Jammu & Kashmir High Court - Srinagar Bench
The Islamia College Of Science & ... vs Asma Shaw & Ors on 25 February, 2022
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
LPASW No. 184/2018
Along with connected CM(s)
Reserved On: 21st of February,2022
Pronounced On: 25th of February, 2022
The Islamia College of Science & Commerce and Ors.
... Appellant(s)
Through: -
Mr Mohammad Ashraf Qadri, Advocate.
V/s
Asma Shaw & Ors.
... Respondent(s)
Through: -
Mr Altaf Haqani, Senior Advocate with
Mr Shakir Haqani, Advocate for R-1.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
Hon'ble Mr Justice Mohd. Akram Chowdhary, Judge
(JUDGMENT)
Magrey, J:
01. 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
LPASW No. 184/2018 along with connected CM(s)
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.
02. 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
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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 of appeal.
LPASW No. 184/2018 along with connected CM(s)
03. We have heard the learned Counsel for the parties, perused the
pleadings on record and have considered the matter.
04. Admittedly, the Writ Petitioner/ Respondent No.1 herein, way
back in the year 2001, came to be appointed as a Lecturer in the University
of Kashmir on tenure basis vide Order dated 8th of September, 2001. While
discharging her duties as such, the Writ Petitioner appears to have
participated in the selection process initiated by the Appellant-College in
2004, wherein she emerged successful and was, accordingly, appointed as
Lecturer in English pursuant to Order dated 16 th of June, 2005. Thereafter,
the Writ Petitioner made a claim for seeking pay protection with reference
to her services rendered in the University of Kashmir at the time of her
appointment in the Appellant-College which was rejected on the ground
that the Writ Petitioner was holding a tenure post for a limited period
which, in terms of definition, cannot be considered as holding the post
either on permanent or temporary basis and, as such, her previous service
will not qualify for her claim for pay protection, promotion and pensionary
benefits in the College. Aggrieved thereby, the Writ Petitioner/ Respondent
No.1 herein filed Writ Petition, which was allowed by the learned Single
Judge by holding that the post which the Petitioner held in the University
was not a tenure post, but a permanent one on which she could continue on
assessment and retire at the age of 62 years. In this fact situation of the case
and having heard the learned Counsel for the parties, the controversy
involved in the matter boils down on the issue of the status of the Writ
Petitioner/ Respondent No.1 herein at the time of her appointment as
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Lecturer in the Appellant-College. It is the contention of the Writ
Petitioner/ Respondent No.1 herein that she was working against permanent
post in the University of Kashmir and, thus entitled to full pay protection in
the Appellant-College, which contention was accepted by the Writ Court,
while as the Appellant-College, both before the Writ Court as well as in this
appeal before us, have categorically taken the stand that the Writ Petitioner/
Respondent No.1 herein was only working in the University on tenure
basis, as such, not entitled to any pay protection in the College on the basis
of such appointment.
05. Pertinent to note here that the appointment Order issued by the
University of Kashmir appointing the Writ Petitioner/ Respondent No.1 as
Lecturer is on tenure basis in the Academic Staff College and whether such
an appointment confers any right on the Writ Petitioner in terms of
application of Article 77-D of the Jammu and Kashmir Civil Service
Regulations, 1956 for claiming the pay protection in the Appellant College
was the question for consideration before the Writ Court. In essence, the
claim so made for pay protection was not to be considered on the basis of
the nature of the post held by the Writ Petitioner/ Respondent No.1 herein,
but on the strength of continuation on the said post.
06. In order to appreciate the controversy involved in its true and
correct perspective, it has become necessary to first have a glance at the
mandate of Article 77-D of the Jammu and Kashmir Civil Service
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Regulations, 1956 which provides the mechanism to be adopted while
fixing the pay in relation to direct recruits. This Article reads, thus:
"77-D. Fixation of pay in case of direct recruits:"
(i) Notwithstanding anything contained in these rules, the following
provision shall govern the pay of a Government servant who is appointed to
another service/cadre or department on direct recruitment basis:-
(a) He shall draw pay at the minimum of the time scale or at the
probationary stage of the time scale of the service/or post as the case may be:
Provided that where a Government servant has immediately before such
appointment been holding a post in a substantive capacity and was drawing pay
therein equal to or more than the minimum of the time scale of the service/post
his initial pay at the time of his appointment to the new service/post shall be
regularized under Art.77(a) (ii) read with Art.67(a)(ii):
Provided further that in respect of the Government servant who
immediately before such appointment has been holding a post in an officiating
capacity and has been drawing his presumptive pay equal to or higher than the
minimum of the time scale, his initial pat at the time of his appointment to the
new service/post shall be regularized under Art.77(a)(ii) treating his presumptive
pay as substantive pay for purposes of such fixation alone. He shall not however
be allowed the benefit of Art.67(a) (ii):
Provided also that the benefit of this rule shall not be available to a
person who at the time of his appointment to the new service/post was holding a
post on adhoc basis or was working against a leave/suspension or any other short
term vacancy.
Provided also that the benefit of this rule shall not be available to a
person who is appointed to a lower post in another service/cadre or department on
direct recruitment basis. For this purpose a post in another department shall be
considered to be a lower post if two factors out of three in the pay scale go down
on the analogy of Note 2 below Art.66.
[Exception: In respect of an in-service Government Officer who is
inducted into KAS against technical quota from any other service in terms of
Rules 5(1) (c) of J&K Administrative Service Rules, 1979, such induction shall
not mean appointment to a lower post for fixation of pay in time scale of KAS
regardless of the pay scale enjoyed by such officer in his previous service.]
(b) After fixing the initial pay under (a) above, drawal of next increment
or any subsequent increment or increments during the period of probation and
fixation of pay on confirmation after completion of the period of probation shall
be regulated in accordance with the rules relating to the service/department in
which appointment has been made.
(ii) The provisions contained in sub-rule (i) shall apply mutatis mutandis
to case of Government servant appointed on probation (on trial) with definite
conditions against temporary posts in an other service/department where
recruitment to permanent posts of such service/department is made as
probationers except that in such cases the fixation of pay in the manner indicated
in clause (i) (a) shall be done under Art.67(a) (i).
LPASW No. 184/2018 along with connected CM(s)
(iii) The benefit of protection of pay as indicated above shall not in any
case entitle the Government servants concerned to draw the joining time pay
and/or transfer on tour T.A. for joining the new post. The transit or preparation
days if any involved in such cases shall be treated as leave whatever kind due
except casual leave.
Pending cases, if any on the date of issue of these orders shall be decided
accordingly.
Note:-In service teachers who are appointed as lecturers (direct recruits)
in between August, 1969 and July, 1974 and who on such appointment were
allowed pay at the minimum of lecturers grade, will have their pay refixed under
the provisions of Article 77- D (1), [subject to the condition that arrears will be
payable w.e.f.18.07.1974 i.e. the date of issue of SRO-346 dated 18.07.1974 or
from the date they have taken over as such whichever is later.]"
A bare perusal of the aforesaid provision of law makes it
abundantly clear that the pay of a Government servant, who is appointed to
another Service/Cadre or Department on direct recruitment basis, is to be
regulated by the elaborate mandate contained in this Article. This general
rule under Article 77-D is subject to the proviso that the benefit of this rule
shall not be available to a person who, at the time of his/ her appointment to
the new Service/ post, was holding a post on adhoc basis or was working
against a leave/ suspension or any other short-term basis, meaning thereby
that in order to get the benefit of the Article 77-D in the new Department/
Service, the direct recruit mandatorily ought to have been discharging his/
her service on substantive basis in the erstwhile Department.
07. Testing the present case on the touchstone of the above legal
position, what requires to be stated is that the basis on which the Writ
Petitioner/ Respondent No.1 herein was working in the University of
Kashmir at the time of her selection as Lecturer in the Appellant-College
was quite clearly not falling within the import and purport of the
'substantive basis' which could have made him entitled to the pay
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protection in the Appellant-College in tune with the mandate of Article 77-
D of the Jammu and Kashmir Civil Service Regulations, 1956. This is so
because the very language of the Order of engagement of the Writ
Petitioner/ Respondent No.1 herein in the University of Kashmir, which is a
part of the Writ Court record, makes it explicitly clear that the Writ
Petitioner/ Respondent No.1 herein was appointed as Lecturer on tenure
basis in the Academic Staff College. The Writ Court, although while
referring to the Guidelines for the Academic Staff Colleges issued by the
University Grants Commission, has observed that these Guidelines provide
that the appointment of the Lecturer will be on a tenure basis for a period of
five years, but since there was no provision in these Guidelines to the effect
that the appointment of the Writ Petitioner/ Respondent No.1 herein will
come to an end immediately after the expiry of the period of five years, as
such, there was no logic or substance in refusing the claim of pay protection
to the Petitioner/ Respondent No.1 herein. This observation made by the
learned Writ Court appears to directly run contrary to the mandate of
Article 77-D of the Jammu and Kashmir Civil Service Rules, 1956, as
extracted hereinabove. There is no such rider prescribed in the aforesaid
provision of law with regard to fixation of pay in case of a direct recruitee.
The basic requirement for claiming the benefit under Article 77-D in
relation to a direct recruitee is that the said direct recruitee ought to have
been holding a post on substantive basis in the erstwhile Department/
Service at the time of his/ her appointment in the new Department/ Service.
Insofar as the case of the Writ Petitioner/ Respondent No.1 herein is
concerned, we are of the considered view that, given the language of the
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Order of engagement of the Writ Petitioner/ Respondent No.1 in the
University of Kashmir, the Writ Petitioner/ Respondent No.1 herein was not
satisfying the requirement of the mandate of Article 77-D of the Jammu and
Kashmir Civil Service Regulations, 1956 so as to make her entitled to get
the benefit of pay protection, etcetera, etcetera, in the Appellant-College.
08. Apart from the above perspective, it, needs, must be said here
that the dictionary meaning of the phrase 'substantive basis', as provided in
the Oxford Dictionary, clearly envisages an appointment made on
permanent basis and not on temporary, adhoc or tenure basis. In order to
further strengthen this position, the term 'substantive basis' has also been
used in Rule 24 of the Classification, Control and Appeal Rules qua
regulating the seniority of the member of service having reference to
appointment made on permanent basis and not on adhoc, temporary or
tenure basis. In this context, it is clear beyond any shadow of doubt that the
interpretation of phrase 'substantive basis' has to be read as an appointment
made on permanent basis with continuation in such service. Therefore, the
Writ Petitioner/ Respondent No.1 herein, on the strength of her appointment
in the University of Kashmir being appointment on tenure basis, cannot
claim the benefit of pay protection by application of Article 77-D inasmuch
the words used in the very Article have reference to substantive basis of
appointment and not on any temporary, adhoc or tenure basis. In that view
of the matter, we feel that the impugned Judgment passed by the learned
Writ Court is not in consonance with the scheme of law governing the
subject and is thus, liable to be set aside.
LPASW No. 184/2018 along with connected CM(s)
09. Mr Altaf Haqani, the learned Senior Counsel, representing the
Writ Petitioner/ Respondent No.1 herein, while strengthening the claim
made, has referred to and relied upon the following Judgments:
i. AIR 1959 All 618;
ii. AIR 1958 SC 36;
iii. AIR 1964 Mad 24;
iv. AIR 1972 SC 2472;
v. AIR 1978 SC 597; and
vi. AIR 1978 SC 851.
We have gone through the above Judgments cited by the
learned Senior Counsel and are of the opinion that same are distinguishable
both on facts as well as on law, therefore, not applicable to the facts and
circumstances of the case in hand.
10. In the above background, we find merit in this appeal and,
therefore, the same is allowed. Accordingly, the impugned Judgment dated
24th of September, 2018 passed by the Writ Court in SWP No. 1735/2015 is
hereby set aside, as a consequence thereof, the Writ Petition filed by the
Writ Petitioner/ Respondent No.1 herein shall stand dismissed.
11. LPASW disposed of, along with all pending CMs therewith.
(Mohd. Akram Chowdhary) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
February 25th, 2022
"TAHIR"
i. Whether the Judgment is reportable? Yes/ No.
ii. Whether the Judgment is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2022.02.25 12:31
I attest to the accuracy and
integrity of this document
