'Tenure Post & Appointment Made On Regular Post On Tenure Basis Different' : Supreme Court Allows Lecturer's Claim For Pay Protection

The Supreme Court recently directed the Islamia College of Science & Commerce, Srinagar under the University of Kashmir to give a Lecturer the benefit of pay protection holding that the Division Bench of the High Court of Jammu & Kashmir and Ladakh High Court was wrong in holding that she was appointed against a short-term vacancy and not against a substantive post.

The Appellant in the said case had applied for the post of Lecturer to the Academic Staff College (6th Respondent) of the University of Kashmir on the basis of an advertisement published by the university. She was appointed on a tenure basis from September 2001. Subsequently, she applied as an in service candidate to Islamia College of Science & Commerce Srinagar (1st Respondent), a state government aided college, for the post of English Lecturer. She was appointed on a regular temporary basis from June 2005. However, she was not granted pay protection.

Aggrieved by the decision of the College Executive Committee of the 1st Respondent college, the appellant filed a writ petition before the High Court  that granted her the benefit of pay protection and directed payment of consequential arrears. A division bench however denied the appellant the said relief and consequently she approached the Apex Court.

The Apex Court was left to consider whether the appellant was holding the post of lecturer in Academic Staff College (6th Respondent) on an ad- hoc basis or was working against a leave/suspension or any other short-term vacancy for the exception under Article 77-D of the Jammu & Kashmir Civil Service Regulations to apply.

A division bench of Justice Abhay S Oka and Justice Prashant Kumar Mishra held that the exception to the proviso under Article 77 D of the Jammu & Kashmir Civil Service Regulations would not apply to the appellant as she was not appointed to a temporary or ad-hoc post and hence she cannot be denied pay protection. Article 77-D deals with fixation of pay for direct recruits.

The entire approach of the Division Bench was erroneous when it came to the conclusion that the appellant was not appointed on a substantive basis and, therefore, she does not satisfy the criteria laid down by Article 77-D. 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. Hence, the case of the appellant was not covered by the said exception carved out to the third proviso by Article 77-D.

The Appellant argued that the appointment was not on a tenure post but was on a regular post. It was argued that under Article 77-D of the Regulations, she was entitled to the benefit of pay protection as she was not covered by the exception under third proviso to Article 77-D.

The Respondent on the other hand argued that the appellant is not entitled to pay protection as she does not meet the requirements of Article 77-D of the Regulations. The respondents argued that she was appointed on fixed tenure and not on a permanent basis. It was also argued that her appointment to the 1st respondent to the post of Lecturer was a fresh appointment and, hence there was no question of granting her pay protection based on salary drawn previously from the 6th respondent.

The Court examined the advertisement published by the 6th respondent inviting applications to which the appellant had applied. Some of the posts specifically mention that it is either a temporary post or was a ‘plan post’. Some of the posts, say that that same is temporary but is likely to become permanent. The Court specifically noted that against the post of the appellant, it doesn’t specify whether it was a temporary post or a plan post. The Court noted that the ad said the post is on “tenure basis”. Hence the Court concluded that the post was not ad hoc or temporary or plan post. “The post was permanent on which appointment was to be made on tenure basis", the Top Court observed. The appellant was granted the benefit of Government Provident Fund­-cum-­Pension-­cum-gratuity, fund which is another indication that her post was substantive, the Court added.

Highlighting the difference between a tenure post and appointment made to a regular post but on a temporary basis the Court explained:

“There is a difference between a tenure post and an appointment made on a regular post on a tenure basis. The advertisement mentions that the post is not a tenure post but the appointment to that post will be made on a tenure basis. The reason for this is the Guidelines for Academic Staff Colleges framed by the University Grants Commission. The Guidelines provided that the appointment to the post of director, reader and lecturer will be on a tenure basis for a period of five years. There is a provision for continuation of appointment on these posts on assessment of the incumbent concerned by a committee having the same constitution as for their appointment, subject to the condition that the incumbent on these posts will retire at the age of 62 years or as per prevailing norms of the university. Accordingly, in the order of appointment issued by the 6th respondent, it is specifically mentioned that the appellant was appointed as a Lecturer in the Academic Staff College in the pay scale of Rs.8000-275-13500 on 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.”

Thus the Court concluded that the appointment to the post of Lecturer at Academic Staff College was not against a short-term vacancy as it was a substantive post on a tenure basis and hence the exception under the third proviso to Article 77-D will not apply.  

Terming it a case of a government servant taking employment in another service or cadre, the Apex Court directed the respondents to give the benefit of pay protection to the appellant.

Case Title: Case Title: Asma Shaw V. The Islamia College of Science & Commerce Srinagar Kashmir, Civil Appeal No.4951 of 2023

Citation: 2023 LiveLaw (SC) 649

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