SMT. IMLIKOKLA LONGCHAR & ORSversusTHE STATE OF NAGALAND & ORS.

                        [2022] 17 S.C.R. 491                              491


             SMT. IMLIKOKLA LONGCHAR & ORS.                               A
                                  v.
              THE STATE OF NAGALAND & ORS.
                   (Civil Appeal No. 7166 of 2022)
                         OCTOBER 11, 2022                                 B
  [DINESH MAHESHWARI AND ANIRUDDHA BOSE, JJ.]
       Service Law – Nagaland State Council on Educational
Training Service Rules, 2003 - Promotion – Seniority - The dispute
arose regarding the seniority of four Appellants and Respondent
                                                                          C
‘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      D
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 –
                                                                          E
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             F
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
                                                                          G
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           H
                                  491
492            SUPREME COURT REPORTS                      [2022] 17 S.C.R.


A     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
B
      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
C     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
D
      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
E     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
F           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
G     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
H     appointment in that cadre. [Para 12][504-F-G]
           SMT. IMLIKOKLA LONGCHAR & ORS. v.                             493
             THE STATE OF NAGALAND & ORS.

      1.2 The Appellants had entered the service as lecturer on          A
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,
                                                                         B
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         C
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
                                                                         D
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][505-
D-G]
      1.3 In the present appeal, one of the eligibility criterion is     E
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       F
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.            G
      (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

                                                                         H
494            SUPREME COURT REPORTS                     [2022] 17 S.C.R.


A           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
B
            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
C           Maharashtra and Ors. (2019) 6 SCC 647 : [2019] 7
            SCR 881 – referred to.
                            Case Law Reference
      2006 (9) Suppl. SCR 271          referred to         Para 7
D     [2007] 2 SCR 432                 referred to         Para 7
      [2000] 3 Suppl. SCR 573          referred to         Para 7
      [1990] 2 SCR 900                 referred to         Para 12
      [2001] 3 SCR 641                 referred to         Para 12
E     [2009] 8 SCR 1011                referred to         Para 12
      [2009] 15 SCR 1010               referred to         Para 12
      [2019] 7 SCR 881                 referred to         Para 15
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7166
F     of 2022.
            From the Judgment and Order dated 04.10.2019 of the High Court
      of Gauhati in WA No. 364 of 2017.
           Ms. V. Mohana, Sr. Adv., Kaushik Choudhury, Pawanshree
      Agrawal, 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.



H
            SMT. IMLIKOKLA LONGCHAR & ORS. v.                                  495
              THE STATE OF NAGALAND & ORS.

      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 appeal
goes back to the year 2007 and there have been several rounds of               B
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    C
State Council of Educational Research and Training 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               D
respectively in descending order from the table) in their respective
cadres:-


                                                                               E




                                                                               F




                                                                               G




                                                                               H
496             SUPREME COURT REPORTS                         [2022] 17 S.C.R.


A             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 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
B
      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
C     appellants’ 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 on
      17 th November 2006 in terms of the draft list. As per a Cabinet
      Memorandum no. EDS/SCERT-15/2004 (“Memorandum”) issued in the
      month of March 2005, regularisation recommendation of K was made
D
      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, inter-alia, carried the following stipulation:-
E           “4(2). There are some regular lecturers who were given
            officiating promotions to the posts of Sr. Lecturers subject to
            regularization by the DPC. This group of officers would be
            senior to those of contract appointees and deputationists.”
                                   (quoted verbatim from the paperbook)
F
            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:-

G           “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 Schedule-I.
            (ii) Persons recruited to this service before the commencement
H           of these rules.
        SMT. IMLIKOKLA LONGCHAR & ORS. v.                                       497
THE STATE OF NAGALAND & ORS. [ANIRUDDHA BOSE, J.]

      (iii) Persons recruited to this service in accordance with                A
      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:-                                                                      B
                             SCHEDULE-II
                              (See Rule-3)
     The Nagaland State Council of Educational Research &
                          Training                                              C




                                                                                D




                                                                                E




                                                                                F




                                                                                G




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


A




B




C




D




E




F




G


            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
H
        SMT. IMLIKOKLA LONGCHAR & ORS. v.                                         499
THE STATE OF NAGALAND & ORS. [ANIRUDDHA BOSE, J.]

2003 Rules had come into existence on 30th April 2007. Learned counsel            A
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
                                                                                  B
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               C
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              D
on 2nd November 2015. There are authorities which calls for limited
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 non-interference is not absolute. In            E
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         F
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            G
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 ad-hoc period in the feeder
cadre could not be counted for the purpose of eligibility for promotions.
                                                                                  H
500             SUPREME COURT REPORTS                             [2022] 17 S.C.R.


A             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)
      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
B
      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
C     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
D
      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
E     DPC essentially retained their earlier decision concerning seniority list
      giving 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 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, inter-alia, held:-
F            “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
G            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
H
        SMT. IMLIKOKLA LONGCHAR & ORS. v.                             501
THE STATE OF NAGALAND & ORS. [ANIRUDDHA BOSE, J.]

    the Nagaland State Council of Educational Research and            A
    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
                                                                      B
    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   C
    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    D
    taken for consideration by this Court is confined to whether
    the State-respondents 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         E
    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          F
    08.11.2007 (Annexure-C to the Affidavit in opposition filed
    by the respondent No. 1.) stand quashed.
    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          G
    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
                                                                      H
502             SUPREME COURT REPORTS                          [2022] 17 S.C.R.


A           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
B           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.
C           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.”
D
                                   (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
E     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
F           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 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
G           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
H
        SMT. IMLIKOKLA LONGCHAR & ORS. v.                               503
THE STATE OF NAGALAND & ORS. [ANIRUDDHA BOSE, J.]

    the Division Bench had observed that the DPC when it held           A
    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
                                                                        B
    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        C
    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
                                                                        D
    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       E
    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
                                                                        F
    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                 G
    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
    acceptable in view of the authoritative pronouncement of the        H
504             SUPREME COURT REPORTS                         [2022] 17 S.C.R.


A           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 re-interpret the position what has
            already been settled. Thus, the learned Single Judge after
            due consideration of the matter in its entirety, is absolutely
B
            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.”
C                                  (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
D     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
E     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 stop-gap or ad-hoc basis ought not to be computed for
F     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
G     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
H
        SMT. IMLIKOKLA LONGCHAR & ORS. v.                                           505
THE STATE OF NAGALAND & ORS. [ANIRUDDHA BOSE, J.]

Narain Chaturvedi [(2009) 12 SCC 49], Amarjeet Singh and Others                     A
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               B
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 right on
the basis of certain conditions contained in K’s promotional                        C
recommendation.
        14. 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            D
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,       E
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   F
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 laying down this proposition of           G
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
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506              SUPREME COURT REPORTS                         [2022] 17 S.C.R.


A     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
B     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
C     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
D     to be the dates of their birth in the cadre of senior lecturer. In Girish
      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 inter-se
E     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
F     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.
G            17. Pending application(s), if any, shall stand disposed of.
             18. There shall be no order as to costs.

      Ankit Gyan                                                   Appeal dismissed.
      (Assisted by : Ajay, LCRA)
H