1. Appointment to a regular post on tenure basis — Claim for pay protection under Article 77-D, J&K Civil Service Regulations — Denial based on tenure status. (Para 1 , 2 )
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2023 Supreme(SC) 698
SUPREME COURT OF INDIA
ABHAY S. OKA, PRASHANT KUMAR MISHRA, JJ.
Asma Shaw – Appellant
Versus
Islamia College of Science and Commerce Srinagar Kashmir and Others – Respondents
Civil Appeal No. 4951 of 2023
Decided On : 08-08-2023
Important Points
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.
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.
Subject
Employment Law - Pay and Benefits
Act Referred
JAMMU AND KASHMIR CIVIL SERVICE REGULATIONS: Art.77(d)
Headnote
Service Law – Pay scale – Benefit of pay protection – [Article 77-D of Jammu & Kashmir Civil Service Regulations, 1956] – 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 – Advertisement mentions that post is not a tenure post but appointment to that post will be made on a tenure basis – Appointment of appellant with Academic Staff College of respondent was not against a short-term vacancy – Appellant was not holding post of Lecturer in Academic Staff College on ad hoc basis and was not working against leave/suspension vacancy – Exception carved out by third proviso to Article 77D will not apply as appointment of appellant was on a substantive post on a tenure basis with a provision to continue the same till age of 62 years – Impugned decision of Division Bench set aside and judgment rendered by Single Judge which directs that pay protection should be given to appellant, restored. (Paras 6, 7, 9 and 15)
Facts of the case:
Only question for consideration is whether appellant was holding a post in Academic Staff College on ad hoc basis or was working against a leave/suspension or any other short-term vacancy.
Findings of Court:
Entire approach of Division Bench was erroneous when it came to conclusion that appellant was not appointed on a substantive basis and, therefore, she does not satisfy the criteria laid down by Article 77D. Division Bench has completely ignored that only exception carved out to Article 77D was in respect of a government servant holding a post on ad hoc basis or working against leave/suspension or any other short-term vacancy. Hence, case of appellant was not covered by said exception carved out to third proviso by Article 77D.
Result : Appeal allowed.
Legal Category Hierarchy
Advocates appeared:
For the Appellant(s) : Mr. Abhishek Gupta, AOR
For the Respondent(s): Mr. Shailesh Madiyal, AOR Mr. Vaibhav Sabharwal, Adv. Mr. Akshay Kumar, Adv. Mr. Vinayaka S Pandit, Adv. Mr. Rajan Parmar, Adv. Ms. Divija Mahajan, Adv. Ms. Rakhi M, Adv. Mr. Sudhanshu Prakash, Adv.
For the Appellant(s) : Mr. Abhishek Gupta, AOR
For the Respondent(s): Mr. Shailesh Madiyal, AOR Mr. Vaibhav Sabharwal, Adv. Mr. Akshay Kumar, Adv. Mr. Vinayaka S Pandit, Adv. Mr. Rajan Parmar, Adv. Ms. Divija Mahajan, Adv. Ms. Rakhi M, Adv. Mr. Sudhanshu Prakash, Adv.
Table of Contents
2. Whether appointment on tenure basis constitutes holding a post in substantive capacity or falls under the exception for ad-hoc or short-term vacancies under Article 77-D. (Para 3 , 4 )
3. Tenure-based appointment to a regular post with pension benefits and extension until retirement age is not ad-hoc or a short-term vacancy. (Para 5 , 6 , 7 , 8 , 9 , 10 , 12 , 13 )
4. Appointment on a tenure basis to a substantive post is not an ad-hoc or short-term vacancy, thus entitling the employee to pay protection under Article 77-D. (Para 7 , 8 , 9 , 10 )
5. Appeal allowed — Division Bench judgment set aside — Single Judge's order for pay protection and arrears restored. (Para 14 , 15 , 16 )
6. Does an appointment on a tenure basis exclude an employee from pay protection under Article 77-D of the J&K Civil Service Regulations?
No, provided the appointment is to a substantive post on a tenure basis rather than an ad-hoc or short-term vacancy. If the post allows for continuation until retirement age and provides pension benefits, it is considered substantive. (Para 7 , 8 , 9 , 10 )
7. What constitutes a short-term vacancy or ad-hoc appointment under the third proviso of Article 77-D?
The third proviso excludes persons holding posts on an ad-hoc basis or those working against leave, suspension, or other short-term vacancies. Regular posts filled on a tenure basis with long-term extension possibilities do not fall into this exception. (Para 6 , 10 )
8. How does the availability of Government Provident Fund (GPF) affect the determination of a substantive post?
The grant of GPF-cum-Pension-cum-Gratuity benefits serves as an indication that the post held by the employee is substantive rather than temporary or ad-hoc. (Para 8 )
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
