Dr. R. Jayaprakash v. State of Kerala & Others (OP(KAT) No.148 of 2015)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN TUESDAY, THE 4TH DAY OF APRIL 2017 / 14TH CHAITHRA, 1939 OP(KAT).No. 148 of 2015 …......... TA 4858/2012 of KERALA ADMINISTRATIVETRIBUNAL,THIRUVANANTHAPURAM DATED 09-01-2015 ## **PETITIONER/RESPONDENT No.6 IN T.A** DR.R.JAYAPRAKASH ASSISTANT PROFESSOR, DEPARTMENT OF PAEDIATRICS, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. BY ADVS.SRI.P.NANDAKUMAR SRI.M.RAHUL ## **RESPONDENTS/APPLICANT & RESPONDENTS 1 TO 5 AND 7 TO 23 IN T.A:** 1. DR.LEELA KUMARI P ASSISTANT PROFESSOR (NON CADRE) DEPARTMENT OF PAEDIATRICS, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 2. STATE OF KERALA - REPRESENTED BY THE SECRETARY TO HEALTH AND FAMILY WELFARE (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL COLLEGE, THIRUVANANTHAPURAM 695 010. 4. THE DEPARTMENT OF PROMOTION COMMITTEE (HIGHER) HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 5. DR.SANUJA SARASAM, - SENIOR LECTURER, DEPARTMENT OF PAEDIATRICS, - MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 6. DR.CYRIL IGNATIUS ROZARIO, - ASSISTANT PROFESSOR, DEPARTMENT OF PAEDIATRICS, MEDICAL COLLEGE, ALAPPUZHA - 688 005. 7. DR.A.S.ROY, ASSISTANT PROFESSOR, DEPARTMENT OF PAEDIATRICS, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. (* **DELETED** ) ## **DELETED “R7”** ***(R7 IS DELETED FROM PARTY ARRAY AS PER ORDER DATED 23.09.2015 IN I.A.No.13563 OF 2015 IN OP(KAT) 148/2015).** **OP(KAT).No. 148 of 2015 -2-** 8. DR.RAMESH RAJAN, SENIOR LECTURER, DEPARTMENT OF SURGICAL GASTROENTEROLOGY, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 9. DR.FATHIMA BEEVI.C SENIOR LECTURER, DEPARTMENT OF COMMUNITY MEDICINE, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 10. DR.INDU.B. SENIOR LECTURER, DEPARTMENT OF COMMUNITY MEDICINE, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 11. DR.LEKSHMI.G., SENIOR LECTURER, DEPARTMENT OF PHYSIOLOGY, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 12. DR.THANKAMMA P.GEORGE, SENIOR LECTURER, DEPARTMENT OF FORENSIC MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 13. DR.SANDHYA C.V. SENIOR LECTURER, DEPARTMENT OF BIOCHEMISTRY, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 14. DR.BINDHU.G. SENIOR LECTURER, DEPARTMENT OF BIOCHEMISTRY, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 15. DR.MANOJ T., SENIOR LECTURER, DEPARTMENT OF RADIO DIAGNOSIS, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 16. DR.A.SARTH KUMAR, SECRETARY, KERALA GOVERNMENT MEDICAL COLLEGE TEACHERS ASSOCIATION, THIRUVANANTHAPURAM (ASSISTANT PROFESSOR, DEPARTMENT OF PATHOLOGY, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 17. DR.SUNIL KUMAR B.S. SENIOR LECTURER, DEPARTMENT OF NEURO SURGERY, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 18. DR.SANDESH K., SENIOR LECTURER, DEPARTMENT OF GASTROENTROLOGY, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 19. DR.SHAJITH SADANAND, SENIOR LECTURER, DEPARTMENT OF GENERAL MEDICINE, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 20. DR.NAUSHAD T.P. SENIOR LECTURER, DEPARTMENT OF METHROLOGY, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 21. DR.GIREESAN V.K., SENIOR LECTURER, DEPARTMENT OF PAEDIATRICS, MEDICAL COLLEGE, THIRUVANANTHAPURAM - 695 011. 22. JAYARAM SANKAR K.R., SENIOR LECTURER, DEPARTMENT OF PAEDIATRICS, MEDICAL COLLEGE, KOZHIKODE - 673 008 **OP(KAT).No. 148 of 2015** **-3-** 23. DR.HARI PRASAD P.G. SENIOR LECTURER, DEPARTMENT OF PAEDIATRICS SAT HOSPITAL, THIRUVANANTHAPURAM - 695 011. R1 BY ADV. SRI.S.MOHAMMED AL RAFI R1 BY ADV. SRI.N.NISHAM R19 BY ADV. SRI.P.V.KUNHIKRISHNAN R6 BY ADV. SRI.K.ABDUL JAWAD R6 BY ADV. SRI.MATHEW A KUZHALANADAN R6 BY ADV. SMT.V.K.ANJU R8 & 17 BY ADV. SRI.ELVIN PETER P.J. R8 & 17 BY ADV. SRI.K.R.GANESH R9,R13,R14 BY ADV. SRI.N.J.JOHNSON GOVERNMENT PLEADER SMT. PRINCY XAVIER THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 04-04-2017,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 148 of 2015 (Z) ## **APPENDIX** **ANNEXURE A1:** TRUE COPY OF THE ORDER DATED 09.01.2015 IN T.A. NO.4858 OF 2012 **ANNEXURE A2:** TRUE COPY OF THE T.A.NO.4858 OF 2012 - EXHIBIT P1: TRUE COPY OF THE JUDGMENT IN O.P. NO.2306/01 ON THE FILE OF THIS HON'BLE COURT DATED 12.06.2002. - EXHIBIT P2: TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.7024/2004 ON THE FILE OF THIS HON'BLE COURT DATED 12.06.2002 - EXHIBIT P3: TRUE COPY OF THE ORDER ISSUED BY THE FIRST RESPONDENT DATED 07.07.2006. - EXHIBIT P4: TRUE COPY OF THE PROVISIONAL SENIORITY LIST DATED 06.01.2007. - EXHIBIT P5: TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DATED 09.03.2007. - EXHIBIT P6: TRUE COPY OF THE INTERIM ORDER IN W.P.(C) NO.31184/2005 ON THE FILE OF THIS HON'BLE COURT DATED 08.11.2005. - EXHIBIT P7: TRUE COPY OF THE INTERIM ORDER IN W.P.(C) NO.32772/2005 ON THE FILE OF THIS HON'BLE COURT DATED 28.11.2005. - EXHIBIT P8: TRUE COPY OF THE REFERENCE ORDER DATED 06.06.2006. - EXHIBIT P10: TRUE COPY OF THE ORDER G.O.(M.S.) NO.100/2008/H&FWD ISSUED BY THE FIRST RESPONDENT DATED 07.04.2008. - **ANNEXURE A3:** TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE GOVERNMENT - **ANNEXURE A4:** TRUE COPY OF THE REPLY AFFIDAVIT FILED BY THE APPLICANT - EXHIBIT P9: TRUE COPY OF INTERIM ORDER IN W.P.(C) NO.19029/2005 DATED 07.03.2006 - **ANNEXURE A5:** TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE FOURTH RESPONDENT IN THE T.A. - EXHIBIT R4 A : TRUE COPY OF THE G.O.(P) 455/76/HEALTH DATED 22.12.1976 WITH THE RELEVANT EXTRACT OF ITS APPENDIX. - EXHIBIT R4(B): TRUE COPY OF THE RELEVANT EXTRACT OF REGULATIONS 1998 OF THE MEDICAL COUNCIL OF INDIA. EXHIBIT R4(C): TRUE COPY OF THE G.O.(P) NO.272/05/H&FWD DATED 27.10.2005 - **ANNEXURE A6:** TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE FIFTH RESPONDENT IN THE T.A. - EXHIBIT R5(A): TRUE COPY OF THE GOVERNMENT ORDER NO.455/76 DATED 22.12.1976. - EXHIBIT R5(B): TRUE COPY OF THE RELEVANT EXTRACT OF REGULATIONS 1998. - EXHIBIT R5(C): TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(P) NO.272/05/H&FWD DATED 27.12.2005 OP(KAT).No. 148 of 2015 (Z) **ANNEXURE A7** : TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 8 TO 20 IN THE T.A. EXHIBIT R8(A): TRUE COPY OF THE ORDER G.O. DATED 22.12.1976 ISSUED BY THE GOVERNMENT EXHIBIT R8(B): TRUE COPY OF THE ORDER G.O. DATED 27.10.1976 ISSUED BY THE GOVERNMENT. EXHIBIT R8(C): TRUE COPY OF THE MINIMUM QUALIFICATIONS FOR TEACHERS IN MEDICAL INSTITUTIONS REGULATIONS, 1998 ISSUED BY THE MEDICAL COUNCIL OF INDIA. EXHIBIT R8(D): TRUE COPY OF THE SELECT LIST ISSUED AS PER NOTIFICATION, G.O., DATED 05.03.2007. EXHIBIT R8(E): TRUE COPY OF THE SELECT LIST ISSUED AS PER NOTIFICATION, G.O., DATED 17.03.2007. **ANNEXURE A8** : TRUE COPY OF THE ADDITIONAL COUNTER AFFIDAVIT FILED BY THE GOVERNMENT. ## **RESPONDENTS' EXTS:** EXT. R-8(F): TRUE COPY OF G.O. DATED 5.3.2007. EXT. R-8(G): TRUE COPY OF GO(MS) NO.141/94/ H&FWD DATED 18.6.1994. TRUE COPY P.S. TO JUDGE dsn ## **C.T. RAVIKUMAR & ANIL K. NARENDRAN, JJ. -------------------------------------------------O.P.(KAT)No.148 OF 2015** **-------------------------------------------------DATED THIS THE 4[th] DAY OF APRIL, 2017** ## **JUDGMENT** ## **C.T. RAVIKUMAR, J.** This Original Petition is directed against the order dated 9.1.2015 in T.A.No.4858/2012. The petitioner herein was the 6[th] respondent, the 1[st] respondent herein was the applicant and all the other respondents were the respondents, before the Tribunal. The short question involved in this Original Petition is whether the three years' physical teaching experience prescribed as a qualification for promotion from the post of Senior Lecturer to Assistant Professor in Paediatrics should be one acquired after acquisition of Post Graduate (PG) qualification. The Tribunal had considered the rival contentions and found that Ext.P10 G.O. dated 07.04.2008 which came into force in the year 2008 and Ext.R4(a) G.O. dated 22.12.1976 applicable for such promotions till then, are silent on the issue as to whether the experience should be one acquired after the acquisition of the qualification for such promotion and therefore, applying the provisions under Rule 10(ab) of Part II of KS&SSR, it should be one acquired after acquisition of the PG qualification. O.P.(KAT)No.148/2015 -2- Consequently, T.A.No.4858/2012 was disposed of with necessary consequential directions. It is aggrieved by the said order that the captioned Original Petition has been filed. 2. The facts essential for the consideration of the Original Petition in succinct are as follows: 3. The petitioner herein was appointed as a Lecturer on 30.5.1997. He acquired the PG qualification on 15.7.2004. Prior to the completion of three years' physical teaching experience, he was promoted as Assistant Professor on 30.9.1996. The 1[st] respondent herein felt aggrieved by the same and she filed W.P. (C)No.8316/2007 before this Court praying for, rather, claiming promotion to the post of Assistant Professor in preference to respondents 4 to 7 therein. Essentially, the contention was that, though they were senior to her they were not having the requisite physical teaching experience as on the date of occurrence of vacancies. The said Writ Petition was subsequently transferred to the Kerala Administrative Tribunal pursuant to its constitution and thereafter it was re-numbered as T.A.No.4858/2012. 4. The applicant joined the post of Lecturer in Medical O.P.(KAT)No.148/2015 -3- Education Department in Paediatrics on 10.12.1999. She acquired PG qualification on 24.5.2001. Consequent to the acquisition of the said qualification, the post held by her was redesignated as Senior Lecturer with effect from 1.6.2001. She acquired the physical teaching experience of three years on 1.6.2004 and she was promoted to the post of Assistant Professor on 26.6.2008. In the case of respondents 5 and 6 herein, they were appointed as Lecturer respectively on 8.6.1999 and 11.3.1998 and they acquired PG qualification respectively on 15.7.2004 and in November, 2004. They were promoted to the post of Assistant Professors respectively on 7.7.2007 and 28.9.2006. As noticed hereinbefore, the contention of the 1[st] respondent/applicant was that though she was junior to the petitioner and respondents 5 and 6 herein on acquiring the Post Graduate qualification on 24.5.2001, she completed the requisite period of experience after acquisition of the PG qualification on 1.6.2004, viz; much prior to the acquisition of the qualification of experience by the petitioner and respondents 5 and 6. However, ignoring the relevant provisions regulating appointment O.P.(KAT)No.148/2015 -4- to the post of Assistant Professor the fact that she was fully qualified and that the petitioner and respondents 5 and 6 were not having the prescribed teaching experience of three years after acquisition of the PG qualification, they were granted promotion to the post of Assistant Professor earlier than the applicant/1[st] respondent. In fact, it was raising such contentions and grievances that the Writ Petition which was later transferred and re-numbered as T.A.No.4858/2012, was filed by the 1[st] respondent herein with the aforementioned prayers. 5. The petitioner herein and the other contesting respondents resisted the claims and contentions of the 1[st] respondent/applicant and evidently, they contended that Rule 10(ab) of Part II of KS&SSR, which she was relying on is totally inapplicable in the case. The contention is that under the earlier Ext.R4(a) G.O. dated 22.12.1976 as also in Ext.P10 G.O. dated 07.04.2008 presently governing the method of appointment and qualification for appointment to the post of Assistant Professor from the post of Senior Lecturer, no such prescription was/is there that the qualification of experience prescribed therein O.P.(KAT)No.148/2015 -5- should be one acquired after the acquisition of PG qualification. In such circumstances, it is contended by them that relying on Rule 10(ab) of the General Rules, they could not be held as ineligible for promotion to the post of Assistant Professor and there is absolutely no merit in the claim of the 1[st] respondent/applicant for promotion to the post of Assistant Professor in preference to them. Going by the contentions raised by the petitioner herein/6[th] respondent in the Transfer Application, Rule 10(ab) of Part II of KS&SSR is totally inapplicable in this case and therefore, it could not be said that the qualification of three years' teaching experience prescribed under Ext.P10 Rules should be one gained after acquisition of PG qualification. In other words, it is contended by the petitioner and respondents 5 and 6 herein that they got the teaching experience of three years in the post of Senior Lecturer though the said teaching experience was not one gained after acquiring the PG qualification. In the absence of any specific provision mandating that the said qualification of experience should be one gained after acquisition of PG qualification, the same cannot be O.P.(KAT)No.148/2015 -6- taken as a ground to hold them ineligible to get promotion to the post of Assistant Professor in Paediatrics before completion of three years physical teaching experience after acquisition of the PG qualification, it is further contended. It is the consideration of such contentions that culminated in the impugned order dated 09.01.2015. 6. Heard the learned counsel on both sides. 7. Admittedly, there is no Special Rules or Recruitment Rules framed for providing the method of appointment and qualifications to various faculties including Faculty in Paediatrics. This is being governed by Ext.P10 G.O. dated 7.4.2008. Evidently, prior to the coming into force of G.O. dated 7.4.2008, G.O.(P)No.455/76/Health dated 22.12.1976 was the executive order prescribing qualifications and teaching experience required for appointment to various teaching posts under the Medical Education Department. Going by Ext.R4(a) G.O. dated 22.12.1976, which was in force till 06.04.2008, the qualification for appointment to the post of Lecturer/Assistant Professor in Paediatrics was as follows:- O.P.(KAT)No.148/2015 -7- |Professor/<br>Associate<br>Professor|M.D.(Paediatrics),<br>Speciality Board of<br>Paediatrics<br>(U.S.A.)<br>M.D. (Medicine/M.R.C.P.<br>With<br>D.C.H.)<br>M.R.c.P./F.R.C.P. (with<br>Paediatrics as a special<br>subject)<br>or<br>an<br>equivalent qualification.|(a) As Reader/Asst.Prof.<br>in Paediatrics for 5<br>years in a medical<br>college after requisite<br>post-graduate<br>qualification.<br>(b) As Registrar/Tutor or<br>an equivalent post in<br>Paediatrics for at<br>least three years in a<br>teachinginstitution| |---|---|---| Thus, going by Ext.R4(a).G.O., the required teaching experience was three years in teaching institutions. As per Ext.P10 G.O. dated 7.4.2008, which is now in vogue, qualifications prescribed for appointment to the post of Assistant Professor in Paediatrics is MD Paediatrics/DNB Paediatrics and three years physical teaching experience as Senior Lecturer/Lecturer (regular) in Paediatrics. 8. We have referred to both Ext.R4(a) and Ext.P10 as it is evident from the impugned order that a contention to counter the claim and contention of the petitioner was raised by the learned Government Pleader before the Tribunal, based on Ext.R4(a) G.O. and Ext.P10 G.O. that the qualification for promotion is to be determined with reference to the date of occurrence of vacancy. Evidently, the grievance of the 1[st] respondent/applicant is against the promotion of the petitioner O.P.(KAT)No.148/2015 -8- and respondents 5 and 6 herein, ahead of him, as against posts which occurred prior to 2008, and in other words, prior to the issuance of Ext.P10 G.O. Evidently, the Tribunal took note of the relevant provision governing promotion to the post of Assistant Professor in Paediatrics both under Ext.R4(a) G.O. and also Ext.P10 G.O. dated 7.4.2008. The Tribunal found that on the question as to whether the qualification of experience prescribed, should be one gained after the acquisition of PG qualification that both the G.Os. are silent. Obviously, taking into account the said aspect that the Tribunal went on to consider the question as to whether Rule 10(ab) of the General Rules is applicable in the case on hand. Ultimately, The Tribunal held that when the Special Rules or the relevant executive orders are silent in that regard, the provisions under Rule 10(ab) of the General Rules would apply. Rule 10(ab) of the General Rules reads thus:- “10(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 O.P.(KAT)No.148/2015 -9- 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.” 9. A bare perusal of Rule 10(ab) of the General Rules would make it abundantly clear that wherever the Recruitment Rules or the Special Rules for a particular post in any service prescribe qualification of experience, it shall, unless otherwise specified be one gained after acquisition of the basic qualification prescribed for that post. We have already taken note of the basic qualification prescribed for promotion to the said post. We have also taken note of the fact that no Special Rules or Recruitment Rules have been framed to regulate promotion to various faculties under Medical Education Department and that such matters are being governed by executive orders. Indisputably, Ext.R4(a) was the executive order prevalent at the time of occurrence of the vacancy and subsequently it was O.P.(KAT)No.148/2015 -10- superseded by Ext.P10 G.O. dated 7.4.2008. It is not in dispute that either in Ext.R4(a) or in Ext.P10, there is anything which would specifically indicate that the qualification of experience prescribed thereunder should be one gained before acquisition of the basic qualification prescribed for the post. In such circumstances, the Tribunal held that Rule 10(ab) of the General Rules would apply. Evidently, for coming to such a conclusion, the Tribunal had relied on the decision of a Full Bench of this Court in **Basheer v. Saiful Islam (2014 (4) KLT 521)** . Obviously, the Full Bench referred to and relied on an earlier Division Bench decision of this Court in **Sirajudheen v. KPSC** reported in ( **2001 (2) KLT 268)** . In all those decisions, in unambiguous terms, it was held that when the Special Rules or Recruitment Rules or any other rules governing the method of appointment and qualification are silent about the question whether the experience prescribed thereunder as a qualification should be one gained prior to the acquisition of the basic qualification, then Rule 10(ab) of the General Rules would apply and in such circumstances, it should be taken that the prescribed O.P.(KAT)No.148/2015 -11- qualification of experience should be one gained after acquisition of the basic qualification. 10. The learned Government Pleader attempted to resist the contentions contending that in Ext.P10 Government order, in relation to the post of Director and Joint Director, teaching experience was specifically prescribed as one which could be gained only after acquisition of qualification and when such a prescription is conspicuously absent in relation to the other post/posts it should be taken that, such condition is not insisted could be one and the experience gained prior to the acquisition of the basic qualification. The learned Government Pleader had also taken up a contention before the Tribunal that Ext.P10 G.O. dated 7.4.2008 is not the relevant Rule to be looked into while considering the sustainability of the contentions raised by the applicant/1[st] respondent. In other words, it was contended before the Tribunal that Ext.R4(a) is the relevant order to be looked into while considering the said question. We are of the considered view that such contentions are absolutely inconsequential in the light of the Division Bench decision of this O.P.(KAT)No.148/2015 -12- Court in Sirajudheen's case and the Full Bench decision in Basheer's case. Going by the said decisions, two factors are to be looked into for deciding the applicability of Rule 10(ab) of the General Rules. That is, whether the Special Rules or the Recruitment Rules or any other rules governing the method of appointment prescribe experience as a qualification. If it is so prescribed, the next factor is whether there is anything in them specifically indicating that such experience should be one gained before the acquisition of the basic qualification. When experience is prescribed as the qualification and there is nothing in the relevant Rules governing method of appointment and qualification, indicating that such experience should be gained before the acquisition of the basic qualification prescribed for the post, then, Rule 10(ab) of the Rules must apply. 11. The learned counsel for the petitioner contended that the Tribunal went wrong in holding that Rule 10(ab) of Part II of KS & SSR is applicable in relation to the relevant rules viz., Ext.R4(a) Rules. As noticed hereinbefore, it is an admitted position that no special rules or recruitment rules were framed O.P.(KAT)No.148/2015 -13- with respect to the method of appointment and qualification in Medical Education Service. Admittedly, all such matters were being/are being governed by executive orders. In the absence of special rules/recruitment rules executive orders could govern recruitment in view of Rule 10(ab) of Part II of KS & SSR. The Division Bench decision of this Court in **Sirajudheen's** case (supra) gave wider meaning to the term `Recruitment Rules'. The Division Bench took note of the fact that Rule 10(ab) uses the expression “Special Rules” as well as “Recruitment Rules”. The term `Special Rules' has been defined under Rule 2(16) of KS & SSR. After giving a wider interpretation of the term `Recruitment Rules' the Division Bench held that when wider meaning is given to Recruitment Rules there would be no reason why the rules framed by the Central Government under Section 213(4) of the Motor Vehicles Act be not come within the meaning of `Recruitment Rules'. It was held that the Central Government in exercise of powers conferred under Section 213(4) of the Motor Vehicles Act would satisfy the definition of “Recruitment Rules” for the purpose of application of Rule 10(ab) of Part II of O.P.(KAT)No.148/2015 -14- KS & SSR. When that be the interpretation given by the Division Bench in **Sirajudheen's** case (supra) in the absence of special rules or recruitment rules by virtue of Rule 10(ab) executive orders should also satisfy the definition of `Recruitment Rules' for the purpose of application of Rule 10(ab) of Part II of KS & SSR. The learned counsel contended that Ext.R4(a) G.O. came into force much prior to the insertion of Rule 10(ab) in Part II of KS & SSR published as SRO.No.591/93 in Kerala Gazette No.13 dated 30.3.1993. Hence, the provisions under Rule 10(ab) could not be applied merely because in Ext.R4(a) G.O. it was not specified otherwise. To fortify the said contention the learned counsel relied on Ext.R4(c), Government order dated 27.10.2005 whereby a minimum basic qualification and teaching experience for appointment to the post of Assistant Professor was prescribed in Kerala Government Dental Colleges. Though the regulations of the Dental Council prescribe that the experience should be one gained after acquiring the prescribed basic qualifications corresponding amendments were not made in the relevant special rules for Kerala Dental Education Service. Evidently, in such O.P.(KAT)No.148/2015 -15- circumstances, as per Ext.R4(c), clarification was issued to the effect that while considering teaching experience for promotion to the post of Assistant Professor in Kerala Dental Education Service, the provisions under Rule 10(ab) of the General Rules should be taken into consideration and by virtue of the same, the prescribed minimum experience for promotion to the post of Assistant Professor in Kerala Dental Education Service should be taken as three years after Post Graduation as Lecturer. The learned counsel also drew our attention to Ext.P3 clarification issued to Ext.R4(c). It would reveal that in the light of Government order dated 27.10.2005 the question whether the said clarification is applicable for promotion to the post of Assistant Professor in Kerala Medical Education Service was also considered taking note of the fact that the existing norms of Medical Council of India did not insist upon three years teaching experience, after Post Graduation, as Lecturer for getting promotion to the post Assistant Professor. It was clarified thereunder that Government order dated 27.10.2005 viz., Ext.R4(c) would not be applicable for promotion to the post of O.P.(KAT)No.148/2015 -16- Assistant Professor in Kerala Medical Education Service. The contention of the learned counsel for the petitioner is that Ext.P3 as also the position obtained from Ext.R4(a) would undoubtedly reveal that Rule 10(ab) of the General Rules could not override the provisions under Ext.R4(a) G.O. in the matter of promotion to the post of Assistant Professor in Medical Education Service. The learned counsel contended that a scanning of Ext.R4(a) would reveal that in the case of Professor/Associate Professor it was specifically made clear that the prescribed qualification of experience viz., five years should be one gained after acquisition of post-graduate qualification and even then contended that even after prescribing that the qualification of experience should be one after acquiring the basic qualification as regards the post of Professor/Associate Professor such a prescription is conspicuously absent as relates the post of Reader/Assistant Professor and the required qualification of experience for the said is prescribed as follows:- “As Registrar/Tutor or an equivalent post in Paediatrics for at least three years in a teaching institution.” According to the learned counsel, the conspicuous absence of a O.P.(KAT)No.148/2015 -17- condition that the prescribed qualification of experience should be one gained after acquisition of basic qualification in respect of the post of Assistant Professor should be taken as a specific exclusion while considering the applicability of Rule 10(ab) with respect to the qualification prescribed in Ext.R4(a) G.O. for promotion to the said post. 12. We have already referred the decision of the Full Bench in **Basheer's** case (supra) and the Division Bench decision in **Sirajudheen's** case (supra). We have extracted Rule 10(ab) of General Rules and as per the same, in special rules or recruitment rules concerning any particular service, if qualification is prescribed as experience, unless it was indicated thereunder specifically that such experience could be gained before acquisition of the basic qualification prescribed for the post it should be taken that the prescribed qualification of experience should be one gained after acquisition of the basic qualification prescribed for the post. Evidently, this is the enunciation of law in **Basheer's** case and **Sirajudheen's** case (supra). 13. In the contextual situation, it is apposite to refer to O.P.(KAT)No.148/2015 -18- the decision of a learned Single Judge of this Court in **Roy K. George v. Kerala Public Service Commission** reported in **1999(2) KLT S.N.4 (Case No.4).** In that case, challenge was also made against sub-rule (ab) of Rule 10 of Part II of KS & SSR introduced by way of an amendment in terms of Section 2 of the Kerala Public Services Act. The said decision in so far as it is relevant reads thus:- “There is challenge against this rule in one among the Original Petitions. Sub-rule (ab) was introduced to R. 10 by an amendment and such amendment is in terms of S.2 of the Kerala Public Services Act. There is no challenge to the competence of the Government in introducing that amendment. R.10 of the General Rules is with reference to the qualification which includes experience as well. R.10(ab) is with reference to prescription of qualifications of experience and to provide a uniform approach in respect of such experience to the effect that it shall be one gained after acquiring basic qualification. It will not enable the different appointing authorities to adopt varied yardsticks accepting experience acquired before the acquisition of the qualification in one case and insist for such experience after the acquisition of qualification in another case. R.10(ab) is thus intended to eschew arbitrariness and a rule to eschew arbitrariness can never be considered as arbitrary. There is no arbitrariness in R.10(ab). Therefore, challenge against R.10(ab) fails.” (emphasis added) We do not find any reason for dissenting with the said view in **Roy K. George's** case in regard to the purpose of introduction of O.P.(KAT)No.148/2015 -19- Rule 10(ab) in Part II, KS & SSR. If liberty is granted to different appointing authorities to adopt yardsticks on their own there is a possibility of one authority accepting experience acquired before the acquisition of the qualification and another authority insisting such experience after the acquisition of qualification. In such circumstances, to eschew arbitrariness a uniform interpretation is required and that essentially is the very purpose of insertion of Rule 10(ab) in Part II, KS & SSR. In such circumstances, we are of the considered view that Rule 10(ab) of the General Rules could not be made inapplicable in regard to the qualification of experience prescribed under Ext.R4(a) or under Ext.P10 G.O., based on the contention that the exclusion of acquisition of qualification of experience posterior to the acquisition of the basic qualification could be implied from Ext.R4(a) or Ext.P10. In the light of the specific provisions under Rule 10(ab) one need not endeavour to find out whether such an exclusion could be impliedly gathered from the relevant recruitment rules/special rules/executive orders so long as it is not otherwise specifically provided in the special rules/ recruitment rules or in the O.P.(KAT)No.148/2015 -20- concerned executive orders. In this context, it is also relevant to refer to Ext.R4(c). A bare perusal of paragraph 6 of the same would reveal that Government also understood the position in that manner. In paragraph 6 thereunder it was stated:“Government have examined the matter in detail. As the Special Rules of Kerala Dental Education Service is silent on whether teaching experience has to be acquired before or after taking the Post Graduate degree, the provisions contained in Rule 10(ab) in the General Rules are automatically applicable.” Thus, it is evident that Government was also of the view that wherever the experience is prescribed as a qualification, on the question whether the prescribed teaching experience should be one gained before or after acquisition of the basic qualification prescribed for the said post, the provisions contained under Rule 10(ab) in the General Rules would be automatically applicable in case in special rules/recruitment rules or the executive orders concerned experience is prescribed as a qualification and the said rule or executive order is silent as to whether the prescribed experience should be one gained anterior or posterior to the acquisition of O.P.(KAT)No.148/2015 -21- the basic qualification prescribed for that post. When that be the position obtained by a perusal of Rule 10(ab) of the General Rules and also the judicial pronouncements referred hereinbefore, we do not find any reason to hold that the Tribunal had gone wrong in considering the applicability of Rule 10(ab) of the General Rules as relates promotion to the post of Assistant Professor in Kerala Medical Education Service. 14. The learned counsel appearing for the petitioner submitted that even in such circumstances, the endeavour of the first respondent would end as a futile exercise as such an interpretation would enable him only to get a declaration as sought for and in the absence of specific challenge against the promotions given to the petitioner and similarly situated persons the first respondent could not achieve the desired purpose of getting seniority over them by indirectly putting up a challenge only against the select list. The learned counsel for the petitioner further contended that even in respect of challenge against the select list made in the transfer application it is to be noted that the term `select list' has been used thereunder so vaguely and it O.P.(KAT)No.148/2015 -22- is not discernible from the pleadings in the transfer application as to which was the select list under challenge. In elaboration of the said contention it is also contended that the Tribunal ought to have dismissed the transfer application for non-joinder of necessary parties as all the persons included in the select list concerned were not made parties to the transfer application. In short, it is contended that since such persons were not made parties to the transfer application even after making a prayer for declaration affecting such persons the Tribunal ought not to have issued further direction to review the promotion effected based on the select list concerned. Thus, it is evident that the nub of the contentions is that in the absence of specific challenge against the promotions with all the promotees from the select list concerned as parties, the Tribunal was not justified in issuing a specific direction to review the promotions. The learned Government Pleader also endorsed the said contention. 15. Per contra, the learned counsel appearing for the first respondent/the applicant contended that the petitioner had specifically made a challenge against the select list and sought O.P.(KAT)No.148/2015 -23- for appropriate reliefs, as is evident from prayer No.(v) made in the T.A. It is only appropriate to extract prayer No.(v) made in the Transfer Application and it reads as follows:- “(v) issue a writ in the nature of mandamus directing respondents 1 to 3 to recast the select list to the post of Assistant Professor with due regard to Rule 10(ab) of the General Rules as interpreted time and again.” It is also appropriate to refer to the other reliefs sought for, in the Transfer Application. They read thus:- “(i) issue a writ in the nature of mandamus directing respondents 1 to 3 to effect promotion to the post of Assistant Professor in the Medical Education Service strictly in tune with Exts.P6 and P7 orders; (ii) issue a writ in the nature of mandamus directing respondents 1 to 3 to reckon `teaching experience' for promotion to the post of Assistant Professor strictly in accordance with Rule 10(ab) of the General Rules. (iii) issue a writ in the nature of mandamus directing the second respondent to consider Ext.P5 in accordance with Rule 10(ab) of the General Rules and Exts.P6 and P7 orders passed in similar cases; (iv) call for the records leading to the issue of Ext.P3 clarificatory order issued by the first respondent and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction. (vi) declare that the teaching experience of three years specified in the Special Rules for Medical Education Service can be reckoned only after the O.P.(KAT)No.148/2015 -24- acquisition of the Post Graduate Degree in the subject. (vii) issue such other writ, order or direction as this honourable court deems fit and proper in the circumstances of the case; and (viii) call for the records leading to the passing Ext.P10 order and quash the same by the issue of a writ of certiorari or other appropriate writ, order or direction.” 16. The question is whether prayer No.(v) or any other prayer could be regarded as sufficient to issue a direction to review promotions effected to the post of Assistant Professor in Paediatrics. As regards prayer No.(v) it can only be said that it is too vague. The petitioner sought only for issuance of a writ in the nature of mandamus to recast the select list of Assistant Professor with due regard to Rule 10(ab) of the General Rules. At the same time, it is also to be noted that which is the select list concerned sought to be recast is not at all discernible from the said prayer. In the contextual situation, it is also relevant to note that all the persons who were included in the select list, if at all it is taken that the first respondent calls in question any particular select list, were not made parties to the Transfer Application. The first respondent/applicant had not taken up O.P.(KAT)No.148/2015 -25- paper publication regarding the institution of the writ petition which was re-numbered as T.A.No.4858 of 2012 at any stage so as to enable persons having interest on the subject matter or persons who are likely to be affected to come and join in the proceedings. Admittedly, none of such parties viz., any one of the promotees from the select list concerned was impleaded in a representative capacity and there is absolute absence of any such pleadings in the Transfer Application that one among respondents 4 to 7 therein was impleaded in a representative capacity. In this context, it is only proper to note that when only a small number of identifiable persons are to be made parties such a course, even if adopted, would not have been sufficient to satisfy the legal requirement. Furthermore, it is to be noted that a bare scanning of the prayers made in the Transfer Application would reveal that the first respondent/applicant had not made any specific prayer to interfere with the promotions granted to the respondents or in that regard anyone included in any particular select list. It is nobody's case that in the Medical Education Service, hitherto, only a solitary select list was prepared by the Departmental O.P.(KAT)No.148/2015 -26- Promotion Committee for effecting promotion to the post of Assistant Professor. In this context, it is relevant to refer to a decision of a Full Bench of this Court in **M.P.Raghavan Nair** v. **State Insurance Officer and others (1971 KLT 583 (F.B))** . The Full Bench held that so long as promotion had not been questioned and set aside one cannot claim seniority. Certainly, it was held that such a person cannot claim seniority over those persons whose promotions were not questioned. In this case, evidently, the first respondent/applicant had not challenged the promotion of the petitioner or in that matter any one of the party respondents or selectees of any particular year before the Tribunal and we have already taken note of the manner in which he challenged the select list. 17. Therefore, it is obvious that the petitioner had not directly challenged any particular select list of any particular year. She had also not chosen to challenge the promotion of any of the party respondents or promotions effected based on any particular select list. It is also relevant to note that she has also not prayed for assignment of seniority over anyone. But, the fact is that the O.P.(KAT)No.148/2015 -27- 1[st] respondent /the applicant was, virtually, attempting to achieve such reliefs indirectly. In such circumstances, we are of the considered view that the prayer No.(v) made by the petitioner in the writ petition for issuance of “an order in the nature of mandamus directing respondents 1 to 3 to recast the select list to the post of Assistant Professor with due regard to Rule 10(ab) of the General Rules as interpreted time and again”, could not have been a ground for the Tribunal to order review of promotion effected to the post of Assistant Professor in Medical Education Service. In this context, it is also relevant to note that after the filing of the Writ Petition, which was later re-numbered as as a Transfer Application, promotion to the post of Assistant Professor in Medical Education Service was effected by the Department, and, at the same time, the petitioner has not chosen to challenge such promotions effected during the pendency of the Transfer Application, as well. It is also relevant to note that in the meanwhile, even though the petitioner got amended the Transfer Application, he has not chosen to amend the same by moulding challenge against such promotion. The salutary principle is that O.P.(KAT)No.148/2015 -28- what cannot be done directly cannot be permitted to be done indirectly, merely because the petitioner sought for recasting of the select list, that too without mentioning a particular select list, against which he has grievance. Such a vague prayer cannot culminate in unsettling of promotions validly effected in respect of persons to the post of Assistant Professor. On going through the impugned order, we are of the view that though the Tribunal is perfectly justified in the light of judicial pronouncements to interpret the applicability of Rule 10(ab) of the General Rules in stead of 1976 Rules, [Ext.R4(a)], it had erred in issuing a consequential direction to review all promotions effected to the post of Assistant Professor. 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 O.P.(KAT)No.148/2015 -29- 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. The impugned order will stand modified to the above extent and accordingly, the original petition will stand disposed of. Sd/- **C.T. RAVIKUMAR, JUDGE** Sd/- **ANIL K. NARENDRAN, JUDGE** dsn/TKS/jg