Summary
Four lecturers in Nagaland's SCERT service officiated as senior lecturers and were regularised in November 2007 with retrospective effect. The fourth respondent had been regularised as senior lecturer from 16 January 2004, before the Service Rules, 2003 took effect on 30 April 2007. Relying on her 2005 regularisation Memorandum, the DPC kept placing the appellants above her, and the High Court set aside its 2015 recommendation. The Supreme Court upheld that decision. Unless the rules provide otherwise, officiating or ad hoc service in a higher post does not count, and a person enters the cadre only on regularisation. The appellants' regularisation was governed by the 2003 Rules, which require five years' regular feeder service, and they did not meet that requirement. A Memorandum clause cannot override rules made under Article 309.
Issues
- Whether the appellants' officiating service as senior lecturers could count towards seniority over a colleague regularised in that cadre before their own regularisation.
- Whether the five-year feeder-service requirement in the Nagaland SCERT Service Rules, 2003 applied to the appellants' regularisation in November 2007 with retrospective effect.
- Whether a clause in the 2005 Cabinet Memorandum regularising the respondent could override the 2003 Rules.
- Whether Girish Kumar v State of Maharashtra on 'continuous service' helped the appellants.
Provisions considered
- Rule 3 and Schedule II, Nagaland State Council of Educational Research and Training Service Rules, 2003These rules, in force from 30 April 2007, require five years' continuous service in the feeder grade of lecturer for promotion to senior lecturer. They governed the appellants' regularisation, and contractual and officiating periods could not be counted. (¶¶ 5, 12, 14, 15)
- Article 309, Constitution of IndiaRules framed under Article 309 prevail over a contrary clause in an earlier executive Memorandum. The appellants had no vested right based on a condition in the respondent's regularisation recommendation. (¶ 13)
Held
- Recommendations of a DPC ordinarily attract limited judicial review, but interference is warranted in exceptional cases. Here the DPC had repeatedly reaffirmed a seniority position that ignored the 2003 Rules despite the High Court's directions. (¶¶ 7, 9, 11)
- Ad hoc or stop-gap service in a superior grade is not counted for length of service in that cadre unless the rules say otherwise, and no such rule was shown (Direct Recruit Class II Engineering Officers, Malook Singh). A person enters the cadre only on regularisation. (¶¶ 12, 14)
- Because the 2003 Rules were in force when the appellants were regularised, their requirements applied and could not be displaced by clause 4(2) of the Memorandum that regularised the respondent. (¶¶ 12, 13)
- Excluding contractual service and counting only regular service as lecturer, none of the appellants had five years in the feeder grade by the retrospective dates of their regularisation as senior lecturers. Their entry into that cadre did not meet the eligibility criteria. (¶¶ 14, 15)
- Girish Kumar construed 'continuous service' for inter se seniority under particular rules and itself excluded eligibility questions. It did not apply where the issue was whether the appellants were eligible for promotion at all. (¶ 15)
Result
Appeal dismissed. The High Court's judgment setting aside the DPC's recommendation of 2 November 2015 was upheld, and the authorities were to fix the seniority of the appellants and the fourth respondent in terms of this judgment. No costs.