Delay in joining a post after selection, if not the fault of the candidate, does not affect seniority and the candidate shall be deemed to be appointed notionally from the date of appointment.

N. Paul Vasanthakumar, J.

Caveat stands discharged.

2. This appeal is preferred against the order made in SWP No. 2990/2015 dated 28.03.2016 dismissing the writ petition filed by the appellant, wherein prayer was made to quash Government Order dated 15.04.2014 stating that respondent No. 3 shall be deemed to have joined the post of Lecturer (Surgery) on notional basis from 11.07.2008 and the period from 11.07.2008 to 08.09.2009 shall be treated to count towards the seniority issued by the Government and the consequential notional benefits given w.e.f 25.05.2012 and for direction to treat respondent No. 3 as Assistant Professor w.e.f 17.12.2012 and to place him junior to the appellant.

3. The contention of the appellant before the writ court was that on 17.12.2009, the appellant was appointed as Lecturer in the discipline of Surgery in Government Medical College Jammu under ST category. Respondent No. 3 was appointed as Lecturer in the same discipline under the same category by order dated 11.07.2008 At the time of his appointment, respondent No. 3 was undergoing Super Specialty course i.e. MCH in Cordio Vascular Thoracic Surgery in SKIMS Soura w.e.f 31.07.2006 and three years duration of course was to expire on 31.07.2009 The 3rd respondent applied for extending the joining time, which was granted by the Government till 31.07.2009 It was the contention of the appellant that respondent No. 3 could not join within 21 days as per the order of appointment and having joined belatedly on being granted extension of time, he should be shown as junior than the appellant and the Government Order treating respondent No. 3 notionally appointed from 11.07.2008 is not proper and the appellant having joined before the date of joining of respondent No. 3, he should be made senior.

4. The Writ Court considered the contentions and dismissed the writ petition taking note of filing of two earlier writ petitions by the appellant which were suppressed and noticing the appointment of 3rd respondent made on 11.07.2008 and considering the order of appointment given to the appellant on 17.12.2009 and the fact that the 3rd respondent having joined on 01.08.2009 and the appellant having joined only on 17.12.2009

5. It is the contention of the appellant in this appeal that since 3rd respondent has not joined pursuant to his appointment and the joining time having been extended, there is no justification in treating the 3rd respondent as having joined notionally from the date of his appointment.

6. The said issue was already considered as to whether the delay in joining in a post after selection for one reason or the other can be taken as a ground to deny seniority in the decision of Hon'ble the Supreme Court reported in AIR 2000 SC 3238 (Sanjay Dhar v. Jammu and Kashmir Public Service Commission). Incidentally that case also arose from the State of Jammu and Kashmir. The three Judge Bench of Hon'ble the Supreme Court answered the said issue specifically in paragraphs 9 and 16, which reads thus:-

“9. ……….the issue raised by him survives for adjudication as the appellant has been wrongfully denied appointment in the year 1995 pursuant to the 1992-1993 selections and if in spite of his having been selected, the appointment was wrongfully withheld then the relief sought for by him ought not to be denied to him and if the appellant be found entitled to appointment in the year 1995 then his seniority in the cadre of Munsif should be calculated from the date with which other incumbents figuring in the select list, in which the appellant also figured, were appointed. We find merit in this submission.

16. ……………. It is directed that the appellant shall be deemed to have been appointed along with other appointees under the appointment order dated 6.3.1995 and assigned a place of seniority consistently with his placement in the order of merit in the select list prepared by J&K PSC and later forwarded to the Law Department. During the course of hearing the learned s