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Extension of Service and Performance of Duty gives rise to Entitlement to Salary: High Court of Jammu & Kashmir and Ladakh at Srinagar

Whether superannuation is to be taken as extension in service or is to be treated as fresh employment, and whether such performance of duty gives rise to entitlement to salary, was a question considered by the High Court of Jammu & Kashmir and Ladakh at Srinagar, before the HON’BLE JUSTICE MR. SANJEEV KUMAR, in the matter of Prof. (Dr.) Mohammad Aslam Baba & Ors. vs. Cluster University Srinagar & Ors. [WP(C) No.1902/2021], on 09.12.21.

The facts of the case were that at the time of their deputation to the Cluster University, Srinagar, the petitioners were working as Professors in different disciplines in the Department of Higher Education, Government of Jammu and Kashmir. The petitioners along with few other Professors of Higher Education Department were transferred on deputation and adjusted as Deans of various disciplines in Cluster University, Srinagar. The petitioner No.1 was due to retire on superannuation on 31st January, 2018, the petitioner No.2 on 31st March, 2018 and petitioner No.3 on 31st May, 2018. Since the Cluster University, Srinagar, needed the services of the petitioners for some more time, as such, and it was recommended that the University may be authorised to continue the services of the petitioners till 17th October, 2019. Accordinngly, the same was sanctioned. The petitioners who were given extension in their service, would draw their salary from their parent department as per post-retirement engagement procedure of the State Government. The petitioners, thus, continued in service but were not released their salary on the ground that there were some technical glitches which were required to be removed. The petitioners were conveyed that they will be released their salary for the period they have worked beyond their superannuation once the Cluster University Council accords necessary approval and regularizes their engagement. The petitioners submit that they waited and waited but neither the meeting of the Cluster University Council was convened nor any decision with regard to the payment of withheld salary of the petitioners was taken by the respondents. This is how, they claim, they were forced to knock the doors of the Court.

The Honourable High Court of Jammu & Kashmir and Ladakh at Srinagar, noted that there could be no reason or justification to deny the petitioners the salary for the period they have performed their duties beyond their superannuation, that too pursuant to the orders passed by the competent authority. The Court observed that the question as to whether the continuation of the petitioners beyond their superannuation is to be taken as extension in service or is to be treated as fresh employment is not a question which would require consideration. The petitioners have performed their duties and, therefore, they are entitled to salary. The approval of the Cluster University Council, if at all required, was held to be the responsibility of the respondents and the Court stated the petitioners have nothing to do with it. The Court held that the petitioners cannot be made to suffer because of inaction on the part of respondents. In these facts and circumstances, approval by Cluster University Council was rendered an idle formality. The Court found substance in the petition, and accordingly allowed the same. The respondents were directed to release the salaries of the petitioners for the period they had performed their duties beyond their retirement.

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Judgement reviewed by Bhargavi.

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