Excelsior Correspondent
JAMMU, Aug 8: High Court of Jammu & Kashmir and Ladakh has ruled out that a direct recruit whose appointment is delayed due to departmental lapses cannot be denied retrospective appointment or promotion eligibility from the date on which other candidates from the same selection process were appointed.
Justice Javed Iqbal Wani observed, “an individual cannot be made to suffer due to insufficiencies on the part of the administrative authorities as the principle of fairness dictates that a candidate who has successfully cleared the selection process and whose appointment has been held solely due to the administrative laches should not be placed at a disadvantage compared to his peers”.
In 2015, petitioner Dr Afaq Ahmad Khan applied for the post of Assistant Professor in Clinical Hematology following an advertisement by the Sher-i-Kashmir Institute of Medical Sciences (SKIMS). Despite being selected, his appointment was delayed until November 27, 2019, while his peers were appointed in October 2018. This delay stemmed from a miscalculation of marks awarded to him by the selection committee.
Dr Khan sought retrospective effect for his appointment from the date his peers were appointed to ensure his eligibility for future promotions. His representation to SKIMS led to a recommendation for a notional effect on his appointment. However, SKIMS declared him ineligible for promotion due to the shortfall in the requisite service period and publications.
Petitioner challenged the notification arguing that he cannot be made to suffer a perpetual loss of his seniority and be deprived of his seniority viz-a-viz those selected candidates owing.
Justice Javed Iqbal Wani emphasized, “an appointment delayed due to no fault of the candidate but departmental errors must be given retrospective effect as this ensures the candidate is not unfairly deprived of seniority and promotion prospects”.
With these observations, High Court allowed the petition and ordered that the petitioner shall be deemed to have been appointed as Assistant Professor in the discipline of Clinical Hematology with effect from 03.10.2018— the date on which the other candidates/selectees having faced the same selection process with the petitioner were appointed.
“The appointment of the petitioner with effect from 03.10.2018 till he actually joined the services pursuant to the order dated 27.11.2019 shall be notional not entitling the petitioner to any monetary benefits. The petitioner, however, shall be entitled to all other service benefits as also consequential consideration for promotion to the next higher post by reckoning his service from 03.10.2018”, High Court ordered.
Respondents have been directed to re-fix the seniority of the petitioner and in the process of such re-fixation the affected person, if any, be provided an opportunity to present his/their claim/s.
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