Service Law – Nagaland State Council on Educational Training Service Rules, 2003 - Promotion – Seniority - The dispute arose regarding the seniority of four Appellants and Respondent ‘K’ – Draft seniority list as on 1st July 2006 reflected K below the Appellants as the Appellants became senior lecturer by promotions in 2003 whereas K’s regularisation was done in 2004 as per the Cabinet Memorandum of March, 2005 - K objected on ground that the date of entry of the Appellants into the cadre of senior lecturer was subsequent to her entry into the said cadre - K’s representation was rejected by the Departmental Promotional Committee (DPC) and the final seniority list was published as per the Draft Seniority List on 17th November, 2006 – Against the same, K approached the High Court - The first set of Writ Petition filed by K, being W.P. (C ) No. 173 (K) of 2007 which was dismissed on technical grounds – Another Writ Petition [W.P. (C) No.284(K) of 2007] was also instituted by K questioning regularisation of Appellants which was also dismissed – K, however, was partially successful in the second round of litigation initiated by writ petition registered as W.P (C) No. 126(K) of 2014 – The High Court remanded the matter back to DPC for reconsideration and set aside the DPC recommendations as the same did not reflected the consideration of Nagaland State Council on Educational Training Service Rules, 2003 – DPC retained their earlier decision of 2007 in the meeting that took place subsequent to the order of the High Court - In the appeals arising out of W.P. (C) No. 173(K) of 2007 and W.P.(C) No. 284 (K) of 2007, a Division Bench of the High Court in a common judgment delivered set aside the recommendation of DPC and ordered the State to take immediate steps for reconvening of the D.P.C. for purpose of fresh recommendation for regularization of the private respondents in the post of Sr. Lecturer on strict observance of the Rules of 2003 – Against the same, the Appellants have preferred the present appeal on the ground that the DPC recommendations are in accordance with the Rules of 2003 and they were rightly considered senior to K – Appellants collectively sought seniority over K and the education authorities are supporting the Appellants – Held: The general principle of service jurisprudence is that the time spent in the immediate superior grade on stop gap or ad hoc basis ought not to be computed for determining the length of service of an incumbent in that cadre – Computation of the appellant’s period of service in the feeder grade can take place only from the date of their regular appointment - The appellants had entered the service as lecturer on contractual basis in the year 1992-93 around the same time K had joined as senior lecturer, also on contract basis For the purpose of determining the length of service in the feeder posts as contained in Schedule II of the 2003 Rules (Eligibility conditions for the post of senior lecturer- 75% of the post of Senior Lecturer fallen vacant in a calendar year shall be filled on promotion from amongst the serving candidates who have rendered continuous service of 5(five) years in the grade of Research Associate/ Assistant Planning Officer/ Assistant Project Officer/ Lecturers in DIET), the time spent on contractual basis cannot be factored in – Appellants completed three years of service in the feeder grade on operationalisation of 2003 Rules on 30th April, 2007 but the said Rules seek to give them regularisation in the cadre of senior lecturer from 2003 and 2001 respectively – Their service in feeder grade do not meet the required stipulation of five years period – No reason to interfere with the judgment under appeal.
Dismissing the appeal, the Court
HELD:
1.1 The general principle of service jurisprudence is that the time spent in the immediate superior grade on stop-gap or ad-hoc basis ought not to be computed for determining the length of service of an incumbent in that cadre. This is of course, subject to any contrary provision made in the applicable Rules itself. But no such contrary provision has been shown to us at the time of hearing of this appeal on behalf of the Appellants or the State. Thus, computation of the Appellants’ period of service in the feeder grade can take place only from the date of their regular appointment in that cadre. [Para 12][504-F-G]
1.2 The Appellants had entered the service as lecturer on contractual basis in the year 1992-93 around the same time K had joined as senior lecturer, also on contract basis. For the purpose of determining the length of service in the feeder posts as contained in Schedule II of the 2003 Rules, the time spent on contractual basis cannot be factored in. If that yardstick is applied, then K’s case for seniority in the grade of senior lecturer will have to be computed from the year 1993 only. Even if we proceed on the basis that the retrospective effect given to regularisation of the Appellants in the post of lecturer is valid, then also, 15th January 2001 becomes the starting point for calculating five years of service length in the feeder cadre. They were given promotion on officiating basis as senior lecturers with effect from 14th November 2003 (for A1 and A2) and 20th January 2001 (for A3 and A4). Thus, the requisite five year period could not have been completed by any of them if the retroactivity of their regularisation order in the post of senior lecturer is to be accepted. The period spent in a promotional post on officiating basis cannot be permitted to be factored in for calculating length of service in a particular post. Unless the Rules otherwise provide, officiation in a particular post cannot encadre the incumbent in that post. [Para 14][505D-G]
1.3 In the present appeal, one of the eligibility criterion is five years continuous service in the feeder post. We cannot ignore this factor and proceed on the basis as if the term continuous service is being construed only for determining inter-se seniority in the promotional post. We are testing here if the Appellants’ entry in the promotional cadre was as per the eligibility criteria or not. In our opinion, it was not. To hold otherwise would require entire stretch of K’s service in the post of senior lecturer since 1993 to be taken into account for determining the inter-se seniority among the Appellants and K. [Para 15][506-D-F]
Union Public Service Commission v. L.P. Tiwari and Ors. (2006) 12 SCC 317 : [2006] 9 Suppl. SCR 271; Union of India (UOI) and Ors. v. S.K. Goel and Ors. (2007) 14 SCC 641 : [2007] 2 SCR 432; Badrinath v. Government of Tamil Nadu and Ors. (2000) 8 SCC 395 : [2000] 3 Suppl. SCR 573; The Direct Recruit Class-II
Engineering Officers’ Association and Ors. v. State of Maharashtra and Ors. (1990) 2 SCC 715 : [1990] 2 SCR 900; Swapan Kumar Pal and Ors. v. Samitabhar Chakraborthy and Ors. (2001) 5 SCC 581 : [2001] 3 SCR 641; State of Rajasthan and Ors. v. Jagdish Narain Chaturvedi (2009) 12 SCC 49 : [2009] 8 SCR 1011; Amarjeet Singh and Ors. v. Devi Ratan and Ors.
(2010) 1 SCC 417 : [2009] 15 SCR 1010; Malook
Singh and Ors. v. State of Punjab and Ors. (2021) SCC OnLine SC 876; Girish Kumar v. State of
Maharashtra and Ors. (2019) 6 SCC 647 : [2019] 7 SCR 881 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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