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Allahabad HC Refuses to Grant Pay Protection to the Government Employee Appointed by Open Recruitment

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The High Court Judicature at Allahabad today allowed the special appeal filed by State of U.P against the order passed by a learned Single Judge with regard to pay protection which will not be available to a government servant appointed by open recruitment.

Before the Ld Single Judge the writ petition was filed against the order of the State Government of U.P and the said petition was allowed and the State Government order was quashed. On being aggrieved the State Government of U.P has filed a special appeal before the high court whereas the respondent (Raj Kamal) was the petitioner before the court of ld. Single Judge.

The subject matter of the controversy pertains to appointment against a post of Lecturer in a State Medical College in Uttar Pradesh, which is governed by the Uttar Pradesh State Medical Colleges Teachers Services Rules, as amended from time to time and the appointing authority is the Governor of the State. As per Rule 5 of the aforesaid Service Rules, the posts of Lecturers in State Medical Colleges are to be filled up by direct recruitment on the recommendation of the Uttar Pradesh Public Service Commission. The vacancies existing in the teaching cadre in the State Medical Colleges were notified to the Commission and the same were advertised inviting online applications for filling up the vacancies by direct recruitment. Pursuant to the said advertisement, the respondent- petitioner (Dr. Raj Kamal) submitted his application and was selected by the Commission on the basis of an interview.

Consequent thereto, the State Government issued an appointment order dated 26.08.2015 whereunder the Dr. Raj Kamal was granted appointment and posting for the post of Lecturer (Tuberculosis and Respiratory Medicine/Pulmonary Medicine) at the Medical College, Azamgarh. The appointment order provided for a specific condition whereunder the petitioner was required to join the post within a period of one month, failing which the appointment order was to be cancelled and his candidature would cease. It transpires that the petitioner did not join within the stipulated time period, and another appointment order was issued on 20.09.2016 whereunder he was appointed/posted at the Medical College, Jhansi, on the same terms and conditions as under the earlier order. Accepting the subsequent appointment order, he joined the post of Lecturer at the Medical College, Jhansi and raised a claim for pay protection which came to be turned down by the Commission. 

As the policy of the State Government with regard to grant of pay protection to persons working in Public Sector Undertakings/Corporations, Universities prior to their appointment in services under the government was governed in terms of a government order dated 12.06.1998 which provided that the candidates working in Public Sector Undertakings/Corporations and Universities, who were appointed upon selection made by the Public Service Commission or a duly constituted selection committee, would be granted the benefit of pay protection. Subsequently, a government order dated 24.09.2015 was issued clarifying that the benefit of the earlier government order dated 12.06.1998 would not be available to a government servant who had been appointed consequent to his selection in a recruitment based on open competition. On a claim of the respondent- petitioner for pay protection, the State Government by means of an order said that since the he had been appointed after the 24.09.2015, his case would not be covered as per terms of Government Orders and accordingly he would not be entitled for the benefit of pay protection. Thereafter, the government order of 24.09.2015 was amended with the issuance of another government order dated 08.07.2016 containing a stipulation that the claims made with regard to pay protection in cases where appointments had been made subsequent to 24.09.2015 would be governed as per the provisions under the government order dated 24.09.2015.

The Learned Additional Advocate General appearing for the appellants/State Government has submitted that the learned Single Judge has erroneously proceeded on a presumption that the writ petitioner had been appointed by the State Government on 26.08.2015 i.e. prior to 24.09.2015 when the relevant government order was issued clarifying that the benefit of an earlier government order dated 12.06.1998 with regard to pay protection would not be available to a government servant appointed by open recruitment.

Whereas, ld. counsel appearing for the respondent/Dr. Raj Kamal has tried to support the judgment of the learned Single Judge by submitting that though the he had joined the post of Lecturer at the State Medical College, Jhansi, pursuant to the appointment order dated 20.09.2016, he had initially been granted appointment in terms of an appointment order dated 26.08.2015 which was prior in time to the issuance of the government order dated 24.09.2015 and as such the benefit of pay protection could not have been denied to him.

The Allahabad High Court held that the writ petitioner, having admittedly joined the post of Lecturer (T.B./Chest) at the Medical College, Jhansi, on 07.10.2016 pursuant to the appointment order dated 20.09.2016, therefore cannot claim the benefit of pay protection on the basis of the previous appointment order dated 26.08.2015 offering appointment to the writ petitioner at Azamgarh. 

It further held that the claim sought to be raised by the respondent- petitioner based on the earlier appointment order dated 26.08.2015 cannot be accepted for the simple reason that the offer of appointment in terms of the said appointment order was never acted upon. Subsequently, another order of appointment dated 20.09.2016 was issued and it was pursuant to the same that the petitioner joined the post of Lecturer at the State Medical College, Jhansi on 07.10.2016. The appointment of the petitioner thus cannot be treated as being prior to 24.09.2015.

“The grant of pay protection, in a particular case, would depend on the prevalent policy, which may be based upon consideration of a variety of factors as also the recommendations made by expert bodies with little scope of interference in exercise of powers of judicial review. The entitlement to pay protection, if any, would thus flow strictly from the prevalent policy directives and any claim made in regard to the same would have to be tested on the basis of the said policy guidelines”, said by the High court.

Therefore, the High Court set aside the judgment passed by the learned Single Judge which has proceeded on a wrong factual premise, and, therefore, cannot be sustained.

-India Legal Bureau

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