J&K-CSR | Basic Requirement for Claiming the Benefit of Article 77-D, the Direct Recruit ought to have been Discharging his/her service on Substantive Basis in the erstwhile Department: High Court of J&K and Ladakh

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The Division Bench of the High Court of J&K and Ladakh has observed that 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.

Brief Facts:

-The Writ Petitioner/ Respondent No.1 was appointed as a Lecturer in the University of Kashmir on tenure basis in the Academic Staff College and later got appointed as a Lecturer in English on regular/temporary basis in the appellant-College.

-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 the same was stopped without assigning any reason.

-After submitting various representations before the Appellant for seeking redressal of her grievance, the appellant held a meeting of the College Executive Committee and issued a resolution 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.

-Against the said Communication, the respondent no. 1 had filed a Writ Petition and the Writ Court in terms of the impugned judgment had set aside the resolution 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.

Being aggrieved, the appellant has assailed the impugned judgment of the single judge by filing the instant appeal.

Observations:

The Court noted 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.

The Court referred to Article 77-D of the Jammu and Kashmir Civil Service Regulations, 1956 which provides the mechanism to be adopted while fixing the pay in relation to direct recruits and made the following observations:

“6….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.”

The Court also observed 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 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.

Requirement for Claiming the Benefit under Article 77-D of the Jammu and Kashmir Civil Service Regulations, 1956:

In this regard, the Court observed that 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 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.

Para 7 of the Instant Judgment

The Court said that the interpretation of phrase ‘substantive basis’ has to be read as an appointment made on permanent basis with continuation in such service.

In view of the above, the Court held that the respondent no. 1 herein being appointed in the University of Kashmir 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.

The Court ultimately allowed the appeal and set aside the impugned judgment.

Click here to download the Judgment

Case Details:
The Islamia College of Science & Commerce and Ors. Vs. Asma Shaw & Ors.
LPASW No. 184/2018
CORAM: Justice Ali Mohammad Magrey, Justice Mohd. Akram Chowdhary
Mr Mohammad Ashraf Qadri, Advocate, appeared for the appellant
Mr Altaf Haqani, Senior Advocate with Mr Shakir Haqani, Advocate for R-1
Date of Judgment: 25-02-2022