Employer-caused appointment delay warrants notional seniority, but not back wages without actual service.

The applicants participated in the selection process pursuant to Advertisement Notification No. 06 of 2008 for the post of Horticulture Technician Grade-IV. They were recommended by the J&K Services Selection Board, and the select list was published by the Directorate of Horticulture on 30 May 2012. The applicants reported to the Department, but appointment orders were not issued because the respondents disputed the validity of their technical qualifications.

The applicants pursued successive proceedings before the High Court. Their claim was initially rejected by Government Order No. 320-Agri of 2015 dated 12 October 2015. The High Court subsequently quashed that order on 4 October 2017 and directed the respondents to issue appointment orders; the State’s intra-court appeal, SLP, and review proceedings were unsuccessful or dismissed.

Thereafter, Government Order No. 32-JK(Horti) of 2021 dated 28 April 2021 sanctioned the applicants’ appointment as Horticulture Technician Grade-IV.

The applicants then sought retrospective appointment, seniority, pay fixation, and consequential service benefits from the date of their original selection and reporting in 2012. The respondents contended that selection did not amount to appointment and that the applicants had not been borne on the cadre or performed duties before 2021.

1. Whether the applicants were entitled to retrospective appointment with salary and arrears from the date of their selection and recommendation in 2012, despite having formally joined service only in 2021?

2. Whether the applicants were entitled to notional seniority, pay fixation, and consequential service benefits on the basis of their position in the 2012 select list?

3. Whether such relief could be granted without disturbing the applicable recruitment/seniority rules or vested rights of other candidates?

The Tribunal exercised jurisdiction under Section 19 of the Administrative Tribunals Act, 1985.

It applied the principle that mere selection or recommendation does not, by itself, constitute appointment to service, and that salary ordinarily cannot be awarded for a period during which the employee did not discharge duties.

At the same time, where appointment is delayed due to an employer’s action that is subsequently set aside, and the candidate has continuously pursued the remedy, the employee may be granted notional seniority and consequential service protection to neutralise the prejudice caused by the unlawful delay.

Seniority must nevertheless be determined with reference to the applicable Recruitment/Seniority Rules, the inter se position in the original select list, and existing appointments or vested rights.

The Tribunal found that the applicants’ selection originated in 2012 and was not the result of a fresh selection in 2021. They had reported pursuant to the select list and continuously pursued their claim; their appointments were withheld because the Department disputed their qualifications, but that basis was ultimately rejected by the High Court.

Consequently, denying all seniority-related protection would perpetuate the adverse consequences of an administrative delay for which the applicants were not wholly responsible.

However, because the applicants neither formally entered service nor performed duties before 2021, the Tribunal declined to treat them as having actually served during the intervening period or to award back wages.

It reconciled the competing interests by directing a determination of notional seniority based on the original select list and applicable rules, while safeguarding the rights of candidates already appointed.

The respondents were directed to reconsider and grant the applicants notional seniority in the cadre of Horticulture Technician Grade-IV according to their inter se position in the select list dated 30 May 2012 and the applicable rules.

If a candidate junior to an applicant from the same selection had been appointed earlier, the applicant was to receive notional seniority from that earlier date, subject to the governing rules.

The applicants were also entitled to notional pay fixation and consequential consideration for promotion and other service benefits based on the revised seniority.

The Tribunal expressly denied arrears of salary or back wages for the period before actual appointment and joining. Monetary benefits arising from appointment were payable from the date of actual joining, while benefits accruing prospectively from notional fixation were to be released in accordance with law.

The exercise was directed to be completed within three months from receipt of the certified order, with no order as to costs.