Delayed appointment due to employer's fault entitles candidate to notional seniority and consequential benefits from co-selectees' appointment date, without back wages.

ORDER

Per: - Rajinder Singh Dogra, Judicial Member

1. The SWP No.1503/2017 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.686/2022 by the Registry of this Tribunal.

2. The present matter was filed before the Hon’ble High Court seeking following relief: -

a) Allow this writ petition of the petitioner.

b) Issue Writ in the nature of Mandamus commanding the respondents more particularly respondents nos.1 & 2 to accord all notional and consequential service benefits to the petitioner, in lieu of the appointment order issued vide Govt Order No.93- Rev(NG) of 2016 dated 27-07-2016 against the post of Naib- Tehsildar issued in favour of petitioner, including the benefit of notional seniority w.e.f. the year 2000 i.e. when the co-selectees with the petitioner came to be appointed but the petitioner could not be appointed due to the fault of the respondents.

c) Issue Writ in the nature of Mandamus commanding the respondents to accord pay parity vis-à-vis the pay drawn by the co-selectees appointed with reference to the same Advertisement Notice i.e. Advertisement Notice No.02 of 1993 dated 21-06-1993 along with. the other monetary benefits including the advance increments/ in-situ benefits in terms of SRO 14 of 1996 as have been timely granted to the other co-selectees of the petitioner from time to time.

d) Further issue Writ in the nature of Mandamus commanding the respondents to settle the seniority position of the petitioner Digitaly signed by along with other co-selectees appointed pursuant to the same Advertisement Notification No.02 of 1993 dated 21-06-1993.

e) Further issue Writ in the nature of Mandamus commanding the respondents to accord the pensionary benefits in favour of the petitioner on the analogy of the other co-selectees.

f) Issue Writ in the nature of Mandamus commanding the respondents to consider the petitioner for the grant of further promotions and placement against the post of Tehsildar/ACR at par with the other co-selectees who stood promoted pursuant to the same Advertisement Notification.

g) Pass such other appropriate writ, command, direction or order as facts of the case demand and this Hon'ble Court may deem just and proper in favour of the petitioner.

3. The facts of the case as pleaded by the petitioner in his pleadings are as follows: -

a) The applicant, Parshotam Lal Khajuria, is an Ex-Serviceman and a permanent resident of the erstwhile State of Jammu and Kashmir. He applied for selection to the post of Naib- Tehsildar pursuant to Advertisement Notification No. 02 of 1993 dated 21.06.1993, whereby seventy (70) posts of Naib- Tehsildar were advertised, with 5% reservation earmarked for Ex-Servicemen, translating into four posts under the said category.

b) Despite the availability of four posts under the Ex-Servicemen quota, the Service Selection Board selected and recommended only three candidates, thereby leaving one post unfilled. The applicant, being next in order of merit in the Ex-Servicemen category, was unlawfully denied selection and appointment in the year 2000, solely due to the failure of the Selection Agency to fill up the entire quota.

c) This illegality became the subject matter of litigation when one Vijay Sharma challenged the action of the Board. The matter ultimately culminated in a Division Bench judgment dated 05.12.2005, wherein it was categorically held that four posts and not three, were required to be filled under the Ex- Servicemen category. The said judgment attained finality, and in compliance thereof, th