Time Spent as Officiating Senior Lecturer could not be Deemed to be the Dates of their birth in Cadre of Senior Lecturer: Supreme Court
The Supreme Court ruled that the time spent as officiating senior lecturer could not be deemed to be the dates of their birth in the cadre of senior lecturer.
Background
The dispute is on the question of seniority of the appellants and Keruupfeu (K) in the cadre of senior lecturer under the State Council of Educational Research and Training Service (SCERT), Department of Education, Government of Nagaland. The appellants are collectively seeking seniority over K.
Draft seniority list was circulated by the authorities in which the K was shown below the appellants. K’s objection to the 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.
Decision
The division bench of Justice Dinesh Maheshwari and Justice Aniruddha Bose noted that 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.
It was observed that 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 became applicable to be eligible for promotion in the next higher grade.
The bench said that the general principle of service jurisprudence is that the time spent in the immediate superior grade on stop gap or adhoc basis ought not to be computed for determining the length of service of an incumbent in that cadre.
It was further observed that 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.
The bench said that 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 right on the basis of certain conditions contained in K’s promotional recommendation” the bench stated.
It was observed by the court that 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.
The court said that 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” , the court added.
The court further stated that unless the Rules otherwise provide, officiation in a particular post cannot encadre the incumbent in that post.
The bench noted that 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.
It was further said that 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.
The bench held that 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.
The court while dismissing the appeal ordered that the authorities to take steps on the basis of seniority positions of the appellants and the respondent in terms of the judgment.
Case title: Smt. Imlikokla Longchar & Ors. v/s The State of Nagaland & Ors.
Citation: Special Leave to Appeal (C) No. 27603/2019
