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Judgment
,,,,,
Manish Choudhury, J",,,,,
Heard Mr. S. Dutta, learned Senior Counsel for the appellants. Also heard Mr. P. Khataniar, learned counsel for respondent no. 4 and Ms. M.",,,,,
Kechii, learned Government counsel, Nagaland, appearing for respondent nos. 1 and 2.",,,,,
By a common judgment and order dated 22.09.2017, the learned Single Judge had disposed of two writ petitions, W.P.(C) No. 169(K)/2016 and",,,,,
W.P.(C) No. 231(K)/2015, preferred by the present respondent no. 4 as the writ petitioner. This intra-court appeal is preferred against that part of the",,,,,
common judgment and order dated 22.09.2017 passed by the learned Single Judge in the writ petition, W.P.(C) No. 231(K)/2015, whereby, the learned",,,,,
Single Judge had quashed and set aside the proceedings dated 02.11.2015 of the Departmental Promotion Committee (DPC), assailed in W.P.(C) No.",,,,,
231(K)/2015.,,,,,
The 4 (four) appellants herein, were the party-respondent nos. 5, 6, 7 & 8 in the said writ petition, W.P.(C) No. 231(K)/2015. The party-respondent",,,,,
no. 4 in the said writ petition was originally impleaded as respondent no. 5 in the present appeal. On the prayer of the appellants to delete the,,,,,
respondent no. 5 from the array of respondents on the ground that no relief was prayed against the respondent no. 5, this Court by order dated",,,,,
08.03.2019 deleted the respondent no. 5 from the array of parties in the present appeal. In such view of the matter, no discussion about respondent no.",,,,,
5 is made hereunder although he was a party in the earlier rounds of litigation. The service of notice on respondent no. 3 i.e. the Nagaland Public,,,,,
Service Commission (NPSC) was deemed to be served. Further, it was submitted at the bar by the learned counsel for the parties on 02.08.2019 that",,,,,
the NPSC is a formal party only.,,,,,
Mr. Dutta, learned Senior Counsel for the appellants, while assailing the impugned judgment of the learned Single Judge, has submitted that the",,,,,
appellants were appointed in the years 1992 and 1993 under the SCERT on contract/deputation basis respectively and their services were regularised,,,,,
in the post of Lecturer in the year 2001 and thereafter in the year 2003, they were promoted to the post of Senior lecturer on officiating basis. The",,,,,
respondent no. 4, on the other hand, was appointed as Senior Lecturer on contract basis when she did not have the requisite qualification of B.Ed. for",,,,,
appointment as per the Draft Service Rules i.e. the Nagaland State Council of Educational Research & Training (Administrative and Academic),,,,,
Service Rules, 2001 (“the Draft Service Rules, 2001â€, in short). As per the Draft Service Rules, 2001, the post of Senior Lecturer was 100%",,,,,
promotional post and as such, the appointment of respondent no. 4 to the post of Senior Lecturer was in violation with the Draft Service Rules, 2001.",,,,,
He further submits that the regularisation of service of respondent no. 4 in the post of Senior Lecturer in terms of Memorandum dated 18.02.2004 and,,,,,
Memorandum dated 12.05.2004 could not have been done in the wake of the Draft Service Rules, 2001 since the Draft Service Rules, 2001 should",,,,,
prevail over those memorandums. It is contended that the appellants were selected in the year 1992 and 1993 respectively in the feeder cadre and,,,,,
had, thus, completed 5 (five) years of qualifying service when they were regularised. Since the appellants were already on officiating promotion as",,,,,
Senior Lecturers w.e.f. 14.11.2003, 14.11.2003, 20.01.2001 and 20.03.2001 respectively i.e. prior to the regularisation of service of the respondent no.",,,,,
4 w.e.f. 16.01.2004, the appellants were clearly to be treated as seniors to the respondent no. 4. By referring to paragraph 20 of the judgment and",,,,,
order dated 14.09.2012 of the Division Bench, it is submitted that qualifying service are to be treated as indicated in the Minutes of the DPC meeting",,,,,
held on 02.11.2015 and as such, the learned Single Judge had erred in interfering with the Minutes of the said DPC meeting held on 02.11.2015, as the",,,,,
same were not in violation of the direction of the Division Bench made in the judgement and order dated 14.09.2012. He has placed reliance on the,,,,,
decision of the Hon’ble Supreme Court in Bhawana vs. State of Maharashtra and Ors., reported in (2019) 4 SCC 300.",,,,,
Per contra, Mr. Khataniar, learned counsel appearing for respondent no. 4, has supported the judgment and order of the learned Single Judge and",,,,,
has submitted that the learned Single Judge has only reiterated the position as regards the principle to be followed in fixation of seniority of the,,,,,
appellants in the post of Senior Lecturer as per the Nagaland State Council of Educational Research and Training Service Rules, 2003 (“the",,,,,
NSCERT Rules, 2003†in short), which has already attained finality in view of the common judgment and order dated 14.09.2012 of a Division Bench",,,,,
of this Court rendered in W.A. No. 20(K)/2011 and W.A. No. 21(K)/2011 and reaffirmed by a Single Judge of this Court in the judgment and order,,,,,
dated 03.08.2015 rendered in W.P.(C) No. 126(K)/2014. He submits that it is the continuous service which is the requirement under the NSCERT,,,,,
Service Rules, 2003. For the purpose of interpreting continuous service, he referring to the decision of the Hon’ble Supreme Court inG irish",,,,,
Kumar vs. State of Maharashtra and ors., reported in (2019) 6 SCC 647, submits that when the language which is used under the rules is plain and",,,,,
simple and unambiguous, no other word like actual service rendered in the feeder cadre, etc. should be added.",,,,,
Ms. Kechii, learned counsel appearing for State respondent nos. 1 and 2, has referred to the stand of the said State respondents taken in the",,,,,
affidavit filed in W.P.(C) No. 231(K)/2015, more particularly, in paragraph 11 and 12 thereto. She has submitted that in the DPC meeting, re-",,,,,
convened on 02.11.2015, the provisions of NSCERT Service Rules, 2003 were strictly adhered to for the purpose of fixation of seniority of the",,,,,
appellants in the posts of Senior lecturer. When the case of the respondent no. 4 was taken up for consideration, it was found that the services of the",,,,,
respondent no. 4 was regularised as Senior Lecturer by the State Cabinet w.e.f. 16.01.2004 whereas she did not go through any process of interview,,,,,
or selection at the entry point in the cadre of Lecturer. The DPC had found that the appellants had the requisite period of 5 (five) years of service and,,,,,
therefore, there was no discrepancy in giving retrospective effect to regularise the officiating promotions of the appellants and has supported the",,,,,
recommendation of the DPC made on 02.11.2015.,,,,,
Before adverting to and dealing with the issues that have arisen for consideration in the present appeal, it is necessary to state the background facts",,,,,
as there were several rounds of litigations between the parties prior to the institution of the writ petition, W.P.(C) No. 231(K)/2015.",,,,,
The respondent no. 4, who was the writ petitioner in W.P.(C) No. 231(K)/2015, came to be appointed as a Senior Lecturer on contract basis in the",,,,,
District Institute of Education & Training (“the DIETâ€, in short) under the establishment of the State Council of Educational Research & Training",,,,,
(“the SCERTâ€, in short) by an order dated 30.03.1993 passed under the hand of the Secretary to the Government of Nagaland, Department of",,,,,
School Education. The said appointment was made against a vacancy caused due to reversion of the earlier incumbent to the SCERT. The State,,,,,
Government by a Memorandum dated 18.02.2004 introduced a scheme as one time measure, pursuant to the approval of the Cabinet, to regulate the",,,,,
contract/ad-hoc appointments deciding that those contract/ad-hoc appointees who had rendered more than 10 (ten) years of service were to be,,,,,
considered for regularization provided, inter-alia, that there were sanctioned posts and they fulfilled all the eligibility criteria for the post including the",,,,,
requisite educational qualifications. Though, initially, the reference date for counting the years of service etc. was fixed as 26.02.2001, by a subsequent",,,,,
Memorandum dated 12.05.2004, the said reference date was re-fixed as 16.01.2004. On the date of issuance of the Memorandum dated 12.05.2004,",,,,,
the respondent no. 4 had rendered more than 10 (ten) years of service in the grade of Senior Lecturer on contract basis before the reference date,",,,,,
16.01.2004. By a Notification dated 15.06.2005 issued under the Commissioner & Secretary to the Government of Nagaland, Department of",,,,,
Education, SCERT Branch, the State Government regularised the contract services of 11 (eleven) nos. of Senior Lecturers/Lecturers (Class-I",,,,,
Gazetted) including that of the respondent no. 4 as Senior Lecturer, in the DIETs under the Directorate of SCERT, Nagaland w.e.f. 16.01.2004",,,,,
pursuant to the approval of the Cabinet on 16.05.2005. It was stipulated therein that the period of services rendered on contact basis prior to,,,,,
16.01.2004 would count for all other purposes such as pension, gratuity, etc., other than seniority.",,,,,
Sl. No,Name,Designation,"Educational
Qualification",Place of Posting,
1.,Mr. Yevito Sema,Sr. Lecturer,M.A. B.Ed,Chiechama,
2.,Mr. Limatoshi Ao (A-3),Sr. Lecturer,M.A. B.Ed,Mokokchung,
3.,Mrs. Temsumenla,Sr. Lecturer,M.A. B.Ed,Chiechama,
4.,Mokokchung,Sr. Lecturer,M.A. B.Ed,Chiechama,
5.,Ms. Imlikokla (A-1),Sr. Lecturer,M.A. B.Ed,Chiechama,
6.,Mrs. Atula Wai (A-2),Sr. Lecturer,M.A. B.Ed,Chiechama,
7.,Mrs. Nokrenchila,Sr. Lecturer,M.A. B.Ed,Chiechama,
8.,Mrs. Keruupfeu (R-4),Sr. Lecturer,M.A. B.Ed,Chiechama,
Sl. No,"Designation of
posts",Percentage of post(s) to be filled up,,"Required
Educational
Qualification",Remarks
,,"Departmental
promotion","Direct recruitment
through NPSC",,
1,2,3,4,5,6
4,"Readers/Sr.
Lecturer/Research
Officer /Vocational
Guidance and
Counselling Officer
Consultan",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 Counselling 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/Lecturer in DIETs b) 25% of the
vacant post falling in a calendar year shall
be filled up by direct recruit through
NPSC
After having observed so, the Division Bench went on to hold that the State respondents did not act in accordance with the provision of law while",,,,,
accepting the recommendation of the D.P.C. The relevant provision as regards the qualifying service contained in the NSCERT Service Rules, 2003,",,,,,
as given effect from 30.04.2007, was not at all considered by the D.P.C. while making recommendations for regularization of the present appellants in",,,,,
the post of Senior Lecturer and as such, both the recommendations of the D.P.C. as well as the Notification dated 08.11.2007 whereby the officiating",,,,,
promotions of the present appellants were regularised in the post of Senior Lecturer with effect from 14.11.2003 (for appellant no. 1), from 14.11.2003",,,,,
(for appellant no.2), from 20.01.2001 (for appellant no. 3) and from 20.01.2001 (for appellant no. 4) were set aside and quashed. The Division Bench",,,,,
did not, however, interfere with that part of the Notification whereby the present appellants were appointed in the cadre of Lecturer making it clear",,,,,
that the order has to be confined for the post of Senior Lecturer only. Consequently, the State respondents were directed to take immediate steps for",,,,,
reconvening of the D.P.C. for the purpose of fresh recommendation for regularization of the present appellants in the post of Senior Lecturer on strict,,,,,
observance of the Rules as provided in the schedule appended to the NSCERT Service Rules, 2003 effective from 30.04.2007, and thereafter, to issue",,,,,
the appropriate order of promotion in the post of Senior Lecturer. It has further held as a corollary to the said direction, that the impugned seniority list",,,,,
is not sustainable and the same was also struck down. It was held that the seniority positions can only be settled after the reconvening of the D.P.C.,,,,,
for promotion to the post of Senior Lecturer in terms of the provision of the NSCERT Service Rules, 2003.",,,,,
While setting aside the judgments and orders dated 01.07.2011 of the learned Single Judge in the writ petitions, W.P.(C) No. 173(K)/2007 & W.P.",,,,,
(C) No. 284(K)/2007, the Division Bench had observed that those who were then 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 State respondents. A direction was made to complete the exercise of reconvening of the D.P.C. for,,,,,
making fresh orders of promotion to Senior Lecturer in the DIETs and for determining the seniority positions in the said cadres within a period of 6,,,,,
(six) months from 14.09.2012 without fail and no vacancy in the higher grade from the cadre of Senior Lecturer shall be filled up by the State,,,,,
respondents in the meantime.,,,,,
It was made clear that if the present respondent no. 4 is found suitable to the post of the Principal on completion of the exercise as directed, her",,,,,
appointment shall be made with expected expedition.,,,,,
When the said exercise of reconvening D.P.C. was not carried out within the stipulated period, the present respondent no. 4 preferred Civil",,,,,
Original Contempt Petition No. 01(K)/2014. When information about reconvening of the D.P.C. on 03.03.2014 was furnished before the Court, the",,,,,
Civil Original Contempt Petition No. 01(K)/2014 was closed by the Court vide an order dated 28.03.2014.,,,,,
By a Notification dated 28.01.2014, consequent upon approval of the recommendation of a Cadre Review Committee of SCERT & DIET, the",,,,,
State Government allowed officiating promotion of 8 (eight) nos. of Senior Lecturers including the respondent no. 4, the appellant no. 1 and the",,,,,
appellant no. 2, to newly up-graded posts of Vice Principal under the establishment of the DIET, subject to regularisation by the DPC. The said",,,,,
Notification dated 28.01.2014 was challenged by the respondent no. 4 in a writ petition, W.P.(C) No. 15(K)/2014, contending that the same was in",,,,,
violation of the direction made by the Division Bench in the common judgment and order dated 14.09.2012. During the pendency of W.P.(C) No.,,,,,
15(K)/2014, another Notification dated 04.03.2014 was issued, whereby, the State Government, consequent upon approval of the recommendation of",,,,,
the Cadre Review Committee of SCERT & DIET, had allowed officiating promotion to 4 (four) nos. of Vice-Principals including the respondent no. 4,",,,,,
the appellant no. 1 and the appellant no. 2, who were earlier promoted to the newly up-graded posts of Vice-Principal on 28.01.2014, to the newly up-",,,,,
graded posts of Principal under the establishment of the DIET. Accordingly, on being allowed, amendments were made in the writ petition, W.P.(C)",,,,,
No. 15(K)/2014. But in view of the recommendation dated 03.03.2014 of the DPC, the respondent no. 4 contends, the writ petition, W.P.(C) No.",,,,,
15(K)/2014 was withdrawn on 26.06.2014 with the liberty to file afresh.,,,,,
In transpires that pursuant to the common judgment and order dated 14.09.2012 of the Division Bench, the DPC held a meeting on 03.03.2014 and",,,,,
submitted its recommendation to the respondent no. 1 on 11.03.2014. The DPC in its Minutes of the said meeting had observed as under :,,,,,
“(1) The DPC had carefully examined the particulars of all concerned officers submitted by the Department of School Education and,,,,,
SCERT and found that the papers are in order.,,,,,
(2) The DPC had noticed that the name of Shmt. Keruupfeu, Vice Principal, DIET, Mon was not reflected in the DPC minute of 4th October",,,,,
2007. However, the Department had included her name in the revised format for reconsideration by the DPC meeting held on 03.03.2014.",,,,,
After careful scrutiny and examination, it is established that the service of Smt. Keruufeu was regularised as Sr. Lecturer by the State",,,,,
Cabinet w.e.f. 16.01.2004.,,,,,
(3) The DPC had reviewed the minute of the DPC meeting held on 04th October 2007 and once again re-affirmed the same minutes as the,,,,,
DPC does not interfere in fixation of seniority except for promotion/regularisation of service as per rules.,,,,,
(4) Fixation of seniority for all officers of DIETs shall be taken up by the Government based on Rules & Regulations, Notifications, Memos",,,,,
etc issued by the Govt. from time to time.,,,,,
(5) The DPC further recommended that the Department take up early for convening of the next DPC meeting for regularisation of,,,,,
officiating promotions of the officers.â€,,,,,
Finding the above as mere re-affirmation of the earlier Minutes of the DPC meeting dated 04.10.2007 which were quashed by the Division Bench,",,,,,
by the reconvening of the DPC on 03.03.2014, a writ petition, W.P.(C) No. 126(K)/2014, was preferred by the present respondent no. 4. The said",,,,,
writ petition was allowed by the learned Single Judge by a judgment and order dated 03.08.2015 by directing the respondent authorities to hold the,,,,,
DPC afresh in accordance with the decision given by the Division Bench and thereupon, to fix inter-se seniority of the Senior Lecturers, within a",,,,,
period of 3 (three) months from the date of receipt of records as well as the certified copy of the said order dated 03.08.2015. While setting aside the,,,,,
impugned recommendation of the DPC dated 03.03.2014 after finding the same in direct contravention of the decision of the Division Bench dated,,,,,
14.09.2012, the learned Single Judge had observed that the Division Bench had set aside the absorption of the present appellants on the ground that",,,,,
they did not complete the required period of 5 (five) years continuous service, as required under the extant Rules. As neither the present appellants",,,,,
nor the official respondents had challenged the judgment of the Division Bench in the writ appeals, W.A. No. 20(K)/2011 & W.A. No. 21(K)/2011,",,,,,
the learned Single Judge had held that the same had attained finality.,,,,,
Subsequent to the afore-mentioned judgment and order dated 03.08.2015, the DPC had reconvened a meeting on 02.11.2015 to review the",,,,,
Minutes of its earlier meetings dated 03.10.2007 and 03.03.2014 in the matter of inter-se seniority of the respondent no. 4 vis-Ã -vis the appellants. In,,,,,
the said meeting held on 02.11.2015, the DPC had once again recommended regularisation of services of the present appellants in the post of Senior",,,,,
Lecturer w.e.f. 14.11.2003 (for appellant no. 1), from 14.11.2003 (for appellant no.2), from 20.01.2001 (for appellant no. 3) and from 20.01.2001 (for",,,,,
appellant no. 4) was reiterated by holding as under :,,,,,
“1. As regard to the point raised by the Division Bench of Gauhati High Court relating to completion of 5 years in the feeder post,",,,,,
namely from Lecturer to the post of Senior Lecturer, it is fact that the respondents have completed a continued service of 9 years and 8",,,,,
respectively in the feeder post, that is Lecturer as they have been selected and appointed in the year 1992 and 1993 through interview.",,,,,
The respondents were selected and appointed through interview conducted by a Selection Committee under the Chair of Shri Lalhuma,",,,,,
IAS, C&S of Education Department, Nagaland. They were selected and appointed on the basis of merit (25th & 26th February 1992). Copy",,,,,
enclosed for reference.,,,,,
Initially, the Respondents were appointed on deputation/contract although they were selected through interview which was later",,,,,
regularised by the Government on 15.01.2001.,,,,,
The respondents were given promotion to the post of Sr. Lecturer as departmental promotee officers as per the provision of SCERT,,,,,
Service Rules 2003 under 75% reserved for department promotion.,,,,,
The DPC had considered and approved to regularize the services of the respondents with effect from the date they were given officiating,,,,,
promotion to the post of Sr. Lecturer, i.e. Sl. No. 1, 2 & 3, w.e.f 20.01.2001 and Sl. No. 4 & 5 w.e.f. 14.11.2003, as they are regular",,,,,
departmental promotee officers.,,,,,
Whereas the Petitioner was appointed directly to the post of Sr. Lecturer even without going through any process of interview or selection,,,,,
although entry point should have been in the cadre of Lecturer. It may also be mentioned that the Petitioner was without professional,,,,,
degree (B.Ed) at the time of her appointment.,,,,,
That the Petitioner’s service was regularised by the Cabinet w.e.f. 16.01.2004. It is a fact that her service was regularized at a much,,,,,
later date than the Respondents.,,,,,
In the light of the facts stated above, the DPC is of the strong opinion that in no way the respondents have been given undue favour thereby",,,,,
depriving the rights of the Petitioner. Therefore, the DPC has agreed that the regularization of the services of the respondents in the cadre",,,,,
of Sr. Lecturer w.e.f. 20.01.2001 and 14.11.2003 respectively is correct and valid as it was in conformity with the Service Rules of SCERT,,,,,
2003.â€,,,,,
The writ petition, W.P.(C) No. 231(K)/2015, was filed by the respondent no. 4 for quashing and setting aside of the aforesaid Minutes of the DPC",,,,,
reconvened on 02.11.2015 and for directions to the respondents to reconvene a fresh DPC for recommending regularisation of the present appellants,,,,,
in the posts of Senior Lecturer as per the schedule appended to the NSCERT Service Rules, 2003.",,,,,
The other writ petition, W.P.(C) No. 169(K)/2015 was filed assailing the actions of the respondent authorities in recommending regularisation of",,,,,
promotions of the contesting parties in the post of Principal, DIET by the DPC so constituted, in its meeting on 03.05.2016 and consequent",,,,,
regularisation of the contesting parties by Notification dated 26.05.2016 and Corrigendum dated 05.08.2016, contending that the same were in violation",,,,,
of the directions given by the Division Bench in its judgment and order dated 14.09.2012. The learned Single Judge by the common judgment and order,,,,,
dated 22.09.2017 had set aside the same and held that such DPC shall be convened only after the direction for holding the DPC for regularisation of,,,,,
the present appellants in accordance with the provision contained in the Schedule appended to the NSCERT Service Rules, 2003 is completed. As no",,,,,
challenge is led to the said decision rendered in W.P.(C) No. 169(K)/2015, no further discussion in that respect appears necessary.",,,,,
In respect of the contentions raised in W.P.(C) No. 231(K)/2015 and the prayers made therein, the learned Single Judge after discussing the",,,,,
previous litigations undergone by the contesting parties, as has been discussed herein above also, has held as under :",,,,,
“19. The scope of the writ petition is confined only to whether the DPC held on 02.11.2015 had acted as per the letter and spirit of the,,,,,
judgment and order passed by the Division Bench on 14.09.2012 in W.A. No. 20(K) of 2011 and W.A. No. 21(K) of 2011 and the judgment,,,,,
and order passed on 03.08.2015 by the learned Single Judge in W.P. (C) No. 126(K) of 2014. The submissions of the learned counsels,,,,,
appearing for the respondents that the petitioner was not appointed through any process of interview or selection but through Cabinet,,,,,
decision and she did not have required degree of educational qualification at the time of her appointment, therefore, she cannot be senior",,,,,
to the private respondents is a plea that should have been taken at the first instance not at this stage because the judgment and order,,,,,
passed by the Division Bench in two Writ Appeals has attend its finality. Such plea however, valid it may be is too late in the day. If such",,,,,
plea is to be adjudicated, it would amount to sitting in review or appeal against the judgment and order of the Division Bench and the",,,,,
learned Single Judge. The DPC though constituted of learned and experts in the field have failed to appreciate the judgment and order of,,,,,
the Division Bench passed in the two Writ Appeals in letter and spirit. Since the judgment and order by the Court’s has to be followed or,,,,,
obeyed in letter and spirit once they have attended their finality, they should be appreciated and understood in their correct context and the",,,,,
purpose for which they are delivered. But on perusal and consideration of the DPC proceeding dated 02.11.2015 (impugned herein) in the,,,,,
light of the judgment and order of the Division Bench dated 14.09.2012, of the Division Bench passed in W.A. No. 20(K) of 2011 and W.A.",,,,,
No. 21(K) of 2011. There is no doubt that the considerations and conclusions arrived at by the DPC has fallen short of meeting the,,,,,
directions given in the judgment and order. Therefore, the same cannot be sustained, accordingly, it is quashed and set aside. This Court",,,,,
has no doubt that the DPC to be constituted or already constituted will perused the judgment and order dated 14.09.2012 of the Division,,,,,
Bench and decide as per the directions given in the judgment and order. Since the matter has been dragging for a long time, the DPC",,,,,
should be held within a period of 3(three) months from the date of receipt of a copy of this orderâ€,,,,,
It is in the afore-mentioned background fact situation obtaining in the case, the rival submission of the parties in the present appeal are to be",,,,,
considered. The Division Bench in its judgment and order dated 14.09.2012 had taken notice of the matters of regularisation of the respondent no. 4 in,,,,,
the post of Senior Lecturer in the DIET under the Directorate of SCERT, Nagaland and in the light of the NSCERT Service Rules, 2003. It had held",,,,,
that when the respondent no. 4 was absorbed in the post of Senior Lecturer w.e.f. 16.01.2004 against the direct recruitment quota, the NSCERT",,,,,
Service Rules, 2003 were not in force. It took note of the fact that though the said Rules were framed in 2003, the NSCERT Service Rules, 2003",,,,,
were given effect from 30.04.2007. The Division Bench while setting aside the impugned final seniority list under the SCERT/DIETs as on,,,,,
01.07.2006, circulated vide Office Memorandum dated 17.11.2006, had directed the DPC to be re-convened for the purpose of fresh recommendation",,,,,
for regularisation of the appellants in the post of Senior Lecturer in strict observance of the Schedule appended to the NSCERT Service Rules, 2003",,,,,
and thereafter, to issue appropriate order of promotion in respect of the appellants in the post of Senior Lecturer. The Division Bench had directed the",,,,,
respondent authorities to settle the seniority positions of the present appellants in the post of Senior Lecturer in terms of the NSCERT Service Rules,",,,,,
2003 by reconvening the DPC. The matter of regularisation in the post of Senior Lecturer in terms of NSCERT Service Rules, 2003 was made limited",,,,,
to the present appellants. At the same time, the Division Bench had observed that the respondent no. 4 if found suitable for the post of Principal a",,,,,
higher post, on completion of the exercise as directed by it, her appointment shall be made expeditiously. The position of the respondent no. 4 in the",,,,,
post of Senior Lecturer w.e.f. 16.01.2004 in the DIET under the Directorate of SCERT, Nagaland had been settled by the Division Bench. Thus, the",,,,,
seniority of the respondent no. 4 in the post of Senior Lecturer is to be counted w.e.f. 16.01.2004, in terms of the Notification dated 15.06.2005,",,,,,
notwithstanding the position that the respondent no. 4 was appointed directly in the post of Senior Lecturer on contract basis on 30.03.1993 without a,,,,,
process of selection or interview and without she earlier serving in the post of Lecturer.,,,,,
The said position declared by the Division Bench in its judgment and order dated 14.09.2012 was not challenged by the present appellants at any,,,,,
point thereafter. As a result, the said position has attained finality and no assailment can be made on that aspect by the appellants in any manner,",,,,,
directly or indirectly, for the purpose of counting their seniority in the post of Senior Lecturer qua the respondent no. 4, from any other date other than",,,,,
16.01.2004.,,,,,
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 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,,,,,
regularisation 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.,,,,,
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 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 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 14.09.2012 passed in,,,,,
W.A. No. 20(K)/2011 and W.A. No. 21(K)/2011, as has been quoted above.",,,,,
On perusal of the materials on record, it is not found that any contention regarding the Draft Service Rules, 2001 or lack of B.Ed. degree",,,,,
qualification of the respondent no. 4 was raised on behalf of the appellants at any earlier point of time in the earlier rounds of litigation. As such, no",,,,,
credence can be given to such contentions raised at this distant point of time. In the writ petition, W.P.(C) No. 231(K)/2015, it was a categorical",,,,,
assertion of the respondent no. 4 that she had the educational qualification, M.A., B.Ed. The tentative seniority list, circulated vide Office",,,,,
Memorandum dated 01.08.2006, as well as the final seniority list, circulated vide Office Memorandum dated 17.11.2006, indicates that the respondent",,,,,
no. 4 had the B.Ed. qualification at that point of time. As per the Memorandum dated 18.02.2004, no contract employee could be regularised unless",,,,,
that employee had the requisite educational qualification. The appellants had only raised a contention that when the respondent no. 4 was appointed,,,,,
initially, as Senior Lecturer on contract basis, she did not had the B.Ed. qualification but it was not the contention of the appellants that the respondent",,,,,
no. 4 did not had the B.Ed. qualification when her services were regularised w.e.f. 16.01.2004. At the time when the services of the respondent no. 4,,,,,
were regularised in the post of Senior Lecturer, the appellants’ services were regularised only on the post of Lecturer and not in the post of Senior",,,,,
Lecturer, as has been found by the Division Bench already. As such, the decision in Bhawana (supra), relied on by Mr. Dutta, is distinguishable on",,,,,
facts.,,,,,
In view of the above discussions, the learned Single Judge is justified in allowing the writ petition, W.P.(C) No. 231(K)/2015, with the",,,,,
consequential directions, as indicated in paragraph 19 of the said judgment and order dated 22.09.2017, as extracted in paragraph 31 hereinabove.",,,,,
Consequently, this appeal is found to be bereft of any merit and accordingly, the same is dismissed. No cost.",,,,,