IGNOU Regional Centres In J&K Are Permanent Establishments With Cadre Posts: High Court Directs Consideration Of Regularisation Of Daily Wagers

The Court noted that the Division Bench had set aside the earlier direction of the Writ Court declaring the petitioners therein to be deemed to have been appointed on regular basis, while observing that the petitioners had not been treated with clarity and fairness by the University.

The Court was hearing three connected writ petitions filed by persons claiming to have been engaged on contractual basis in the Indira Gandhi National Open University, Srinagar Centre for its different Sections, seeking a direction upon the respondents to treat and regularise them as Group C and Group D employees against the posts on which they had been working since the date of their engagement.

The petitions were heard by Justice M.A. Chowdhary, who recorded the observations of the Division Bench,

“We hold that respondent no. 2's Regional Centres, in particular in the North-East, Sikkim and J&K, are in permanent establishment mode and, as such, have the cadre posts for employment and that is the reason that the petitioners came to be engaged and renewed in their engagement from time to time for working on the respective posts though on daily wage/contractual.”

Background

The petitioners claimed that they had been engaged against posts lying vacant in the University with effect from 2008 onwards through a due process of selection and that they possessed the relevant qualifications with respect to the posts which they were holding.

They contended that the principle of equal pay for equal work, emanating from Article 39(d) of the Constitution of India, entitled them to equal pay as their regular counterparts performing similar work.

They further relied upon the Indira Gandhi National Open University (Non-Academic Employees - Group A, B and C) Recruitment and Promotional Rules, 2010, submitting that as per the said Rules, promotion to the post of Junior Assistant-cum-Typist was to be by way of 25% from Multi-Tasking Staff who had rendered a minimum of five years of continuous service in that grade, and that having been appointed in 2008 onwards they were to be designated as Multi-Tasking Staff, rendering them eligible for promotion under the said quota.

The respondents filed objections stating that the petitioners had been engaged purely on daily-wage basis as a stop-gap arrangement for seasonal work arising during the course of admission and examination, against posts which were otherwise required to be filled up in accordance with the conditions and provisions of the Recruitment Rules of 2010.

It was contended that the services of the petitioners, being purely daily-wage and seasonal in nature, could not be regularised, and that no regularisation could be done against the provisions of the Rules in vogue.

The respondents further submitted that the petitioners in the first writ petition had been engaged as daily wagers and had approached the Court immediately after their engagement, obtaining interim orders; that one petitioner had already left the services; and that in the third writ petition, the petitioner had not joined services after applying for maternity leave.

It was contended that the petitioners were continuing on the strength of interim orders and that no right accrued to an employee continuing on interim orders. The respondents further submitted that the Recruitment Rules of 2010 were applicable only to employees working on regular or temporary basis and did not apply to ad hoc appointments, daily wagers or contractual employees, whose terms and conditions were governed by the engagement orders and undertakings submitted at the time of engagement.

The respondents also pointed out that similarly situated employees of the University had sought the same reliefs in an identical petition which was allowed by the Writ Court, against which the University had filed a Letters Patent Appeal which was disposed of by the Division Bench, setting aside the judgment of the Writ Court and directing the respondents to consider the case of the petitioners for regularisation.

Court's Observation

The Court noted that similarly engaged persons in the University had approached the Court in the year 2009 by way of a writ petition seeking regularisation of their services. The said writ petition came to be disposed of by order dated 14.03.2016, by holding,

“the Petitioners therein shall be deemed to have been appointed on regular basis on the posts they stand appointed on contractual basis.”

The Court noted that it was further held that the petitioners therein would be given all service benefits, including salary, by treating them to have been appointed on regular basis, and that they would be entitled to all service benefits from the date of their appointment pursuant to the selection process undertaken by the respondents.

The Court observed that this order of the Writ Court was assailed by the University in a Letters Patent Appeal before the Division Bench. The Division Bench, vide judgment dated 03.04.2024, while observing that it was not clear whether the University's Regional Centre Srinagar was a permanent establishment and whether its administration and management was meant to be carried out by adhocism by hiring and firing the workforce, held the order of the Writ Court to be not sound on facts and law and set aside the same.

The Court noted that the Division Bench, having set aside the order of the Writ Court, issued directions recording:,

“We hold that the learned writ court came to dawn upon itself the power and position of the employer i.e. respondent no. 2 - IGNOU in declaring the writ petitioners to be deemed to have been appointed on regular basis on the posts for which they came to be appointed on contractual basis and accordingly directing grant of all service benefits including salary in favour of the writ petitioners by reckoning their appointment on regular basis. The learned writ court overstepped its writ jurisdiction in positioning itself as the respondent no. 2 - IGNOU. We accordingly set aside the directions given in the impugned judgment.”

The Court further noted the observation of the Division Bench,

“However, we also come to hold that the petitioners have not been treated with clarity and fairness by the writ respondents 2 to 5, in particular by the respondent no. 2 - IGNOU.”

The Division Bench had further observed that the writ petitioners had invested good length of their life in service of the running of the University's Regional Centre Srinagar, though by mode of getting engaged on daily wage and contractual basis, but the recurring continuation and renewal of their respective engagement kept the functioning of the Regional Centre going and in the course of time implanted an impression in the understanding of the writ petitioners that they were quasi-permanent in terms of their employment.

The Court noted that the Division Bench had held that the Regional Centres of the University, in particular in the North-East, Sikkim and Jammu and Kashmir, are in permanent establishment mode and, as such, have the cadre posts for employment, and that this was the reason that the petitioners came to be engaged and renewed in their engagement from time to time for working on the respective posts though on daily wage and contractual basis.

Accordingly, the Court, having regard to the judgment of the Division Bench in the Letters Patent Appeal directed the consideration of the petitioners cases by the University's decision-making authority in terms of the said decision.