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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)Allow this application of the applicant.
b)Quash the impugned order bearing no. 916/DS/JK/2023 dated 11-02-2023, whereby the notional benefits have given to the applicants from the date of joining and monetarily benefits from the issuance of impugned order.
c)Direct the respondents to release the arrear of the salary of the applicants for the period W.e.f 14-05-2021 and 15-05-2021 i.e. from the date of joining of the applicants to till date as Class-IV employees in the department.
d)Direct the respondents to pay the arrears of salary to the applicants as are being paid to the other similarly situated Class-IV employees in the department.
e)Pass such other appropriate order as facts of the case demand and Hon'ble court may deem just and proper in favour of the applicants.
The facts of the case as averred by the applicants in their pleadings, are as follows: -
The brief facts, as projected by the applicants, are that Advertisement Notice No. 01 of 2006 dated 22.03.2006 was issued for filling up 75 Class-IV posts in District Rajouri. The applicants, being eligible, applied pursuant to the said advertisement and participated in the selection process. According to them, the selection process was completed in the year 2010; however, the select list was not published. Subsequently, the General Administration Department, Government of Jammu and Kashmir, vide Government Order No. 664-GAD of 2013 dated 23.04.2013, directed the concerned Deputy Commissioners to undertake the selection process afresh in respect of the candidates who had applied pursuant to Advertisement Notice No. 01 of 2006, with deemed relaxation of the upper age limit. Pursuant thereto, the selection process was undertaken afresh and the applicants again participated in the same.
The aforesaid Government Order dated 23.04.2013 subsequently became the subject matter of litigation before the Hon’ble High Court of Jammu and Kashmir in SWP No. 1617/2015, titled Nazir Ahmed Yatoo & Ors. v. State of J&K & Ors., wherein the Government Order directing the fresh selection process was quashed. Thereafter, when the applicants approached the authorities regarding the fate of the selection, the Deputy Commissioner, Rajouri, vide communication dated 18.01.2019, sought legal opinion from the Administrative Department. The applicants assert that the said communication also recorded that the fresh interview process had been completed in January 2018. The General Administration Department, vide communication dated 10.04.2019, advised the Deputy Commissioner to await the outcome of the proceedings pending before the Hon’ble Supreme Court.
The matter ultimately reached the Hon’ble Supreme Court in SLP (Civil) No. 707, State of Jammu and Kashmir v. Nazir Ahmed Yatoo & Ors. According to the applicants, vide order dated 03.02.2020, the Hon’ble Supreme Court, insofar as District Rajouri was concerned, directed publication of the select list and consequential issuance of appointment orders on the basis of the selection process completed pursuant to Government Order No. 664-GAD of 2013. Thereafter, the Deputy Commissioner, Rajouri, vide Order No. DCR/2021-22/Estt./112-22 dated 26.04.2021, issued the select list containing 75 candidates, including the present applicants.
The applicants contend that pursuant to the aforesaid selection, they submitted their joining reports before the Deputy Director, Sericulture Department, Rajouri, on 14.05.2021 and 15.05.2021, respectively, and thereafter continued to discharge duties under the Department. It is specifically pleaded that applicant No. 1 was also deployed at the Covid Vaccination Centre, SDH Darhal, pursuant to the order of the District Magistrate/Chairman, DDMA, Rajouri dated 08.10.2021 and was relieved by the District Sericulture Officer, Rajouri, for reporting at the said Vaccination Centre. The applicants, therefore, claim that they actually discharged duties from the respective dates of their joining.
Since salary was allegedly not released despite the applicants having discharged their duties, they submitted representations before the respondents. On the representations not yielding any result, they approached this Tribunal by filing O.A. No. 61/445/2022, Mohd. Arshid Malik & Anr. v. U.T. of J&K & Ors. The said O.A. was disposed of on 10.05.2022 with a direction to the respondents to consider the applicants' pending representations in accordance with the applicable rules regarding payment of salary/wages, if they had been working with the respondents from 14/15.05.2021 as Class-IV employees, and to pass a reasoned order.
Pursuant thereto, the respondents passed Speaking Order No. 638 dated 27.07.2022, taking the stand that no formal appointment order had been issued in favour of the applicants, that they had not been engaged by the Department and that they were not borne on the rolls of the Sericulture Development Department. Subsequently, however, vide Order No. 916/DS/JK/2023 dated 11.02.2023, sanction was accorded to the appointment of the applicants as Class-IV employees against the posts of Orderlies in Pay Level SL-1 (Rs.14,800– 47,100) on regular temporary basis in District Rajouri, notionally from the dates of their joining and monetarily from the date of issuance of the said order.
The grievance of the applicants is essentially confined to denial of monetary benefits for the period between their respective dates of joining in May 2021 and 11.02.2023. According to them, once the respondents themselves granted them notional appointment from their respective dates of joining and they had, in fact, discharged duties during the intervening period, there was no justification for denying salary for the period of actual work. They further contend that the stand taken in the order dated 27.07.2022 that they were never engaged is inconsistent with the subsequent order dated 11.02.2023 recognizing their appointments notionally from the dates of joining. They have, accordingly, challenged Order No. 916/DS/JK/2023 dated 11.02.2023 to the extent it restricts monetary benefits to the date of its issuance and seek arrears of salary from 14.05.2021 and 15.05.2021, respectively.
The respondents have filed their written statement wherein they have averred as follows: -
On merits, the respondents submit that the selection process in question was undertaken by the Deputy Commissioner, Rajouri, and that the Sericulture Development Department was not associated with the said selection process at any stage. The Deputy Commissioner, Rajouri, vide orders dated 26.04.2021 and 08.05.2021, issued a selection list containing the names of the applicants against Class-IV posts in the Sericulture Development Department, District Rajouri, and forwarded the same to the District Sericulture Officer, Rajouri, for issuance of formal appointment orders. The District Sericulture Officer referred the matter to the Directorate, which, in turn, took up the issue with the Administrative Department.
The respondents further submit that, as per the departmental record, the Directorate of Sericulture had neither referred any vacancy to the Deputy Commissioner, Rajouri, for recruitment nor was any reference to the Sericulture Development Department reflected in the orders issued by the Deputy Commissioner. It is also their case that no information concerning the recruitment process had been shared by the District Administration, Rajouri, with the Sericulture Development Department, due to which the matter remained unsettled.
It is further pleaded that the Directorate again approached the Administrative Department vide communication dated 16.06.2022 in the light of the order dated 10.05.2022 passed by this Tribunal. The Administrative Department initially communicated on 04.07.2022 that the Class-IV posts earlier placed at the disposal of the Divisional Commissioners, Jammu and Kashmir, had subsequently been cancelled by the General Administration Department vide Government Order No. 284-JK(GAD) of 2020 dated 26.02.2020. The said communication dated 04.07.2022 was, however, withdrawn vide subsequent communication dated 07.07.2022, with a direction to pass a speaking order in compliance with the Tribunal's order dated 10.05.2022.
The principal stand of the respondents is that, during the period for which arrears have been claimed, no formal appointment orders had been issued in favour of the applicants by the competent authority. Their character and antecedent verification forms, stated to be a prerequisite for appointment to Government service, had also not been processed, and the applicants had not been borne on the establishment or rolls of the Sericulture Development Department. On this basis, the respondents contend that the mere acceptance of joining reports could not constitute a valid appointment under the applicable rules and, therefore, the claim for salary for the period preceding formal appointment was not legally sustainable.
As regards the earlier proceedings before this Tribunal, the respondents submit that the representations of the applicants were duly considered in compliance with the order dated 10.05.2022 and Speaking Order No. 638 dated 27.07.2022 was passed. According to them, the claim was rejected because no formal appointment order had been issued by the Sericulture Development Department during the period for which salary was sought.
The respondents further submit that subsequently, in compliance with the directions of the Hon’ble Supreme Court, sanction was accorded vide Order No. 916/DS/JK/2023 dated 11.02.2023 to the appointment of the applicants as Class-IV employees against the posts of Orderlies in Pay Level SL-1 on regular temporary basis in District Rajouri. Their appointments were recognized notionally from the dates of joining but monetary benefits were made admissible from 11.02.2023, i.e., the date of issuance of the formal order. The respondents maintain that there is no contradiction between Speaking Order dated 27.07.2022 and the subsequent appointment order dated 11.02.2023, as the former reflected the position existing prior to issuance of the formal appointment order. They, therefore, deny the applicants' entitlement to monetary benefits for the period prior to 11.02.2023 and seek dismissal of the O.A.
Heard learned counsel for the parties and perused the pleadings made by them.
The controversy in the present O.A. lies in a narrow compass. The appointment of the applicants as such is no longer in dispute. By Order No. 916/DS/JK/2023 dated 11.02.2023, the respondents themselves have accorded sanction to their appointment as Class-IV employees and have further recognized such appointment notionally from their respective dates of joining. The surviving controversy is whether the applicants are entitled to monetary benefits for the period commencing from 14.05.2021/15.05.2021, as applicable, till 10.02.2023.
There are two competing considerations which require reconciliation. On the one hand, the respondents are justified in pointing out that mere inclusion of a candidate in a select list or submission of a joining report, in the absence of a formal appointment order issued by the competent authority, would not by itself confer an indefeasible right to draw salary against a Government post. The record further shows that the Department had raised issues concerning reference of vacancies, its non-association with the selection process and completion of formalities relating to appointment. The Tribunal cannot ignore these aspects and mechanically treat the applicants as having acquired all monetary incidents of regular appointment from May 2021 merely because the subsequent order granted them notional benefit from those dates.
On the other hand, the present case cannot be determined solely by applying the aforesaid proposition. The applicants’ specific case is that, after submission of their joining reports, they were actually permitted to work and their services were utilized by the authorities. The pleadings relating to applicant No. 1 assume significance in this regard. He was admittedly stated to have been deployed at the Covid Vaccination Centre, SDH Darhal under an official order and was relieved by the District Sericulture Officer for reporting at the said Centre. Such official deployment, if borne out from the original departmental record, cannot simply be brushed aside while considering a claim for remuneration for work actually performed.
There is, therefore, an important distinction between a claim for retrospective monetary benefits merely because appointment has subsequently been granted notionally from an anterior date, and a claim for remuneration for duties actually performed during such period under the authority and control of the Department. The former does not necessarily follow from a notional appointment. The latter, however, requires examination on the basis of the actual service rendered and the contemporaneous official record.
Once an employer, particularly a public authority, actually takes work from a person and utilizes his services under its own orders, the question of remuneration for such work cannot be rejected merely by relying upon administrative delay in completing formal appointment processes. Equally, a person cannot claim salary for an entire anterior period merely because his subsequent appointment has been given notional effect from an earlier date when there is no proof that he actually worked during all or part of such period. It is, therefore, the factum of actual discharge of duties which becomes material for deciding the monetary claim in the peculiar circumstances of the present case.
We also find that the order dated 11.02.2023 itself recognizes the respective dates of joining of the applicants for notional purposes. This circumstance, when read along with their assertion regarding actual performance of duties and the official deployment orders relied upon by them, warrants examination of the departmental record rather than outright rejection of the monetary claim.
At the same time, the material presently placed before us does not justify issuance of a blanket direction for payment of full regular salary to both applicants for the entire period from their respective dates of joining till 10.02.2023. The extent and continuity of actual duties performed by each applicant have to be established independently from the contemporaneous record such as attendance registers, duty rosters, deployment orders, movement/relieving orders and other official records. The entitlement cannot be founded merely upon a general assertion that they continued to work throughout the entire period.
The respondents’ objection that formal appointment was sanctioned only on 11.02.2023, therefore, has relevance insofar as the applicants seek all consequential monetary benefits merely on the strength of retrospective notional appointment. However, that objection cannot, by itself, furnish sufficient basis to deny remuneration for any period during which the competent departmental authorities are found to have actually taken work from the applicants.
The appropriate course, therefore, is to preserve the substantive appointment granted by the order dated 11.02.2023 and interfere with the restriction regarding monetary benefits only to the limited extent that such restriction may result in denial of remuneration for a period during which the applicants actually discharged duties under the respondents.
We accordingly hold that the applicants shall not be entitled to Central Administrative Tribunalmonetary benefits for the entire period from 14/15.05.2021 to 10.02.2023 merely on account of the notional effect given to their appointments. They shall, however, be entitled to the admissible salary/wages for such period or periods during the aforesaid interval for which their actual discharge of duties is established from the official record. Such determination shall be made separately in respect of each applicant.
In view of the foregoing discussion, the Original Application is partly allowed in the following terms:
Order No. 916/DS/JK/2023 dated 11.02.2023, insofar as it accords appointment to the applicants as Class-IV employees notionally from their respective dates of joining, is maintained.
The stipulation restricting monetary benefits to 11.02.2023 shall, however, not operate as an absolute bar to payment of salary/wages for any period prior thereto during which the applicants are established to have actually discharged duties Central Administrative Tribunalunder the respondents.
The competent authority shall examine the original official record, including attendance registers, duty rosters, deployment orders, relieving orders, movement records and any other contemporaneous departmental record, and determine separately the actual period of duty performed by applicant No. 1 from 14.05.2021 and applicant No. 2 from 15.05.2021 till 10.02.2023.
For the period of actual duty so verified, the applicants shall be released the salary/wages admissible to them in accordance with the applicable rules, after adjusting any amount already paid for such period.
For any period during which actual discharge of duties is not established from the official record, no monetary benefit shall accrue merely by virtue of the notional appointment granted under the order dated 11.02.2023.
The aforesaid exercise shall be completed and consequential Central Administrative Tribunalmonetary benefits, if found due, shall be released within a period of three months from the date of receipt of a certified copy of this order.
It is clarified that this order does not disturb the appointment, seniority or other notional service benefits already granted to the applicants under Order No. 916/DS/JK/2023 dated 11.02.2023. The present adjudication is confined to their claim for monetary benefits for the period prior to 11.02.2023.
The Original Application stands partly allowed in the aforesaid terms. Pending M.A(s), if any, shall also stand disposed of. No order as to costs.