Recourse To Recruitment Based On Executive Orders Could Be Taken In Absence Of Rules: Supreme Court
The Supreme Court said that no word, phrase & expression used in legislation should be excluded as surplusage.
The Supreme Court allowed an appeal in a service dispute matter and reiterated that in the absence of rules, recourse to recruitment based on executive orders could be taken.
The Court also observed that no word, no phrase and no expression used in legislation should be excluded as surplusage, while the Courts embark on a course of interpretation.
The appeal, by special leave, carried by the appellant Dr. Sharmad took exception to the judgment of a Division Bench of the Kerala High Court allowing a writ petition presented by one of the respondents Dr. Jyothish. The High Court set aside the Kerala Administrative Tribunal’s order dismissing the original application of Dr. Jyothish.
The Division Bench comprising Justice Dipankar Datta and Justice Prashant Kumar Mishra asserted, “This is a case where the maxim expressio unius est exclusio alterius (meaning whatever has not been included has impliedly been excluded) would apply.”
Senior Advocate V. Giri represented the Appellants while Senior Advocate V. Chitambaresh represented the Respondents.
The vacancy on the said post of Associate Professor, which was the bone of contention in this appeal, arose in the year 2012. For recruitment in the Medical Education Service under the Health and Family Welfare Department, Govt. of Kerala, rules under the proviso to clause (2) of Article 309 of the Constitution of India have not been framed. However, recruitment from time to time is made in terms of Government Orders issued by the relevant department. At the time of the occurrence of the vacancy in the said post of Assistant Professor, the Government Order of 2008 was in force.
For recruitment and appointment on the posts of Professor, Associate Professor and Assistant Professor, the educational qualifications appeared to be the same. An aspirant was supposed to have the degree of M. Ch in Neurosurgery or DNB (Neurosurgery). The experience criteria required for the said three posts, however, varied. Dr. Jyothish claimed before the High Court that Dr. Sharmad did not possess the requisite experience to satisfy the mandatory eligibility qualifications and was illegally appointed on promotion to the said post of Associate Professor by the official respondents.
The official respondents sought to defend the promotion of Dr. Sharmad to the said post of Associate Professor by referring to a Government Order of the year 2009 issued by the Health and Family Welfare Department on the subject of pay and allowances of the members of the Kerala Medical Education Service. According to them, G.O. 2009 abrogated G.O of 2008 and in terms of the former, Dr. Sharmad did satisfy the eligibility criteria for promotion to the said post of Associate Professor.
Though the claim of Dr. Jyothish failed before the Tribunal, he succeeded before the High Court which went on to hold that reliance placed by the official respondents on G.O. of 2009 was absolutely misplaced. The High Court set aside the appointment on promotion of Dr. Sharmad to the said post of Associate Professor and directed the official respondents to convene a review Departmental Promotion Committee.
The Bench took note of the fact that the eligibility criteria for appointment on posts borne in Branch – I i.e. Administrative Cadre and in Branch – II i.e. Teaching Cadre, in the absence of recruitment rules framed under Article 309 of the Constitution, are provided by G.O. of 2008 which is the executive order governing recruitment. “Law is settled that in the absence of rules, recourse to recruitment based on executive orders could be taken”, it said.
“It is well settled that no word, no phrase and no expression used in a legislation should be excluded as surplusage, while the courts embark on a course of interpretation”, the Bench remarked.
As on the date of occurrence of vacancy i.e. November 13, 2012, Dr. Sharmad had physical teaching experience of more than 5 years as Assistant Professor and thus he was eligible, in terms of the recruitment rules. “It is well settled that the intention of the rule framer has to be assessed on both parameters i.e. the words used and that of necessary implication. The requisite of post-qualification experience being present in Branch – I, and absent from Branch – II, necessarily implies that it was not a requirement for appointments on promotion to posts borne in Branch – II”, it said.
It was also held that Dr. Jyotish did not have the requisite experience of 5 years physical teaching as an Assistant Professor as he was promoted to such post only on July 22, 2008. Thus, the question of preferring Dr. Jyotish to Dr. Sharmad did not arise at all since the former was deficient insofar as experience to the post of Assistant Professor was concerned.
Thus, setting aside the order of the High Court, the Bench restored the judgment of the Tribunal resulting in the dismissal of the original application of Dr. Jyotish.
Cause Title: Dr. Sharmad v. State of Kerala and Others (Neutral Citation: 2025 INSC 70)
Appearance:
Appellants: Senior Advocate V. Giri, AOR K. Rajeev, Advocates Shinoj K. Narayanan, Bijo M Joy, Pranav Krishna, Niveditha R Menon, Aditya Verma, Tarun Kumar
Respondents: Senior Advocate V.Chitambaresh ,AOR C. K. Sasi, Advocates M. Gireesh Kumar, Meena K Poulose, AOR Ankur S. Kulkarni, Advocates Puspita Basak, Tarun
