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Gauhati High Court · body

2019 DIGILAW 1160 (GAU)

N. Woshamo v. State of Nagaland

2019-10-25

MANISH CHOUDHURY, SONGKHUPCHUNG SERTO

body2019
JUDGMENT : Manish Choudhury, J. 1. Heard Mr. C.T. Jamir, learned Senior counsel assisted by Mr. N. Longkumer, learned counsel for the appellant. Also heard Ms. V. Suokhrie, learned Additional Senior Government Advocate appearing for respondent Nos. 1, 2 & 3 and Mr. Taka Masa, learned Senior counsel assisted by Mr. Arenlong, learned counsel appearing for respondent Nos. 4 to 11. 2. Both these intra-court appeals are presented against the common judgment and order dated 01.09.2017 passed by the learned Single Judge in the writ petitions, W.P.(C) No. 98(K)/2016 & W.P.(C) No. 198(K)/2016. By the said common judgment and order dated 01.09.2017, the learned Single Judge while allowing the writ petition, W.P.(C) No. 98 (K)/2016, had dismissed the other writ petition, W.P.(C) No. 198(K)/2016. The respondent Nos. 4 to 11 herein were the writ petitioners and the present appellant was respondent No. 5 in the writ petition, W.P.(C) No. 98(K)/2016. On the other hand, the present appellant was the writ petitioner and the respondent Nos. 4 to 11 were impleaded as respondent Nos. 4 to 11 in the other writ petition, W.P.(C) No. 198(K)/2016. 3. As the issues and nature of assailment in both the appeals are inter-connected, the same are heard together. In order to appreciate the issues and the nature of challenges made in this appeals it is apt to delineate the necessary facts, in brief, which led to the institution of the two writ petitions mentioned hereinabove. 4. The contesting parties i.e. the appellant and the respondent Nos. 4 to 11, are employees in the establishment of the Directorate of State Council of Educational Research and Training ("the SCERT", in short), a directorate created separately under the Education Department of the Government of Nagaland, by a Notification dated 18.12.1986. 5. (i) The appellant who was M.A. (Sociology) at that relevant point of time, was initially appointed as a Junior Research Fellow (JRF) in the Early Childhood Care and Education (ECCE) Cell, an UNICEF assisted project, at a fixed pay of Rs. 1,500/- under the establishment of the SCERT, Nagaland by an order dated 21.06.1995 issued under the hand of the Director, SCERT, Nagaland. Thereafter by an order dated 02.09.2003, the appellant was brought under the establishment of the SCERT by appointing him as JRF on a fixed pay of Rs. 3,000/- w.e.f. 01.01.2003. 1,500/- under the establishment of the SCERT, Nagaland by an order dated 21.06.1995 issued under the hand of the Director, SCERT, Nagaland. Thereafter by an order dated 02.09.2003, the appellant was brought under the establishment of the SCERT by appointing him as JRF on a fixed pay of Rs. 3,000/- w.e.f. 01.01.2003. When the appellant was so working as JRF on fixed pay, he was given officiating promotion to the post of Training-cum-Research Assistant (TRA) in the scale of pay of Rs. 6,500-10,500/- p.m. with immediate effect under the Directorate of SCERT, Nagaland by a Notification dated 14.11.2003 issued by the Secretary to the Government of Nagaland, Education Department, SCERT Branch, subject to his regularization by the Departmental Promotion Committee (DPC). It was stipulated therein that the said officiating promotion to the post of TRA was subject to two conditions, (a) the appellant should pass B.Ed. within 5 (five) years; and (b) half of the appellant's contingency services so rendered as JRF would be counted for pension under the relevant Rules. (ii) The appellant was allowed to pursue B.Ed. Course along with the respondent No. 7 and one Sri Razouvelie Peter Pewheo, TRA by the Director on 21.02.2005. The appellant, the respondent No. 7 and said Sri Razouvelie Peter Pewheo had obtained the B.Ed., degree on 31.07.2006. 6. (i) The respondent No. 4 was initially appointed to the post of TRA on contract basis in the Directorate of SCERT by a Notification dated 31.08.1995 w.e.f. the date of his joining in the post, initially for a period of 1 (one) year. The respondent No. 5 who was an Assistant Teacher in Government High School, Sendenyu, was appointed as TRA in the Directorate of SCERT by a Notification dated 05.09.1995 on deputation basis, initially for a period of 2 (two) years. The respondent No. 6 was appointed as TRA in the Directorate of SCERT on contract basis by a Notification dated 26.05.1997 in a vacancy caused by deputation, initially for a period of 2 (two) years. The respondent No. 7 was appointed as TRA in the Directorate of SCERT on contract basis w.e.f. the date of his joining in the post by a Notification dated 14.10.1997, initially for a period of 1(one) year. The respondent No. 7 was appointed as TRA in the Directorate of SCERT on contract basis w.e.f. the date of his joining in the post by a Notification dated 14.10.1997, initially for a period of 1(one) year. While the respondent No. 8 was appointed as TRA on deputation from School Education Department, the respondent No. 9 was appointed as TRA on contract basis, in the Directorate of SCERT by a Notification dated 16.12.1997 on contract basis, initially for a period of 3 (three) years. (ii) The respondent No. 10 was initially appointed as Artist on ad-hoc basis in the establishment of SCERT, Nagaland by an order dated 22.05.1986 passed under the hand of the Additional Director, SCERT, Nagaland against a post created vide an order dated 28.03.1986. By a subsequent order dated 09.01.1987, the services of respondent No. 10 were regularized as Artist against the post so created, with the time scale of pay making the same effective w.e.f. the date of his joining in the post. Thereafter, the respondent No. 10 was allowed to officiate on promotion in the post of Graduate Teacher w.e.f. 1.1.2002 by an order passed by the Additional Director, SCERT, Nagaland. (iii) The respondent No. 11 who was initially appointed as a Graduate Teacher, was regularized in the said post under the establishment of SCERT, Nagaland w.e.f. 25.6.2003 by an order dated 25.06.2003 passed by the Additional Director, SCERT. 7. (i) The services of the respondent Nos. 4 to 9, appointed on contract basis and/or on deputation basis, as the case may be, were extended from time to time without any break in the subsequent periods. (ii) Thereafter, in the year 2005, the services of respondent Nos. 4, 6, 7 and 9 were regularized in the post of TRA w.e.f. 16.01.2004, which was the cut-off date of the Department of Personnel and Administrative Reforms, Government of Nagaland by a Notification dated 20.07.2005 of the Education Department, Government of Nagaland. It was stipulated in the said Notification dated 20.07.2005 that the period of service rendered prior to 16.01.2004 would count towards pension, gratuity, increments and other benefits, save and except seniority. (iii) In the year 2006, the Government of Nagaland in the Education Department had absorbed the services of respondent Nos. It was stipulated in the said Notification dated 20.07.2005 that the period of service rendered prior to 16.01.2004 would count towards pension, gratuity, increments and other benefits, save and except seniority. (iii) In the year 2006, the Government of Nagaland in the Education Department had absorbed the services of respondent Nos. 5 and 8, who were on deputation, in the post of TRA w.e.f. 16.01.2004 by a Notification dated 21.02.2006 pursuant to clearance of the Department of Personnel and Administrative Reforms, Government of Nagaland, approval of the Nagaland Public Service Commission (NPSC) and concurrence of the Finance Department, Government of Nagaland. (iv) By another Notification dated 8.6.2004 of the Education Department, Government of Nagaland, the posts of respondent Nos. 10 and 11, both Graduate Teachers, were upgraded to that of TRA with immediate effect. 8. Subsequent recirculation of a tentative seniority list by an Office Memorandum dated 1.8.2006 against which the appellant submitted a representation on 23.08.2016 seeking his placement above the respondent Nos. 4 to 11, the Department of School Education, Government of Nagaland by an Office Memorandum dated 17.11.2006 circulated the final seniority list of officers under the SCERT/the District Institute of Education & Training ("the DIET", in short), as on 1.7.2006, without granting the relief, sought for by the appellant From the said final seniority list, the inter-se seniority positions and other details of the contesting parties were revealed as under:- Sl. Name Designation Qualification Remarks 1. Respondent No.4 TRA M.A., B.Ed Contract service regularized w.e.f 16.01.2004 2. Respondent No.5 TRA M.A., B.Ed. Deputation service absorbed w.e.f. 16.01.2004 3. Respondent No.6 TRA M.A. B.Ed. Contract service regularized w.e.f. 16.01.2004 4. Respondent No.7 TRA M.A. B.Ed. Contract service regularized w.e.f 16.01.2004 5 Respondent No.8 TRA M.A., B.Ed. Deputation service absorbed w.e.f. 16-01-2004 6. Respondent No.9 TRA M.A., Dip, in Mass Media M.A., B.Ed Regular service upgraded w.e.f 16.01.2004 7. Respondent No.10 TRA M.A., B.Ed. Regular service upgraded w.e.f. 08.06.2004 8. Respondent No.11 TRA M.Sc., B.Ed. Regular service upgraded w.e.f. 08.06.2004 9. Appellant TRA M.A., B.Ed. Officiating 9. Aggrieved by his position in the said final seniority list, the appellant once again filed a representation seeking rectification of the final seniority list. A DPC was held on 4.10.2007 to consider regularization of officiating promotions of officers of SCERT and DIETs. Respondent No.11 TRA M.Sc., B.Ed. Regular service upgraded w.e.f. 08.06.2004 9. Appellant TRA M.A., B.Ed. Officiating 9. Aggrieved by his position in the said final seniority list, the appellant once again filed a representation seeking rectification of the final seniority list. A DPC was held on 4.10.2007 to consider regularization of officiating promotions of officers of SCERT and DIETs. But the DPC did not take up the cases of few officers because of pendency of few writ petitions before this Court wherein challenges was made against the decision for amalgamation of the SCERT cadre and the DIETs cadre into a single cadre. The DPC kept the cases including that of the appellant, for consideration till the disposal of the writ petitions. Those pending writ petitions came to be withdrawn on 09.11.2010. Upon such withdrawal, the Director, SCERT immediately wrote to the Department of School Education on 09.11.2010 stating that the proposals for regularization of officiating promotions of the officers whose promotions were yet to be regularized by the DPC would be submitted soon. Thereafter on 30.11.2010, the Director, SCERT forwarded the up-dated seniority list incorporating changes, wherever required, in the final seniority list published earlier on 17.11.2006, for its approval by the Government. With the said communication dated 30.11.2010, the Director, SCERT mentioning the service details of the appellant, forwarded the representation submitted by the appellant on 08.10.2010 for decision of the Government. It was observed therein that the appellant could not have been promoted on officiating basis as TRA from a fixed pay appointment to a sanctioned post with scale pay. By a communication dated 29.03.2011, the Commissioner and Secretary to the Government of Nagaland, Department of School Education & SCERT informed the appellant that his seniority claim over the present respondent Nos. 4 to 11 who were already absorbed or regularized in their services against sanctioned posts in the SCERT, cannot be considered. 10. When the matter was thus situated, the respondent Nos. 4 to 11 were given promotion to the post of Research Associate on officiating basis with immediate effect by different Notifications dated 29.03.2011 (for respondent No. 4), dated 01.04.2011 (for respondent No. 5), dated 01.10.2011 (for respondent Nos. 6, 7 and 8) and dated 27.6.2012 (for respondent Nos. 10. When the matter was thus situated, the respondent Nos. 4 to 11 were given promotion to the post of Research Associate on officiating basis with immediate effect by different Notifications dated 29.03.2011 (for respondent No. 4), dated 01.04.2011 (for respondent No. 5), dated 01.10.2011 (for respondent Nos. 6, 7 and 8) and dated 27.6.2012 (for respondent Nos. 9 and 10) making such officiating promotions subject to regularization by the DPC, with the further stipulation that such officiating promotion would not confer any right on their claim of seniority in that grade till regularization. 11. By an Office Memorandum dated 11.07.2012, the Government circulated a final seniority list of officers in the SCERT, as on 30.03.2012, wherein the seniority positions of the respondent Nos. 4 to 11 were shown above the appellant and the respondent Nos. 4 to 8 were shown in the grade of Research Associate. Though a representation was submitted by the appellant on 28.02.2012 against the tentative seniority list circulated by the Government vide Office Memorandum dated 30.01.2012 objecting to his lower seniority position, the same was not heeded to by the State respondents in the aforementioned final seniority list. 12. ADPC was held on 02.08.2012. On the recommendation of the said DPC, the services of the appellant were regularized as TRA with effect from 02.08.2012, by a Notification dated 19.09.2012. By the said Notification dated 19.09.2012, the services of respondent Nos. 4 and 5 were regularized in the post of Research Associate w.e.f. 02.08.2012 and the services of respondent Nos. 10 and 11 were shown regularized as TRA w.e.f. 02.08.2012. It may be mentioned that the respondent Nos. 10 and 11 were already upgraded to the post of TRA by an order dated 08.06.2004 and their services were already regularized. 13. At that stage, the appellant approached this Court by way of a writ petition, W.P.(C) No. 223(K)/2012, challenging the seniority positions of the respondent Nos. 4 to 11 in the final seniority list of officers under the SCERT as on 31.03.2012, circulated by the Office Memorandum dated 11.07.2012, and the Notification dated 19.09.2012 whereby his service as TRA was regularized only w.e.f. 02.08.2012, with prayers seeking further directions to regularize him as TRA w.e.f. 14.11.2003 and to place him above the respondent Nos. 4 to 11 in the final seniority list circulated by the Office Memorandum dated 11.07.2012. 14. 4 to 11 in the final seniority list circulated by the Office Memorandum dated 11.07.2012. 14. (i) The respondent No. 11 was given officiating promotion to the post of Research Associate with immediate effect by a Notification dated 28.01.2014, consequent upon the approval of the recommendation of Cadre Review Committee (CRC) of the SCERT & DIET. The officiating promotion of respondent No. 11 was also subject to regularization by the DPC and without any right to claim seniority in the grade till regularization by the DPC. (ii) Like respondent No. 11, the appellant was also given officiating promotion to the post of Research Associate in the establishment of SCERT in similar terms by the same Notification dated 28.01.2014 also with the condition that his officiating promotion would be subject to regularization by the DPC and without conferment of any right on the claim of seniority in the grade till regularization by the DPC. 15. During the pendency of W.P.(C) No. 223(K)/2012, the respondent Nos. 4 to 8 were further promoted to newly upgraded post of Reader/Associate Professor on officiating basis by Notification dated 28.1.2014. The respondent Nos. 9 and 10 were also given officiating promotion to the post of Reader/Associate Professor by Notification dated 1.3.2014. By another Notification 28.5.2014, the respondent No. 11 was given officiating promotion to the post of Reader/Associate Professor. 16. The writ petition, W.P.(C) No. 223 (K)/2012 came to be disposed of by a judgment and order dated 02.11.2015. The respondent Nos. 9 and 10 were also given officiating promotion to the post of Reader/Associate Professor by Notification dated 1.3.2014. By another Notification 28.5.2014, the respondent No. 11 was given officiating promotion to the post of Reader/Associate Professor. 16. The writ petition, W.P.(C) No. 223 (K)/2012 came to be disposed of by a judgment and order dated 02.11.2015. After having considered the appellant's initial appointment order dated 21.06.1995 in the UNICEF assisted project as JRF on fixed pay, the order dated 02.09.2003 whereby he was brought under the establishment of the SCERT as JRF on fixed pay and the Notification dated 14.11.2003 whereby he was given officiating promotion to the post of TRA with scale pay, the learned Single Judge observed that there could have been no promotion from the fixed pay post of JRF to the post of TRA as indicated in the Notification dated 14.11.2003 and, thus, the appellant's position as TRA because of the Notification dated 14.11.2003, could at best be considered as a fresh appointment Observing that while the appellant's regularization was considered only w.e.f. 2.8.2012 i.e. the date of holding of the DPC and at the same time, the other SCERT officers were given retrospective regularization by the DPC in its meeting dated 02.08.2012, the learned Single Judge was of the opinion that the case of the appellant was not considered by the DPC in its proper perspective. The learned Single Judge had also taken notice of the fact that the appellant was allowed to hold the post of TRA by the Notification dated 14.11.2003 without the B.Ed., qualification with the stipulation of his obtaining B.E. & qualification within 5 (five) years period which he obtained accordingly before the stipulated period. Having observed so, the learned Single Judge was of the opinion that the contention of the respondent Nos. 4 to 11 that the appellant joined the post of TRA without the requisite qualification did not hold any force. In the backdrop of above observations, it was directed by the learned Single Judge to the State respondents to reconsider fixation of seniority of the appellant in the post of TRA by constituting a review DPC and thereafter, fix the appellant's seniority qua the respondent Nos. 4 to 11 in the revised seniority list. Liberty was granted to the review DPC to consider the entitlement of seniority of the appellant, as claimed by him. 4 to 11 in the revised seniority list. Liberty was granted to the review DPC to consider the entitlement of seniority of the appellant, as claimed by him. As the said judgment and order dated 2.11.2015 was not assailed by any of the contesting parties, it can be said that the same had attained finality. 17. In terms of the direction made in the judgment and order dated 02.11.2015, a review DPC was held on 03.05.2016 which recommended the regularization of the appellant as TRA w.e.f. 14.11.2003 by stating that: "the Committee (DPC) after thorough discussion of the matter as per the honourable High Court's direction recommended Shri N. Woshamo as TRA w.e.f. 14.11.2003". Thereafter, a Notification dated 17.5.2016 was issued by the State Government under the hand of the Commissioner and Secretary to the Government of Nagaland conveying its decision to regularize the officiating promotion of the appellant as TRA w.e.f. 14.11.2003. 18. Prior to such regularization of the appellant w.e.f. 14.11.2003, the State Government by a Notification dated 03.02.2016 confirmed the services of the respondent Nos. 4 to 11 in the post of Reader in the SCERT w.e.f. 03.02.2016. The DPC in its meeting held on 03.05.2016 also considered the matter of regularization of officiating promotion of the officers of the SCERT including the respondent Nos. 4 to 11. The DPC recommended regularization of respondent Nos. 4 and 5 as reader w.e.f. 28.01.2014. The DPC also recommended regularization of respondent Nos. 6, 7 and 8 as Research Associate w.e.f. 01.10.2011 and as Reader w.e.f. 28.01.2014. The DPC also recommended regularization of respondent Nos. 9 and 10 as Research Associate w.e.f. 01.07.2012 and as Reader w.e.f. 1.3.2014. In respect of respondent No. 11, the DPC recommended regularization as Research Associate w.e.f. 28.1.2014 and as Reader w.e.f. 28.05.2014. The DPC also recommended regularization of the appellant was Research Associate w.e.f. 28.01.2014. 19. On noticing the recommendation of the DPC held on 03.05.2016 recommending regularization of officiating promotion of the appellant as TRA w.e.f. 14.11.2003, the Joint Secretary to the Government of Nagaland, Education (SCERT) Department wrote to the NPSC on 10.05.2016. The DPC also recommended regularization of the appellant was Research Associate w.e.f. 28.01.2014. 19. On noticing the recommendation of the DPC held on 03.05.2016 recommending regularization of officiating promotion of the appellant as TRA w.e.f. 14.11.2003, the Joint Secretary to the Government of Nagaland, Education (SCERT) Department wrote to the NPSC on 10.05.2016. It was observed therein that TRA being an entry level post where appointment shall be made through direct recruitment, either through the NPSC or contract appointment, the initial appointment of the appellant in the post of TRA could only be regularized by conduct of a suitability test, approval of the Screening Committee and final approval of the Cabinet. In such view of the matter, the NPSC was requested to call a meeting of the DPC for an urgent review of its decision taken in its meeting on 3.5.2016. Aggrieved also by the said recommendation of the DPC dated 03.05.2016 in respect of the appellant, the respondent Nos. 4 to 11 submitted separate representations before the Government on 16.05.2016 highlighting the irregular regularization of officiating promotion of the appellant in the post of TRA w.e.f. 14.11.2003. 20. On the basis of the recommendation of the said DPC, the State Government issued a Notification dated 26.05.2016 regularizing the officiating promotion of 45 Nos. of officers which included the respondent Nos. 4 to 11. In respect of the appellant, the Notification recorded that his regularization date would be determined as per the DPC held on 03.05.2016, which had fixed his seniority in the post of TRA w.e.f. 14.11.2003. 21. Aggrieved by the aforesaid recommendation of the DPC, the present respondent Nos. 4 to 11 filed the writ petition, W.P.(C) No. 98(K)/2016 seeking setting aside and quashing of the minutes of the review DPC held on 03.05.2016 regularizing the appellant as TRA w.e.f. 14.11.2003, the Notification dated 17.05.2016 and the Notification dated 26.05.2016 with further prayers not to disturb their seniority positions over the appellant in the higher grades of Research Associate and Reader and to conduct a review DPC. This Court in the order dated 13.06.2016 passed in W.P.(C) No. 98(K)/2016 recorded the assurance of the learned State counsel that the seniority positions of the respondent Nos. 4 to 11 in the interim, would not be disturbed. This Court in the order dated 13.06.2016 passed in W.P.(C) No. 98(K)/2016 recorded the assurance of the learned State counsel that the seniority positions of the respondent Nos. 4 to 11 in the interim, would not be disturbed. In view of the said order the appellant's seniority position in terms of the minutes of the DPC dated 03.05.2016 was not given effect to. 22. During the pendency of the writ petition, W.P.(C) No. 98(K)/2016, a Corrigendum dated 05.08.2016 to the Notification dated 26.5.2016 was issued. In the Corrigendum, the effective date of regularization of the respondent Nos. 4 and 5 to the post of Reader had been shown as 28.01.2014 and the effective dates of regularization of the respondent Nos. 6, 7 and 8 to the post of Reader is shown as 28.01.2014 and as Research Associate w.e.f. 01.10.2011. The effective dates of regularization of the respondent Nos. 9 and 10 as Reader were shown as 01.03.2014 and Research Associate w.e.f. 01.07.2012. The effective dates of regularization of the respondent No. 11 was shown as Reader as 28.05.2014 and to the post of Research Associate as 28.01.2014, whereas, in respect of the appellant, the effective date of regularization as Research Associate was shown as 28.01.2014 without taking into consideration the effective date of regularization as TRA w.e.f. 14.11.2003. 23. Alleging arbitrariness in the issuance of the Corrigendum dated 05.08.2016 which had deprived the appellant his due seniority, the appellant submitted a representation before the respondent authorities on 17.08.2016 seeking rectification of the anomalies in the Corrigendum dated 05.08.2016. As there was inertia at the end of the State respondent authorities in respect of the representation, the appellant approached this Court by way of the writ petition, W.P.(C) No. 198(K)/2016 assailing the Corrigendum dated 05.08.2016. 24. The prime contention of the appellant in the writ petition, W.P.(C) No. 198(K)/2016, was that he was given officiating promotion to the post of TRA on 14.11.2003. Holding the same to be a fresh appointment following the observation made by the learned Single Judge in the judgment and order dated 2.11.2015, the review DPC held on 3.5.2016 had rightly recommended his regularization in the post of TRA w.e.f. 14.11.2003. On the other hand, the respondent Nos. Holding the same to be a fresh appointment following the observation made by the learned Single Judge in the judgment and order dated 2.11.2015, the review DPC held on 3.5.2016 had rightly recommended his regularization in the post of TRA w.e.f. 14.11.2003. On the other hand, the respondent Nos. 4 to 11 who were initially appointed on contract basis and/or on deputation basis and/or on up-gradation in the post of TRA, were regularized in the said post only with effect from 16.01.2004 and/or 08.06.2004 respectively, which were subsequent to his regularization w.e.f. 14.11.2003, with the stipulation that their services prior to their dates of regularization would not be counted towards seniority. As such, the respondent Nos. 4 to 11, by no count, can be treated as seniors to the appellant. 25. The learned Single Judge disposed of both the writ petitions by the impugned common judgment and order dated 01.09.2017, by hearing them together. The learned Single Judge took note of the provisions in the Service Rules of 2001 which purportedly governed the recruitment and conditions of the officers of the SCERT. The learned Single Judge noticed that Schedule-II to the said Rules prescribed that for the post of TRA, the educational qualification required was minimum post-graduate in the concerned subject area from a recognized university with B.Ed./other degree of at least 9 (nine) months duration relevant to the nature of work. In respect of the recommendation of the DPC, held on 03.05.2016, recommending regularization of the appellant w.e.f. 14.11.2003, the learned Single Judge had observed that the DPC had failed to take into consideration that the appellant had obtained his B.Ed., degree only on 31.07.2006. When the appellant had obtained his B.Ed., degree, an essential requirement under the Service Rules of 2001, only on 31.07.2006 the DPC could not have recommended his regularization from a date prior to his obtaining the B.Ed. degree. It was opined that the whole controversy started due to misreading of the judgment and order dated 02.11.2015 passed in the writ petition, W.P.(C) No. 233(K)/2012 by the DPC. Having considered the matters, the learned Single Judge did not find any fault in the letter dated 10.05.2016 of the Joint Secretary to the Government of Nagaland, Education (SCERT) Department, addressed to the NPSC, calling for a meeting of the DPC to review its decision dated 03.05.2016 urgently. Having considered the matters, the learned Single Judge did not find any fault in the letter dated 10.05.2016 of the Joint Secretary to the Government of Nagaland, Education (SCERT) Department, addressed to the NPSC, calling for a meeting of the DPC to review its decision dated 03.05.2016 urgently. The State respondents were directed to proceed in terms of the letter dated 10.05.2016 for consideration of fixation of seniority of the appellant in the post of TRA since his appointment in the post of TRA had already been considered to be a fresh appointment by the said Court in its earlier judgment and order dated 02.11.2015 passed in the writ petition, W.P.(C) No. 223(K)/2012. Holding so, the learned Single Judge had set aside and quashed the minutes of the meeting of the DPC dated 03.05.2016 whereby the appellant was regularized as TRA w.e.f. 14.11.2003, the Notification dated 10.5.2016 and the Notification dated 26.05.2016, thus, allowing the writ petition, W.P.(C) No. 98(K)/2016 filed by the present respondent Nos. 4 to 11 while dismissing the other writ petition, W.P.(C) No. 198(K)/2016 filed by the appellant. Further direction was made to complete the exercise within a period of 3 (three) months from the date of receipt of a certified copy of the said judgment and order dated 01.09.2017. 26. Mr. C.T. Jamir, learned Senior counsel for the appellant has submitted that the learned Single Judge had clearly erred in reaching the above findings. In essence, the learned Single Judge had reviewed his own decision passed earlier in the writ petition, W.P.(C) No. 223(K)/2012. The learned Single Judge had contradicted his own earlier decision in the later decision. When the learned Single Judge had held while opining that there could not have been any promotion from the fixed pay post of JRF, UNICEF to the post of TRA, that the appellant's appointment in the post of TRA by the Notification dated 14.11.2003 can be considered, at best, as a fresh appointment. When the appellant's such appointment to the post of TRA had been found to be made on 14.11.2003, there could not have been any reconsideration at the behest of the respondent Nos. 4 to 11 at a later point of time, when they did not mount any challenge to that finding. When the appellant's such appointment to the post of TRA had been found to be made on 14.11.2003, there could not have been any reconsideration at the behest of the respondent Nos. 4 to 11 at a later point of time, when they did not mount any challenge to that finding. In so far as the eligibility of the appellant to hold the post of TRA is concerned, it was clearly held, he submits, by the learned Single Judge in his judgment and order dated 02.11.2015 that in view of his obtaining the requisite qualification of B.Ed. within the stipulated period of time, the appellant's joining in the post of TRA did not suffer from any irregularity. As such, the seniority of the appellant, for all intent and purposes, is to be counted w.e.f. 14.11.2003 and it was for the sole purpose, the review DPC was directed by the learned Single Judge. As the dates of regularization of the respondent Nos. 4 to 11 were subsequent to 14.11.2003, their claim of seniority over the appellant holds no water, more so, when they did not assail the earlier judgment and order dated 02.11.2015. The State respondents had considered the matter of conferment of seniority on the appellant in the right perspective and had, accordingly, considered the appellant's seniority in the post of TRA w.e.f. 14.11.2003, by translating the same into action vide the Notification dated 17.05.2016. In such context, it was not proper on the part of the learned Single Judge to find fault with the recommendation of the DPC made on 03.05.2016 and the direction so made to hold a meeting of the DPC to review its decision urgently, should not have been made. Referring extensively as regards qualifications of the respondent Nos. 4 to 11 with special reference to respondent No. 7, a submission is made that none of the respondent Nos. 4 to 11 when they were initially appointed, had the requisite qualification to be appointed as TRA in terms of the Service Rules, which were at a draft stage at that point of time. 4 to 11 with special reference to respondent No. 7, a submission is made that none of the respondent Nos. 4 to 11 when they were initially appointed, had the requisite qualification to be appointed as TRA in terms of the Service Rules, which were at a draft stage at that point of time. After having recommended by the DPC on 03.05.2016 to regularize the service of the appellant w.e.f. 14.11.2003 and having acted on the same by the Notification dated 17.05.2016, it was not open for the State respondents to question and reopen the matter by asking the NPSC to review its decision and to ask for regularization of the appellant through a different process like suitability test, etc. He further submits that by counting his seniority in the post of TRA w.e.f. 14.11.2003, the further regularization in the higher post ought to have been made and in such view of the matter, his regularization in the post of Research Associate w.e.f. 28.01.2014 was clearly illegal and arbitrary. Accordingly, it is submitted by him that the judgment and order of the learned Single Judge dated 01.09.2017 is liable to be interfered with by reversing the fates of the writ petitions. 27. Ms. V. Suokhrie, learned State counsel supporting the decision of the learned Single Judge, has submitted that no interference is called for in that regard. The appointment of the appellant in the post of TRA on 14.11.2003 cannot be termed as officiating promotion but to be treated as a fresh appointment. Since the appellant was not having essential qualification required to hold the post of TRA at that point of time he along with Sri Razouvelie Peter Pewheo was allowed to join B.Ed., course on 21.02.2005 and as one requires to possess the essential qualification required for the post, to claim regularization in that particular post, the respondent authorities were right, as communicated by the letter dated 10.05.2016, to call for the review DPC. She further submits that since the contract service of Sri Razouvelie Peter Pewheo as TRA was regularized only w.e.f. 31.07.2006 i.e. the date of his obtaining B.Ed., degree, no preferential treatment could have been extended to the appellant. Therefore, the learned Single Judge was absolutely right to hold that the DPC could not have recommended regularization of the respondent from a date prior to his obtaining B.Ed. degree. 28. Mr. Therefore, the learned Single Judge was absolutely right to hold that the DPC could not have recommended regularization of the respondent from a date prior to his obtaining B.Ed. degree. 28. Mr. Taka Masa, learned Senior counsel appearing for the respondent Nos. 4 to 11, has submitted that the State respondents had formulated Service Rules for the employees of the establishment of the SCERT from time to time, one in the year 1999 and another in the year 2001. The State respondents thereafter, framed the Nagaland State Council of Educational Research & Training Service Rules, 2003 ("the NSCERT Service Rules, 2003", in short) which had come into effect from 30.04.2007. In all these Service Rules, a Post Graduate Degree along with B.Ed., degree was considered as the essential qualification for the post of TRA. In the Draft Service Rules of 2001, Schedule-II provided that a minimum Post Graduate in the concerned subject with B.Ed./other degree of at least 9 (nine) months was the qualification for recruitment to the post of TRA. The post of TRA has all along been a post to be filled up by way of direct recruitment and not by way of officiating promotion. He further submits that when the respondent Nos. 4 to 11 were regularized in the post of TRA, they all possessed the essential qualifications to hold the post. The services of the respondent Nos. 4 to 11 were regularized in terms of the policy formulated by the State Government with the approval of the Cabinet and published vide the Memorandum dated 18.01.2004. As the appellant did not have the requisite qualification to hold the post of TRA on 14.11.2003, the appointing authority being conscious of the said fact, had allowed the appellant and Sri Razouvelie Peter Pewheo, to pursue to the B.Ed. degree so as to consider their regularization at a future date. When ignoring the aforesaid aspects the DPC recommended and the State respondents acceded to the said recommendation by regularizing the service of the appellant w.e.f. 14.11.2003, by disregarding the direction of the learned Single Judge, the respondent Nos. 4 to 11 who were apparently senior to the appellant, had no option but to prefer the writ petition, W.P.(C) No. 98(K)/2016. When ignoring the aforesaid aspects the DPC recommended and the State respondents acceded to the said recommendation by regularizing the service of the appellant w.e.f. 14.11.2003, by disregarding the direction of the learned Single Judge, the respondent Nos. 4 to 11 who were apparently senior to the appellant, had no option but to prefer the writ petition, W.P.(C) No. 98(K)/2016. He further submits that the submission of the appellant that the learned Single Judge in his later judgment, had reviewed his earlier decision is completely misplaced as the learned Single Judge had left the matter of regularization of the appellant to the discretion of the DPC for consideration as per the claim of the appellant and when the review DPC had proceeded in a manner not in consonance with law by giving a wrong interpretation of his direction, he had interfered with the same. Mr. Taka Masa submits that both these appeals are misconceived and do not merit any consideration. In respect of respondent No. 7, he submits that the respondent No. 7 though sent along with the appellant, to pursue B.Ed., degree on 21.02.2005 he was, at that point of time, already in possession of a qualification of 9 (nine) months duration, as required under the Draft Service Rules of 2001. Therefore, the regularization of respondent No. 7 was done on the said basis and not on the basis of his acquiring B.Ed. degree at the later point of time. Therefore, the appellant's contention regarding discrimination vis-a-vis. the respondent No. 7 is baseless. 29. We have duly considered the submissions of the learned counsel for the parties and also perused the materials on record placed before the Court. 30. In the obtaining factual matrix, delineated in the preceding paragraphs, the contentions raised by the learned counsel for the parties are required to be examined. The issues that have arisen for consideration are, whether the learned Single Judge had reviewed his earlier decision, as contended by the appellant? and whether the appellant has a right to claim consideration for regularization of his service in the post of TRA w.e.f. 14.11.2003 and consequent seniority in the said post also from 14.11.2003? 31. The issues that have arisen for consideration are, whether the learned Single Judge had reviewed his earlier decision, as contended by the appellant? and whether the appellant has a right to claim consideration for regularization of his service in the post of TRA w.e.f. 14.11.2003 and consequent seniority in the said post also from 14.11.2003? 31. From the Draft Service Rules of 1999, the Draft Service Rules of 2001 and the NSCERT Service Rules, 2003, placed on record before this Court, it is noticed that the post of TRA is a direct recruitment post and not a promotional post. Both the Draft Service Rules of 1999 and the Draft Service Rules of 2001 had provided for the qualification for appointment to the post of TRA as minimum Post Graduate in the concerned subject area from a recognized University with B.Ed./other degree of at least 9 (nine) months duration. A departure therefrom was made in the NSCERT Service Rules, 2003 wherein the required educational qualification for the post of TRA has been prescribed as M.A./M.Sc./M.Com. with B.Ed. 32. The State Government in the Department of Personnel and Administrative Reforms had formulated a policy for regulation of contract/ad-hoc appointments with the approval of the Cabinet granted on 16.01.2004, and the same was circulated by a Memorandum dated 18.02.2004. In respect of a contract/ad-hoc appointment made against sanctioned post, the policy formulated had, inter-alia, provided that an employee's case for regularization could be considered provided (i) there was a sanctioned post; (ii) the employee fulfilled all the eligibility criteria for the post including the requisite educational qualifications; and (iii) the performance of the employee had been satisfactory in the service. 33. It is an admitted fact that when the contesting parties were appointed either on contract basis or on deputation basis, they did not have the B.Ed., qualification although they had the Post Graduate qualification. It is also an admitted position that in course of time, all of them had acquired the B.Ed., degree qualification 34. On reading of the judgment of the learned Single Judge passed in the writ petition, W.P.(C) No. 223(K)/2012, we find no ground to concur with the submission made on behalf of the appellant that the learned Single Judge had attached finality to the appointment of the appellant in the post of TRA w.e.f. 14.11.2013. On reading of the judgment of the learned Single Judge passed in the writ petition, W.P.(C) No. 223(K)/2012, we find no ground to concur with the submission made on behalf of the appellant that the learned Single Judge had attached finality to the appointment of the appellant in the post of TRA w.e.f. 14.11.2013. What the learned Single Judge had observed was that the appellant who was till then was on a fixed pay post, could not have been given promotion, even on officiating basis, to the post of TRA, a post to be filled up by direct recruitment, which carries a regular scale of pay. The learned Single Judge had only observed that, at best, the same could be considered to be a fresh appointment. Such observation, by any stretch, can not be interpreted by the appellant to attach finality of his appointment in the post of TRA, in clear ignorance of the other criteria required to hold the said post, more particularly, the essential educational qualifications required to be appointed in such post. The other observation that the contention of the respondent Nos. 4 to 11 to the effect that the appellant joined the post of TRA without the requisite qualification, did not hold force is to be read in the context of the appellant acquiring the requisite B.Ed., degree qualification within the stipulated 5 (five) years, as mandated by the order dated 21.02.2005. In view of the appellant's acquisition of the B.Ed. degree, albeit belatedly, the learned Single Judge did not accept the said contention of the respondent Nos. 4 to 11. But rejection of said contention, the learned Single Judge did not mean that the appellant's seniority as a regular incumbent in the post of TRA, that is to be counted, would relate back to 14.11.2003. Instead of deciding the matter of fixation of seniority of the appellant in the post of TRA, the learned Single Judge had referred the matter to the authorities concerned to consider the same by convening a review DPC and if the review DPC was of the considered opinion that the appellant was entitled to seniority, as claimed by him, the seniority list (both tentative and final) be rectified accordingly. But that direction did not vest the review DPC with the authority to confer seniority on the appellant disregarding the settled position of law. 35. But that direction did not vest the review DPC with the authority to confer seniority on the appellant disregarding the settled position of law. 35. As has been mentioned above, when the appellant was made to function as a TRA on 14.11.2003, by terming the same as officiating promotion, the appointing authority was aware of the fact that the appellant lacked the requisite educational qualification to hold the post. As the shift of the appellant from the fixed pay post of JRF to the post of TRA, a post in the scale of pay of Rs. 6,500-10,500/- p.m. was not preceded by any process of selection, his such appointment was not in the regular manner and, thus, it cannot be held that the appellant was holding the post of TRA w.e.f. 14.11.2003 in the regular manner, even if the same is to be treated as fresh appointment. It was for that reason only, the appellant was asked to obtain the B.Ed., degree qualification by the State respondents within a period of 5 (five) years and accordingly, the Director, SCERT, Nagaland by his order dated 21.02.2005 released the appellant along with the respondent No. 7 and Sri Razouvelie Peter Pewheo to join B.Ed., course. 36. When the DPC constituted to consider the matter of regularization and seniority after the direction passed by the learned Single Judge in the judgment and order dated 2.11.2015, the DPC recommended the regularization of the appellant w.e.f. 14.11.2003 as if the same was a direction passed by this Court, in disregard to the fact that on 14.11.2003 the appellant did not possess the qualification for the post of TRA. As the appellant had obtained the B.Ed. degree only on 31.07.2006, which was an essential requirement under the Rules of 2001, the learned Single Judge had interfered in the matter of conferment of such seniority on the appellant w.e.f. 14.11.2003 by setting aside the minutes of the DPC dated 03.05.2016 and also the consequent Notifications dated 17.5.2016 and 26.05.2016 by setting them aside. The above conspectus of facts do not indicate that the subsequent direction of the learned Single Judge was in review of and contradictory to his earlier decision. 37. The respondent Nos. 4 to 11 have referred to the case of Sri Razouvelie Peter Pewheo who was allowed to pursue B.Ed. The above conspectus of facts do not indicate that the subsequent direction of the learned Single Judge was in review of and contradictory to his earlier decision. 37. The respondent Nos. 4 to 11 have referred to the case of Sri Razouvelie Peter Pewheo who was allowed to pursue B.Ed. course during 2005 session w.e.f. 16.02.2005 along with the appellant by the order dated 21.2.2005 by the Director, SCERT, Nagaland, referred above. Sri Pewheo was initially appointed as Graduate Teacher and, later on, upgraded as TRA under the SCERT on contract basis. His case for regularization was considered by the respondent authorities after he acquired the qualification of B.Ed. After conduct of suitability test, the State Government regularized the contract service of Sri Pewheo in the post of TRA w.e.f. 31.07.2006 i.e. the date of obtaining B.Ed. degree, by a Notification dated 25.03.2008 passed under the hand of the Principal Secretary to the Government of Nagaland, Education Department (SCERT) Branch. The said Notification clearly indicated that the period of service rendered by Sri Pewheo on contract basis prior to 31.07.2006 would not be counted towards his seniority. As the appellant was similarly situated to Sri Pewheo, the appellant cannot be conferred seniority in the post of TRA from a date anterior to his obtaining the requisite academic qualification to hold the post of TRA i.e. the B.Ed. degree. 38. In so far as the contention as regards the matter of regularization of respondent Nos. 4 to 11, except respondent No. 7, is concerned, it is not in dispute that when they were regularized in service as TRA, there were in possession of the requisite academic qualification to hold the post of TRA i.e. Post Graduate degree and B.Ed. degree. It is also not the case of the appellant that the regularization of the said respondents was in violation of the policy of the State Government then in vogue. When they were regularized in the post of TRA, the appellant did not possess the B.Ed. degree though he had the Post Graduate degree i.e. M.A. (Sociology) and his service was not regularized. As regards the respondent No. 7, when the service of respondent No. 7 was regularized by the Notification dated 20.07.2005, he had an additional qualification of a Diploma in Computer Education, obtained on 29.06.1999. degree though he had the Post Graduate degree i.e. M.A. (Sociology) and his service was not regularized. As regards the respondent No. 7, when the service of respondent No. 7 was regularized by the Notification dated 20.07.2005, he had an additional qualification of a Diploma in Computer Education, obtained on 29.06.1999. As has been indicated above, the Draft Service Rules of 1999 and the Draft Service Rules of 2001 had recognized other qualification, relevant to the nature of work, of at least 9 (nine) months duration as an essential qualification, in lieu of B.Ed., for the initial entry post of TRA. It has been brought on record by the respondent Nos. 4 to 11 that the cases of respondent No. 7 and respondent No. 9 were forwarded to the Government by the Director, SCERT, Nagaland by his letter dated 07.10.2003 by staling that the qualifications they were in possession in the fields of Mass Communication and Computers can be equated with B.Ed., for the purpose of eligibility in terms of the SCERT Draft Service Rules as the Department was in need of personnel with such qualifications in order to be abreast with the changes and progress in the education sector. The said stand of the Directorate was again reiterated by its subsequent communication dated 14.01.2005 of the Director, SCERT, Nagaland. The contention on behalf of those two respondents was that they also had the requisite educational qualification when their services were regularized in terms of the then extant Government policy and the State respondents taking into consideration those qualifications, had regularized their services. In view of their regularization in the grade of TRA with the possession of requisite qualification at an earlier point of time to that of appellant, the respondent Nos. 4 to 11 are to be considered in the regular stream on and from the date of their respective dates of regularisation and their seniority in that grade are to be counted from such dates. 39. 4 to 11 are to be considered in the regular stream on and from the date of their respective dates of regularisation and their seniority in that grade are to be counted from such dates. 39. We are of the considered view that no employee who had been shifted from a fixed pay post to a post carrying a regular scale of pay, without being preceded by any process of selection and lacking the essential educational qualification to hold the post, can be regularised in that post despite lack of the essential educational qualification, on and from the date when he was so shifted and consequently, conferred with the seniority in that post from the same date. Unless he has the essential educational qualification to hold the post, his such service cannot be regularized and consequently, no conferment of seniority could be accorded. 40. It is also a settled proposition that an incumbent cannot be granted seniority prior to his birth in the grade adversely effecting the seniority of other incumbent who had been appointed prior to him. Admittedly, the respondent Nos. 4 to 11 had earlier arrived in the grade of TRA in view of their early regularization. Thus, it is not open for the appellant to raise any question in that regard. As the B.Ed. degree was an essential qualification prescribed for the post of TRA, just because the appellant was appointed in the said post without the B.Ed. qualification and was allowed to function it cannot be countenanced that he can be regularized in that post and consequently, can be conferred seniority from a date prior to his acquiring the said essential qualification and thereby, stealing a march over the respondent Nos. 4 to 11 whose services were already regularised by the State respondents by considering them to be in possession of the essential qualification to hold the post of TRA. It is also not the case of the appellant that he was in possession of any other qualification, prior to 31.07.2006, which can be considered to be equivalent to B.Ed. degree under the then extant Rules, like the cases of respondent No. 7 and respondent No. 9. 41. In the light of the above discussions, we find no force in the submissions made on behalf of the appellant. degree under the then extant Rules, like the cases of respondent No. 7 and respondent No. 9. 41. In the light of the above discussions, we find no force in the submissions made on behalf of the appellant. Resultantly, we unhesitantly hold that the appellant's claim for regularization of his service in the post of TRA w.e.f. 14.11.2003 and his claim of seniority in that post on and from 14.11.2003 have no basis. Therefore, we find no justification to interfere with the common judgment and order dated 01.09.2017 passed by the learned Single Judge in the two writ petitions, W.P.(C) No. 98(K)/2016 and W.P.(C) No. 198(K)/2016. Resultantly, we find no merits in these two writ appeals presented against the same. Accordingly, both the writ appeals are dismissed. There shall, however, be no order as to costs.