Rakesh Gupta & Ors. vs Union Territory Of J&K & Ors.

Sh. Diwakar Singh, Judicial Member

This is an Original Application filed by the applicants under Section-19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:-

The applicants are seeking a direction to the respondents to grant them the benefit of notional appointment and consequential seniority from the date on which the candidates similarly situated to them, pursuant to the recruitment process initiated vide Advertisement Notice No. 01 of 2006 dated 20.03.2006, were appointed, together with all consequential service benefits including notional pay fixation, increments, pensionary benefits and other benefits flowing from such notional appointment. The principal grievance of the applicants is that the selection process against Class-IV posts in District Udhampur, which was initiated as far back as on 20.03.2006, was not concluded by the respondents for more than fourteen years and that the applicants, despite being eligible candidates who had participated in the selection process and had repeatedly approached the Court seeking completion thereof, were ultimately appointed only in the year 2020. According to the applicants, the entire delay was attributable to the respondents and their administrative inaction and, therefore, the applicants cannot be made to suffer permanent civil consequences on account of a delay for which they were in no manner responsible.

The brief facts, which are largely undisputed, are that the Deputy Commissioner, Udhampur, who at the relevant time was the Chairman of the District Level Class-IV Appointment Committee, issued Advertisement Notice No. 01 of 2006 dated 20.03.2006 inviting applications from eligible residents of District Udhampur against 165 Class-IV posts in various departments. The applicants, being eligible and residents of District Udhampur, submitted their applications pursuant to the said advertisement. Thereafter, vide notice dated 05.11.2006, the candidates were informed that their interviews would commence from 25.11.2006 and continue up to 21.12.2006. The applicants appeared in the interview in accordance with the schedule notified by the respondents. However, despite completion of the interview process, the respondents failed to finalize the selection and did not issue the select list. The selection process thus remained inconclusive for years together without any explanation attributable to the applicants.

The inordinate and unexplained delay on the part of the respondents compelled the candidates to invoke the jurisdiction of the Hon’ble High Court. SWP No. 2907/2010, titled Vakil Singh & Ors. v. State of J&K & Ors., came to be decided on 16.12.2010, whereby directions were issued to the respondents to finalize the selection process within the stipulated period. Similar directions were again issued in SWP No. 740/2012, titled Jagdish Kumar & Ors. v. State of J&K & Ors., vide judgment dated 04.04.2012. It is significant that the applicants were not approaching the Court to stall the recruitment process; rather, they were seeking its completion. The repeated judicial intervention itself demonstrates that the cause of the delay lay in the failure of the administration to conclude the process in accordance with law.

Despite the aforesaid judgments, the selection process was not completed. On the contrary, the General Administration Department issued Government Order No. 664-GAD of 2013 dated 23.04.2013, whereby the selection process initiated pursuant to Advertisement Notice No. 01 of 2006 in respect of Districts Rajouri, Baramulla and Udhampur was cancelled and a fresh process was contemplated. This development gave rise to further litigation. SWP No. 1709/2013, titled Sandeep Sharma & Ors. v. State of J&K & Ors., was decided on 07.08.2013 with a direction to the respondents to complete the selection process within the time stipulated by the Hon’ble High Court. Thereafter, Notification No. 01 of 2013 dated 19.08.2013 was issued by the Deputy Commissioner, Udhampur, requiring the candidates to furnish documents and, significantly, altering the qualifications and criteria which had originally been notified under the 2006 advertisement. The said notification was challenged in SWP No. 2051/2013.

The aforesaid writ petition is of considerable significance for adjudication of the controversy involved herein. Vide judgment dated 14.12.2015, the Hon’ble High Court directed the Deputy Commissioner, Udhampur, to convene the Recruitment Committee constituted under Government Order No. 43-GAD of 2006 dated 09.01.2006 and to proceed with the selection of all eligible candidates who had applied pursuant to Advertisement Notice No. 01 of 2006 dated 20.03.2006. The Hon’ble High Court further directed that the documents of the candidates be scrutinized, interviews be conducted and the entire process be concluded within the stipulated period and, most importantly, directed that the selection be conducted strictly in accordance with the terms and conditions contained in the original Advertisement Notice No. 01 of 2006. The Hon’ble High Court further directed that Notification No. 01 of 2013, to the extent it was inconsistent with the original advertisement, was to be ignored. The said judgment, insofar as the District Udhampur selection process was concerned, was not challenged by the respondents and consequently attained finality.

Once the aforesaid judgment attained finality, the respondents were under a binding legal obligation to implement the same in letter and spirit. However, even thereafter, the process was not completed with the promptitude mandated by the Court. A public notice came to be issued only on 30.03.2018, nearly two and a half years after the judgment dated 14.12.2015, whereby the candidates who had applied pursuant to the original advertisement of 2006 were directed to furnish their documents. Interviews were thereafter conducted. Thus, the respondents themselves ultimately proceeded on the basis of the original advertisement and the criteria prescribed therein, in consonance with the judgment dated 14.12.2015. Even after conducting the interviews, however, the final selection was not immediately notified.

The respondents have sought to explain the subsequent delay by relying upon a communication issued by the General Administration Department directing the Deputy Commissioner, Udhampur, not to proceed with the selection process during the pendency of proceedings before the Hon'ble Supreme Court arising out of the judgment concerning District Baramulla. This explanation, in the facts of the present case, cannot absolve the respondents of their liability for the delay caused in respect of District Udhampur. The proceedings concerning District Baramulla arose out of a separate litigation and there was no order placed before the Court by which the selection process of District Udhampur, pursuant to the final judgment dated 14.12.2015, had been stayed. More importantly, the judgment dated 14.12.2015 concerning District Udhampur had attained finality and the respondents were bound to implement it. An administrative communication could not have the effect of suspending or nullifying a final judicial direction which had not been stayed or set aside by a competent Court.

The subsequent order of the Hon'ble Supreme Court dated 03.02.2020, arising out of the proceedings concerning District Baramulla, also cannot be construed as having retrospectively altered the legal position which had crystallized pursuant to the judgment dated 14.12.2015 in respect of District Udhampur. The respondents have not demonstrated that the Hon'ble Supreme Court, while dealing with the proceedings pertaining to District Baramulla, set aside or modified the final judgment rendered in respect of District Udhampur. Therefore, the reliance placed by the respondents upon the pendency of the said proceedings cannot justify the failure to implement the binding directions which had already been issued in relation to the present applicants and the District Udhampur recruitment.

It is also relevant to notice that the respondents, after the disposal of the proceedings before the Hon'ble Supreme Court, completed the selection process and issued the appointment orders in the year 2020. The applicants were thus ultimately selected and appointed pursuant to the recruitment which had originated in the year 2006. Their appointment in the year 2020 was not the result of a fresh recruitment initiated in 2020; rather, it was the delayed culmination of the original recruitment process initiated vide Advertisement Notice No. 01 of 2006. This factual aspect assumes considerable importance while examining the claim for notional seniority.

The contention of the respondents that the delay occurred because of litigation and that the applicants cannot claim any benefit for the period during which the recruitment remained pending is equally devoid of merit. The litigation relied upon by the respondents cannot be viewed in isolation from the circumstances which necessitated it. The applicants and other similarly situated candidates approached the Hon’ble High Court because the respondents had failed to finalize the selection despite completion of the interview process. The judicial proceedings resulted repeatedly in directions to the respondents to complete the selection process. Thus, the applicants were not responsible for the delay; rather, they were seeking judicial enforcement of their right to have the recruitment completed in accordance with law. A candidate cannot be penalized for approaching Court to secure implementation of a recruitment process which the authorities themselves had failed to complete.

The distinction between a candidate who approaches the Court for the purpose of stalling or invalidating a recruitment and a candidate who approaches the Court seeking completion of a recruitment is of fundamental importance. In the former case, the candidate may not ordinarily be entitled to claim benefits arising out of the period during which the process remained stayed at his instance. The present case stands on an entirely different footing. Here, the applicants were seeking completion of the selection process and, on more than one occasion, the Hon’ble High Court issued directions requiring the respondents to conclude the same within specified periods. It would, therefore, be wholly inequitable to attribute the delay to the applicants.

The record further demonstrates that the applicants remained willing and available for appointment throughout. They responded to the advertisement, participated in the interview, furnished documents when called upon to do so and pursued the matter before the Hon’ble High Court only because the respondents failed to complete the recruitment. There is nothing on record to suggest that any applicant had declined an appointment, failed to comply with any requirement of the selection process or otherwise contributed to the delay. On the contrary, the conduct of the applicants demonstrates their continued willingness to enter service.

The legal question that consequently arises is whether a person who was ultimately selected and appointed pursuant to an old recruitment can be granted notional seniority from the date when he would have entered service but for the administrative delay. The answer has to be considered in the light of the settled principles governing notional appointment and seniority. The Hon'ble Supreme Court in Sanjay Dhar v. J&K Public Service Commission, (2000) 8 SCC 182, and subsequently in C. Jayachandran v. State of Kerala, (2020) 5 SCC 230, has recognized that where a candidate suffers on account of an error attributable to the State or the recruiting authority and is ultimately appointed, the Court can grant notional appointment and consequential seniority from the appropriate date, while moulding the monetary relief depending upon the circumstances of the case.

The applicants were part of the recruitment process initiated in 2006. They participated in the selection. The recruitment process was not completed within a reasonable time despite repeated judicial directions. The Hon’ble High Court ultimately directed in unequivocal terms in 2015 that the selection be completed strictly in accordance with the 2006 advertisement. The respondents eventually followed that very process and selected the applicants. Thus, the legal and factual basis of their eventual appointment goes back to the 2006 advertisement and not to any recruitment undertaken in 2020.

If the applicants are now treated as fresh entrants merely because the respondents issued their appointment orders in 2020, the consequence would be that the respondents' own delay would operate to the permanent detriment of the applicants. Such an approach would permit the State to take advantage of its own wrong.

Persons belonging to the same recruitment process and similarly situated cannot be subjected to arbitrary discrimination merely because one set of candidates was appointed earlier and another set was appointed later due to administrative delay. The applicants' seniority cannot be made to depend exclusively upon the date on which the respondents eventually chose to issue their appointment orders when the applicants had already participated in the selection process years earlier and were ultimately selected pursuant to that very process.

At the same time, this Court is conscious of the distinction between notional service benefits and actual monetary benefits. The applicants did not discharge duties during the period preceding their actual appointment and, therefore, a direction for payment of full arrears of salary for the entire intervening period would not be justified merely on the ground that the applicants were entitled to notional appointment. The appropriate course would be to grant notional appointment and seniority from the date determined on the basis of the appointment of similarly situated candidates from the same recruitment process, together with consequential notional fixation of pay and other service benefits, but without directing payment of actual salary for the period during which the applicants did not render service.

The claim of the applicants regarding pensionary benefits also deserves consideration in this context. The applicants have specifically pleaded that had the recruitment process been completed within a reasonable period, they would have entered service much earlier and their pensionary status would have been governed by the rules applicable to such date. It is not necessary for this Court, in the present proceedings, to conclusively determine the applicability of a particular pension scheme without examining the statutory rules and the individual service records. However, once notional appointment is directed, the competent authority cannot reject the applicants' claim for pensionary consideration merely by referring to the actual date of appointment and ignoring the notional date fixed pursuant to this judgment. The pensionary consequences shall, therefore, be reconsidered in accordance with the applicable rules and instructions after taking into account the notional date of appointment.

In view of the aforesaid discussion, the Original Application deserves to be allowed. The respondents are accordingly directed to determine the notional date of appointment of each applicant with reference to the date on which the candidates similarly situated to the applicants, selected pursuant to Advertisement Notice No. 01 of 2006 dated 20.03.2006 and against the corresponding vacancies, were appointed. The applicants shall thereafter be assigned appropriate notional seniority in the concerned cadre from such date.

The respondents shall also carry out consequential notional pay fixation and grant the benefit of increments, wherever admissible under the applicable rules, from the notional date so determined. Such notional fixation shall be taken into account for determining the applicants' present pay, future increments, seniority and eligibility for consideration for promotion and other service benefits. Where the applicants' juniors or similarly situated candidates were considered for promotion earlier, the applicants shall also be considered for such benefits from the appropriate date, subject to fulfillment of the prescribed eligibility conditions and availability of vacancies.

It is, however, clarified that the applicants shall not be entitled to actual arrears of salary for the period during which they did not actually render service. The benefit of the notional date shall be confined to seniority, notional pay fixation, increments, promotional consideration and such other consequential benefits as are legally permissible. The respondents shall also examine the claim of the applicants regarding pensionary benefits in the light of the notional date of appointment fixed pursuant to this judgment and the pension rules applicable thereto.

The aforesaid exercise shall be undertaken by the competent authority within a period of three months from the date of receipt of a certified copy of this judgment.