Non-Reportable  

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No  .     4236                    of   2018 (  Arising out of Special Leave Petition (Civil) No  . 1775   of

2012)

Dr. M. Dakshayani .... Appellant

Versus

The State of Karnataka & Anr.   ….Respondents

WITH

Contempt Petition (Civil) No  . 716   of   2018 (In Special Leave Petition (Civil) No  . 1775   of   2012)

Dr. M. Dakshayani .... Petitioner

Versus

Dr. Sacchidanand & Anr.        ….Respondents  

J U D G M E N T

L. NAGESWARA RAO, J.

Leave granted.  

1. The promotion of Respondent No.2 to the post of Assistant

Professor (Ophthalmology) and further promotion to the post

of  Professor  (Ophthalmology)  was  challenged  by  the

Appellant before the Karnataka Administrative Tribunal (for

short  “the Tribunal).   The Tribunal  set  aside the orders of

promotion  of  Respondent  No.2  to  the  post  of  Assistant

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Professor and Professor (Ophthalmology).  The Writ Petition

filed by the Respondent No.2 against the judgment of the

Tribunal was allowed, the legality of which is assailed in this

Appeal.   

2. The  relevant  facts  for  adjudication  of  the  dispute  are  as

follows:

The Appellant was appointed as Assistant Surgeon after

being selected by the Karnataka Public Services Commission on

11th December, 1987 whereas Respondent No.2 was appointed

as Assistant  Surgeon on 10th September,  1991.   Respondent

No.2,  along  with  125  other  Medical  Officers  and  Assistant

Surgeons, was posted in Health & Family Welfare Department

as Lecturer on deputation basis by an Order dated 20th May,

1992. The conditions attached to the deputation made in public

interest were that the appointment will not confer any right to

change over as lecturing staff and that the deputation duty will

not  be  counted  for  seniority  in  the  Medical  Education

Department.  The Appellant was permitted to change the cadre

and  was  appointed  as  a  Lecturer  (Ophthalmology)  on  10th

November, 1999.  By an Order dated 15th November, 1999 the

Respondent No.2 was also permitted a change in the cadre to

the post of Lecturer.  It was mentioned in the said Order that

the Respondent No.2 could not be absorbed as a Lecturer in the

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Department of Medical Education along with 115 other Doctors

due to lack of a Post-Graduate Degree.  It was further stated

therein  that  Respondent  No.2  was  permitted  by  the

Government  to  pursue  a  Post-Graduate  Degree.   The  Order

dated  15th November,  1999  will  come  into  force  after

Respondent  No.2  acquires  a  Post-Graduate  Degree.   The

Respondent  No.2 completed  Post-Graduation after  which she

was  appointed  as  a  Lecturer  on  18th May,  2001.   She  was

promoted  as  Assistant  Professor  on  6th June,  2001.   The

Appellant  challenged  the  said  Order  of  promotion  dated  6th

June,  2001  before  the  Karnataka  Administrative  Tribunal.

During  the  pendency  of  the  matter  before  the  Tribunal,

Respondent  No.2  was  further  promoted  as  Professor

(Ophthalmology) on 1st September, 2006.  The Appellant was

successful in her challenge before the Tribunal.  The High Court

reversed the Order of the Tribunal by allowing the Writ Petition

filed by Respondent No.2.           3. The Tribunal held that Respondent No.2 was a beneficiary of

undue benefits.  The Tribunal found fault with the deputation

of Respondent No.2 as a Lecturer on 14th September, 1991 in

spite  of  the fact  that  Respondent  No.2 did  not  possess  a

Post-Graduate Degree.   The Government was criticized by

the Tribunal for permitting a change in cadre to Respondent

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No.2  though  she  was  ineligible.   The  promotion  of

Respondent  No.2  as  Assistant  Professor  on  6th June,  2001

was  held  to  be  illegal.   On  the  basis  of  the  above  said

findings, the Tribunal set aside the promotion of Respondent

No.2 as Assistant Professor and Professor.  The Government

was directed by the Tribunal  to consider the Appellant for

promotion with effect from the date she became eligible.   

4. The High  Court  reversed the  judgment  of  the  Tribunal  by

holding that Respondent No.2 rendered service as Lecturer

for  more  than  nine  years  whereas  the  requisite  teaching

experience for promotion to the post of Assistant Professor is

only three years.  The High Court held that Respondent No.2

was entitled to be considered for promotion after acquiring a

Post-Graduate  Degree.   The  High  Court  relied  upon  a

judgment of this Court in A.K. Raghumani Singh & Ors. v.

Gopal  Chandra Nath & Ors.1  to  hold  that  the  service

rendered  by  Respondent  No.2  prior  to  her  acquiring  the

Post-Graduate  Degree  can  be  counted  towards  requisite

experience  for  the  purpose  of  promotion  to  the  post  of

Assistant Professor.  

5. The point  that  arises  for  our  consideration in  this  case is

whether  the  service  rendered  by  Respondent  No.2  as

1  (2000) 4 SCC 30

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Lecturer before she acquired a Post-Graduate Degree can be

counted  as  qualifying  service  for  promotion  as  Assistant

Professor.  It is relevant to refer to the judgment of this Court

in Shailendra Dania  & Ors. v. S.P. Dubey & Ors.2.  After

a detailed consideration it was held therein that the earlier

decisions  of  this  Court  on  the  above  issue  in  N. Suresh

Nathan v.  Union of India3,  M.B. Joshi v.  Satish Kumar

Pandey4,  D.  Stephen  Joseph v.  Union  of  India5,  Anil

Kumar  Gupta v.  Municipal  Corp.  of  Delhi6,  A.K.

Raghumani  Singh  &  Ors. (supra)  and  Indian  Airlines

Limited v.  S.  Gopalakrishnan7 were  based  on  the

interpretation of the respective rules called in question, the

context  of  the entire scheme governing service conditions

and the facts of each case.  It  is relevant to examine the

legal regime in this case.  The Karnataka Health & Family

Planning  services  (Collegiate  Branch)  Recruitment  Rules,

1967 govern the posts of Lecturer, Assistant Professor and

Associate  Professor  in  the  Department  of  Ophthalmology.

The  qualifications  for  promotion  to  the  post  of  Assistant

Professor from the cadre of Lecturer are as follows:  

“ QUALIFICATIONS 2  (2007) 5 SCC 535 3  1992 Supp (1) SCC 584 4  1993 Supp (2) SCC 419 5  (1997) 4 SCC 753 6  (2000) 1 SCC 128 7  (2001) 2 SCC 362

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1. Should be the holder of a degree in Medicine of any University established by law in India, &  

2. Should  have  any  of  the  Post  graduate qualifications  in  Ophthalmology  specified  in Annexure A or B and,  

3. Should  have  teaching  experience  in Ophthalmology of not less than three years in a post  of  Lecturer  or  Lecturer-cum-Registrar  of higher post.”   

  6. Promotions to  the post  of  Associate Professor  and Reader

can be made from the post of Assistant Professors, Assistant

Associate Professors and Lecturers in Ophthalmology.  The

qualifications  prescribed  for  promotion  to  the  post  of

Associate Professor and Readers are as follows:  

“ QUALIFICATIONS

(1) Should be the holder of a degree in recognize of any University established by law in India, &  

(2) Should  have  any  of  the  Post  graduate qualifications  in  Ophthalmology  specified  in Annexure A or B and,   

(3) Should  have  teaching  experience  in Ophthalmology  of  not  less  than  three  years after  acquiring  post  graduate  qualification  of which not less than two years shall be in post not lower in rank that of an Assistant Associate Professors. “

7. The teaching experience of three years as a Lecturer for the

promotion to the post of Assistant Professor is in addition to

the Post-Graduate qualification.  It does not appear from the

scheme  of  the  Rules  that  the  experience  of  three  years

should be after acquisition of Post-Graduate Degree.  In Anil

Kumar Gupta (supra), this Court considered a similar rule

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where the essential qualification was a degree and two years

professional experience.  It was held that the experience of

two years after obtaining the degree was not required.   The

Rules  pertaining  to  promotion  as  Superintending  Engineer

fell for interpretation before this Court in A.K. Raghumani’s

case  (supra).   The  requirement  of  the  Rule  was  that  the

Executive Engineer and Surveyor of Works should possess a

Degree  in  Civil/  Mechanical  Engineering  or  its  equivalent

from a recognized institution with   6 years regular service

in the grade. The word “with” was interpreted by this Court

as follows:  

“ 7.  The word “with” has been defined in the New Shorter  Oxford  Dictionary  (1993),  diversely  the meaning  depending  on  the  context  in  which  it  is used.  But  when it  is  used to  connect  two nouns it means:  “Accompanied by;  having as an addition or accompaniment.  Frequently  used  to  connect  two nouns, in the sense ‘and’ — ‘as well’.”

8.   Applying the definition to the eligibility criteria it is clear that it requires the prescribed educational qualification and 6 years’ experience as well. Given the plain meaning of the phrase, the Court would not be  justified  in  reading  a  qualification  into  the conjunctive word and imply the word “subsequent” after the word “with”.   ”

8. The High Court was right in relying upon the judgment in

A.K. Raghumani’s case (supra) to hold that the rule in the

instant  case  does  not  require  three  years  teaching

experience after acquisition of Post-Graduate Degree.  The

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eligibility  criteria  for  promotion  as  Assistant  Professor  are

Degree  in  Medicine,  Post-Graduation  qualification  in

Ophthalmology  and three  years  teaching  experience  as

Lecturer.  A plain reading of the qualification prescribed for

promotion as Assistant  Professor  would make it  clear  that

three  years  teaching  experience as  Lecturer  along with  a

Post-Graduation  Degree  is  sufficient.   There  is  no

requirement  of  three  years  experience  after  a  person

acquires Post-Graduation Degree.       

9. There  is  yet  another  reason for  our  conclusion  that  three

years experience as Lecturer  for  promotion to the post of

Assistant  Professor  need  not  be  after  completion  of  the

Post-Graduate  Degree.   The  Recruitment  Rules  prescribe

qualifications  for  appointment  to  the  posts  of  Lecturer,

Assistant  Professor  and  Associate  Professor.   The

qualifications  for  appointment  to  the  posts  of  Assistant

Professor and Associate Professor are different.  The teaching

experience  that  is  required  for  promotion  to  the  post  of

Associate Professor and Reader is three years after acquiring

Post-Graduate qualification.   Whereas,  the qualification for

promotion  to  the  post  of  Assistant  Professor  is  teaching

experience of  not  less than three years as  a  Lecturer.   A

comparison of the qualifications prescribed for promotion to

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the  posts  of  Associate  Professor  and  Assistant  Professor

would make it clear that the prescription of experience after

acquisition  of  Post-Graduate  qualification  required  for

promotion to the post of Associate Professor is not part of

the  qualifications  required  for  promotion  as  Assistant

Professor.   A  conscious  omission  of  the  condition  of

experience  after  acquiring  Post-Graduate  Degree  in  the

qualifications for Assistant Professor supports our view that

three years experience as a Lecturer is sufficient.  It need

not be after completion of Post-Graduation.     

10.It  is  necessary  to  refer  to  the other  submissions that  are

made on behalf of the parties.  It has been brought to our

notice by the Respondents that no appointment was made to

the posts of Lecturers in Government Medical Colleges in the

State of  Karnataka for  a  long period of  time between the

years 1984 to 1999.  As there were a number of posts of

Lectures  vacant,  the  Government  took  a  decision  to  post

Assistant Surgeons on other duty to work as Lecturers.  In

the above circumstances.  Respondent No.2 was posted as

Lecturer along with 125 other Assistant Surgeons on other

duty  and  she  worked  as  such  for  more  than  nine  years.

According  to  the  Appellant,  the  service  rendered  by

Respondent No.2 as Lecturer prior to her change of the cadre

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cannot be taken into account towards the requisite teaching

experience.   Taking into account the fact that Respondent

No.2 has worked for more than nine years as a Lecturer, we

do  not  agree  with  the  contention  of  the  Appellant.   The

Tribunal  erroneously  held  that  Respondent  No.2  was  not

eligible for being appointed as a Lecturer as she did not have

a  Post-Graduation  qualification  in  Ophthalmology.   The

qualification  for  appointment  as  a  Lecturer  by  direct

recruitment is a Degree in Medicine, preference being given

to  a  candidate  with  Post-Graduation  qualification  in

Ophthalmology.  The qualification prescribed for appointment

by transfer to the post of Lecturer is a Degree in Medicine

and  Post-Graduation  qualification  in  Ophthalmology.   It  is

clear  that  a  Post-Graduation  qualification  is  required  for

appointment by transfer as a Lecturer.  Respondent No.2 was

appointed by transfer as a Lecturer in 2001 after acquiring a

Post-Graduate  qualification.   It  was  not  necessary  that

Respondent No.2 should have possessed a Post-Graduation

qualification for working as a Lecturer on other duty as the

qualification  for  appointment  as  a  Lecturer  by  direct

recruitment was only Graduation.  In any event, a number of

Assistant  Surgeons  along  with  Respondent  No.2  were

directed to work as Lecturers in view of an administrative

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exigency  that  arose  due  to  the  existence  of  several

vacancies  in  the  post  of  Lecturers.  There  were  other

graduate Assistant Surgeons who were appointed on other

duty  as  Lecturers  and  appointed  by  transfer  as  Lecturers

after acquiring a Post-Graduate Degree.  We do not agree

with the Appellant that Respondent No.2 was not qualified

for being sent on other duty as a Lecturer.   

11.For the aforementioned reasons, the Appeal is dismissed.       

Contempt  Petition  (Civil)  No.  716  of  2018  in  Civil Appeal arising out of Special Leave Petition (Civil) No. 1775 of 2012

12.The Contempt Petition has been filed for willful violation of

the Orders passed by this Court on 27th January, 2017 and

8th February, 2016 in the above Appeal. While issuing notice

on 27th January, 2012 an Order of  status quo was passed.

The  Order  dated  27th January,  2012  was  clarified  on  8th

February, 2016 wherein it was made clear that the Order of

status quo was restricted to the post of Professor and above

and not with reference to other posts.   

13.Respondent No.2 was appointed as Head of the Department

of Ophthalmology subject to the final decision in the above

Appeal.   It  was mentioned in the Order dated 5th January,

2018  that  the  arrangement  was  temporary  in  nature  and

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Respondent No.2 was placed In-Charge of  the post  of  the

Head of the Department.   14.Respondent No.2 was only placed In-Charge of the post of

Head  of  Department  of  Ophthalmology  temporarily  in  the

interest  of  administration.   We  do  not  agree  with  the

Appellant/ Applicant that there has been any willful violation

of the Interim Orders passed by this Court on 27th January,

2012  and  8th February,  2016.   Accordingly,  the  Contempt

Petition is dismissed.   

               ........................................J.                                                                 [S.A. BOBDE]

               ........................................J.        [L. NAGESWARA RAO]

New Delhi, April 20, 2018.

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