SMT. IMLIKOKLA LONGCHAR & ORS versus THE STATE OF NAGALAND & ORS. on 11 October 2022

[2022] 17 S.C.R. 491

SMT. IMLIKOKLA LONGCHAR & ORS.

v.

THE STATE OF NAGALAND & ORS.

(Civil Appeal No. 7166 of 2022)

OCTOBER 11, 2022

[DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]

Service Law – Nagaland State Council on EducationalTraining Service Rules, 2003 - Promotion – Seniority - The disputearose regarding the seniority of four Appellants and Respondent‘K’ – Draft seniority list as on 1st July 2006 reflected K below theAppellants as the Appellants became senior lecturer by promotionsin 2003 whereas K’s regularisation was done in 2004 as per theCabinet Memorandum of March, 2005 - K objected on ground thatthe date of entry of the Appellants into the cadre of senior lecturerwas subsequent to her entry into the said cadre - K’s representationwas rejected by the Departmental Promotional Committee (DPC)and the final seniority list was published as per the Draft SeniorityList on 17[th] November, 2006 – Against the same, K approached theHigh 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 alsoinstituted by K questioning regularisation of Appellants which wasalso dismissed – K, however, was partially successful in the secondround of litigation initiated by writ petition registered as W.P (C)No. 126(K) of 2014 – The High Court remanded the matter back toDPC for reconsideration and set aside the DPC recommendationsas the same did not reflected the consideration of Nagaland StateCouncil on Educational Training Service Rules, 2003 – DPCretained their earlier decision of 2007 in the meeting that took placesubsequent to the order of the High Court - In the appeals arisingout of W.P. (C) No. 173(K) of 2007 and W.P.(C) No. 284 (K) of2007, a Division Bench of the High Court in a common judgmentdelivered set aside the recommendation of DPC and ordered theState to take immediate steps for reconvening of the D.P.C. forpurpose of fresh recommendation for regularization of the privaterespondents in the post of Sr. Lecturer on strict observance of theRules of 2003 – Against the same, the Appellants have preferred

491

A

B

CD

EF

GH

Athe present appeal on the ground that the DPC recommendationsare in accordance with the Rules of 2003 and they were rightlyconsidered senior to K – Appellants collectively sought seniorityover K and the education authorities are supporting the Appellants– Held: The general principle of service jurisprudence is that thetime spent in the immediate superior grade on stop gap or ad hocBbasis ought not to be computed for determining the length of serviceof an incumbent in that cadre – Computation of the appellant’s periodof service in the feeder grade can take place only from the date oftheir regular appointment - The appellants had entered the serviceas lecturer on contractual basis in the year 1992-93 around theCsame time K had joined as senior lecturer, also on contract basis -For the purpose of determining the length of service in the feederposts as contained in Schedule II of the 2003 Rules (Eligibilityconditions for the post of senior lecturer- 75% of the post of SeniorLecturer fallen vacant in a calendar year shall be filled on promotionfrom amongst the serving candidates who have rendered continuousDservice of 5(five) years in the grade of Research Associate/ AssistantPlanning Officer/ Assistant Project Officer/ Lecturers in DIET), thetime spent on contractual basis cannot be factored in – Appellantscompleted three years of service in the feeder grade onoperationalisation of 2003 Rules on 30[th] April, 2007 but the saidERules seek to give them regularisation in the cadre of senior lecturerfrom 2003 and 2001 respectively – Their service in feeder grade donot meet the required stipulation of five years period – No reason tointerfere with the judgment under appeal.Dismissing the appeal, the CourtFHELD:

1.1 The general principle of service jurisprudence is thatthe time spent in the immediate superior grade on stop-gap orad-hoc basis ought not to be computed for determining the lengthof service of an incumbent in that cadre. This is of course, subjectGto any contrary provision made in the applicable Rules itself. Butno such contrary provision has been shown to us at the time ofhearing of this appeal on behalf of the Appellants or the State.Thus, computation of the Appellants’ period of service in thefeeder grade can take place only from the date of their regularHappointment in that cadre. [Para 12][504-F-G]

1.2 The Appellants had entered the service as lecturer oncontractual basis in the year 1992-93 around the same time Khad joined as senior lecturer, also on contract basis. For thepurpose of determining the length of service in the feeder postsas contained in Schedule II of the 2003 Rules, the time spent oncontractual basis cannot be factored in. If that yardstick is applied,then K’s case for seniority in the grade of senior lecturer willhave to be computed from the year 1993 only. Even if we proceedon the basis that the retrospective effect given to regularisationof the Appellants in the post of lecturer is valid, then also, 15thJanuary 2001 becomes the starting point for calculating five yearsof service length in the feeder cadre. They were given promotionon officiating basis as senior lecturers with effect from 14thNovember 2003 (for A1 and A2) and 20th January 2001 (for A3and A4). Thus, the requisite five year period could not have beencompleted by any of them if the retroactivity of their regularisationorder in the post of senior lecturer is to be accepted. The periodspent in a promotional post on officiating basis cannot be permittedto be factored in for calculating length of service in a particularpost. Unless the Rules otherwise provide, officiation in a particularpost cannot encadre the incumbent in that post. [Para 14][505-D-G]

1.3 In the present appeal, one of the eligibility criterion isfive years continuous service in the feeder post. We cannot ignorethis factor and proceed on the basis as if the term continuousservice is being construed only for determining inter-se seniorityin the promotional post. We are testing here if the Appellants’entry in the promotional cadre was as per the eligibility criteriaor not. In our opinion, it was not. To hold otherwise would requireentire stretch of K’s service in the post of senior lecturer since1993 to be taken into account for determining the inter-seseniority 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; Unionof India (UOI) and Ors. v. S.K. Goel and Ors. (2007) 14SCC 641 : [2007] 2 SCR 432; Badrinath v. Governmentof Tamil Nadu and Ors. (2000) 8 SCC 395 : [2000] 3

ABC

D

EF

G

H

ASuppl. SCR 573; The Direct Recruit Class-IIEngineering Officers’ Association and Ors. v. State ofMaharashtra and Ors. (1990) 2 SCC 715 : [1990] 2SCR 900; Swapan Kumar Pal and Ors. v. SamitabharChakraborthy and Ors. (2001) 5 SCC 581 : [2001] 3SCR 641; State of Rajasthan and Ors. v. Jagdish NarainBChaturvedi (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; MalookSingh and Ors. v. State of Punjab and Ors. (2021)SCC OnLine SC 876; Girish Kumar v. State ofCMaharashtra and Ors. (2019) 6 SCC 647 : [2019] 7SCR 881 – referred to.

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7166Fof 2022.

From the Judgment and Order dated 04.10.2019 of the High Courtof Gauhati in WA No. 364 of 2017.

Ms. V. Mohana, Sr. Adv., Kaushik Choudhury, PawanshreeAgrawal, Chetan Joshi, Ms. Neha Buttan, Advs. for the Appellants.G

Ms. K. Enatoli Sema, Ritesh K. Chowdhary, Kedar Nath Tripathy,Siddhartha Jha, Advs. for the Respondents.

The Judgment of the Court was delivered by A

ANIRUDDHA BOSE, J.

Leave granted.

2. The origin of the controversy giving rise to the present appealgoes back to the year 2007 and there have been several rounds oflitigations over the issue which we shall briefly narrate in the subsequentparagraphs of this judgment. The contesting parties in this appeal arethe appellants and the respondent no.4 (Keruupfeu – “K”). Theeducational authorities of the State of Nagaland, who are also respondentsin this appeal are supporting the appellants. The dispute is on the questionof seniority the appellants and K in the cadre of senior lecturer under theState Council of Educational Research and Training Service (SCERT),Department of Education, Government of Nagaland. The appellants arecollectively seeking seniority over K.

B

C

3. We are giving below a table showing the career graph of K andthe four appellants (henceforth referred to as A1, A2, A3 and A4Drespectively in descending order from the table) in their respectivecadres:- E

F

G

H

A4. Draft seniority list as on 1[st] July 2006 was circulated by theauthorities in which the K was shown below the appellants. K’s objectionto this seniority list was mainly on the point that the appellants could notbe positioned above her as the dates of entry of the appellants into thecadre of senior lecturer was subsequent to her entry into the said cadre.The appellants initially came to be senior lecturer on the basis of theirBofficiating promotions on 20[th] November 2003 with effect from 14[th]November 2003 (for A1 and A2) and 20[th] January 2001 (for A3 and A4)whereas K’s regularisation in the post in question was with effect from16[th] January 2004. K’s regular promotion in that cadre was before theactual dates of regularisation of the appellants in the subject post. TheCappellants’ regularisation in the said posts was made in the year 2007,with earlier effect as would be evident from the above-referred table.K’s representation was rejected and final seniority list was published on17[th] November 2006 in terms of the draft list. As per a CabinetMemorandum no. EDS/SCERT-15/2004 (“Memorandum”) issued in themonth of March 2005, regularisation recommendation of K was madeDwith effect from 16[th] January 2004 as she had completed more than tenyears’ service in the department. This appears to have had beensubsequently approved and notified. We also find from this Memorandumthat she was recommended for regularisation on the basis of a suitabilitytest. The said Memorandum, inter-alia, carried the following stipulation:- E

“4(2). There are some regular lecturers who were givenofficiating promotions to the posts of Sr. Lecturers subject toregularization by the DPC. This group of officers would besenior to those of contract appointees and deputationists.”

F

5. The Nagaland State Council on Educational Training ServiceRules, 2003 (“2003 Rules”) was made under the provisions of Article309 of the Constitution of India and these Rules became operative from30[th] April 2007. Rule 3 thereof reads:- “3. CONSTITUTION OF SERVICEG

The service shall consist of the following persons namely:

(i) Persons who, at the commencement of these rules areholding substantively the posts specified in Schedule-I.

(ii) Persons recruited to this service before the commencementHof these rules.

SMT. IMLIKOKLA LONGCHAR & ORS. v.

THE STATE OF NAGALAND & ORS. [ANIRUDDHA BOSE, J.]

(iii) Persons recruited to this service in accordance withAprovisions of these rules.”

Schedule II to these Rules carry the requirements pertaining tovarious posts within the said service. Eligibility conditions for the post ofsenior lecturer appear in Serial 4 thereof. It is recorded in the saidSchedule:- B

SCHEDULE-II

(See Rule-3)

The Nagaland State Council of Educational Research &

Training

C

D

E

F

G

H

498SUPREME COURT REPORTS[2022] 17 S.C.R.ABCDEFG

6. The said Rules however were not operational whenregularisation of K took place in the post of senior lecturer. On the otherhand, the appellants’ regularisation as senior lecturer came after theH

2003 Rules had come into existence on 30[th] April 2007. Learned counselfor the appellants had argued that when K joined as senior lecturer, shedid 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 ofmuch relevance so far as the present proceeding is concerned as nothinghas been shown to us to demonstrate that she had any eligibility deficiencyon account of not having B.Ed. degree at the time she was inducted inthe post of senior lecturer on contractual basis. In any event, her eligibilityto 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 theappellants ought to be computed taking into account the period theywere officiating in the posts of senior lecturer, which were prior to thedate 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 thisjudgment has been relied on by the appellants as also the State. Thiswas also the view of the DPC and was confirmed in their meeting heldon 2[nd] November 2015. There are authorities which calls for limitedinterference by judicial review with regard to recommendations of theDPC. This has been held so by this Court in the cases of Union PublicService Commission vs. L.P. Tiwari and Others [(2006) 12 SCC317] and Union of India & Another vs. S.K. Goel and Others [(2007)14 SCC 641]. But the principle of non-interference is not absolute. Inexceptional cases, judicial intervention becomes inevitable, as held in thecase 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 tothis appeal is concerned, is two Writ Petitions filed by K in the GauhatiHigh Court. These were registered as W.P (C) No. 169 (K) of 2016 andW.P (C) No. 231(K) of 2015. We are avoiding reference to rounds oflitigations earlier as those cases do not have direct bearing on the disputewhich we are to adjudicate on in this appeal. In these Writ Petitions, Khad challenged the DPC proceedings and she also prayed for reconveningof DPC for the purpose of reconsidering the recommendation forregularisation of the four appellants in terms of the 2003 Rules. K hadalso assailed the promotion of the four appellants in the posts of seniorlecturer. Her main contention was that their ad-hoc period in the feedercadre could not be counted for the purpose of eligibility for promotions.

AB

C

D

E

F

G

H

AB

C

D

E

F

G

H

A9. This was the third round of litigations touching upon the samecontroversy. The first set was a writ petition filed by K, being W.P. (C)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] wasalso instituted by K questioning regularisation of the appellants as seniorlecturer. The second writ petition was also dismissed. K had carriedBboth the orders of dismissal to the Appellate Bench. K, however, waspartially successful in the second round of litigation initiated by writ petitionregistered as W.P (C) No. 126(K) of 2014. In this writ petition, she hadasked for invalidation of the recommendation of the DPC in their meetingheld on 3[rd] March 2014. In this meeting, the DPC had reaffirmed theirCrecommendation made on 4[th] October 2007 seeking to regularise theservice of the appellants in the posts of senior lecturer from differentdates prior to the date on which service of K was regularised in thesame post. That was accepted by the State Government. The High Courtessentially remanded the matter to the DPC by setting aside their orderholding that the DPC recommendation did not reflect consideration ofDthe 2003 Rules. Following the direction contained in the aforesaidjudgment, a fresh DPC meeting was held on 2[nd] November 2015 towhich we have already referred. This meeting was held mainly to reviewthe decisions of the DPC taken in their meetings on 4[th] October 2007and 3[rd] March 2014, which were set aside by the High Court. But theEDPC essentially retained their earlier decision concerning seniority listgiving its own explanation of there being compliance of the 2003 Rules.

10. In the appeals arising out of W.P. (C) No. 173(K) of 2007 andW.P. (C) No. 284 (K) of 2007, a Division Bench of the High Court in acommon judgment delivered on 14[th] September 2012, inter-alia, held:- F

“20. We have considered the reason as assigned by thelearned Single Judge but unfortunately we cannot agree tosuch proposition of law. It is well settled that therecommendation of the D.P.C. is not binding upon even onthe appointing authority. It is merely recommendation and theGappointing authority has ot examine the recommendationwhether those were appropriate or not. The recommendationis an opinion of the expert for consideration of the appointingauthority. The appointing authority thought it appropriate toreconvene the D.P.C. for arriving at a decision. It appearsfrom the D.P.C. minutes that there was no consideration of H

the Nagaland State Council of Educational Research andTraining Services Rules as was given effect form 30.04.2007and hence the D.P.C. in all the cases made recommendationwithout relevant consideration of the said rules, and theirconsequences for far regularization of the Sr. Lecturer wasconcerned and treaded a wrong premise. The D.P.C. did notlook into the matter whether the private respondents havecompleted the required continuous qualifying service of 5years in the feeder grade or not. Apart that, the law is wellsettled that the executive is well within its jurisdiction toreconvene to D.P.C. but while operating any regularizationretrospectively it has to take care that no prejudice is causedto the incumbent already in the cadre. Moreover, being in thegrade on regular appointment. Unless the qualifying serviceas prescribed is complete in the grade, there cannot by anylawful consideration.

21. Be that as it may in this case, the question that has beentaken for consideration by this Court is confined to whetherthe State-respondents No. 1 and 2 have acted in accordancewith the provision of law while accepting the recommendationof the D.P.C. The answer is bound to in the negative. Therelevant provision as to the qualifying service as appearingin the Nagaland State Council of Educational Research andTraining Services Rules, 2003, as given effect from30.04.2007, was not at all considered by the D.P.C. whilemaking 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, dated08.11.2007 (Annexure-C to the Affidavit in opposition filedby the respondent No. 1.) stand quashed.

22. This Court would not interfere with that part of thenotification whereby the private respondents have beenappointed in the cadre of Lecturer. This order has to beconfined for the cadre for the Sr. Lecturer only. Asconsequential thereof, the respondents No. 1 and 2 are directedto take immediate steps for reconvening of the D.P.C. forpurpose of fresh recommendation for regularization of theprivate respondents in the post of Sr. Lecturer on strict ABC

DEF

G

H

observance of the rules: as provided in the schedule appendedto the said Rules, 2003 (effective from 30.04.2007) andthereafter to issue the appropriate order of promotion in thepost of the Sr. Lecturer.

A

23. As corollary to this, the impugned seniority list is alsostruck down. The seniority position can only be settled afterthe reconvening of the D.P.C. for promotion to the post of Sr.Lecturer in terms of the provisions of the Nagaland StateCouncil of Educational Research and Training Services Rules,2003.

B

24. It is made clear that the private respondents who are nowoccupying the post of Principal of DIETs on officiating basiswould be allowed to continue in their positions but that shallremain subject to the outcome of the recommendation of theD.P.C. and the consequential orders of promotion as wouldbe made by the respondents No. 1 and 2.”

C

D

11. In the two writ petitions registered as W.P.(C) No. 231 (K) of2015 and W.P. (C) 169 (K) of 2016, K had sought to quash the freshDPC recommendations coming from the meeting held on 2[nd] NovemberE2015. The earlier seniority position of K was retained by the DPC intheir recommendation made in this meeting. The Single Judge allowedthe writ petitions against which the appellants appealed before the DivisionBench. The Division Bench dismissed the appeals, holding:- “34. It is reiterated, at the cost of repetition, that the DivisionFBench had, in clear terms, directed the State respondent nos.1 and 2 to take immediate steps for reconvening of the DPCfor the purpose of fresh recommendation for regularisationof the appellants in the post of Senior Lecturer in strictobservance of the rules, as provided in the Schedule appendedto the NSCERT, Service Rules, 2003, and thereafter, to issueGappropriate 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 continuousqualifying service of 5 (five) years in the feeder grade ofLecturer is an essential requirement for the purpose ofpromotion to the post of Senior Lecturer. It was in that context H

H

the Division Bench had observed that the DPC when it heldits meeting on 04.10.2007, did not take into considerationthe NSCERT Service Rules, 2003 which had come into effectin the meantime from 30.04.2007, as consideration of the saidRules was relevant so far as regularisation of the appellantsin the cadre of Senior Lecturer. The Division Bench hadfurther observed that while operating any regularizationretrospectively, care has to be taken that no prejudice is causedto the incumbent already in the cadre. Though the DivisionBench had not indicated in express terms about the incumbentstated to be already in the cadre but it had impliedly referredto the respondent no.4 as the incumbent already in the cadreand directed the State respondents not to cause any prejudiceto the said incumbent. As already noted above, the DivisionBench had considered the status of the respondent no. 4 inthe post of Senior Lecturer and did not observe any irregularityin the matter of regularisation of service of the respondentno. 4 in the post of Senior Lecturer w.e.f. 16.01.2004. In viewof such settled position, it is no longer open for the appellantsto attempt any other interpretation. The said position had beenreiterated by the learned Single Judge in the judgment andorder dated 03.08.2015 when the DPC held on 03.03.2014reiterated its earlier decision taken in the DPC meeting heldon 04.10.2007, by setting aside the said Minutes dated03.03.2014. The said position was accepted by the presentappellants and the State respondents as they had neverassailed the same. The contention raised by the presentappellants and the State respondents to the effect that theNSCERT Service Rules, 2003 were not in force in the year2007 when the promotions were given to the appellants, wasnegated by the learned Single Judge in W.P.(C) No. 126(K)/2014. The learned Single Judge in its judgment and orderdated 03.08.2015, had set aside the impugnedrecommendation of the DPC dated 03.03.2014 with thedirection to hold the DPC afresh in accordance with thedirection given by the Division Bench on 14.09.2012.

35. The contention raised in support of the decisions takenin the meeting of the DPC held on 02.11.2015 is notacceptable in view of the authoritative pronouncement of the AB

C

D

EF

GH

ADivision Bench in its order dated 14.09.2012. The DPC cannotoverrule what had been pronounced by the Division Benchand reiterated by the Single Judge of this Court, as mentionedabove, and the DPC cannot re-interpret the position what hasalready been settled. Thus, the learned Single Judge afterdue consideration of the matter in its entirety, is absolutelyBjustified in W.P. (C) No. 231(K)/2015 in setting aside theproceedings of the DPC held on 02.11.2015 by holding thatthe same were in clear infraction of the judgment and orderdated l4.09.2012 passed in W.A. No. 20(K)/2011 and W.A.No. 21(K)/2011, as has been quoted above.”

A

C

A

C

(quoted verbatim from the paperbook)

12. The facts which emerge from the sets of events determiningseniority positions of the appellants and K in the subject posts are that atthe time of regularisation of K, the 2003 Rules was not in existence. Sofar as the appellants are concerned, their regularisation in the posts inDwhich they were officiating was effected on 8[th] November 2007. Bythat time the 2003 Rules had become operational. Once the said Rulesbecame operational, the requirement of five year service in the feedergrade also become applicable to be eligible for promotion in the nexthigher grade. Our attention had been drawn to Clause 4.2 of theEMemorandum issued in the month of March 2005 through which K wasregularised in the post of senior lecturer to contend that K could notobject to the appellants being made senior. We shall deal with this aspectof the appellants’ case in the next paragraph of this Judgment. The generalprinciple of service jurisprudence is that the time spent in the immediatesuperior grade on stop-gap or ad-hoc basis ought not to be computed forFdetermining the length of service of an incumbent in that cadre. This isof course, subject to any contrary provision made in the applicable Rulesitself. But no such contrary provision has been shown to us at the timeof hearing of this appeal on behalf of the appellants or the State. Thus,computation of the appellants’ period of service in the feeder grade canGtake 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 thecase of Direct Recruit Class II Engineering Officers’ Associationvs. State of Maharashtra & Others [(1990) 2 SCC 715], SwapanKumar Pal and Others vs. Samitabhar Chakraborty and Others[(2001) 5 SCC 581], State of Rajasthan and Others vs. JagdishH

Narain Chaturvedi [(2009) 12 SCC 49], Amarjeet Singh and Othersvs. Devi Ratan and Others [(2010) 1 SCC 417], and Malook Singhand Others vs. State of Punjab and Others [(2021) SCC OnLine SC876].

13. At the time the appellants were regularised with retrospectiveeffect, the 2003 Rules had come into existence. Thus, the requirementof the Schedule to the said Rules framed under Article 309 of theConstitution of India could not be overridden by a clause contained inthe Memorandum promoting K. On the other hand, the 2003 Rules oughtto supersede any contrary provision that may be contained in an earlierlegal instrument. The appellants cannot claim any vested legal right onthe basis of certain conditions contained in K’s promotionalrecommendation.

14. The appellants had entered the service as lecturer oncontractual basis in the year 1992-93 around the same time K had joinedas senior lecturer, also on contract basis. For the purpose of determiningthe length of service in the feeder posts as contained in Schedule II ofthe 2003 Rules, the time spent on contractual basis cannot be factoredin. If that yardstick is applied, then K’s case for seniority in the grade ofsenior lecturer will have to be computed from the year 1993 only. Evenif we proceed on the basis that the retrospective effect given toregularisation of the appellants in the post of lecturer is valid, then also,15[th] January 2001 becomes the starting point for calculating five yearsof service length in the feeder cadre. They were given promotion onofficiating basis as senior lecturers with effect from 14[th] November 2003(for A1 and A2) and 20[th] January 2001 (for A3 and A4). Thus, therequisite five year period could not have been completed by any of themif the retroactivity of their regularisation order in the post of senior lectureris to be accepted. The period spent in a promotional post on officiatingbasis cannot be permitted to be factored in for calculating length ofservice in a particular post. Unless the Rules otherwise provide, officiationin a particular post cannot encadre the incumbent in that post. We havealready referred to different authorities laying down this proposition oflaw earlier in this judgment. Birth in the cadre takes place only uponregularisation in a grade and there is no provision in the 2003 Ruleswhich prescribes encadering a person in the post of senior lecturer duringthe period such person officiates in the said post. So far as length ofservice in feeder post is concerned, that also has to exclude the A

BC

D

EF

G

H

Acontractual period during which the appellants served as lecturers, oncewe apply this principle.

15. The appellants had no doubt completed three years of servicein the feeder grade on operationalisation of 2003 Rules on 30[th] April2007. But so far, the said Rules seek to give them regularisation in theBcadre of senior lecturer with effect from 2003 and 2001 respectively,their service in the feeder grade do not meet the required stipulation offive year period. Judgment of a Coordinate Bench in the case of GirishKumar vs. State of Maharashtra and Others [(2019) 6 SCC 647],construed the term ‘continuous service’ in relation to the specific rulesthis Court was dealing with in that case. So far as the present appeal isCconcerned, the ratio of this judgment would not be applicable becausethe appellants here did not fulfil the eligibility requirement for beingpromoted to the post of senior lecturer. If retroactivity of order is giveneffect to for calculating the officiating period, as we have alreadyobserved, time spent as officiating senior lecturer could not be deemedDto be the dates of their birth in the cadre of senior lecturer. In GirishKumar (supra), it has also been held that such interpretation shall not beapplicable while considering eligibility criteria. In the present appeal, oneof the eligibility criterion is five years continuous service in the feederpost. We cannot ignore this factor and proceed on the basis as if theterm continuous service is being construed only for determining inter-seEseniority in the promotional post. We are testing here if the appellants’entry in the promotional cadre was as per the eligibility criteria or not. Inour opinion, it was not. To hold otherwise would require entire stretch ofK’s service in the post of senior lecturer since 1993 to be taken intoaccount for determining the inter-se seniority among the appellants andFK.

16. For these reasons we do not wish to interfere with the judgmentunder appeal. The authorities to take steps on the basis of senioritypositions of the appellants and the respondent no. 4 in terms of thisjudgment. The appeal is dismissed.G17. Pending application(s), if any, shall stand disposed of.

18. There shall be no order as to costs.

Ankit Gyan(Assisted by : Ajay, LCRA)

Appeal dismissed.