RABI Vs. STATE OF KERALA

JUDGEMENT

(1.) We are in these cases concerned with the interpretation of Rule 5(b) of the Special Rules for the Kerala Dental Education Service, 1975 read with Rule 10(ab) of Part II of the Kerala State and Subordinate Services Rules, 1958. O.P. No. 2306 of 2001 was preferred by the appellant in W.A. No. 1893 of 2002 seeking a writ of certiorari to quash Ext. P8 revised select list by which fourth respondent was granted the date of assignment in the cadre of Assistant Professor earlier than the petitioner accepting her plea that she had acquired the qualification earlier than the petitioner when the vacancy in the post of Assistant Professor arose on 1-5-1988. Petitioner was appointed as Tutor in Dentistry on 26-7-1978 as per the advice of the Kerala Public Service Commission dated 4-7-1978. Fourth respondent was also advised by the Public Service Commission for the post of Tutor in Dentistry on 207-1981. At the time of joining duty petitioner possessed BDS qualification prescribed for the post of Tutor while the fourth respondent was having MDS qualification. Promotion post of Tutor was that of Assistant Professor. Qualifications prescribed for the post of Assistant Professor as per Rule 5(b) of the Kerala Dental Education Service Special Rules are as follows:-

(2.) Common question arise of consideration in all these cases. The first question which arises for consideration in these cases is as to the meaning of the term date of occurrence of vacancy' i.e., whether it is the deemed occurrence of vacancy when promotees were given notional dates of promotion or it is the actual date of occurrence of vacancy by relief of the holder of the post. The second question is as per Rule 5(b) of the Kerala Dental Education Service Rules read with Rule 10(ab) of the General Rules "teaching experience" required for promotion to the post of Assistant Professor in the Kerala Dental Education Service is to be the experience gained after the acquisition of post-graduate degree in the subject in view of Rule 10(ab) of the K.S. & S.S.R. Counsel on either side addressed arguments for and against the above mentioned prepositions placing reliance on various judicial pronouncements in support of their respective contentions.

(3.) Learned single judge in O.P. No. 2306 of 2001 has taken the view that the claim of an aspirant for promotion should be decided with reference to the circumstance obtained on the date of occurrence of vacancy and held that it is trite law that any deviation there from would amount to acting counter to one of the fundamental principles of service jurisprudence. Learned judge expressed the view that the claim for promotion has to be decided with reference to the date of occurrence of vacancy, whether or not he has occupied that vacancy on the date of occurrence of the vacancy. Learned Judge also examined the scope of the Special Rules for the Kerala Dental Education Service Rules read with Rule 10(ab) of the General Rules and took the view that the provision in the general rules says that when a qualification is prescribed for a post, unless it is otherwise specified, the qualification must be one acquired after the acquisition of the basic qualification. Government of Kerala following the above mentioned judgment issued clarification as per G.O.(P) No. 272/05/H&FWD dated 27-10-2005 holding that as the Special Rules for Kerala Dental Education Service is silent on the question whether teaching experience has to be acquired before or after taking the Post Graduate degree, the provisions contained in Rule 10(ab) in the General Rules are automatically applicable. It is stated that as per that rule experience should be the one after acquiring the basic qualification prescribed for the post. It was also stated that since there is no provision in the special rules whether the experience has to be acquired before or after acquiring the post graduate degree, Rule 10(ab) has to be applied in every case Government therefore clarified that hereinafter while considering "teaching experience" for promotion to the post of Assistant Professor in Kerala Dental Education Service the provisions of Rule 10(ab) of the General Rules have to be taken into consideration. Legality of the above notification is also under challenge in these cases.