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Judgment
ORDER
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: -
a)“Direct respondents to grant notional seniority to the applicant w.e.f. from 25/11/2011, when persons who participated along with applicant under same advertisement were selected and appointed leaving applicant who was the only ST candidate out on grounds which were found by the Court as unjustifiable.
b)Direct respondents to further grant applicant promotion to the post of Senior Lecturer as has been given to one Sh. Thinless Wangmo who participated along with applicant and was selected and appointed pursuant to the same selection process, but appointed against the post advertised in 2009.
c)Any other order or direction which this Hon'ble Tribunal may deem fit in the circumstances of the case may also be passed in favour of the applicant and against the respondents in the interest of justice and equity.”
The facts of the case as averred by the applicant in her pleadings, are as follows: -
The case of the applicant, as projected in the Original Application, is that in the year 2008, the School Education Department referred nine posts of Lecturer, Computer Science (10+2), to the Jammu and Kashmir Public Service Commission for selection. The posts were advertised vide Notification No. 06-PSC of 2008 dated 23.05.2008. The applicant, being eligible according to her, applied against the post earmarked for the Scheduled Tribe category and participated in the selection process. She qualified the screening test by securing 61 marks. However, her candidature was rejected by the Public Service Commission vide notifications dated 24.08.2011 and 09.09.2011 on the ground that the qualification possessed by her was not relevant/equivalent to the qualification prescribed for the post.
Aggrieved by the rejection of her candidature, the applicant approached the Hon'ble High Court by filing SWP No. 1949/2011. The writ petition came to be disposed of vide judgment dated 23.11.2017 with a direction to the School Education Department to take a decision regarding the eligibility of the applicant in the light of the communication of the competent authority concerning equivalence of her qualification and, accordingly, to recommend her case for participation in the interview process. Pursuant thereto, the School Education Department, vide communication dated 21.01.2018, informed the Public Service Commission that the degree possessed by the applicant was to be treated as equivalent to the prescribed qualification and requested that her case be settled accordingly.
The Jammu and Kashmir Public Service Commission assailed the aforesaid judgment by filing LPA No. 58/2019. The appeal was dismissed by the Hon'ble Division Bench vide judgment dated 09.08.2019. Thereafter, the applicant was called for interview on 16.11.2019 and again on 05.11.2020. Upon completion of the selection process, the Commission recommended her for appointment against the post of Lecturer, Computer Science (10+2), under the ST category arising out of Notification No. 06-PSC of 2008 dated 23.05.2008, vide communication dated 23.02.2021. Consequently, the applicant was appointed as Lecturer, Computer Science, vide Government Order No. 73-Edu of 2021 dated 25.03.2021. The applicant points out that the original select list pertaining to the recruitment process had been issued by the Commission as far back as on 14.09.2011.
The grievance of the applicant is that although she ultimately came to be appointed pursuant to the very same recruitment notification of the year 2008, she was not granted notional seniority or other consequential service benefits with effect from the date on which the candidates selected pursuant to the original selection process were appointed. According to her, the delay in her appointment was attributable to the wrongful rejection of her candidature on the issue of equivalence of qualification and, therefore, she ought not to suffer in matters of seniority and promotional prospects merely because she was compelled to litigate for recognition of her eligibility.
The applicant thereafter initiated contempt proceedings complaining of non-grant of notional seniority and consequential benefits. The contempt proceedings were disposed of vide order dated 18.11.2023. While declining to proceed in contempt, the Hon'ble Court granted liberty to the applicant to seek appropriate substantive relief regarding her claim for notional seniority and consequential benefits before the competent forum. Thereafter, the applicant submitted a representation in November 2023, followed by a reminder dated 22.07.2024, seeking notional seniority and consequential benefits.
The applicant further relies upon the seniority position of other Lecturers in Computer Science appointed during the period between 2011 and 2021. She has also sought parity with Smt. Thinless Wangmo, who, according to the applicant, was selected pursuant to a recruitment process of the year 2009 and was subsequently promoted/placed as Senior Lecturer, Computer Science, vide order dated 18.12.2023. On this basis, the applicant claims that had her candidature not been rejected in 2011, she would have entered service along with the candidates of the original selection and would also have become eligible for consideration for promotion in due course.
It is in the aforesaid background that the applicant has approached this Tribunal seeking, inter alia, grant of notional seniority with effect from 25.11.2011, when according to her the candidates participating in the same recruitment process were appointed, along with consequential service benefits and consideration/grant of promotion to the post of Senior Lecturer.
The respondents have filed their written statement wherein they have averred as follows: -
The respondents have opposed the Original Application. Their principal contention is that the applicant was appointed as Lecturer, Computer Science, only on 25.03.2021 and, therefore, she cannot claim seniority or other service benefits with retrospective effect from the year 2011, when she had merely qualified the screening test and had not even completed the entire selection process. According to the respondents, the applicant's candidature had been rejected in 2011 on account of the dispute regarding equivalence/relevance of her qualification, which subsequently became the subject matter of judicial proceedings.
The respondents have placed particular reliance upon the judgment dated 09.08.2019 passed in LPA No. 58/2019. It is their case that while dismissing the appeal, the Hon'ble Division Bench directed the Commission to proceed further with the applicant's selection after treating her as eligible and specifically observed that, in case of appointment, she would be entitled to benefits from the date she joined service. According to the respondents, the said direction clearly governs the applicant's entitlement and does not contemplate grant of benefits retrospectively from the year 2011. The applicant was thereafter interviewed in 2019 and 2020 and ultimately appointed in March 2021. They further submit that the subsequent order in contempt proceedings merely granted liberty to the applicant to agitate her claim for notional seniority before the appropriate forum and did not itself confer any such entitlement.
The respondents further contend that the applicant had never worked as Lecturer, Computer Science, prior to her appointment in March 2021 and, therefore, cannot claim service benefits for the period during which she was neither appointed nor borne on the cadre. Preliminary objections regarding maintainability, absence of cause of action, suppression of material facts, delay and laches and limitation have also been raised.
The School Education Department, Union Territory of Jammu and Kashmir, has separately taken the stand that the applicant is presently borne on the cadre of the Union Territory of Ladakh following reorganization under the Jammu and Kashmir Reorganization Act, 2019 and, consequently, issues relating to her present seniority and promotion fall within the administrative domain of the Union Territory of Ladakh. It is further contended that there is no statutory provision or judicial direction granting the applicant seniority from a date anterior to her actual appointment.
According to the respondents, the judgment passed in SWP No. 1949/2011 was confined to determination of the applicant's eligibility and permitting her to participate in the interview process if found eligible. It did not contain any direction granting retrospective seniority or promotion. The directions contained therein were duly complied with by permitting the applicant to participate in the interview, upon which she was ultimately recommended and appointed vide Government Order No. 73-Edu of 2021 dated 25.03.2021.
The respondents further maintain that seniority ordinarily flows from the date of substantive appointment and not from the date of advertisement, participation in the selection process or pendency of litigation. They submit that the delay in the applicant's appointment arose on account of adjudication of the dispute concerning equivalence of her qualification and was not the result of any mala fide or deliberate action on the part of the Department. In the absence of a specific judicial direction granting retrospective seniority, according to them, appointment following litigation cannot automatically relate back to the date on which other candidates entered service.
The respondents have also disputed the applicant's claim of parity with the persons appointed in the year 2011, asserting that those candidates entered service pursuant to their respective selection processes, whereas the applicant's selection and appointment were finalized subsequently after adjudication of the issue concerning her eligibility. Mere fact that her appointment ultimately arose out of Notification No. 06-PSC of 2008, according to the respondents, would not by itself entitle her to claim seniority from the date on which other candidates joined service.
As regards the prayer for promotion to the post of Senior Lecturer, the respondents submit that promotion cannot be claimed merely on the basis of alleged parity with Smt. Thinless Wangmo. Promotion, according to them, is governed by the applicable statutory rules, prescribed eligibility, position in the cadre seniority, availability of vacancies and consideration by the competent Departmental Promotion Committee. They contend that none of these requirements can be dispensed with merely because another candidate may have participated in an earlier or related recruitment process.
The respondents have further stated that the matter regarding seniority was referred to the General Administration Department, which vide U.O. No. GAD-LA/24/2025 dated 29.10.2025 clarified, with reference to Circular Instructions No. 09-JK(GAD) of 2022 dated 08.03.2022, that employees serving in the Union Territory of Ladakh are to be excluded from the seniority list of the Union Territory of Jammu and Kashmir and that the seniority of the applicant is required to be formalised by the Administration of the Union Territory of Ladakh. On these premises, the respondents maintain that all judicial directions have been complied with and that no enforceable legal or statutory right of the applicant has been violated, warranting dismissal of the Original Application.
Learned Senior Counsel appearing for the applicant submitted that the applicant cannot be made to suffer in seniority merely because she was compelled to litigate against an erroneous rejection of her candidature. It is contended that her appointment ultimately arose from the same advertisement and selection process in which she had initially participated and that the period consumed in litigation cannot be allowed to prejudice her service career.
Learned counsel for the applicant has placed strong reliance upon the judgment of this Tribunal in T.A. No. 1571/2020, Raghu Singh Jandla v. State of J&K & Ors., decided on 27.12.2024. In the said case, the applicant therein had participated in a common selection process but was wrongly excluded under the RBA category. After succeeding in litigation, he was appointed subsequently. This Tribunal held that the delay occasioned by wrongful exclusion and adjudication of his rights could not be allowed to operate against him and directed that his appointment be reckoned notionally from the date the other candidates of the same selection process were appointed, with consequential refixation of seniority and consideration for promotion.
The aforesaid judgment of this Tribunal was challenged before the Hon’ble High Court of Jammu & Kashmir and Ladakh in WP(C) No. 373/2026, which came to be dismissed vide judgment dated 16.04.2026. The Hon’ble High Court upheld the view taken by the Tribunal.
The Hon’ble High Court, after referring to the judgments of the Hon’ble Supreme Court in C. Jayachandran v. State of Kerala & Ors., (2020) 5 SCC 230 and Sanjay Dhar v. J&K Public Service Commission & Anr., held that where a candidate is wrongly excluded from appointment due to arbitrary action of the appointing authority in the same selection process, such candidate is entitled to notional seniority from the date similarly situated candidates were appointed. It was further held that once wrongful denial is rectified through judicial intervention, seniority has to be determined with reference to the original merit position, otherwise the candidate would be penalized for no fault on his part.
The Hon’ble High Court further held that although seniority generally flows from the date of substantive appointment, notional fixation constitutes an equitable exception where the delay is attributable to the appointing authority, so as to preserve the integrity of the common selection process and the constitutional guarantee of equality.
Learned counsel Mr. Raghu Mehta, Sr. CGSC and Mr. Sudesh Magotra, ld. AAG appearing for the respondents, on the other hand, sought to distinguish Raghu Singh Jandla by submitting that in that case the applicant had already secured higher marks than the last selected candidate of the category and one vacancy had been specifically kept reserved pursuant to an interim direction of the High Court. It is argued that in the present case, the applicant had not even undergone the interview process in 2011 and that the earlier Division Bench judgment dated 09.08.2019 specifically restricted her benefits to the date of joining.
We have heard learned counsel for the parties at length and have carefully considered the pleadings and the judgments relied upon.
The short question which arises for determination is whether the applicant, whose candidature in the selection initiated in the year 2008 Central Administrative Tribunalwas rejected on the ground of non-equivalence of qualification but who subsequently succeeded in establishing her eligibility through judicial proceedings and was ultimately appointed pursuant to the same recruitment process, can be denied notional seniority merely because her actual appointment came to be issued in the year 2021.
Certain facts are not in dispute. The applicant had applied pursuant to Notification No. 06-PSC of 2008. She qualified the screening test. Her candidature was rejected not on the ground of lack of merit in the selection but on the ground that her qualification was not relevant/equivalent. She challenged that decision without abandoning her claim. Eventually, the competent Department itself accepted the equivalence of her qualification, the appeal filed by the Public Service Commission was dismissed, and the Commission was directed to proceed with her selection by treating her as eligible. She thereafter completed the selection process and was recommended and appointed against the recruitment initiated under the very same advertisement.
Thus, the applicant did not enter the selection process for the first time in the year 2019 or 2021. Her consideration in those years was only a continuation and culmination of the recruitment process in which she had participated pursuant to the advertisement of the year 2008.
Central Administrative Tribunal14. We find considerable force in the reliance placed by learned Senior Counsel for the applicant upon the judgment in Raghu Singh Jandla. The legal principle emerging from the judgment of the Hon’ble High Court dated 16.04.2026 is clear that where delayed appointment is the consequence of wrongful exclusion of a candidate from the common selection process and the exclusion is subsequently corrected through judicial intervention, the candidate cannot be made to lose seniority solely because actual appointment was issued at a later point of time.
The objection of the respondents that seniority can never be granted from a date anterior to actual appointment cannot, therefore, be accepted as an absolute proposition. The Hon’ble High Court has expressly held that while seniority ordinarily commences from substantive appointment, an equitable exception operates in cases of wrongful exclusion attributable to the selecting or appointing authority.
We are conscious that the facts in Raghu Singh Jandla are not identical in every respect. In that case, the merit position of the candidate had already crystallised and a vacancy had also remained reserved under an interim order. However, these factual distinctions do not dilute the underlying principle applicable to the present case. Here also, the applicant's candidature was prevented from proceeding further in the original recruitment because of a determination regarding her qualification which subsequently did not sustain. After the qualification was accepted as equivalent and she was allowed to participate further, she ultimately succeeded in the selection and was appointed pursuant to the same advertisement. The intervening period was thus substantially consumed in adjudication of her eligibility.
The respondents have placed considerable emphasis upon the observation in the judgment dated 09.08.2019 that the applicant would be entitled to all benefits from the date she joined service, if appointed. We have carefully considered the said submission.
In our considered view, the aforesaid observation cannot be read as a final adjudication rejecting the applicant's independent claim to notional seniority. The controversy then before the Hon’ble Division Bench principally related to the applicant's eligibility and her right to be permitted to proceed further in the selection process. The applicant had not even been appointed at that stage and the question of her eventual placement in seniority had not crystallised.
More importantly, when the applicant subsequently initiated contempt proceedings regarding non-grant of notional seniority, the Court, while declining to exercise contempt jurisdiction, specifically observed that the respondents could have granted notional seniority and expressly preserved the applicant's right to seek a specific direction from the appropriate forum regarding her entitlement to notional seniority and consequential benefits.
The effect of the order dated 18.11.2023 is that the question of the applicant's substantive entitlement to notional seniority was left open for adjudication. Had the judgment dated 09.08.2019 conclusively barred any claim to notional seniority, there would have been no occasion to expressly preserve such liberty. We are, therefore, unable to accept the respondents' contention that the present proceedings constitute an impermissible attempt to enlarge or modify the earlier judgment.
The objection of limitation and delay also does not persuade us to non-suit the applicant. After her appointment in 2021, she pursued the issue of notional seniority in the contempt proceedings, which were disposed of on 18.11.2023 with liberty to seek substantive relief before the appropriate forum. She thereafter submitted a representation and reminder and has approached this Tribunal in the present OA. In the peculiar factual circumstances, particularly in view of the specific liberty granted by the Court, the claim cannot be rejected merely on the ground of delay or laches.
Another aspect which weighs with us is that the applicant cannot be placed in a worse position merely because the authorities initially proceeded on an erroneous understanding regarding equivalence of her qualification. Once the applicant's qualification was accepted as equivalent and she successfully completed the very selection process from which she had earlier been excluded, the consequence flowing from the wrongful exclusion must, to the extent permissible in law, be neutralised.
At the same time, notional seniority cannot automatically result in payment of salary for a period during which the applicant did not actually discharge duties. The principle of restoration of seniority and the principle relating to actual monetary benefits operate in different fields. The equities of the case would, therefore, be appropriately balanced by granting notional seniority and consequential service consideration without directing payment of back wages for the period anterior to her actual joining.
Insofar as the prayer for promotion to the post of Senior Lecturer is concerned, we are not inclined to issue a direction for automatic promotion merely on the ground that Smt. Thinless Wangmo or any other person has been promoted. Promotion depends upon the applicable recruitment/service rules, qualifying service, eligibility, vacancy position and consideration by the competent Departmental Promotion Committee.
However, once the applicant's seniority is refixed notionally, her claim for promotion necessarily requires reconsideration with reference to the revised seniority position. If any person junior to the applicant in the refixed seniority or otherwise similarly situated has been promoted/placed as Senior Lecturer, the applicant's case would also require consideration from the corresponding date, subject to fulfilment of all statutory eligibility conditions.
We also take note of the stand of the respondents that consequent upon the Jammu and Kashmir Reorganisation Act, 2019, the applicant presently stands allocated to and borne on the cadre of the Union Territory of Ladakh and that her seniority is now required to be finalised by the Administration of UT of Ladakh. The communication dated 29.10.2025 relied upon by the respondents itself states that the seniority of the applicant is to be formalised by the Administration of the Union Territory of Ladakh. The relief can, therefore, be implemented by respondent No. 2 on the basis of the selection and service records to be supplied, wherever necessary, by respondent No. 1.
In view of the discussion made hereinabove and keeping in view the law laid down in Raghu Singh Jandla, as affirmed by the Hon’ble High Court of Jammu & Kashmir and Ladakh in WP(C) No. 373/2026 vide judgment dated 16.04.2026, we are of the considered opinion that the applicant cannot be deprived of notional seniority merely because her actual appointment was delayed as a consequence of litigation arising from the rejection of her candidature on the issue of equivalence of qualification.
Accordingly, the Original Application is partly allowed with the following directions:
The respondents shall reckon the seniority of the applicant in the cadre of Lecturer, Computer Science (10+2), notionally from the date on which the candidates selected pursuant to the same recruitment process/Notification No. 06-PSC of 2008 were appointed, stated by the applicant to be Central Administrative Tribunal25.11.2011, and shall assign her appropriate place in the seniority with reference to her inter se merit in the said selection process.
Respondent No. 1 shall, wherever required, transmit the relevant selection, appointment and seniority records to respondent No. 2, and respondent No. 2/Administration of UT of Ladakh shall undertake the exercise of fixation of the applicant's seniority in accordance with the above direction.
The grant of notional seniority for the period prior to the applicant's actual appointment shall not entitle her to arrears of salary/back wages for the period during which she did not actually discharge duties as Lecturer. However, the notional seniority shall be taken into account for consequential service benefits wherever admissible under the applicable rules.
After refixation of the applicant's seniority, the competent authority shall consider her case for promotion/placement to the post of Senior Lecturer, Computer Science, in accordance with the applicable rules. In case any person junior to the applicant in the refixed seniority has already been promoted/placed on the higher post, the applicant's case shall also be considered from the date such junior became entitled to promotion, subject to the applicant fulfilling the prescribed eligibility and other requirements on the relevant date.
In the event the applicant is found fit for such promotion upon consideration, the promotional benefit for the anterior period shall be granted notionally and the question of monetary benefits shall be regulated in accordance with the applicable rules and law.
The entire exercise shall be completed by the competent respondents within a period of three months from the date of receipt of a certified copy of this order.
It is made clear that we have not directed automatic promotion of the applicant to the post of Senior Lecturer; the direction is for consideration consequent upon refixation of her seniority in accordance with law.
The OA stands disposed of in the above terms. No order as to costs.