Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(Online)(CAT) 16136

CENTRAL ADMINISTRATIVE TRIBUNAL
B. Anand, Administrative Member, Sanjeev Gupta, Judicial Member
Shyam Singh – Appellant
Versus
Union Territory of Jammu & Kashmir – Respondent
Original Application No. 61/972/2021

Advocates:
For the Appellants/Petitioners: Applicant in person
For the Respondents: Sudesh Magotra, A.A.G., F A Natnoo

Seniority fixed from date of first appointment per service rules, not retrospectively from interview; pay protection allowed from prior employment to prevent discrimination against delayed appointee.

Headnote:(A) J&K Civil Services (Classification, Control and Appeal) Rules, 1956 - Rule 24 - Seniority fixation - Seniority determined by date of first appointment to service, class, category or grade - Appointment cannot be ante-dated or given retrospective effect from date of interview where candidate not borne in service, as it would prejudice seniority of earlier appointees - No legislative mandate for retrospective appointment unless directed by court. (Paras 19, 20, 21)

(B) Service law - Pay protection - Prior pay from previous employment protected on appointment to lower post in new institution after verification of service record, consistent with treatment of other similarly placed doctors - Discrimination under Article 14 where different yardsticks applied despite assurances and government orders allowing protection. (Paras 25, 26, 27)

Facts of the case:
Applicant, working as Assistant/Additional Professor in autonomous medical institute, applied for post of Lecturer in super-speciality department under age relaxation for departmental candidates. Participated in interview but selection delayed over 10 years due to litigation challenging eligibility of other candidates and his own status. High Court rulings upheld his eligibility. Eventually recommended and appointed prospectively in 2018, joining in 2019, seeking retrospective seniority from interview date and pay protection.

Findings of Court:
Applicant not entitled to notional seniority retrospectively from date of interview but entitled to pay protection from January 2019 with arrears and consequential benefits, to be implemented within eight weeks.

Issues: Whether applicant entitled to retrospective seniority from interview date despite delayed appointment due to litigation; whether pay protection from prior higher post mandated despite prospective appointment.

Ratio Decidendi: Seniority reckoned from actual date of first appointment per Rule 24 CCA Rules, as candidate not in service earlier; pay protection granted to avoid discrimination, aligning with government orders protecting prior pay for doctors moving to new posts.

Result: Original Application partly allowed.

Table of Content
1. applicant's qualifications, interview, litigation history, and delayed appointment. (Para 1 , 3 , 4 , 5 , 6 , 7 , 8)
2. respondents' counter: prospective appointment, no retrospective seniority. (Para 9 , 10 , 11 , 12 , 13)
3. applicant's claims: retrospective seniority, pay protection, discrimination. (Para 15 , 16 , 17)
4. seniority from date of actual appointment per cca rules and precedents. (Para 18 , 19 , 20 , 21 , 22 , 23)
5. pay protection required due to discrimination and government orders. (Para 24 , 25 , 26)
6. oa partly allowed: no retrospective seniority, yes pay protection. (Para 27 , 28)

ORDER

Per:- Sanjeev Gupta, Judicial Member

The applicant has filed the present Original Application under Section-19 of the Administrative Tribunals Act, 1985 praying for following reliefs:-

(a) Direct the respondents to effectuate the appointment of the applicant as Lecturer Cardiothoracic Surgery, Government Medical College, Jammu with effect from 05.06.2008 i.e. the date of interview and fix his seniority as Professor Cardiothoracic Surgery.

(b) Necessary directions to Chief Judicial Magistrate Jammu for proceeding against respondent No. 5, then Deputy Secretary, Health & Medical Education Mr. Naseem Javaid Choudhary, at present Director Food Civil Supplies and Consumer Affairs Jammu for negligence of authoring the letter Annexure – (11) – stating that the applicant cannot be treated as in-service candidate as he is borne on the establishment of autonomous organization on basis of which, J&K PSC cancelled the applicant’s candidature vide Order No. 92-OSC of 2013 dated April 03 2013, thereby inflicting suffering and harassment upon the applicant. The said letter of then Deputy Secretary J&K Health & Medical Education was against the J&K Health & Medical Education department’s own order No. 820-HME/2003 dated 22.07.2003, Order No. 36-MED of 1979 dated 1st February 1979, Communication dated 4-3-1986 as also judgement reported as of SLJ (2005), Volume 1, page 282

(d) Any other appropriate order or relief which this Hon’ble Tribunal deems fit and proper.

2. During the course of arguments, the applicant submitted that he is limiting his prayer to relief (a) and (d) made in the O.A. and relief with regard to pay protection and other consequential benefits as prayed for in the supplementary affidavit filed in the instant O.A. on 22.02.2024.

3. Applicant Shyam Singh appeared in person before the Bench and submitted that as per averment made in the O.A., he had responded to advertisement notification No. 02-PSC of 2007 dated 06.03.2006 for the post of Lecturer Cardio Thoracic Surgery in Government Medical College, Jammu for which the qualification was M.Ch. in Speciality concerned after MS/FRCS or an equivalent qualification in Surgery with three years special training in the speciality concerned; or speciality board (USA) in the specialist concerned after post graduation and age as on 01.01.2006 for the post was 45 years for the candidates already working in Health and Medical Education Department.

4. It is the case of the applicant that he had applied for the post of Lecturer Cardio Thoracic Surgery through proper channel as he was working in Sher-E-Kashmir Institute of Medical Science (SKIMS), Srinagar as Assistant Professor and thereafter, he had attended the interview for the aforesaid post on 05.06.2008.

5. It is further the case of the applicant that two other candidates namely Dr. Arvind Kohli and Dr. Isthiyak Ahmad Mir who were ineligible for the post of Lecturer Cardio Thoracic Surgery were also called for interview. Aggrieved of the action of the respondents of calling the aforesaid ineligible candidates for interview, applicant challenged the same before the Hon’ble High Court by filing SWP No. 513 of 2007 on the ground that M.Ch. Degrees obtained by Dr. Arvind Kohli from JIPMER Pondicherry University and Dr. Isthiyak Ahmad Mir from SKIMS were not re

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2024 Supreme(Online)(CAT) 16136

CENTRAL ADMINISTRATIVE TRIBUNALB. Anand, Administrative Member, Sanjeev Gupta, Judicial MemberShyam Singh – AppellantVersusUnion Territory of Jammu & Kashmir – RespondentOriginal Application No. 61/972/2021

Seniority fixed from date of first appointment per service rules, not retrospectively from interview; pay protection allowed from prior employment to prevent discrimination against delayed appointee.

Cases Referred (2)

CENTRAL ADMINISTRATIVE TRIBUNAL
B. Anand, Administrative Member, Sanjeev Gupta, Judicial Member
Shyam Singh – Appellant
Versus
Union Territory of Jammu & Kashmir – Respondent
Original Application No. 61/972/2021