Candidate Whose Appointment Is Delayed Due To Departmental Lapses Cannot Be Disadvantaged, Denied Promotion Eligibility: J&K High Court

Clarifying the law on the subject Justice Javed Iqbal Wani observed,

“… An individual cannot be made to suffer due to insufficiencies or laches 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 Sheri-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.

Khan, represented by Advocate Salih Pirzada, 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 to the unreasonable delay in the issuance of appointment order in his favour, by the respondent's Institute, who faced selection process with him.

Addressing the preliminary objection regarding the jurisdiction under Section 28 of the Administrative Tribunals Act, 1985, Justice Wani referenced the Supreme Court's ruling in L. Chandra Kumar v. Union of India,  and affirmed the High Court's jurisdiction over service matters arising from SKIMS, as it had not yet been brought under the Administrative Tribunal's jurisdiction.

Commenting on the respondent's grounds of delay and estoppel on the part of Khan to challenge the petitioner the Court noted that he had raised the issue promptly and that the appointment order did not specify the effective date, supporting his case for retrospective effect.

Going on to the merits of the case Justice Wani emphasized that 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.

The Court cited the Supreme Court's judgment in C. Jayachandran v. State of Kerala, reinforcing that an employee should not suffer due to administrative delays and should be granted seniority from the date peers in the same selection process were appointed.

In view of these observations, the bench allowed the petition retrospectively appointing Dr. Khan as Assistant Professor from October 3, 2018. The Court ordered his seniority be refixed, hence quashing the notice declaring him ineligible.

Case Title: Dr Afaq Ahmad Khan Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 225

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