Though Normally Employers Insist On Experience Gained Post-Qualification, There Could Be Exceptions : Supreme Court

The Supreme Court observed that though employers normally insist on the experience gained after obtaining a particular qualification, there could be exceptions as well.

"Although, normally, experience gained after acquiring a particular qualification could justifiably be insisted upon by the employer, there could be exceptions," the Court observed.

The observation was made while allowing the promotion of a doctor as an Associate Professor in the Kerala Medical Education Service, rejecting the contention that he lacked the 5-year experience as Assistant Professor, which was acquired after obtaining the M.Ch degree.

He obtained his M.Ch degree on 31.07.2008 and completed the 5 year experience as Assistant Professor on 31.07.2013. However, before the completion of this 5-year term, he got promoted as Associate Professor on 06.02.2013. This was challenged by another candidate, who argued that the experience was not acquired after the completion of the course.

The Supreme Court referred to the Government Orders regarding this service, which did not specify that the experience has to be necessarily acquired after the qualification.

The Court noted that the Government Order (GO) does not explicitly mandate post-qualification experience.

The Court stated that the subsequent GOs passed by the state government bifurcating the promotion to the Post of Asst. Professor in two branches i.e., Branch I (promotion from administrative duties) and Branch II (Promotion from teaching duties), specifically excluded the five years of post-qualification experience for the Branch II persons, thus the Appellant's promotion can't be installed solely on the ground of lacking the five years post-qualification experience.

The Court also noted that Rule 10(ab) of KS&SSR uses the expression “unless otherwise specified”.

The bench comprising Justice Dipankar Datta and Justice Prashant Kumar Mishra was hearing the appeal filed against the Kerala High Court's decision which overturned the Administrative Tribunal's order promoting the Appellant to the post of Associate Professor. The High Court accepted the respondent's argument that the Appellant lacked the required post-qualification experience of five years after completion of M.Ch. degree (a super-specialty qualification) for promotion to the Assistant Professor's post.

The Appellant contended that when the GO specifically excluded the requirement of having a post-qualification experience of five years for the Branch II people i.e., teachers for getting promoted to the Assistant Professor's role, then it would be unjustifiable to deny him the benefit of the GO, being a special rule.

Setting aside the High Court's decision, the judgment authored by Justice Datta allowed the Appellant's appeal and found him eligible to be promoted to the post of Assistant Professor.

The Court reasoned that since the GO specifically excluded the post qualification experience for getting promoted to the Assistant Professor's post, therefore, the High Court erred in interfering with the well-reasoned order of the Administrative Tribunal.

Applying the maxim expressio unius est exclusio alterius (meaning whatever has not been included has impliedly been excluded), the Court held that the G.O. governing teaching cadre promotions did not mandate that the five years of teaching experience as an Assistant Professor must be after acquiring the M.Ch. degree. This absence was deemed intentional, particularly because such a stipulation was explicitly included for administrative posts in the same G.O.

“This is a case where the maxim expressio unius est exclusio alterius (meaning whatever has not been included has impliedly been excluded) would apply. In G.O. dated 07th April, 2008, the words “after acquiring postgraduate degree” are specifically included in the column for experience qua eligibility criteria for appointment on the posts of Director of Medical Education and Joint Director of Medical Education/Principals of Medical Colleges, i.e., posts in Branch – I i.e. Administrative Cadre. If, indeed, it were the intention of the executive that aspirants for the said post of Associate Professor, or, for that matter, for the post of Professor were required to have physical teaching experience in the feeder posts for specified number of years “after acquiring postgraduate degree”, it defies reason as to why the same qualification was not included for appointments on promotion to posts borne in Branch – II i.e. Teaching Cadre but included for the posts borne in Branch – I i.e. Administrative Cadre.”, the court observed.

“Thus, in the context of this case, absence of such a stipulation gives rise to but one conclusion, that the Government did not demand such post-qualification experience for the posts under consideration here. Although, normally, experience gained after acquiring a particular qualification could justifiably be insisted upon by the employer, there could be exceptions and the present case is one such exception. 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.”, the Court added.

Accordingly, the Court held as follows:

“The upshot of the aforesaid discussion leaves us with no option but to hold that the impugned judgment and order of the High Court is unsustainable. The same is set aside and the judgment and order of the Tribunal restored, with the result that the original application of Dr. Jyotish shall stand dismissed.”

Appearance:

For Petitioner(s) Mr. V Giri, Sr. Adv. Mr. K. Rajeev, AOR Mr. Rahul Narang, Adv. Ms. Niveditha R Menon, Adv. Mr. Pranav Krishna, Adv. Mr. Aditya Verma, Adv. Mr. Tarun Kumar, Adv.

For Respondent(s) Mr. C. K. Sasi, AOR Ms. Meena K Poulose, Adv. Mr. V Chitambaresh, Sr. Adv. Mr. M Gireesh Kumar, Adv. Mr. Ankur S. Kulkarni, AOR Ms. Puspita Basak, Adv. Mr. Tarun, Adv.

For Intervenor Mr. Romy Chacko, Sr. Adv. Mr. Anup Kumar, AOR Mr. Ashwin Romy, Adv. Mrs. Neha Jaiswal, Adv. Ms. Shruti Singh, Adv. Ms. Pragya Chaoudhary, Adv. Mr. Akshat Singh, Adv.

Case Title: Dr. SHARMAD VERSUS STATE OF KERALA AND OTHERS

Citation : 2025 LiveLaw (SC) 51

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