Special Executive G.O. Governs Medical Faculty Promotions, Overrides General Service Rule

A bench of Justice Dipankar Datta and Justice Prashant Kumar Mishra heard appeals arising from two Kerala High Court judgments that had set aside administrative actions in promotional appointments in the Medical Education Service, and considered whether executive Government Orders or the general Kerala State & Subordinate Services Rules governed eligibility for promotion to teaching posts.

The Court allowed both appeals and held that the executive Government Order dated 7 April 2008 (G.O. 07/04/2008), which governed recruitment in the Medical Education Service, constituted a special rule for promotion to teaching and administrative cadres and therefore prevailed over the general provisions of Rule 10(ab) of the Kerala State and Subordinate Services Rules (KS & SSR). The Court observed that the High Court erred in holding that five years’ “physical teaching experience” had to be gained only after acquisition of postgraduate/superspeciality degree. The Court, in its reasoning, observed: “Our reading of Rule 10 of the KS SSR, as originally framed in 1958, together with the amendments incorporated in it from time to time, including Rule 10(ab), leads us to the irresistible conclusion that Rule 10 is entirely irrelevant and immaterial for appointment on promotion in the Administrative and Teaching Cadres of the Medical Education Services. The recruitment rules with which we are concerned, i.e., G.O. dated 07th April, 2008, was issued at a point of time when 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.” The Court further noted that “the exclusion of the words ‘after acquiring postgraduate degree’ is deliberate and conscious.”

Background The litigation arose from competing claims to a promotion vacancy in Neurosurgery/teaching posts in the Kerala Medical Education Service. A vacancy for Associate Professor occurred on 13 November 2012. Dr. Sharmad, appointed as Lecturer in 1999 and promoted to Assistant Professor in 2007, acquired an M.Ch. in 2008 and was promoted to Associate Professor on 6 February 2013. Dr. Jyothish, appointed Lecturer in 2005 and promoted to Assistant Professor in 2008, challenged the promotion on the ground that eligibility required five years’ physical teaching experience as Assistant Professor after acquiring the postgraduate or superspeciality degree.

Recruitment in the absence of rules relied upon executive orders. G.O. 07/04/2008 specified qualifications and experience for Branch I (Administrative) and Branch II (Teaching). The G.O. required explicit post‑qualification experience for certain administrative posts by using the phrase “after acquiring postgraduate degree” in the experience column for Branch I, but it did not include those words in the experience column for teaching posts. Respondents relied on a later G.O. dated 14 December 2009 on pay and placement, but the High Court rejected that reliance, accepted Dr. Jyothish’s contention interpreting KS & SSR Rule 10(ab) to require post‑qualification experience, set aside Dr. Sharmad’s promotion and directed a review by the Departmental Promotion Committee excluding the 2009 G.O.

The Tribunal had earlier dismissed Dr. Jyothish’s original application in limine; the High Court reversed. Before the Supreme Court, counsel for the appellants argued that G.O. 07/04/2008 was a self-contained special recruitment rule and that the absence of the phrase “after acquiring postgraduate degree” for teaching posts showed a deliberate exclusion of a post‑qualification requirement. The Court distinguished precedents relied upon by the challengers, including Shesharao Jangluji Bagde and Arun Kumar Agarwal, on factual and contextual grounds, and held that Rule 10(ab) did not displace the special executive G.O. The Court restored the Tribunal’s orders, dismissed the original applications, allowed Civil Appeal No. 13422 of 2024 and Civil Appeal No. 13423 of 2024, and directed that parties bear their own costs. Interim directions previously issued by the High Court were set aside.

Case No.: Civil Appeal No. 13422 of 2024 Case Title: Dr. Sharmad v. State of Kerala and Others Appearances: For the Petitioner(s): Mr. Giri (Senior Counsel) For the Respondent(s): Mr. C.K. Sasi (Learned Counsel); Mr. Chitambaresh (Senior Counsel appearing for Dr. Jyothish)

Case No.: Civil Appeal No. 13423 of 2024 Case Title: Dr. Sheela T.A. and Others v. State of Kerala and Others Appearances: For the Petitioner(s): (Names as per record; counsel included Mr. Romy Chacko, Senior Counsel for impleading applicants) For the Respondent(s): Mr. C.K. Sasi (Learned Counsel)

(Orders pronounced by Justices Dipankar Datta and Prashant Kumar Mishra on January 10, 2025; appeals allowed and impugned High Court orders set aside.)