Dr. Yogendra Kumar Srivastava, J.
1. The present intra court appeal seeks to challenge the judgment and order dated 18.07.2019 passed by a learned Single Judge in Writ-A No. 10674 of 2019 (Dr. Raj Kamal Singh Vs. State of U.P. and 2 others), whereby the writ petition has been allowed and the order dated 05.04.2019 passed by the State Government which was impugned therein has been quashed.
2. The authorities of the State Government who were the respondents in the writ petition are the appellants before us.
3. Learned Additional Advocate General appearing for the appellants 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.
4. It is submitted that the writ petitioner in fact submitted his joining pursuant to a subsequent appointment order dated 20.09.2016, which is after issuance of the government order dated 24.09.2015, and in view thereof the judgment of the learned Single Judge having been rendered on an incorrect factual premise, cannot be legally sustained.
5. Learned counsel appearing for the respondent-writ petitioner has tried to support the judgment of the learned Single Judge by submitting that though the petitioner 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.
6. In order to appreciate the rival contentions, the relevant facts, as are reflected from the records before us, are required to be noticed.
7. 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, 1999 (theServiceRules), as amended from time to time. Under the aforesaid Rules, the appointing authority is the Governor of the State.
8. 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 (theCommission). The vacancies existing in the teaching cadre in the State Medical Colleges were notified to the Commission and the same were advertised in terms of an advertisement dated 24.08.2013 inviting online applications for filling up the vacancies by direct recruitment. Pursuant to the said advertisement, the respondent-petitioner 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 petitioner was granted appointment and posting against 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 dated 20.09.2016 was issued whereunder he was appointed/posted at the Medical College, Jhansi, on the same terms and conditions as under the earlier order dated 26.08.2015. Accepting the subsequent appointment order dated 20.09.2016, the petitioner joined the post of Lecturer at the Medical College, Jhansi on 07.10.2016, and raised a claim for pay protection which came to be turned down by the State Government by means of an order dated 05.04.2019 by assigning the reason that since the petitioner had been appointed after 24.09.2015, his case would not be covered as per terms of Government Orders dated 24.09.2015, 08.07.2016 and 12.06.1998, and accordingly he would not be entitled for the benefit of pay protection. Challenging the aforesaid order dated 05.04.2019, the writ petition was filed which has been allowed in terms of the judgment under appeal.
9. 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. The government order dated 24.09.2015 was further 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. For ease of reference the two government orders dated 24.09.2015 and 08.07.2016 are being extracted herein below:
10. In the facts of the case, it is not disputed that the petitioner did not join pursuant to the initial appointment order dated 26.8.2015 and it was only pursuant to a subsequent appointment order dated 20.09.2016 issued by the State Government that the petitioner joined the post of Lecturer at the State Medical College, Jhansi.
11. 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.
12. 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.
13. The appointment of the petitioner against the post of Lecturer at the State Medical College, Jhansi, which has been ultimately accepted by him is therefore pursuant to the appointment order dated 20.09.2016 issued by the State Government which is clearly subsequent to the issuance of the Government Order dated 24.09.2015 clarifying the policy of the State Government with regard to pay protection.
14. 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.
15. To support the aforesaid proposition, reference may be had to the decision in Jagdish Parwani Vs. Union of India and others (2018)15SCC591), in which a claim for pay protection sought on the basis of a notification issued by the Department of Personnel and Training, Government of India, on 28.02.1992, granting pay protection to employees selected by direct recruitment on or after 01.02.1992, was turned down and the appellant was held not entitled to benefit of pay protection since he had been appointed to the post prior to 01.02.1992. The relevant observations made in the judgment are as follows:
"15. A bare perusal of the memorandum would make it crystal clear that the employees of the State Government undertakings selected for posts in the Central Government on direct recruitment basis on and after 1-2-1992 were also extended the benefit of pay protection, as was provided in the case of the employees of the Central Government public undertakings as per Notification dated 7-8-1989.
16. In the aforesaid notification, it was clearly stipulated that the said benefit of pay protection is effective only from the first of the month in which the OM is issued i.e. from 1-2-1992, which means that the said OM was given prospective effect only. Therefore, the said OM could even be said to be a clarification on the issue which is sought to be raised in the present case. It was clearly pointed out in the said notification that employees like the appellant would be entitled to get such pay protection, as employees of the State Government undertakings on their appointment in the Central Government service only from the effective date of 1-2-1992.
17. If the appellant would have been appointed for a post in the Central Government on direct recruitment basis after 1-2-1992 such benefit of pay protection could have been made available to him. But since the appellant was selected and appointed to a post in the Central Government on 23-2-1990 after working as an employee of the State Government undertaking viz. UPSEB, the Notification dated 7-8-1989 was not applicable to him and, therefore, he could not have legally claimed for any pay protection.
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19. The position with regard to the entitlement or otherwise of the appellant for getting pay protection was made clear by issuing the Notification dated 28-2-1992 clearly stipulating therein that an employee of the State Government undertaking selected for post in the Central Government on direct recruitment basis would be entitled to pay protection upon appointment in the Central Government only effective from 1-2-1992. The appellant having joined the MES, Ministry of Defence prior to the aforesaid date was not entitled to the benefit of the aforesaid notification which was issued much after his joining date and, therefore, the benefit of the aforesaid notification is not available to the appellant."
16. On the question of entitlement to pay protection, the decision rendered in the aforementioned judgment of Jagdish Parwani, has held that the issue with regard to pay protection arises after an employee joins his new post, where he gets his new pay scale, and his entitlement to pay protection would be on the basis of applicable rules regarding pay protection at that stage. It was stated thus:
"21. ...So far as getting pay protection is concerned, the said issue arises as soon as an employee joins his new post, where he gets his new pay scale and if he is entitled to any pay protection that is the stage and date when it is granted by whatever notifications, memorandums which are available and applicable at that stage laying down such rules regarding pay protection..."
17. In the instant case also, the writ petitioner, having accepted the appointment pursuant to an appointment order dated 20.09.2016, issued subsequent to the government orders dated 24.09.2015 and 08.07.2016, would be governed in terms of the policy guidelines under the said government orders and his claim for entitlement for pay protection would be as per the terms thereof.
18. The appointment of the petitioner having been made pursuant to selection based on direct recruitment in an open competition on the recommendation made by the Commission consequent to an adv
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ertisement, he would not be entitled to pay protection as per terms of the policy of the State Government under the government order dated 24.09.2015. The aforesaid position stands further clarified in terms of the subsequent government order dated 08.07.2016 whereunder it is provided that the matters relating to pay protection in respect of appointments made after 24.09.2015 would be governed as per the terms of the Government Order of the said date. 19. Counsel appearing for the respondent has not been able to dispute the aforesaid factual position with regard to the writ petitioner having not accepted the earlier appointment order dated 26.08.2015 in terms of which he had been appointed as Lecturer at the Medical College, Azamgarh, and that it was only pursuant to the subsequent appointment order dated 20.09.2016 that the petitioner accepted the offer of appointment and joined the post of Lecturer at the Medical College, Jhansi, on 07.10.2016. 20. The above being the undisputed factual position, we have no hesitation in coming to the conclusion that the judgment dated 18.07.2019 passed by the learned Single Judge has proceeded on a wrong factual premise, and, therefore, cannot be sustained, and accordingly the same is set aside. 21. The Special Appeal is, therefore, allowed. 22. The writ petition stands dismissed.