Notional retrospective appointment and benefits granted where employer’s illegality and delay deprived candidate of timely service entry.

ORDER

Per: - Ram Mohan Johri, Administrative Member

1. The SWP No.1235/2018 was transferred from the Hon’ble High Court of Jammu & Kashmir at Jammu and was registered as T.A No.1446/2020 by the Registry of this Tribunal.

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

a) “To treat the appointment of the petitioner w.e.f. 1-2-2002 or the date the other selected candidates were appointed in pursuance to the advertisement notice No. 03/1997 dated 29-4- 1997 by modifying the order bearing No. 104- EDA of 2017 dated 12-6-2017 by virtue of which the petitioner has been actually appointed, with all consequential benefits i.e. seniority, arrears of pay/salary, promotions etc.

b) To place the petitioner under the old pension scheme instead of the new pension scheme and pay him all retiral benefits including the pensionary benefits by treating him to be appointed prior to 2010 when the new pension scheme came into force.

c) Such other additional or alternate relief, which this Hon'ble Court may in the facts and circumstances of the case deem fit and proper, be also awarded in favour of the petitioner.

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

a) The present Transfer Application arises out of SWP No.1235/2018 which was transferred from the Hon’ble High Court of Jammu and Kashmir and registered before this Tribunal as T.A. No. 1446/2020.

b) The applicant, Sh. Bansi Lal, claims to be a permanent resident of District Ramban and to have acquired the qualification of Matriculation in the year 1983 followed by ITI training in the trade of Electrician in the year 1986. After completion of the course, he worked as an Electrician with a civil contractor engaged in the Uri Hydro Electric Project between the years 1992 and 1996.

c) In the year 1997, the J&K Service Selection Board issued Advertisement Notice No. 03 of 1997 inviting applications for several posts including 12 posts of Technical Assistant in the Energy Development Agency, Science and Technology Department. The minimum qualification prescribed was Matriculation with ITI in Mechanical or Electrical trade and the selection was to be conducted in accordance with the J&K Reservation Rules.

d) The applicant applied under the Reserved Backward Area (RBA) category and appeared in the interview conducted in August 2001. Subsequently, a select list of 11 candidates was issued wherein seven candidates were selected under the Open Merit category, two under RBA category, one under Scheduled Caste category and one under ALC category. The applicant was not selected.

e) Aggrieved of the selection, the applicant filed SWP No.2713/2001 before the Hon’ble High Court contending that as per the reservation roster three posts ought to have been filled under RBA category, whereas only two were filled and one post meant for RBA candidates was wrongly allotted to an Open Merit candidate namely Balram Singh Jamwal.

f) The writ petition was allowed by the Hon’ble High Court on 03.12.2009 and the selection and appointment of the said candidate was quashed with a direction to consider the claim of the applicant for appointment under the RBA category.

g) The said judgment was challenged by the Selection Board in LPASW No. 24/2010. The Division Bench upheld the quashment of appointment but modified the direction by directing the Board to notify availability of the post to two candidates higher in merit than the applicant and in case they did not stake claim within the stipulated time, to select the applicant and recommend his case for appointment.

h) Pursuant thereto, notic