IMPORTANT POINT
In case of appointment to another service/cadre or department on direct recruitment basis, pay drawn by government servant at the time of his appointment to another service remains protected – There is a difference between a tenure post and appointment made on a regular post on a tenure basis.

JUDGMENT :

ABHAY S. OKA, J.

FACTS

1. On the basis of an advertisement published by the 6th respondent-University of Kashmir, the appellant applied for the post of Lecturer in the Academic Staff College of the 6th respondent. The 6th respondent appointed the appellant to the said post on tenure basis from 08th September 2001. The 1st respondent-College which is a college fully aided by the State Government published an advertisement inviting applications for various posts including the post of Lecturer in English. The appellant applied as an in-service candidate and her application was forwarded by the Academic Staff College of the 6th respondent to the 1st respondent. Accordingly, the appellant was appointed as a Lecturer in English on a regular temporary basis with the 1st respondent college w.e.f. 16th June 2005. The appellant was initially appointed by the 6th respondent in the pay scale of Rs. 8000-275-13500. The 1st respondent appointed the appellant in the same pay scale. However, her pay admissible on the date of her appointment with the 1st respondent was not protected. Therefore, the appellant made a representation to the 1st respondent to grant pay protection. On 02nd January 2012, the College Executive Committee of the 1st respondent took a decision not to grant pay protection to the appellant on the ground that the appellant was holding a tenure post of a limited duration with the Academic Staff College of the 6th respondent. The case of the appellant was again considered by the College Executive Committee of the first respondent on 28th October 2014 and the same decision was taken which was communicated to the appellant by a letter dated 26th November 2014.

2. Being aggrieved by the said decision, the appellant preferred a writ petition in the High Court of Jammu and Kashmir. By judgment dated 24th September 2018, learned Single Judge allowed the petition and directed the 1st respondent to grant benefit of pay protection to the appellant and to pay the consequential arrears. By the impugned judgment dated 25th February 2022, a Division Bench of the High Court interfered and dismissed the writ petition filed by the appellant.

SUBMISSIONS

3. The learned counsel appearing for the appellant submitted that the appointment of the appellant was not on a tenure post but it was on a regular post. The initial appointment of the appellant was on a tenure basis and as per the Guidelines for Academic Staff Colleges issued by the University Grants Commission, after assessment of the performance of the appellant, the tenure of the appellant was extendable up to the age of 62 years. Learned counsel pointed out that as provided in the advertisement published by the 6th respondent, the appellant was granted the benefit of Government Provident Fund-cum-Pension-cum-Gratuity. He submitted that in terms of Article 77-D of the Jammu & Kashmir Civil Service Regulations (for short ‘the Regulations’) the appellant was entitled to the benefit of pay protection as she was not covered by an exception carved out in the form of third proviso to Article 77-D. He would, therefore, submit that the Division Bench has committed an error by holding that the post to which the appellant was appointed by the 6th respondent was a temporary or ad-hoc post.

4. Learned counsel appearing for the 1st respondent while supporting the view taken by the Division Bench urged that the appointment of the appellant was not on a permanent basis but was for a fixed tenure. Therefore, the third proviso to Article 77-D was applicable. He submitted that in any event, Article 77-D was not applicable to the appellant as she was no longer in the employment of the 6th respondent-University. He urged that the appointment made by the 1st respondent of the appellant to the post of Lecturer was a fresh appointment and, therefore, there was no question of fixing her pay by protecting the pay which she was lastly drawing while working with the 6th respondent. His submission is that th