Notional Fixation Of Seniority Is Equitable Exception When Delay Attributable To Appointing Authority: J&K&L High Court

The Jammu & Kashmir and Ladakh High Court has held that while seniority is generally determined from the date of substantive appointment, notional fixation of seniority is an equitable exception when the delay in appointment is attributable to the appointing authority.The Court observed that such notional fixation is necessary to preserve the integrity of the common select list and to guard the right to equality as guaranteed under Article 14 of the Constitution of India, and that penalizing a selected candidate for the lapse of the appointing authority would be violative of constitutional mandates.The Court was hearing a writ petition filed by the Union Territory of J&K and its functionaries challenging the order and judgment passed by the Central Administrative Tribunal, Jammu Bench, whereby the Tribunal had directed the appellants to reckon the appointment of the respondent (original applicant) as Junior Engineer (Electrical), Grade-II notionally from August 22, 2009, the date on which other selected candidates of the same selection process were appointed, and to re-fix his seniority and grant consequential benefits including the Old Pension Scheme.The Division Bench of Justice Sindhu Sharma and Justice Shahzad Azeem observed, “Seniority is generally from the date of substantive appointment but notional fixation is an equitable exception when the delay is attributable to the appointing authority, i.e. so to preserve the integrity of the common select list and to guard the right to equality as guaranteed under the Constitution of India.”Background:The respondent had applied for the post of Junior Engineer (Electrical), Grade-II under RBA Category. He submitted an earlier category certificate issued under the J&K Reservation Rules, 1994 (SRO 126 of 1994) and also obtained a fresh certificate under the 2005 Rules, which was submitted after the cut-off date. The Selection Board declared him ineligible on the ground of late submission of the 2005 certificate. On conclusion of the selection process, the last selected candidate under RBA Category had obtained 58.34 points, whereas the respondent had secured 59.54 points. Despite having secured more points, he was not selected.The respondent filed a writ petition which was disposed of by directing the Board to include him in the select list under RBA Category and recommend him for appointment. Accordingly, the Board recommended his candidature and the Government appointed him vide order dated July 2, 2014. Since other selected candidates of the same process were appointed from August 22, 2009, the respondent sought notional seniority from that date. The Tribunal allowed his application, leading to the present appeal.Court's Observation:The Court noted that the respondent had competed with other candidates under the same advertisement and was denied appointment on erroneous grounds by the Selection Board. The Court found that the delay in appointment was attributable solely to the appointing authority.Referring to the Supreme Court judgment in Sanjay Dhar v. Jammu & Kashmir Public Service Commission, (2000) 8 SCC 182, the Court observed that the relief of appointment with retrospective effect was granted to a candidate who was denied appointment without any fault on his part. In C. Jayachandran v. State of Kerala, (2020) 5 SCC 230, the Supreme Court held that once it is found that appointment has been wrongfully denied, the benefit of notional appointment and consequential seniority cannot be denied.The Court held that it is a settled proposition of law that if a candidate is wrongly excluded from appointment due to arbitrary action of the appointing authority in the same selection process, he is entitled to notional seniority from the date similarly situated persons were appointed. Such a candidate must be treated as part of the original appointment for seniority purposes and consequential benefits, because the wrongful action of the appointing authority cannot be used to prejudice a candidate for no fault of his, the Court underscored. The Court further observed that arbitrary denial or delay caused by the appointing authority violates the right to equality under Article 14 of the Constitution. The court remarked, “… Such candidate, of course is to be treated as part of the original appointment for seniority purposes and consequential benefits, because wrongful action of the appointing authority, cannot be used to prejudice a candidate for none of his fault”Regarding Rule 24 of the J&K Civil Services (Classification, Control and Appeal) Rules, 1956, which provides that seniority shall be determined by the date of first appointment, the Court held that notional fixation is an equitable exception when delay is attributable to the appointing authority, so as to preserve the integrity of the common select list and guard the right to equality. Consequently, the Court found that the respondent was entitled to notional seniority from the date similarly situated...

Notional Fixation Of Seniority Is Equitable Exception When Delay Attributable To Appointing Authority: J&K&L High Court

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