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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicants have filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
a)To issue directions to the respondents to give retrospective benefit of appointment to the petitioners on the post of Horticulture Technician IV in Pay Scale of SL-2 (15900-50,400) on which the petitioners are duly selected/appointed in pursuance of Selection list issued/published by the Directorate of Horticulture vide no. DIP/JK-1535 dated 30-05-2012 by issuance of writ of Mandamus.
b)To issue directions to the respondents to give effect of seniority along with all other consequential benefits retrospectively to the petitioners on the post of Horticulture Technician IV w.e.f. the date, petitioners were duly selected and reported the office of respondent no. 3 after the endorsement of Selection List by Agriculture Production Department by issuance of writ of Mandamus; AND
c)Any other Order or Directions which the Hon'ble Court may deem just and proper in the facts and circumstances of the case.”
The facts of the case as averred by the applicants in their pleadings, are as follows: -
The applicants have filed the present Original Application seeking retrospective benefit of their appointment to the post of Horticulture Technician Grade-IV from the date of their selection/recommendation in the year 2012, along with essentially is that although they were duly selected and recommended by the J&K Services Selection Board in the year 2012, formal appointment orders came to be issued only in the year 2021 after prolonged litigation.
The case of the applicants is that Advertisement Notification No. 06 of 2008 dated 08.05.2008 was issued for filling up 14 posts of Horticulture Technician Grade-IV pertaining to various District Cadres in the Horticulture Department. The prescribed qualification was 10+2 with one-year Basic Horticulture Training. The applicants, claiming to possess the requisite qualification, participated in the selection process and, after being shortlisted and interviewed, were recommended by the J&K Services Selection Board for appointment. The list of recommended candidates was thereafter published by the Director, Horticulture, Jammu vide No. DIP/JK-1535 dated 30.05.2012, requiring the selected candidates to report to the office within 21 days. The applicants accordingly reported, whereafter their qualification and other documents were sent for verification.
Despite their selection and reporting to the Department, formal appointment and adjustment orders were not issued. The applicants consequently approached the Hon'ble High Court by filing SWP No. 1310/2013, which was disposed of on 05.06.2013 with a direction to the respondents to consider and decide their notice dated 20.03.2013 within two weeks. As appointment orders were still not issued, the applicants again approached the High Court through SWP No. 2732/2014. The said writ petition was disposed of on 15.05.2015 with a direction to consider their claim for appointment in terms of the relevant notes on the Administrative Department’s file and to pass a consideration order in accordance with the applicable rules within six weeks.
Pursuant thereto, the Government issued Order No. 320-Agri of 2015 dated 12.10.2015 rejecting the applicants’ claim on the ground that the certificates/technical qualifications possessed by them were unauthorized or invalid for appointment to the post in question. Aggrieved, the applicants challenged the said order by filing SWP No. 2947/2015, Surinder Singh & Ors. v. State of J&K & Ors. The controversy before the High Court principally related to whether the applicants possessed the qualification prescribed for the post of Horticulture Technician Grade-IV.
The Hon'ble High Court, vide judgment dated 04.10.2017, allowed the writ petition and quashed Government Order No. 320-Agri of 2015. It observed, inter alia, that the prescribed qualification was 10+2 with one year Horticulture Training under the applicable Recruitment Rules and that there was no justification for denying appointment to the selected candidates. Consequently, the respondents were directed to issue appointment orders in favour of the candidates selected for the post of Horticulture Technician Grade-IV pursuant to the advertisement of 2008 and the select list dated 30.05.2012.
The State challenged the aforesaid judgment before the Division Bench. The appeal was dismissed, the Division Bench finding no ground to interfere with the judgment of the learned Single Judge. The State thereafter approached the Hon'ble Supreme Court by filing SLP (Civil) Diary No. 19725/2019. The Hon’ble Supreme Court dismissed the SLP on the ground of delay while keeping the question of law open for determination in an appropriate case. The review petition preferred thereafter was also dismissed.
Thereafter, Government Order No. 32-JK(Horti) of 2021 dated 28.04.2021 was issued. The competent authority approved revalidation of the panel to the extent of the petitioners and sanctioned appointment of ten petitioners, including the present applicants concerned herein, as Horticulture Technician Grade-IV in Pay Level SL-2 (₹15,900–50,400). The applicants were thereafter adjusted at different places in their respective districts.
The grievance of the applicants in the present proceedings is confined to the denial of retrospective service benefits. According to them, the delay between their selection in 2012 and their eventual appointment in 2021 was attributable entirely to the respondents. They contend that they had duly reported pursuant to the selection notice in 2012 and were continuously pursuing their claim before the authorities and the Courts. They, therefore, seek retrospective effect to their appointments from the date of their original selection/recommendation and reporting in 2012, together with seniority and other consequential benefits.
The respondents have filed their reply statement wherein they have averred as follows: -
On merits, the respondents do not dispute that the applicants, along with other candidates, were recommended by the J&K Services Selection Board for appointment as Horticulture Technician Grade-IV in the year 2012. Their case, however, is that during verification of the applicants’ documents, a dispute arose regarding the validity and acceptability of their technical qualifications. Consequently, formal appointment orders were not issued and, upon consideration of the matter pursuant to the earlier directions of the High Court, the applicants’ claim was rejected vide Government Order No. 320-Agri of 2015 dated 12.10.2015.
The respondents further state that Government Order No. 320-Agri of 2015 was subsequently quashed by the High Court in SWP No. 2947/2015 vide judgment dated 04.10.2017, with a direction to issue appointment orders to the selected candidates. The State preferred an intra-court appeal against the said judgment, but the Division Bench declined to interfere. Thereafter, an SLP was preferred before the Hon’ble Supreme Court. According to the respondents, the SLP was dismissed on the ground of delay and the Hon’ble Supreme Court expressly kept the question of law open, and therefore there was no adjudication by the Supreme Court on the merits of the qualification controversy.
It is further pleaded that after dismissal of the review petition, the Department issued Government Order No. 32-JK(Horti) of 2021 dated 28.04.2021 and appointed the applicants. The respondents maintain that such appointments were issued in consequence of the culmination of the litigation and do not confer upon the applicants any right to have their appointments treated retrospectively from 2012.
The principal defence of the respondents to the present claim is that the applicants could not be granted retrospective appointment or seniority for a period during which they had not actually been borne on the cadre. According to the respondents, mere selection or recommendation by the recruiting agency did not amount to appointment to the service. Since the formal appointment orders came to be issued only in 2021, the applicants cannot claim service benefits from the date of their selection in 2012.
The respondents have accordingly denied any violation of the legal, fundamental or statutory rights of the applicants. They reiterate that the initial withholding of appointment was occasioned by the dispute concerning the validity of the applicants’ qualification documents and that appointment was ultimately granted after culmination of the litigation. The grounds urged by the applicants for retrospective appointment, seniority and consequential benefits have been termed misconceived and baseless. The respondents, therefore, pray for dismissal of the Original Application.
Heard learned counsel for the parties and perused the material available on record.
The short question which arises for consideration is whether, in the peculiar facts of the present case, the applicants, whose selection dates back to the year 2012 but whose formal appointments were issued only in the year 2021 after successive rounds of litigation, are entitled Central Administrative Tribunalto retrospective appointment, seniority and consequential service benefits from the date of their original selection.
Certain facts are not in dispute. The applicants were selected and recommended by the competent recruiting agency in the year 2012. They reported to the Department pursuant to the published select list. Their appointments were withheld because the Department disputed their technical qualifications. Their claim was thereafter rejected by Government Order No. 320-Agri of 2015. The said order did not survive judicial scrutiny, as the Hon’ble High Court quashed it and directed issuance of appointment orders. The challenge thereto by the State before the Division Bench failed. The SLP and review proceedings also ultimately came to an end, whereafter the applicants were appointed in 2021.
Thus, it cannot be said that the applicants were indolent or that they slept over their rights. From the record, it is evident that they remained engaged in pursuing their claim before the Department and before the Courts. Their eventual appointment was not the result of a fresh selection process held in 2021; rather, it flowed from the selection made in the year 2012, the validity and implementation whereof remained subject matter of prolonged litigation.
At the same time, the applicants’ prayer for treating their appointment itself as effective from the year 2012 with full salary and arrears for the entire intervening period cannot be accepted in the manner claimed. Mere selection or recommendation by itself does not ordinarily amount to actual appointment to service. The applicants were not in fact discharging duties against the posts during the intervening period and were formally appointed only in 2021. Therefore, grant of full salary for a period during which no duties were performed would not be justified.
However, the matter cannot end there. The peculiar feature of the present case is that the applicants had succeeded before the Hon’ble High Court against the very order by which their appointments had been denied. Their selection was not cancelled on account of any fault attributable to them. The applicants had reported pursuant to the departmental notice and the delay arose because the Department questioned the acceptability of their qualifications, a stand which ultimately did not survive the judicial proceedings. In such circumstances, to deny even notional seniority and consequential service progression would perpetuate the adverse consequences of a delay for which the applicants cannot wholly be held responsible.
The principle to be applied in such cases is to balance two competing considerations. On the one hand, an employee cannot ordinarily be treated as having actually served from a date prior to his formal appointment so as to claim salary for a period during which no work was performed. On the other hand, where appointment is delayed because of an action of the employer which is subsequently set aside and the candidate has continuously pursued his remedy, the resultant loss of seniority and promotional prospects may require suitable notional protection.
In the present case, the applicants themselves have pleaded that they are entitled to notional seniority from the date they were recommended by the J&K Services Selection Board and had reported to the office of the competent authority. The respondents, on the other hand, rely upon the fact that the applicants were not borne on the cadre before 2021. Both concerns can, in our considered view, be appropriately reconciled by granting the applicants notional protection for purposes of seniority and consequential service progression, without directing payment of back wages for the period during which they did not actually work.
It would, however, not be appropriate to mechanically direct that all the applicants shall be deemed to have been appointed on 30.05.2012 irrespective of the actual appointments made from the same select list. Seniority has necessarily to be worked out in accordance with the applicable Recruitment/Seniority Rules and without unsettling vested rights contrary to law. Therefore, where any candidate junior to an applicant in the same selection was appointed earlier, the concerned applicant would be entitled to notional seniority from the date such junior entered service, subject to his inter se position in the select list and the governing rules. In the absence of any such junior having been appointed earlier, the respondents shall determine the appropriate notional placement with reference to the original select list and the applicable rules. Such an arrangement, in our view, sufficiently protects the applicants from the continuing prejudice resulting from delayed implementation of their selection, while at the same time avoiding the legal fiction of treating them as having actually worked during the entire period prior to their formal appointment.
Accordingly, the Original Application is partly allowed.
The respondents are directed to examine the cases of the applicants Central Administrative Tribunalfor grant of notional seniority in the cadre of Horticulture Technician Grade-IV with reference to their inter se position in the select list dated 30.05.2012 and in accordance with the applicable Recruitment/Seniority Rules. In case any candidate junior to any of the applicants in the same selection was appointed at an earlier point of time, the concerned applicant shall be accorded notional seniority from the date of appointment of such junior, subject to the governing rules.
Upon such re-determination of seniority, the applicants shall also be entitled to notional fixation of pay and consequential consideration for further service benefits, including promotion, if otherwise eligible, from the date on which such benefits would have become due on the basis of the revised notional seniority.
It is made clear that the applicants shall not be entitled to arrears of salary or back wages for the period prior to their actual appointment/joining, as they had not discharged duties during the said period. Actual monetary benefits arising from their appointment shall remain payable from the date they actually joined pursuant to Government Order No. 32-JK(Horti) of 2021 dated 28.04.2021. However, any monetary benefit becoming due prospectively as a consequence of the notional fixation and revised seniority after their actual joining shall be worked out and released in accordance with law.
The entire exercise shall be completed by the competent authority within a period of three months from the date of receipt of a certified copy of this order.
No order as to costs.