On the basis of an advertisement published by the 6 respondent – the University of Kashmir, the appellant applied for the post of Lecturer in the Academic Staff College of the 6 respondent.
On 02 January 2012, the College Executive Committee of the 1 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 6 respondent. 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. He urged that the appointment made by the 1 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 6 respondent. In fact, in the counter affidavit filed by the Principal of the 1 respondent, a specific stand has been taken that the appellant is disentitled to any pay protection as she does not meet the requirements of Article 77-D of the Regulations.
As such, her previous service in the University cannot be counted towards her seniority and other service benefits.”
(emphasis added)
Also Read: https://newslaw.in/supreme-court/extension-of-benefit-of-doubt-in-criminal-convictions/
Thus, the stand of the 1 and 2 respondents was that the staff of the 1 respondent was governed by Article 77-D. Article 77-D starts with a non obstante clause which provides that notwithstanding anything contained in the Regulations, the provisions of Article 77-D shall govern the pay of a government servant who is appointed to another service/cadre or department on direct recruitment basis. It reads thus : “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.” Thus, the only question for consideration is whether the 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.
The advertisement mentions that the post is not a tenure post but the appointment to that post will be made on a tenure basis.
In fact, the qualifications for the post of reader/lecturer in Academic Staff Colleges clearly lay down that the appointment to the post of director, reader and lecturer will be on tenure basis for a period of five years with a provision for continuation on these posts on assessment of the incumbent concerned subject to the condition that incumbent will retire after completing the age of 62 years.
Also Read: https://newslaw.in/supreme-court/vicarious-liability-under-section-34-of-ipc/
Therefore, the appointment of the appellant with the Academic Staff College of the 6 respondent was not against a short-term vacancy.
At this stage, it may be noted that as provided in the Constitution of the 1 respondent College, the same is completely financed by J&K Government for both plan and non-plan accounts. The Division Bench has completely ignored that the only exception carved out to Article 77-D 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. Within a period of three months from today, arrears payable to the appellant on account of fixation of pay as aforesaid shall be paid to her.
Case Title: ASMA SHAW Vs. THE ISLAMIA COLLEGE OF SCIENCE AND COMMERCE SRINAGAR KASHMIR (2023 INSC 690)
Case Number: C.A. No.-004951-004951 / 2023
