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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
JAVED IQBAL WANI, J.
Dr. Afaq Ahmad Khan S/o Bashir Ahmad Khan - Appellant
Vs.
Union Territory of J & K & Ors. - Respondent
WP(C) No. 1855 Of 2022, CM No. 4594 Of 2022
Decided On : 26-07-2024
(A) Administrative Tribunals Act, 1985 - Section 28 - Service matters - The petitioner challenged his ineligibility for promotion to Associate Professor due to insufficient service and publications, claiming administrative delay in appointment affected his seniority. The court ruled that the petitioner should be deemed appointed from the date of peers' appointments, ensuring fairness in service jurisprudence. (Paras 1, 4, 10, 11)
(B) Jurisdiction - The court addressed the maintainability of the petition under Section 28 of the Administrative Tribunals Act, affirming its jurisdiction as the respondent Institute was not yet under the Tribunal's jurisdiction. (Paras 7, 9)
(C) Seniority - The court emphasized that administrative delays should not disadvantage candidates who have cleared selection processes, allowing the petitioner to claim seniority from the date of peers' appointments. (Paras 10, 11)
Facts of the case:
The petitioner was declared ineligible for promotion due to a lack of service and indexed publications, stemming from a delay in his appointment compared to peers. He sought retrospective recognition of his service from the date of peers' appointments.
Findings of Court:
The court allowed the petition, deeming the petitioner appointed from 03.10.2018, quashing the notice declaring him ineligible, and directing re-fixation of seniority.
Issues: The main issues were the maintainability of the petition under the Administrative Tribunals Act and the impact of administrative delays on the petitioner's seniority.
Ratio Decidendi: The court held that administrative delays should not penalize candidates who have successfully cleared selection processes, affirming the principle of fairness in service matters.
Result: Petition allowed.
JUDGMENT :
1. Before proceeding to advert to the issues involved in the instant petition, it is pertinent to mention here that the petition in hand came to be heard and dismissed at the admission stage on 29.08.2022 against which order of dismissal, the petitioner herein preferred Letters Patent Appeal being LPA 154/2022 wherein on 30.08.2022 the Division Bench stayed the operation of the said order of dismissal dated 29.08.2022 and directed respondent 3 herein to allow the appellant petitioner herein to participate in the process of selection and conduct his interview for the post in question at his own risk and responsibility with a direction not to declare the result till further orders, whereafter vide order dated 31.10.2023 the Division Bench passed another order permitting the appellant petitioner herein to apply for the post of Associate Professor in the Department of Clinical Hematology providing further therein the said order that in the event of failure of the petitioner herein to succeed in the same, it would not adversely affect the case setup by him. Thereafter on 09.05.2024 the Division Bench finally disposed of the LPA and while allowing the same requested the writ court to consider the matter afresh considering the observations made in the said order of disposal and pass fresh orders. It is significant to mention here that during the pendency of the said LPA, the petitioner herein came to be interviewed in terms of order dated 30.08.2022 by the respondents and came to be declared as qualified which fact came to be recorded by the Division Bench in its order dated 07.03.2023.
2. The petitioner herein in the instant petition has called in question notification issued by respondent Institute vide No.SIMS 302 07(XXXVIII/2022-2690-99 dated 25.08.2022 by virtue of which the petitioner herein was declared ineligible for promotion to the post of Associate Professor in Clinical Hematology due to lack of requisite service as per the Assessment Merit Promotion Scheme (for short the AMPS) by 5 months and 8 days besides being short of 2 Indexed Publications.
3. The case setup by the petitioner herein is that the Respondent-Institute issued an advertisement notice no. 04 of 2015 dated 10.07.2015 for appointment to the post of Assistant Professor in various disciplines and the petitioner herein being eligible for appointment as Assistant Professor in the discipline of Clinical Hematology applied in response to the said notification whereafter facing the process of selection, in the year 2017, the respondent Institute issued the appointment order in favour of the petitioner on 27.11.2019 whereas, the appointment orders in favour of the other selected candidates in other disciplines who had participated in the said selection process pursuant to the notice dated 10.07.2015 were issued in the Month of October 2018.
The delay in issuance of order of appointment of the petitioner, according to him occurred due to miscalculation of marks awarded to him by the selection body in the selection process, whereafter the petitioner claims to have filed a representation before the respondent Institute seeking retrospective effect to his appointment w.e.f. the date of appointment order in favour of the selected candidates of other disciplines were issued and claims that upon taking cognizance of said representation, the respondent Institute recommended the case of the petitioner to the competent authority for grant of notional effect to his appointment retrospectively with a view to protect the seniority of the petitioner for the purposes of promotion to the post of Associate Professor, Additional Professor and Professor in terms of AMPS, wherein combined inter se seniority is acted upon.
The grievance projected by the petitioner thus is that had the respondent Institute reckoned his services/appointment w.e.f.03.10.2018, i.e., from the date of appointment of the other selected doctors was reckoned for the purpose of promotion, he would have been
Administrative delays in appointment cannot disadvantage candidates in seniority and promotion eligibility, ensuring fairness in service matters.
The main legal point established in the judgment is that the appellant was not entitled to antedated appointment, and the principle of res judicata did not apply to the subsequent writ petitions file....
Promotion is not a vested right and an employee only has the right to be considered for promotion.
Employees selected under the same process maintain seniority regardless of appointment delays, and delays not attributable to them cannot deprive them of benefits.
Promotion - There is no prayer in the petition challenging the seniority list. So, the issue of seniority cannot be gone into.
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