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IN

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

JUDGMENT

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 20 th 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 10 th

November, 1999. By an Order dated 15 th 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 6 th

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 14 th 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 6 th 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 5 th 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 27 th 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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