Ghabo Ram vs U.T Of J&K & Anr.

Per: - Ram Mohan Johri, Administrative Member

The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -

The facts of the case as averred by the applicant in his pleadings, are as follows: -

The respondents have filed their written statement wherein they have averred as follows: -

Heard learned counsel for the parties and perused the pleadings made by them.

The short question which arises for consideration in the present Original Application is whether the applicant, who participated in the selection process initiated pursuant to Advertisement Notification No. 03 of 2006 and was ultimately appointed as Physical Education Teacher on 24.05.2019, is entitled to notional seniority from the date similarly situated candidates selected pursuant to the same recruitment process were appointed in the year 2010.

The material facts are largely undisputed. Advertisement Notification No. 03 of 2006 was issued for filling up, inter alia, the posts of Physical Education Teacher, District Cadre Jammu. Out of five posts advertised for Jammu District, one post was earmarked for the SC category. The applicant participated in the selection process under the SC category. His name, however, did not find place in the select list. The applicant did not remain silent over his exclusion and immediately approached the Hon’ble High Court by filing SWP No. 21/2010. During the pendency of the said writ petition, vide order dated 14.01.2010, one post was directed to be kept reserved for the applicant. Thus, the applicant had been diligently pursuing his claim from the very inception.

It is also significant that during the pendency of the writ proceedings, the Services Selection Board itself issued Order No. 760-SSB of 2017 dated 18.12.2017 recommending the applicant for appointment as Physical Education Teacher, District Cadre Jammu. Taking note of the said recommendation, the Hon’ble High Court disposed of SWP No. 21/2010 by directing the respondents to issue a formal appointment order in favour of the applicant.

Despite the aforesaid direction, the appointment was not immediately issued and the applicant was constrained to initiate contempt proceedings bearing CPSW No. 257/2018. Thereafter, the validity of the selection list was extended and ultimately appointment order dated 24.05.2019 was issued in favour of the applicant. The applicant joined on 29.05.2019 and thereafter commenced his duties at Government Middle School, Bardoh, Zone Khour.

The aforesaid sequence assumes importance. This is not a case where the applicant approached the Court after allowing the original selection to attain finality for several years. Nor is it a case where the applicant is seeking seniority merely from the date on which a vacancy arose. He challenged his exclusion at the relevant point of time itself, secured an interim order protecting one post, continuously pursued the proceedings and was ultimately recommended by the SSB itself against the recruitment in question.

The respondents have relied upon Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 to contend that seniority has to be determined with reference to the date of first appointment to the service and that the applicant, having been appointed in 2019, cannot claim seniority from the year 2010.

There can be no dispute with the general proposition that seniority ordinarily follows substantive appointment and that an employee cannot, as a matter of course, claim seniority from a date when he was not borne on the cadre. However, the present matter has to be examined in the peculiar facts in which the applicant was a participant in the same selection process, promptly challenged his exclusion, obtained protection of the vacancy and subsequently secured recommendation of the SSB itself.

The distinction between an ordinary claim for retrospective seniority and a claim for notional seniority arising out of wrongful or delayed appointment in a common selection process is material. In C. Jayachandran v. State of Kerala, (2020) 5 SCC 230, the Hon’ble Supreme Court recognized that where a candidate diligently pursued his grievance and was appointed belatedly in relation to a common competitive recruitment process, notional seniority could be granted from the date the other candidates from the same selection process were appointed. This principle has subsequently been noticed by the Hon'ble Supreme Court while distinguishing cases where there was no common competitive recruitment or where the employee had slept over his rights.

More importantly, the issue has recently been considered in the context of Rule 24 of the Jammu and Kashmir Civil Services (Classification, Control and Appeal) Rules, 1956 by the Division Bench of the Hon’ble High Court of Jammu & Kashmir and Ladakh in Union Territory of J&K & Ors. v. Raghu Singh Jandla, WP(C) No. 373/2026. The Hon’ble High Court held that although seniority generally flows from the date of substantive appointment, notional fixation constitutes an equitable exception where delay in appointment is attributable to the authorities and such fixation is necessary to preserve the integrity of a common selection process and the guarantee of equality.

The Hon’ble High Court further observed that where a candidate has been wrongly excluded from appointment in the same selection process for reasons attributable to the authorities, the candidate may be accorded notional seniority from the date similarly situated persons were appointed. Such relief prevents the administrative lapse itself from becoming the reason for permanently placing the affected candidate below persons belonging to the same selection process.

Applying the aforesaid principles to the present case, we find that the applicant stands on a materially different footing from a person who merely seeks retrospective seniority from the date of occurrence of a vacancy. The applicant’s claim is linked with the very same recruitment process in which the other selected candidates came to be appointed in 2010. He challenged his exclusion without delay. More importantly, one post was kept reserved pursuant to the order of the Hon’ble High Court. Ultimately, the SSB itself recommended his name and his appointment was issued pursuant to that recommendation and the judicial proceedings. In these circumstances, the intervening delay cannot be used to deprive the applicant altogether of his proper position vis-à-vis similarly situated candidates belonging to the same selection process.

The fact that the appointment order was actually issued in 2019 does not, in the peculiar circumstances of the present case, preclude the grant of notional seniority. Grant of notional seniority does not mean that the applicant would be deemed to have actually discharged duties from 2010, nor does it automatically entitle him to salary for a period during which he had not actually worked. The purpose of such relief is limited to protecting his position in service from being adversely affected by the delayed appointment.

At the same time, the relief has to be appropriately moulded. Since the applicant did not actually discharge the duties of Physical Education Teacher during the period from 2010 till his actual appointment, we do not find any justification for directing payment of arrears of salary for the said period. The principle of notional restoration of seniority cannot be equated with actual rendering of service for the purpose of claiming back wages.

Accordingly, the applicant is entitled to be assigned notional seniority from the date on which the similarly situated candidates appointed pursuant to the same selection process were appointed in the year 2010, subject to his placement in accordance with his position/merit in the relevant selection. Such fixation shall be notional for the period preceding his actual appointment and shall not carry any entitlement to back wages for the period during which he did not actually discharge duties.

We also make it clear that while re-fixing the seniority of the applicant, the respondents shall maintain the inter se position flowing from the relevant selection/merit and shall ensure that the exercise is confined to placing the applicant at the position which he would have legitimately occupied had his appointment not been delayed. The direction shall not be construed as granting the applicant a position higher than that warranted by his merit or the applicable reservation roster.

In view of the foregoing discussion, the Original Application is allowed in part.

The respondents are directed to accord the applicant notional seniority in the cadre of Physical Education Teacher, District Cadre Jammu, from the date on which similarly situated candidates appointed pursuant to the same selection process were appointed in the year 2010, and to place him at the appropriate position in the seniority list having regard to his position in the relevant selection.

The respondents shall accordingly undertake notional fixation of the applicant’s service position and consequential service benefits, wherever admissible under the applicable rules. However, the applicant shall not be entitled to arrears of salary/back wages for the period prior to his actual appointment, as he did not actually discharge the duties of the post during that period.

The necessary exercise, including issuance of an appropriate corrigendum/order and re-fixation of seniority, 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.

It is clarified that the actual monetary benefits consequent upon such re-fixation shall accrue only in accordance with the applicable rules and from the stage at which such benefits become payable consequent upon his actual service, while the period prior to his actual appointment shall remain notional.

The Original Application stands disposed of in the above terms. No order as to costs.