SMT. IMLIKOKLA LONGCHAR & ORS. VERSUS THE STATE OF NAGALAND & ORS.
SMT. IMLIKOKLA LONGCHAR & ORS. VERSUS THE STATE OF NAGALAND & ORS.
Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. OF 2022
(Arising out of Special Leave to Appeal (C) No. 27603/2019)
SMT. IMLIKOKLA LONGCHAR & ORS. …. APPELLANT(S)
VERSUS
THE STATE OF NAGALAND & ORS. …. RESPONDENT(S)
J U D G M E N T
ANIRUDDHA BOSE, J.
Leave granted.
2. The origin of the controversy giving rise to the present appeal goes
back to the year 2007 and there have been several rounds of litigations
over the issue which we shall briefly narrate in the subsequent
paragraphs of this judgment. The contesting parties in this appeal are
the appellants and the respondent no.4 (Keruupfeu – “K”). The
educational authorities of the State of Nagaland, who are also
respondents in this appeal are supporting the appellants. The dispute is
on the question of seniority the appellants and K in the cadre of senior
lecturer under the State Council of Educational Research and Training
1
Service (SCERT), Department of Education, Government of Nagaland.
The appellants are collectively seeking seniority over K.
3. We are giving below a table showing the career graph of K and the
four appellants (henceforth referred to as A1, A2, A3 and A4 respectively
in descending order from the table) in their respective cadres:
Name Parties Date of
Appointment
Date of
Regularisation
as Lecturers/Senior
Lecturer
Date of
Temporary
Promotion as
Senior Lecturer
Date of
Regularisation as
as Senior
Lecturer
Smt.
Imlikokla
Longchar
Appellant
no.1
30.10.1992
Lecturer on
contract
28.03.2001 with effect
from 15.01.2001
regularised as lecturer
20.11.2003 with
effect from
14.11.2003
08.11.2007
with effect
from
14.11.2003
Smt Atula
Aier
Appellant
no.2
30.10.1992
Lecturer on
contract
28.03.2001 with effect
from 15.01.2001
regularised as lecturer
20.11.2003 with
effect from
14.11.2003
08.11.2007
with effect
from
14.11.2003
Shri
Limatoshi
Appellant
no.3
18.02.1993
Lecturer on
contract
28.03.2001 with effect
from 15.01.2001
regularised as a
lecturer
20.11.2003 with
effect from
20.01.2001
08.11.2007
with effect
from
20.01.2001
Smt Alemla
Jamir
Appellant
no.4
31.03.1993
Lecturer on
contract
28.03.2001 with effect
from 15.01.2001
regularised as lecturer
20.11.2003 with
effect from
20.01.2001
08.11.2007
with effect
from
20.01.2001
Smt
Keruupfeu
Respondent
no.4
30.03.1993
Senior Lecturer
on contract
March 2005 with
effect from
16.01.2004
regularised as Sr
lecturer
Was appointed in
this post on
contract
_
4. Draft seniority list as on 1st July 2006 was circulated by the
authorities in which the K was shown below the appellants. K’s
2
objection to this seniority list was mainly on the point that the
appellants could not be positioned above her as the dates of entry of the
appellants into the cadre of senior lecturer was subsequent to her entry
into the said cadre. The appellants initially came to be senior lecturer
on the basis of their officiating promotions on 20th November 2003 with
effect from 14th November 2003 (for A1 and A2) and 20th January 2001
(for A3 and A4) whereas K’s regularisation in the post in question was
with effect from 16th January 2004. K’s regular promotion in that cadre
was before the actual dates of regularisation of the appellants in the
subject post. The appellants’ regularisation in the said posts was made
in the year 2007, with earlier effect as would be evident from the abovereferred table. K’s representation was rejected and final seniority list
was published on 17th November 2006 in terms of the draft list. As per a
Cabinet Memorandum no. EDS/SCERT15/2004 (“Memorandum”)
issued in the month of March 2005, regularisation recommendation of
K was made with effect from 16th January 2004 as she had completed
more than ten years’ service in the department. This appears to have
had been subsequently approved and notified. We also find from this
Memorandum that she was recommended for regularisation on the
basis of a suitability test. The said Memorandum, interalia, carried the
following stipulation:
“4(2). There are some regular lecturers who were given
officiating promotions to the posts of Sr. Lecturers subject
3
to regularization by the DPC. This group of officers would
be senior to those of contract appointees and
deputationists.”
(quoted verbatim from the paperbook)
5. The Nagaland State Council on Educational Training Service Rules,
2003 (“2003 Rules”) was made under the provisions of Article 309 of the
Constitution of India and these Rules became operative from 30th April
2007. Rule 3 thereof reads:
“3. CONSTITUTION OF SERVICE
The service shall consist of the following persons namely:
(i) Persons who, at the commencement of these rules
are holding substantively the posts specified in ScheduleI.
(ii) Persons recruited to this service before the
commencement of these rules.
(iii) Persons recruited to this service in accordance with
provisions of these rules.”
Schedule II to these Rules carry the requirements pertaining to various
posts within the said service. Eligibility conditions for the post of senior
lecturer appear in Serial 4 thereof. It is recorded in the said Schedule:
SCHEDULEII
(See Rule3)
The Nagaland State Council of Educational Research & Training
Sl.
No.
Designation
of posts
Percentage of post(s) to
be filled up Required
Educational
Qualification
Departmenta Remarks
l promotion
Direct
recruit
through
NPSC
1 2 3 4 5 6
1 Director 100% X
M.A./M.Sc./
M.Com with
B.Ed or
equivalent
professional
course not
The post of Director will be filled up
by promotion from amongst the
confirmed Additional Directors who
had rendered not less than 2(two)
years in the cadre. The selection
shall on merit cum seniority
4
less than 9
months.
2 Joint
Director
100% X
M.A./M.Sc./
M.Com with
B.Ed or
equivalent
professional
course not
less than 9
months.
The post of Joint Director will be
filled up by promotion from
amongst the confirmed Deputy
Directors/Senior Academic
Officers/Principals DIETs who has
completed 5 years in the cadre on
the basis of merit cum seniority.
3 Deputy
Director/Sr
. Academic
Officer/
Principal
DIETs
100% X
M.A./M.Sc./
M.Com with
B.Ed or
equivalent
The post shall be filled up from
amongst the confirmed Readers
Vocational Guidance and
Counseling Officer/Project
Coordinator/Senior Lecturers
DIETs who have at least completed
5 years of continuous service in the
cadre.
4 Readers/
Sr.
Lecturer/
Research
Officer/
Vocational
Guidance
and
Counsellin
g Officer
Consultant
75% 25% M.A./M.Sc./
M.Com with
B.Ed
on the basis of merit cum
seniority.
(a) 75% of the post of
Reader/Senior
Lecturer/Research Officer/
Vocational Guidance and
Conselling Officer 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
DIETs.
(b) 25% of the vacant post falling
in a calendar year shall be filled
up by direct recruit through
NPSC.
5 Research
Associate/
Assistant
Project
Officer/
Assistant
Planning
Officer/
Lecturer
DIET
75% 25% M.A./M.Sc./
M.Com with
B.Ed
(a) 75% of vacant post fallen vacant
in a calendar year shall be filled by
promotion from the serving
confirmed TRAs/Trainer in Fine
Arts who has already completed
atleast 7(seven) years in the grade
on the basis of merit cum seniority.
(b) 25% of the vacant post shall be
filled up by open competition
through NPSC.
6 TrainingcumResearch
Assistant/
Trainer in
Fine
Arts/Work
Experience
Teacher
X 100% M.A./M.Sc./
M.Com with
B.Ed
100% of the post fallen in a
calendar year will be filled by open
competition through NPSC.
5
6. The said Rules however were not operational when regularisation of
K took place in the post of senior lecturer. On the other hand, the
appellants’ regularisation as senior lecturer came after the 2003 Rules
had come into existence on 30th April 2007. Learned counsel for the
appellants had argued that when K joined as senior lecturer, she did
not have B.Ed degree. It is not in dispute that before her regularisation,
she had obtained the B.Ed. degree. That factor, in any event, is not of
much relevance so far as the present proceeding is concerned as
nothing has been shown to us to demonstrate that she had any
eligibility deficiency on account of not having B.Ed. degree at the time
she was inducted in the post of senior lecturer on contractual basis. In
any event, her eligibility to be a senior lecturer is not directly in issue in
this appeal.
7. Consistent stand of the Departmental Promotion Committee (“DPC”)
from the year 2007 has been that the seniority position of the
appellants ought to be computed taking into account the period they
were officiating in the posts of senior lecturer, which were prior to the
date of regularisation of K in the same post. In support of this
argument, clause 4.2 of the Memorandum referred to in the earlier part
of this judgment has been relied on by the appellants as also the State.
This was also the view of the DPC and was confirmed in their meeting
held on 2nd November 2015. There are authorities which calls for limited
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interference by judicial review with regard to recommendations of the
DPC. This has been held so by this Court in the cases of Union Public
Service Commission vs. L.P. Tiwari and Others [(2006) 12 SCC 317]
and Union of India & Another vs. S.K. Goel and Others [(2007) 14
SCC 641]. But the principle of noninterference is not absolute. In
exceptional cases, judicial intervention becomes inevitable, as held in
the case of Badrinath vs. Government of Tamil Nadu and Others
[(2000) 8 SCC 395].
8. The point of taking off, so far as the proceedings giving rise to this
appeal is concerned, is two Writ Petitions filed by K in the Gauhati High
Court. These were registered as W.P (C) No. 169 (K) of 2016 and W.P (C)
No. 231(K) of 2015. We are avoiding reference to rounds of litigations
earlier as those cases do not have direct bearing on the dispute which
we are to adjudicate on in this appeal. In these Writ Petitions, K had
challenged the DPC proceedings and she also prayed for reconvening of
DPC for the purpose of reconsidering the recommendation for
regularisation of the four appellants in terms of the 2003 Rules. K had
also assailed the promotion of the four appellants in the posts of senior
lecturer. Her main contention was that their adhoc period in the feeder
cadre could not be counted for the purpose of eligibility for promotions.
9. This was the third round of litigations touching upon the same
controversy. The first set was a writ petition filed by K, being W.P. (C)
7
No.173(K) of 2007. This writ petition was dismissed on technical
ground. It appears that another Writ petition [W.P. (C) No.284(K) of
2007] was also instituted by K questioning regularisation of the
appellants as senior lecturer. The second writ petition was also
dismissed. K had carried both the orders of dismissal to the Appellate
Bench. 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. In this writ petition, she had asked for invalidation of the
recommendation of the DPC in their meeting held on 3rd March 2014. In
this meeting, the DPC had reaffirmed their recommendation made on 4th
October 2007 seeking to regularise the service of the appellants in the
posts of senior lecturer from different dates prior to the date on which
service of K was regularised in the same post. That was accepted by the
State Government. The High Court essentially remanded the matter to
the DPC by setting aside their order holding that the DPC
recommendation did not reflect consideration of the 2003 Rules.
Following the direction contained in the aforesaid judgment, a fresh
DPC meeting was held on 2nd November 2015 to which we have already
referred. This meeting was held mainly to review the decisions of the
DPC taken in their meetings on 4th October 2007 and 3rd March 2014,
which were set aside by the High Court. But the DPC essentially
retained their earlier decision concerning seniority list giving its own
explanation of there being compliance of the 2003 Rules.
8
10. 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 on 14th September 2012, interalia, held:
“20.We have considered the reason as assigned by the
learned Single Judge but unfortunately we cannot agree to
such proposition of law. It is well settled that the
recommendation of the D.P.C. is not binding upon even on
the appointing authority. It is merely recommendation and
the appointing authority has ot examine the
recommendation whether those were appropriate or not.
The recommendation is an opinion of the expert for
consideration of the appointing authority. The appointing
authority thought it appropriate to reconvene the D.P.C. for
arriving at a decision. It appears from the D.P.C. minutes
that there was no consideration of the Nagaland State
Council of Educational Research and Training Services
Rules as was given effect form 30.04.2007 and hence the
D.P.C. in all the cases made recommendation without
relevant consideration of the said rules, and their
consequences for far regularization of the Sr. Lecturer was
concerned and treaded a wrong premise. The D.P.C. did
not look into the matter whether the private respondents
have completed the required continuous qualifying service
of 5 years in the feeder grade or not. Apart that, the law is
well settled that the executive is well within its jurisdiction
to reconvene to D.P.C. but while operating any
regularization retrospectively it has to take care that no
prejudice is caused to the incumbent already in the cadre.
Moreover, being in the grade on regular appointment.
Unless the qualifying service as prescribed is complete in
the grade, there cannot by any lawful consideration.
21. Be that as it may in this case, the question that has
been taken for consideration by this Court is confined to
whether the Staterespondents No. 1 and 2 have acted in
accordance with the provision of law while accepting the
recommendation of the D.P.C. The answer is bound to in
the negative. The relevant provision as to the qualifying
service as appearing in the Nagaland State Council of
Educational Research and Training Services Rules, 2003,
as given effect from 30.04.2007, was not at all considered
by the D.P.C. while making recommendations for
regularization in the post of Sr. Lecture and as such both
the recommendations of the D.P.C. as well as the
notification, consequent thereupon, dated 08.11.2007
(AnnexureC to the Affidavit in opposition filed by the
respondent No. 1.) stand quashed.
9
22. This Court would not interfere with that part of the
notification whereby the private respondents have been
appointed in the cadre of Lecturer. This order has to be
confined for the cadre for the Sr. Lecturer only. As
consequential thereof, the respondents No. 1 and 2 are
directed 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: as provided in
the schedule appended to the said Rules, 2003 (effective
from 30.04.2007) and thereafter to issue the appropriate
order of promotion in the post of the Sr. Lecturer.
23. As corollary to this, the impugned seniority list is also
struck down. The seniority position can only be settled
after the reconvening of the D.P.C. for promotion to the post
of Sr. Lecturer in terms of the provisions of the Nagaland
State Council of Educational Research and Training
Services Rules, 2003.
24. It is made clear that the private respondents who are
now occupying the post of Principal of DIETs on officiating
basis would be allowed to continue in their positions but
that shall remain subject to the outcome of the
recommendation of the D.P.C. and the consequential
orders of promotion as would be made by the respondents
No. 1 and 2.”
(quoted verbatim from the
paperbook)
11. In the two writ petitions registered as W.P.(C) No. 231 (K) of
2015 and W.P. (C) 169 (K) of 2016, K had sought to quash the fresh
DPC recommendations coming from the meeting held on 2nd November
2015. The earlier seniority position of K was retained by the DPC in
their recommendation made in this meeting. The Single Judge allowed
the writ petitions against which the appellants appealed before the
Division Bench. The Division Bench dismissed the appeals, holding:
“34. It is reiterated, at the cost of repetition, that the
Division Bench had, in clear terms, directed the State
respondent nos. 1 and 2 to take immediate steps for
reconvening of the DPC for the purpose of fresh
recommendation for regularisation of the appellants in the
10
post of Senior Lecturer in strict observance of the rules, as
provided in the Schedule appended to the NSCERT,
Service Rules, 2003, and thereafter, to issue appropriate
order of promotion in the post of Senior Lecturer. After
noticing the provisions in the NSCERT Service Rules, 2003,
the Division Bench had observed that continuous
qualifying service of 5 (five) years in the feeder grade of
Lecturer is an essential requirement for the purpose of
promotion to the post of Senior Lecturer. It was in that
context the Division Bench had observed that the DPC
when it held its meeting on 04.10.2007, did not take into
consideration the NSCERT Service Rules, 2003 which had
come into effect in the meantime from 30.04.2007, as
consideration of the said Rules was relevant so far as
regularisation of the appellants in the cadre of Senior
Lecturer. The Division Bench had further observed that
while operating any regularization retrospectively, care
has to be taken that no prejudice is caused to the
incumbent already in the cadre. Though the Division
Bench had not indicated in express terms about the
incumbent stated to be already in the cadre but it had
impliedly referred to the respondent no.4 as the incumbent
already in the cadre and directed the State respondents
not to cause any prejudice to the said incumbent. As
already noted above, the Division Bench had considered
the status of the respondent no. 4 in the post of Senior
Lecturer and did not observe any irregularity in the matter
of regularisation of service of the respondent no. 4 in the
post of Senior Lecturer w.e.f. 16.01.2004. In view of such
settled position, it is no longer open for the appellants to
attempt any other interpretation. The said position had
been reiterated by the learned Single Judge in the
judgment and order dated 03.08.2015 when the DPC held
on 03.03.2014 reiterated its earlier decision taken in the
DPC meeting held on 04.10.2007, by setting aside the said
Minutes dated 03.03.2014. The said position was
accepted by the present appellants and the State
respondents as they had never assailed the same. The
contention raised by the present appellants and the State
respondents to the effect that the NSCERT Service Rules,
2003 were not in force in the year 2007 when the
promotions were given to the appellants, was negated by
the learned Single Judge in W.P.(C) No. 126(K)/2014. The
learned Single Judge in its judgment and order dated
03.08.2015, had set aside the impugned recommendation
of the DPC dated 03.03.2014 with the direction to hold the
DPC afresh in accordance with the direction given by the
Division Bench on 14.09.2012.
35. The contention raised in support of the decisions taken
in the meeting of the DPC held on 02.11.2015 is not
11
acceptable in view of the authoritative pronouncement of
the Division Bench in its order dated 14.09.2012. The DPC
cannot overrule what had been pronounced by the Division
Bench and reiterated by the Single Judge of this Court, as
mentioned above, and the DPC cannot reinterpret the
position what has already been settled. Thus, the learned
Single Judge after due consideration of the matter in its
entirety, is absolutely justified in W.P. (C) No. 231(K)/2015
in setting aside the proceedings of the DPC held on
02.11.2015 by holding that the same were in clear
infraction of the judgment and order dated l4.09.2012
passed in W.A. No. 20(K)/2011 and W.A. No. 21(K)/2011,
as has been quoted above.”
(quoted verbatim from the paperbook)
12. The facts which emerge from the sets of events determining
seniority positions of the appellants and K in the subject posts are that
at the time of regularisation of K, the 2003 Rules was not in existence.
So far as the appellants are concerned, their regularisation in the posts
in which they were officiating was effected on 8th November 2007. By
that time the 2003 Rules had become operational. Once the said Rules
became operational, the requirement of five year service in the feeder
grade also become applicable to be eligible for promotion in the next
higher grade. Our attention had been drawn to Clause 4.2 of the
Memorandum issued in the month of March 2005 through which K was
regularised in the post of senior lecturer to contend that K could not
object to the appellants being made senior. We shall deal with this
aspect of the appellants’ case in the next paragraph of this Judgment.
The general principle of service jurisprudence is that the time spent in
the immediate superior grade on stopgap or adhoc basis ought not to
12
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. This view has been taken by the
Constitution Bench of this Court in the case of Direct Recruit Class II
Engineering Officers’ Association vs. State of Maharashtra & Others
[(1990) 2 SCC 715], Swapan Kumar Pal and Others vs. Samitabhar
Chakraborty and Others [(2001) 5 SCC 581], State of Rajasthan and
Others vs. Jagdish Narain Chaturvedi [(2009) 12 SCC 49], Amarjeet
Singh and Others vs. Devi Ratan and Others [(2010) 1 SCC 417], and
Malook Singh and Others vs. State of Punjab and Others [(2021)
SCC OnLine SC 876].
13. At the time the appellants were regularised with retrospective
effect, the 2003 Rules had come into existence. Thus, the requirement
of the Schedule to the said Rules framed under Article 309 of the
Constitution of India could not be overridden by a clause contained in
the Memorandum promoting K. On the other hand, the 2003 Rules
ought to supersede any contrary provision that may be contained in an
earlier legal instrument. The appellants cannot claim any vested legal
13
right on the basis of certain conditions contained in K’s promotional
recommendation.
14. The appellants had entered the service as lecturer on
contractual basis in the year 199293 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. We have already referred to different authorities
14
laying down this proposition of law earlier in this judgment. Birth in the
cadre takes place only upon regularisation in a grade and there is no
provision in the 2003 Rules which prescribes encadering a person in
the post of senior lecturer during the period such person officiates in
the said post. So far as length of service in feeder post is concerned,
that also has to exclude the contractual period during which the
appellants served as lecturers, once we apply this principle.
15. The appellants had no doubt completed three years of service
in the feeder grade on operationalisation of 2003 Rules on 30th April
2007. But so far, the said Rules seek to give them regularisation in the
cadre of senior lecturer with effect from 2003 and 2001 respectively,
their service in the feeder grade do not meet the required stipulation of
five year period. Judgment of a Coordinate Bench in the case of Girish
Kumar vs. State of Maharashtra and Others [(2019) 6 SCC 647],
construed the term ‘continuous service’ in relation to the specific rules
this Court was dealing with in that case. So far as the present appeal is
concerned, the ratio of this judgment would not be applicable because
the appellants here did not fulfil the eligibility requirement for being
promoted to the post of senior lecturer. If retroactivity of order is given
effect to for calculating the officiating period, as we have already
observed, time spent as officiating senior lecturer could not be deemed
to be the dates of their birth in the cadre of senior lecturer. In Girish
15
Kumar (supra), it has also been held that such interpretation shall not
be applicable while considering eligibility criteria. 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
interse 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 interse seniority
among the appellants and K.
16. For these reasons we do not wish to interfere with the
judgment under appeal. The authorities to take steps on the basis of
seniority positions of the appellants and the respondent no. 4 in terms
of this judgment. The appeal is dismissed.
17. Pending application(s), if any, shall stand disposed of.
18. There shall be no order as to costs.
.…………………….…………J.
(DINESH MAHESHWARI)
……………………….…….J.
(ANIRUDDHA BOSE)
NEW DELHI;
OCTOBER 11 2022.
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