LI Network
Published on: 17 August 2023 at 11:55 IST
The Supreme Court has recently issued a directive to the Islamia College of Science & Commerce, Srinagar, affiliated with the University of Kashmir, allowing a Lecturer to avail pay protection benefits.
The Court asserted that the Division Bench of the Jammu & Kashmir and Ladakh High Court had erred in determining that her appointment was for a short-term vacancy rather than a substantive position.
The Appellant had initially applied for the role of Lecturer at the Academic Staff College (6th Respondent) of the University of Kashmir based on a university-published advertisement. She was appointed on a tenure basis starting from September 2001. Later, she submitted an in-service application to the Islamia College of Science & Commerce, Srinagar (1st Respondent), a state-government aided institution, for the position of English Lecturer. Her appointment to this role was made on a regular temporary basis starting from June 2005. However, she was not granted pay protection.
Dissatisfied with the decision of the College Executive Committee of the 1st Respondent college, the appellant filed a writ petition before the High Court, which initially awarded her the benefit of pay protection and instructed the payment of related arrears. Nevertheless, a division bench overturned the appellant’s entitlement to such relief, prompting her to approach the Supreme Court for recourse.
The Supreme Court deliberated on whether the appellant was serving as a lecturer at the Academic Staff College (6th Respondent) on an ad-hoc basis or was fulfilling a short-term vacancy, a determination necessary for the applicability of Article 77-D of the Jammu & Kashmir Civil Service Regulations.
A division bench comprised of Justice Abhay S Oka and Justice Prashant Kumar Mishra concluded that the exception under Article 77-D, which pertains to pay fixation for direct recruits, did not apply to the appellant since her appointment was not to a temporary or ad-hoc position. Consequently, she could not be denied pay protection.
The Division Bench’s erroneous interpretation was rooted in the conclusion that the appellant’s appointment was not substantive, and thus, she did not meet the criteria outlined by Article 77-D.
The Appellant argued that her appointment was not on a tenure post but a regular post. She maintained that as per Article 77-D of the Regulations, she was entitled to pay protection, as she was not covered by the exception under the third proviso to Article 77-D.
Contrarily, the Respondent contended that the appellant was ineligible for pay protection as she did not fulfill the prerequisites of Article 77-D of the Regulations.
They argued that her appointment was on a fixed-term basis rather than a permanent one. Furthermore, they contended that her appointment to the 1st respondent for the Lecturer post was a new appointment, thus negating the need for pay protection based on previously drawn salaries from the 6th respondent.
The Supreme Court reviewed the advertisement issued by the 6th respondent, to which the appellant had applied. Some posts specifically indicated their temporary nature or referred to them as “plan posts.”
While certain positions mentioned that they were temporary but likely to become permanent, the appellant’s post did not specify whether it was temporary or planned. However, it stated that the post was on a “tenure basis,” leading the Court to deduce that it was not ad hoc or temporary. Consequently, the Court found that the post was permanent and was to be filled on a tenure basis.
This conclusion was further supported by the appellant’s eligibility for the Government Provident Fund-cum-Pension-cum-gratuity fund.
The Court elucidated the distinction between a tenure post and a regular post filled on a tenure basis, emphasizing that the post in question was permanent and its appointment was on a tenure basis, aligning with the University Grants Commission’s Guidelines for Academic Staff Colleges.
The Court’s conclusion was that the appellant’s appointment was substantive and not against a short-term vacancy, rendering her eligible for pay protection.