[Professor Appointment] Teaching Experience Can Only Be One That Is Gained After Acquiring Essential PG Qualification: Kerala High Court
The Kerala High Court on Tuesday reiterated that the teaching experience prescribed under the Special Rules in force for promotion to the post of Professor (in the Department of Prasuti Tantra and Striroga) has to be read along with the provisions of Rule 10 (ab) of Part II Kerala State & Subordinate Service Rules (KS & SSR) and thereby, it observed that teaching experience can only...
The Kerala High Court on Tuesday reiterated that the teaching experience prescribed under the Special Rules in force for promotion to the post of Professor (in the Department of Prasuti Tantra and Striroga) has to be read along with the provisions of Rule 10 (ab) of Part II Kerala State & Subordinate Service Rules (KS & SSR) and thereby, it observed that teaching experience can only be one that is gained after the acquisition of the essential qualification.
Division Bench consisting of Justice A K Jayasankaran Nambiar and Mohammed Nias C P observed that,
When we read the provisions in the Special Rules along with Rule 10 (ab) of Part II KS & SSR, as the Tribunal did in the instant case, the conclusion is inescapable that the teaching experience of ten years mentioned for the post of Professor is one that has to be gained after obtaining the basic PG qualification required for the post.
Brief Factual Matrix
The petitioners were filed challenging an order passed by the Kerala Administrative Tribunal.
An Application was moved before the Tribunal by the Associate Professor in the Department of Prasuti Tantra and Striroga in the Government Ayurveda College, Kannur aggrieved by the decision of the Departmental Promotion Committee [DPC] that convened to consider the candidates for promotion to the post of Professor to a vacancy that arose with effect from 26.9.2014. DPC had decided to consider the candidature of the applicant along with two other candidates, who, according to the applicant, were not qualified in terms of the Special Rules in force for promotion to the post of Professor in the Department of Prasuti Tantra and Striroga. Per the said Rules, the post of Professor [Prasuti Tantra and Striroga] was to be filled by promotion from among Reader (Associate Professor) and, in the absence of qualified persons for promotion, by direct recruitment. Promotion to the category of Professor is based on cadre seniority in the concerned Department and the candidate is to be chosen from a select list.
The Applicant's case is that although the other two candidates obtained their PG qualification within the extended period granted under the Special Rules in force, however, the period spent by them in various posts where PG qualification was prescribed as the essential qualification could not be counted towards the teaching experience required for the post of Professor for which also PG Degree was prescribed as an essential qualification.
Findings of the Tribunal
The tribunal after considering the issue had held that Rule 10 (ab) of Part II KS & SSR had to be read along with the Special Rules that prescribed qualifications for the post of Professor and when so read, the qualifying teaching experience for the post had to be seen as teaching experience gained after acquiring the PG qualification.
The Tribunal had therefore declared that the applicant was alone qualified for promotion to the post of Professor [Prasuti Tantra and Striroga] citing that on the date of arising of the vacancy in the post of Professor the petitioner had ten years service inclusive of five years in the Assistant Professor category from 20.1.2006, whereas the other two candidates acquired the ten years experience only in 2015 and 2016 respectively.
Aggrevied by the order of the Tribunal, the present petitions were filed.
Contentions Raised
The Counsel appearing for the petitioners and the Government Pleader contended that the other two candidates had rendered service as Tutor, Lecturer and Reader based on the exemption that they had obtained in terms of the Special Rules from obtaining the PG qualification and their service in the posts concerned had therefore to count towards the ten years of experience contemplated under the Special Rules for the post of Professor.
The Counsel further contended that since there was no prescription in the Special Rules that the experience had to be gained after the acquisition of the PG qualification, the provision of Rule 10 (ab) Part II KS & SSR could have no application as the said Rule itself contemplates its application only in cases where a contrary intention is not expressed in the Service Rules concerned and here the Special Rules governing recruitment to the post of Professor speaks only of the requirement of ten years of teaching experience in the concerned subject of which five years experience had to be as Reader or Assistant Professor in the Government Ayurveda College.
On the contrary, the Counsel appearing for the respondent submitted that the provisions of the Special Rules have to be read in the backdrop of the provisions of the Indian Medicine Central Council Act and the Regulations issued thereunder since the Minimum Standards of Education prescribed under the Central Act and Regulations cannot be diluted by the Special Rules.
The Counsel argued that the Special Rules only extended them time to obtain the minimum qualifications prescribed for the posts and did not waive the requirement of obtaining the said qualifications as indeed it could not in the light of the specific provisions in the Central Regulations. The Counsel further contended that Rule 10 (ab) of Part II KS & SSR has to be seen as supplementing the provisions and Special Rules, and when so read, it is clear that the teaching experience contemplated for the post of Professor is one gained after acquiring the PG qualification that is prescribed for the post of Professor.
Relying on Apex Court decision in D K Jain and others v. State of Haryana and Others and Kerala High Court decisions in Subramonian Namboodiri v. State of Kerala and P. Bhaskaran & Others v. Addl. Secretary & Others, the Counsel pointed out that it is now a settled principle in Service law that exemption if any granted in acquiring the qualifications for the lower post will not enure to the incumbent for the purposes of promotion to the higher post where although the qualifications prescribed are the same as that of the lower post, the nature of duties to be discharged in the higher post are different.
Findings of the Court
The Court observed that the wordings of the Special Rules is ambiguous when it says "teaching experience for ten years in the concerned subject of which there should be five years experience as Reader or Assistant Professor in the Government Ayurveda College". Rule 10 (ab) of Part II KS & SSR however clarifies that "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 un paid 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".
The Court therefore after reading the provisions in the Special Rules along with Rule 10 (ab) of Part II KS & SSR observed that the is inescapable that the teaching experience of ten years mentioned for the post of Professor is one that has to be gained after obtaining the basic PG qualification required for the post.
Furthermore, referring to Apex Court decision in Dr Preeti Srivastava and Another v. State of Madhya Pradesh and Others, in which the it was held that while interpreting the provisions of the Special Rules governing a State service that prescribes standards of education and admission criteria, one cannot ignore the mandate of any Central Legislation then in force for, the State Government's prescription of Standards of Education cannot be interpreted in a manner inconsistent with the Central Legislation governing the field, the Court pointed out that in this present case, the Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine) Regulations, 1986 which came into force with effect from 1.7.1989 clearly mandates that the essential qualification for appointment to the post of Professor, Reader/Associate Professor and Assistant Professor is a PG qualification in the subject/speciality concerned.
Therefore, the Court observed that any experience gained in the post, without having the qualification required for the post, cannot enure to the benefit of the incumbent for the purposes of his/her career progression.
It follows therefore that in the absence of such a qualification, the incumbent to the post concerned cannot be seen as legitimately discharging his/her duties in the said post. While he/she may have obtained a relaxation from the State Government in the matter of obtaining the qualification within a prescribed time limit, it is unambiguously clear that the qualification requirement cannot be dispensed with to continue in the said post. It follows therefore that any experience gained in the post, without having the qualification required for the post, cannot enure to the benefit of the incumbent for the purposes of his/her career progression.
The Division Bench also pointed out that as per the Special Rules, the quality and nature of experience must be the same for the entire period of ten years that is stipulated under the Rules and five years of such experience must be as Reader or Assistant Professor.
It is apparent from the discussion above that one cannot gain experience as Reader/Assistant Professor unless one is qualified in all respects to hold the post of Reader/Assistant Professor in accordance with the Special Rules, the Court observed.
The Court therefore observed that the five years experience as Reader or Assistant Professor must be one that is gained after obtaining the PG qualification and it follows that since the experience required for the post is qualitatively to be the same for the entire period of ten years, the entirety of the teaching experience must be one gained after obtaining the PG qualification.
Thereby, the Court dismissed the petitions finding no reason to interfere with the impugned order of the Tribunal.
Case Title: Dr Asha Sreedhar v. Dr Shahinamole S and Connected Cases
Citation: 2022 LiveLaw (Ker) 658