Mohd. Riaz (Dr.) vs State of J&K

Mr. N. Paul Vasanthakumar, C J. - Caveat stands discharged.

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.

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

Cardio 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.

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.

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.

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 and anr) 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:-

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.

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 senior counsel for the appellant made a statement at the Bar that the

appellant was interested only in having his seniority reckoned notionally in terms of this order and was not claiming any monetary benefit by way of

emoluments for the period for which he would have served in case he would have been appointed by order dated 6.3.1995. We record that

statement and direct that the appellant shall be entitled only to the benefit of notional seniority (and not monetary benefits) being given to him by

implementing this order. The appeal is disposed of accordingly. The contesting respondents shall pay the appellant costs quantified at Rs. 5,000/-.

Similar view was taken by the Hon'ble Supreme Court in the decision reported in AIR 1997 SC 250 (Pilla Sitaram Patrudu and ors v.

Union of India and ors).

The said decisions were followed by the Division Bench of this Court in LPASW No. 138/2011 and other connected mattes, decided on

31.12.2015 (Rohit Gupta and anr v. Ajay Kumar 2016 (2) JKJ 315 [HC]) and it was held that, if there is any delay in joining of a candidate

who was selected which is not the fault of the concerned candidate, the said candidate shall be deemed to be appointed from the date of

appointment notionally and his seniority shall be given as per the select list.

In this case, the 3rd respondent was having justifiable reason to ask for extension of joining time as he was undergoing Super Specialty Course

which was rightly granted by the Government and for the purposes of seniority, his appointment shall be treated as date of order of appointment

notionally and the seniority has rightly been fixed by the official respondents for which the appellant cannot raise any grievance.

The learned Single Judge has rightly dealt with all the issues and dismissed the writ petition. We are unable to find any reason to interfere with

the order of the learned Single Jude. Appeal is dismissed in limine. No costs.