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2022 Supreme(J&K) 156

IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
Ali Mohammad Magrey, Mohd. Akram Chowdhary, JJ.
The Islamia College of Science & Commerce and Ors. - Petitioners
Versus
Asma Shaw and Ors. - Respondents
LPASW No.184/2018 Along with connected CM(s)
Decided On : 25-02-2022

Advocates Appeared:
For the Appellant :Mr. Mohammad Ashraf Qadri, Advocate.
For the Respondent:Mr. Altaf Haqani, Senior Advocate with Mr. Shakir Haqani, Advocate.

Headnote:

Jammu and Kashmir Civil Service Regulations, 1956-Article 77-D-Fixation of pay- Claim so made for pay protection was not to be considered on the basis of nature of post held by Writ Petitioner/ Respondent No.1 herein, but on strength of continuation on said post-In order to get benefit of Article 77-D in new Department/ Service, direct recruit mandatorily ought to have been discharging his/ her service on substantive basis in erstwhile Department-Basis on which Writ Petitioner/ Respondent No.1 herein was working in University of Kashmir at the time of her selection as Lecturer in Appellant-College was quite clearly not falling within import and purport of 'substantive basis' which could have made him entitled to pay protection in Appellant-College in tune with mandate of Article 77-D of Jammu and Kashmir Civil Service Regulations, 1956-Writ Petitioner/ Respondent No.1 herein, on strength of her appointment in University of Kashmir being appointment on tenure basis, cannot claim benefit of pay protection by application of Article 77-D-Impugned Judgment set aside. (Paras 5, 6, 7, 8 and 10)

Result-Appeal allowed.

JUDGMENT :

Ali Mohammad Magrey, J.

Through the medium of the instant appeal, the Appellants have assailed the validity of Judgment dated 24th of September, 2018 passed by the learned Single Judge in the Writ Petition (SWP No. 1735/2015) filed by the Writ Petitioner/ Respondent No.1 herein, whereby and whereunder the Writ Court, while allowing the Writ Petition, has set aside the resolution dated 2nd of January, 2012, at item No.4, issued by the Respondent No.3 and directed the Respondents/ Appellants herein to accord the benefit of pay protection to the Writ Petitioner/ Respondent No.1 herein with a further stipulation to release the arrears also, as are due to be paid to the Writ Petitioner under that head, from the date same have been withheld.

2. The brief facts of the case are that the Writ Petitioner/ Respondent No.1 herein claims to have been appointed as a Lecturer in the University of Kashmir vide Order dated 8th of September, 2001, in the pay scale of Rs. 8000-275-13500 on tenure basis in the Academic Staff College. Thereafter, when the Writ Petitioner was working in the University of Kashmir, an advertisement notice bearing No. ICS/1-6 of 2004 dated 11th June, 2004, came to be issued by the Appellant-College inviting applications from the permanent residents of the then State of Jammu and Kashmir (now Union Territory) for the posts of Lecturers in various disciplines, including the discipline of English in the pay scale of Rs.8000-13500. The Writ Petitioner, being eligible in all respects, is stated to have submitted her application form pursuant to the aforesaid advertisement notice dated 11th June, 2004 and, after culmination of the process of selection, the Writ Petitioner claims to have been appointed as a Lecturer in English on regular/temporary basis in the pay scale of 8000-13500 in terms of Order No. 156 dated 16th of June, 2005. While working in the Appellant-College, the Writ Petitioner had sought pay protection which though, initially, was granted as claimed by the Writ Petitioner, but, subsequently, somewhere in the year 2012, the same was stopped without assigning any reason. The Writ Petitioner/ Respondent No.1 herein claims to have represented many a times before the Appellants for seeking redressal of her grievance, which resulted in consideration and issuance of resolution issued by the College Executive Committee in its meeting held on 2nd of January, 2012, wherein it was resolved that the claim has no merit and, therefore, was rejected. This decision of the College Executive Committee was communicated to the Writ Petitioner/ Respondent No.1 herein in terms of communication dated 26th of November, 2014. In these circumstances, the Writ Petitioner/ Respondent No.1 herein claims to have filed the Writ Petition. The Petition was resisted by the Respondents/ Appellants herein on the ground that the Writ Petitioner is not entitled to any pay protection inasmuch as she was not meeting the requirement of the mandate of Article 77-D of the Jammu and Kashmir Civil Service Regulations, 1956, as is applicable to the employees of the College, by holding a post on substantive basis and was, in fact, working on tenure basis in the University of Kashmir for a limited period and that her subsequent selection in the Appellant-College in the year 2005 cannot be counted towards her seniority and other service benefits. It was also contended by the Appellants that the services rendered by the Writ Petitioner in the University of Kashmir cannot be counted in the Appellant-College as the said College is a separate entity and the rules which are in vogue in the University cannot be enforced in the College because the said College has its own rules and regulations. The Writ Court, after hearing the Counsel for the parties, in terms of the Judgment impugned, allowed the Petition filed by the Writ Petitioner/ Respondent No.1 herein, which Judgment is assailed by the Appellants in this appeal on grounds projected in the memo o

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