as per Ext.R2(d) out of the total prescribed period of five years of experience in the post of Assistant Professor ( Regular) for promotion as Associate Professor, two years should be after acquisition of the basic qualification prescribed for the post viz., the super specialty Post Graduate degree. In the case on hand, it is two years after acquisition of M.Ch ( Neuro Surgery) or DNB ( Neuro Surgery) in the post of Assistant Professor in Neuro Surgery. 10. The learned Senior Counsel appearing for the petitioner submitted that the said contention cannot be sustained in the light of Ext.P6 viz., G.O.(Rt) NO.219/2015/ H & FWD dated 23.1.2015. It is submitted that Ext.P6 would reveal that as regards the selection in question, virtually the first and second respondents are blowing hot and cold by relying on Ext.R2(d). The contention is that after taking the stand that out of the five years physical teaching experience in the post of Assistant Professor in the concerned discipline required for O.P.(KAT)No.1360/2013 15 promotion as Associate Professor, two years should be after acquisition of the super specialty in terms of Ext.R2(d) pay revision order Government have made it clear in Ext.P6 that Ext.R2(d) pay revision order got no statutory validity. 11. In the context of the contentions it is relevant to refer to paragraph 6 of Ext.P6 Government order dated 23.01.2015 which reads thus :- “ The re designation is only an internal matter. It is not justifiable to alter the advice seniority (Rule 27 ( c) seniority by applying re designation as per Government Order read as 3rd paper above, since the same is only pay revision order and has no statutory validity. The method of and fixed as appointment qualification per Government Order read as 2nd paper above is the criteria for senior of employees recruited through the KPSC unless it is amended following the due O.P.(KAT)No.1360/2013 16 ## . procedure ” ( emphasis supplied) 12. A bare perusal of Exts.P6 and Ext.R2(d) would reveal that what is referred to as 'Government Order read as 3[rd] paper' in paragraph 6 of Ext.P6 is Ext.R2(d) viz., G.O.(P) No.425/2009/H & FWD dated 14.12.2009 and what is referred to therein as “Government Order read as 2[nd] paper' is nothing but Ext.P3 G.O. dated 7.4.2008. It is evident from paragraph 6 in Ext.P6 dated 23.01.2015 that the clear cut stand of the Government is that Ext.R2(d) dated 14.12.2009 is only a pay revision order, it has no statutory validity. Evidently, after making such an observation, it is further stated thereunder that the method of appointment and qualifications fixed as per Government Order read as second paper therein viz., Government Order dated 07.04.2008 (Ext.P3), should be the criteria for seniority of employees recruited through the KPSC unless it is amended following the due procedures. At this juncture it is relevant to note that admittedly no such amendment was brought to Ext.P3 G.O. Dated 7.4.2008. Thus, it is O.P.(KAT)No.1360/2013 17 obvious that the answer to the question relating 'teaching experience' involved in this case depends on the applicability of Rule 10 (ab) of Part II, KS & SSR to the relevant provision in Ext.P3. While the petitioner contends that in the light of the prescription of 'teaching experience' as per Entry No.32 (B) under Rule 4 Ext.P3 has to be understood and applied in terms of Rule 10(ab) of Part II of KS & SSR, the third respondent contends that the teaching experience required under Ext.P3 need not be one gained after acquisition of Super Specialty Post Graduate Degree. As noticed hereinbefore, in contrast to the said contentions raised by them, the authority who appointed the third respondent in unambiguous terms stated in the counter affidavit that his eligibility for promotion was determined in the light of Ext.R2(d) Government Order dated 14.12.2009 i.e. the pay revision order. In other words, it is also the specific case of the respondents 1 and 2 that the third respondent was found eligible and in fact he was the only one who satisfied all the conditions regarding experience prescribed under the pay revision order viz., Ext.R2(d). He 18 O.P.(KAT)No.1360/2013 was having a total length of five years experience in the post of Assistant Professor of Neuro Surgery and out of which he was having two years of experience after acquisition of M.Ch, which would fully satisfy Ext.R2(d) order. Thus, it is evident that the petitioner, the third respondent and the official respondents got different version regarding the nature of the teaching experience required for promotion to the post of Associate Professor in Neuro Surgery. 13. The counter affidavit dated 19.09.2013 filed on behalf of the first respondent would reveal that in the field of zone of consideration for promotion to the post of Associate Professor in Neuro Surgery there were 22 persons and out of which the third respondent alone had satisfied all the conditions in Ext.R2(d), the pay revision order and that was why he alone was included in the select list prepared by the Departmental Promotion Committee. Evidently, the third respondent was appointed in the said circumstances. In this context, it is to be noted that the petitioner got a specific contention that no regular DPC was convened for the purpose of drawing the O.P.(KAT)No.1360/2013 19 aforementioned select list. The Government Order referred to as item No.1 in Annexure A9 in Ext.P1 is the select list drawn by the DPC for the year 2012 and notified under G.O.(P) 430/2012/H&FWD dated 20/12/2012. Obviously, it would reveal that the third respondent is the only person included in the select list for promotion to the post of Associate Professor of Neuro Surgery for the year 2012. Thus, indisputably, the third respondent alone was included in the select list as he was the only person who satisfied the dual condition regarding experience in Ext.R2(d) pay revision order and that led to his appointment as Associate Professor in Neuro Surgery. In the light of the position revealed from counter affidavits filed by the respondents, we are of the view that there is absolutely no room for any doubt regarding the manner in which the selection was made which ultimately culminated in the appointment of the third respondent. But then, after revealing the fact that the third respondent was given promotion to the post of Associate Professor as he alone was found satisfying the qualification under Ext.R2(d) pay revision order, the Government have O.P.(KAT)No.1360/2013 20 virtually deviated from the said stand regarding the required qualifications for the said post in Ext.P6. In Ext.P6 it is specifically stated that Ext.R2(d) is only a pay revision order and therefore it is not having any statutory validity. That apart, after referring to Ext.P3 G.O. Dated 7.4.2008 which was given as 2[nd] reference therein it was stated in Ext.P6 that the method of appointment and qualification fixed as per G.O. Dated 7.4.2008 is the criteria for seniority of employees recruited through the KPSC unless it is amended following the due procedure. 14. We have already noted that in Medical Education Service no Special Rules have been framed to regulate the method of appointment, qualifications and experience and they are prescribed by executive orders issued from time to time and Ext.P3 G.O. Dated 7.4.2008 is the last one issued in that regard and nobody got a case that the method of appointment and qualification prescribed thereunder, underwent an amendment following the due procedure, subsequently and prior to the drawing of the select list referred as item No.1 in Annexure A9 ( in Ext.P1). A combined reading of the aforesaid O.P.(KAT)No.1360/2013 21 documents and the statements in the counter affidavits filed by respondents 1 and 2 would reveal the indisputable position that the aforementioned select list referred to in Annexure A9 based on which the 3[rd] respondent was selected and appointed, was not drawn strictly following Ext.P3 whereas it was one prepared based on the qualifications prescribed under Ext.R2(d). 15. In the aforesaid circumstances, it is relevant to refer to an order passed by the Kerala Administrative Tribunal dated 12.02.2014 in O.A.No.1740/2012. The said original application was filed by an Associate Professor (CAP) in Surgical Gastroenterologyin the medical education service challenging Annexure A9 referred as such in the said O.A., whereby the third respondent therein who was an Assistant Professor included in the DPC list for promotion as professor, was promoted to the post of Associate Professor on regular basis. A perusal of the said order dated 12.02.2014 would reveal the precise stand of the State as also the DPC ( Higher) for promotion to the post of Professors under the Medical Education Service. In that original 22 O.P.(KAT)No.1360/2013 application before the Tribunal, the stand was that the required teaching experience for promotion to the post of Professor in Medical Education Service should be one gained after acquisition of M.Ch qualification which is one of the essential qualification for appointment by promotion to the said post. The respondents therein also relied on the provisions under Rule 10(ab) of the KS & SSR to drive home their contention. Obviously, the said contention was upheld by the Tribunal. True that the post concerned in this case is not Professor and it is the post of Associate Professor. Ext.P3 would reveal that as regards the posts of Professor and Associate Professor in the various disciplines given in Ext.P3, the only difference in the prescribed qualification of experience prescribed for the said posts is the difference in the length of the prescribed period of physical teaching experience. In respect of Professor in various disciplines one year physical teaching experience as Associate Professor (regular) in the concerned discipline was prescribed and as regards Associate Professor's post 5 years physical teaching experience in the concerned feeder category was prescribed as O.P.(KAT)No.1360/2013 23 experience. It is obvious from Ext.P3 itself that in the case of Professor in Neuro Surgery also it is not specifically stated therein that the requisite period of physical teaching experience should be one gained after acquisition of the basic qualification for the said post viz., MCH ( Neuro Surgery)/ DNB ( Neuro Surgery). In the case of Associate Professors going by Ext.P3, the same academic qualifications are prescribed. Evidently, the decision in O.A.No.1740/2012 was affirmed by this Court in O.P.(KAT)No. 10 of 2015. We perused the order and also the judgment in those cases. We are at a loss to understand how after taking such a stand in O.A.No.1740/2012 the Government could take a totally conflicting stand in respect of the same issue i.e. regarding the question whether the teaching experience prescribed for appointment to the different posts in the Medical Education Service under Ext.P3, should be one gained before the acquisition of the basic qualification viz., super specialty. In similar situations similarly situated persons should be treated alike, lest it would result in patent violation of the equality principle under Article 24 O.P.(KAT)No.1360/2013 14 and 16 of the Constitution of India. After taking such a stand, as is obvious from the order in O.A.No.1740/2012 and after making the status of Ext.R2(d) clear in Ext.P6, the first and second respondents were not justified in taking the stand that appointment to the post of Associate Professor in Neuro Surgery was not made in tune with Ext.P3 and therefore made in conformity with Ext.R2(d) pay revision order. In such circumstances, how the first and second respondents are justified in resisting the contention of the petitioner relying on Rule 10 (ab) of Part II of KS & SSR ? 16. As noticed hereinbefore, the contention of the petitioner is that the provisions under Rule 10 (ab) of Part II of KS & SSR is applicable in the case of promotion to the post of Associate Professor in Neuro Surgery as experience is prescribed as a qualification without specifically mentioning that it should be one gained after acquisition of the basic qualification for the said post. To buttress the said contention, the learned Senior Counsel appearing for the petitioner relied on the decisions in Sirajudheen v. Kerala Public Service Commission **(2001** O.P.(KAT)No.1360/2013 25 **(2) KLT 268), A.Basheer v. A.Saiful Islam [2014 (4) KHC 379 (FB)], and Rabi v. State of Kerala (2007 (4) KLT 335).** 17. The learned counsel appearing for the third respondent resisted the said contentions made by the petitioner relying on the aforesaid decisions and contended that the petitioner is not having any locus standi to challenge the promotion of the third respondent as he could not be said to be an aggrieved person. To buttress the said contention the learned counsel relied on the decision of the Hon'ble Apex Court in **Umakant Saran v. State of Bihar (1973 (1) SCC 485)** . The learned counsel also took another contention relying on the decision of a Division Bench of this Court in **Cochin College v. Ajith Kumar & Others (2014 (4) ILR Ker. 532).** The said decision is relied on to canvass the position that even in the case of a void order until the said order is challenged by the affected party and get it set aside by the competent forum, the said order would continue to bind the parties. 18. The learned counsel for the third respondent further O.P.(KAT)No.1360/2013 26 contended that even if it is taken that Rule 10 (ab) of part II KS & SSR is applicable for the purpose of considering the question whether the experience prescribed under Ext.P3 for the purpose of promotion to the post of Associate Professor from the post of Assistant Professor the real object of introduction of the said provision has to be looked into, for deciding the case. It is contended that Rule 10(ab) was introduced as per Kerala State and Subordinate Services (Amendment Rules), 1993 as per SRO No.591/1993 on 27.1.1993. The learned counsel drew our attention to the explanatory note thereunder. Evidently, it will not form the part of the notification. But it is intended to indicate the general purport. It reads thus:- According to the procedure followed by the Kerala Public Service Commission in respect of practical experience prescribed for any post, it shall be the one gained by candidates holding or in temporary regular appointments Government Service /Public Sector or Undertakings, Registered Private Sector Undertakings. Experience gained by candidates in the capacities of paid or unpaid apprentices, trainees and casual labourers is not considered as sufficient. Unless otherwise specified in the O.P.(KAT)No.1360/2013 27 Special Rules or Executive orders prescribing qualifications, experience gained only after acquiring the basic qualification alone is accepted as sufficient experience. Government consider it necessary to give statutory validity to the above procedure by amending Kerala State and Subordinate Services Rules, 1958. This notification is intended to achieve the above object. 19. Going by the explanatory note, in respect of practical experience prescribed in any post, it shall be gained by the candidates unless otherwise specified in the Special Rules or in Executive orders prescribing the qualifications, experience after acquiring the basic qualification. It is contended that the experience prescribed in this case cannot be said to be a practical experience. Therefore, going by the general purport of Rule 10(ab) it is evident that the provisions under Rule 10(ab) is not to be applied in this case as what is prescribed under Ext.P3 Special Rules is not practical experience, it is submitted. 20. It is to be noted that an intention to make the provisions under Rule 10(ab), Part II of KS & SSR confined only to cases where practical experience is prescribed as a qualification of experience is not 28 O.P.(KAT)No.1360/2013 discernible from Rule 10(ab) of Part II, KS & SSR. Rule 10(ab) of Part II, KS & SSR reads thus:- “ **10. Qualifications** .-(ab) 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 prescribed 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.” 21. In this context, the decision of a learned Single Judge of this Court in **Sirajudheen** v. **Public Service Commission (1998 (2)** **KLT 1046)** assumes relevance. It was held therein that wherever a qualification of experience is prescribed either by the Special Rules or by Recruitment Rules or by any other method, it must have been acquired after the acquisition of the basic qualification. The only exception is one where the Rules specifically state that one can acquire 29 O.P.(KAT)No.1360/2013 the qualification of experience even before acquiring the basic qualifications and in all other cases the general rules under Rule 10(ab) would apply, it was held. The decision of the learned Single Judge in **Sirajudheen's** case (supra) was confirmed by a Division Bench of this Court in **Sirajudheen** v. **Kerala Public Service Commission (2001 (2) KLT 268).** Evidently, the Division Bench referred to the decision of the Hon'ble Apex Court in **Sheshrao Janguluji Bagde** v. **Baiyya (AIR 1991 SC 76).** While rendering the said judgment the Hon'ble Apex Court held therein that normally, when one talks 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. In the light of those decisions as also in the light of the provisions we are of the view that the contentions raised by the third respondent based on the explanatory note cannot be countenanced. Certainly, the quality of teaching by one who possesses Super Specialty PG degree and one who lacks the same, is bound to be different. What O.P.(KAT)No.1360/2013 30 would and should reflect in teaching is certainly the knowledge of the teacher. When a teacher gained more knowledge by acquiring super specialty post graduation certainly, the standard of his teaching is bound to be more. In such circumstances the medical students could acquire more knowledge and it will ultimately go to the benefit of the general public. In the case of Medical Education, in such circumstances, a strict interpretation of Rule 10(ab) is required. It has to be held that while considering the applicability of Rule 10(ab) of the General Rules unless exception made out therein viz., a case where relevant rules, specifically stated that one could acquire the qualification of experience even before acquiring the basic qualification, General Rule in Rule 10(ab) of Part II, KS & SSR must apply. Therefore, an experience prescribed in such circumstances has to be understood as one posterior to the acquisition of the basic qualification. In this case, evidently, the basic qualification for the post is M. Ch (Neurosurgery)/DNB (Neurosurgery). 22. We have already found that the Government in the counter O.P.(KAT)No.1360/2013 31 affidavit filed had specifically stated that while considering the promotion of the third respondent for promotion to the post of Associate Professor in Neurosurgery, his eligibility was decided with reference to the pay revision order whereunder a prescription of minimum two years' experience after acquisition of qualification was prescribed out of the total required period of Physical Teaching experience of five years. We have already found that as per Ext.P6 Government themselves in an unambiguous terms held that the Government order dated 14.12.2009 is only a pay revision order and therefore, it got no statutory validity. In this case, the Government order which was admittedly, relied on for the purpose of effecting promotions was not one issued in supersession of Government order dated 7.4.2008 whereas, it was only an order issued in relation to `pay revision' viz., Ext.R2(d). The conditions stipulated under Ext.R2(d) have to be understood only as conditions required to earn eligibility to get the benefits of pay revision. At any rate, in view of the position of law as also in the light of the stand of the Government as is evident O.P.(KAT)No.1360/2013 32 from Ext.P6, Ext.R2(d) pay revision order ought not to have been the basis for drawing the select list by the DPC (Higher) for promotion to the post of Associate Professor. We have already found that in respect of the same issue evidently, the Government spoke in two voices. In a case where the question was with respect to the promotion to the post of Professor in Gastroenterology which was a subject matter in O.A.No.1740 of 2012 before the Kerala Administrative Tribunal, the order of which was produced before us and which was put to all the respondents, evidently, the Government took a stand that the qualification of experience prescribed should be one gained after acquiring the basic qualification. Essentially, the question involved in both the cases is one and the same. It is also relevant to note that the order of the Administrative Tribunal in O.A.No.1740 of 2012 was challenged before this Court under O.P.(KAT)No.10 of 2015. Evidently, after an elaborate discussion of the relevant questions and provisions of law and relying on the decision of the Division Bench in **Sirajudheen's** case (supra) the decision of the Tribunal in the order in O.P.(KAT)No.1360/2013 33 O.A.No.1740 of 2012 was affirmed by this Court and the original petition was dismissed. The judgment in O.P.(KAT)No.10 of 2015 would reveal that the Government virtually resisted the challenge against the order of the Tribunal in O.A.No.1740 of 2012 contending that the qualification of experience prescribed under the rules governing appointments to different posts in Medical Education Service should be one gained after acquiring basic qualification. In such circumstances, even after issuing Ext.P6 wherein it was made clear that the pay revision order was not having any statutory validity in the matter of appointment on different posts in Medical Education Service, the first and second respondents are not justified in taking a different stand solely to resist the contentions of the petitioner. We are constrained to say that consistency in view shall be the hallmark in the case of executive action, as well, as it will eradicate the element of arbitrariness. 23. The discussion as above and the specific statement in the counter affidavit by the Government would reveal that in this case, 34 O.P.(KAT)No.1360/2013 instead of preparing a select list in tune with the provisions under Rule 28 of the General Rules for the purpose of preparing the select list, the select list in question, on the strength of which the 3[rd] respondent was given promotion, was prepared solely based on a pay revision order. When once it is found that the select list was prepared not based on the relevant provisions governing the appointments and promotions whereas, it was prepared on the basis of a pay revision order overlooking the relevant rules, it has to be held that the entire proceedings which culminated in the promotion of the 3[rd] respondent as Associate Professor (Neurosurgery) is _ab initio_ void. We have already noted from the counter affidavit that about 22 persons were initially considered for the purpose of effecting promotion to the post of Associate Professor in Neurosurgery by the DPC. Obviously, the petitioner herein was not considered holding that the petitioner was not qualified for being included in the list. But, his precise case is that the 3[rd] respondent was promoted to the post of Associate Professor without convening a DPC. But, from the records we have found that DPC was O.P.(KAT)No.1360/2013 35 convened. At the same time, we have already arrived at a conclusion that as the drawing of select list by the DPC was admittedly not based on the relevant rules but, in the light of pay revision order it cannot be held as a select list prepared in accordance with law for effecting promotion to the post of Associate Professor in Neurosurgery. These relevant aspects were not at all gone into by the Tribunal in the order dated 15.3.2013 passed in O.A.No.476 of 2013. In such circumstances, the order in O.A.No.476 of 2013 passed by the Kerala Administrative Tribunal is liable to be interfered with and accordingly, it is set aside. Consequently, Ext.A9 order in Ext.P1 whereby the 3[rd] respondent was promoted to the post of Associate Professor is also set aside. There will be a further direction to the 2[nd] respondent to cause convening of a review DPC for the purpose of drawing a proper select list for filling up the post of Associate Professor which was filled up by promoting the 3[rd] respondent as per Annexure-A9 in Ext.P1. Needless to say that for that purpose, persons who were all eligible to be included at the relevant point of time shall be included in the list to be placed before O.P.(KAT)No.1360/2013 36 the DPC for drawing the select list, in accordance with law. While preparing the select list Ext.R2(d) pay revision order shall not be looked into and the relevant recruitment rules in force viz., Ext.P3 G.O. dated 7.4.2008 and the relevant provisions under Rule 28 of Part II, KS & SSR alone shall be looked into in that regard, of course bearing in mind the findings and observations in this judgment. Such exercise shall be done expeditiously. Subject to the above, this original petition is disposed of. ## **C.T.RAVIKUMAR, JUDGE** ## **K.P.JYOTHINDRANATH, JUDGE** sv/spc/TKS