Wrongful denial of appointment entitles candidate to notional retrospective seniority and benefits from original selection date.

The applicant participated in the selection process for the post of Technical Assistant pursuant to Advertisement Notice No. 03 of 1997

Despite applying under the Reserved Backward Area (RBA) category, he was not selected in the 2001 list, as one RBA post was wrongly diverted to the Open Merit category

In SWP No. 2713/2001, the Hon’ble High Court quashed the appointment of the last-selected Open Merit candidate (Balram Singh Jamwal) in 2009 and directed the respondents to consider the applicant

This was modified by a Division Bench in 2012, requiring the Board to first offer the post to candidates higher in merit

After no superior claimants appeared, the Selection Board recommended the applicant in 2015

However, administrative delays and age-relaxation processes deferred his actual appointment until 12.06.2017

The applicant filed the present matter seeking retrospective appointment from 01.02.2002 (when other candidates were appointed) for the purposes of seniority, arrears, and coverage under the Old Pension Scheme (OPS)

The applicant retired during the pendency of the proceedings on 30.06.2024

1. Whether the applicant is entitled to notional retrospective appointment from the date the similarly situated candidate (whose selection was found illegal) was appointed

2. Whether the applicant is entitled to consequential service benefits, including seniority and coverage under the Old Pension Scheme, despite not being "borne on the cadre" at the relevant time

The court primarily applied the principle that where an appointment is delayed due to an illegality or fault attributable solely to the employer, the affected candidate is entitled to notional seniority and service benefits

It relied on the Supreme Court precedent Sanjay Dhar v. State of J&K (AIR 2000 SC 3238), which held that a successful litigant should be deemed appointed from the date they were wrongly denied entry, receiving notional benefits but not actual back wages for periods not worked

The Tribunal also applied the "no work no pay" principle regarding actual salary arrears

and distinguished Bashir Ahmad Parray v. State of J&K (LPASW No. 139/2018) on the grounds that the latter did not involve a judicially determined illegality in the selection roster.

The Tribunal observed that the illegality of the 2001 selection process was already a settled matter of record, as the High Court had previously determined that the reservation roster was incorrectly applied

The court rejected the respondents' argument that the applicant could not claim benefits because he was not "borne on the cadre" in 2002, noting that the delay was entirely due to the respondents’ wrongful application of rules and subsequent administrative lethargy

The Tribunal reasoned that refusing notional benefits would allow the state to profit from its own wrong

To balance the equities, the court held that while the applicant cannot claim back wages for a period he did not serve (applying "no work no pay"), he must be granted notional seniority and service continuity to ensure his pensionary and retiral benefits are calculated as if he had been appointed on time

The respondents were ordered to grant the applicant notional continuity of service, seniority, and consequential benefits for the purpose of pay fixation and retiral dues

While actual arrears of pay for the period prior to 2017 were denied

the respondents must recalculate the applicant’s pensionary benefits and examine his eligibility for the Old Pension Scheme based on the 2002 notional date

The exercise must be completed within three months