Union of India &
Ors Vs A.S. Pillai & Ors.
JUDGMENT
ANIL R. DAVE, J.
1.
Leave
granted.
2.
At
the request of the learned counsel, the appeal was finally heard.
3.
Being
aggrieved by Judgment and Order dated 26thNovember, 2007 passed in Writ
Petition No. 41579/2002 by the High Court of Madras, this appeal has been filed
by Union of India and its officers, who were respondents in the writ petition.
4.
The
present respondents were petitioners in the petition before the High Court of
Madras and, therefore, fort the sake of convenience, they have been described
as petitioners whereas the appellants before this Court were respondents in the
High Court and, therefore, they have been described as respondents herein
below.
5.
The
facts giving rise to the present litigation in a nut-shell is as under:-
6.
The
petitioners were working on part time basis in Civilian Bandsmen Team at Air
Force Station, Tambaram. They were paid remuneration on daily wages basis and
certain amount was paid to them per month as an incentive in addition to
certain allowances for haircut, uniform washing etc. and they were also
provided lunch or breakfast on certain days. Moreover, whenever they were asked
to play music at any function organised by civilians, 20% of the amount received
by the respondent-authorities from the civilians was paid to the team which had
played music.
7.
7.
Some of the petitioners were engaged in 1982whereas some were engaged in 1992.
As they were not being paid a regular pay scale, they had made representations
on22nd May, 2001 and 21st June, 2001. The said representations had been
rejected on 20th September, 2001 and, therefore, the petitioners had approached
the Central Administrative Tribunal by filing an Original Application No.
1162/2001praying for an order to the effect that the respondents be directed to
absorb them in one of the Group `D' Posts. The respondent-authorities had filed
their reply before the Tribunal stating that the petitioners were not entitled
to regularization or appointment to Group `D' posts, for the reason that there was
no sanctioned post and the petitioners were paid from Non-Public Fund and there
was neither any provision for regularization nor there was any sanctioned post
to which they could be appointed. Ultimately, after considering the facts of the
case and upon hearing the learned advocates appearing for the parties, the
Tribunal rejected the application by an order dated 10th June, 2002. The
Tribunal had observed in its order rejecting the application that the
petitioners were not entitled to regularization because the petitioners had not
been appointed against any sanctioned post and it was also observed that the
petitioners were daily-wagers who were paid Rs. 40 per day and Rs. 200/- per
month as an incentive in addition to certain other perquisites. It was also
observed that no material was placed before the Tribunal to show that the petitioners
were performing duties which were similar to those performed by Bandsmen
working in the Air Force.
8.
8.
Being aggrieved by the order passed by the Tribunal, the petitioners had
preferred Writ Petition No.41579/2002 which has been referred to hereinabove
and which has been allowed by the High Court of Madras. The High Court found
that the respondent-Authorities were acting in an unfair manner by giving only
20% of the charges received from private civilians when the petitioners were directed
to play their instruments in functions organised by private citizens. Moreover,
the High Court also found it un just to continue the petitioners as daily
wagers for such a long period without giving them regular pay-scale. The High
Court, therefore, quashed and set aside the order passed by the Tribunal and
gave directions to the respondents to regularize the services of the
petitioners.
9.
9.
Learned Additional Solicitor General, Shri Mohan Parasaran, appearing for the
appellants, who are original respondents, submitted that the impugned order is
unjust and illegal and deserves to be quashed and set aside. He mainly submitted
that the petitioners are not working in any sanctioned cadre or on any
sanctioned post but they are working as part timers on daily wages basis as
Bandsmen in Civilian Bandsmen Team at Air Force Station. He further submitted
that the petitioners are paid remuneration on daily wages basis however,
certain monthly emoluments are paid to them in addition to certain allowances,
like haircut allowance, uniform and uniform washing allowances etc. He also
submitted that the nature of duties performed by the petitioners and the
persons appointed in Indian Air Force as Bandsmen are quite different and the
petitioners could not adduce any evidence to show that their duties and
responsibilities were similar to those of the persons working as Bandsmen in
Indian Air Force. He further submitted that as the petitioners are paid from
Non-Public Funds, they are not regular employees of the respondent-authorities.
10.
Being
part timers, the petitioners do not attend to the duties like other regular
employees of Indian Air Force. Hardly, twice or thrice in a week they attend to
work either for practice or for their performance at the functions of civilians.
In addition to the daily wages and regular monthly amount paid to them, they
are paid 20% of the amount received by the respondent-authorities from the
civilians for whom the petitioners play tunes. He specifically stated that as the
petitioners are not regular employees, it is open to them to have their own
other occupation. So he clarified that there is no restriction on the
petitioners with regard to working elsewhere. Thus, the petitioners being only
part timers and as no assurance was ever given to them by the respondent-authorities
with regard to their absorption in any Group Post, the petitioners do not have
any right to be absorbed in any of the cadres of Indian Air Force and,
therefore, the High Court was in error while giving directions to the
respondent-authorities to regularize the services of the petitioners.
11.
11.
On the other hand, Mr. B.K. Prasad, learned counsel appearing for the
respondents, who are original petitioners, submitted that as some of the
petitioners are working since 1982 and others are working since 1992 and as most
of them are likely to be superannuated within five years or so, they would be
deprived of terminal benefits which normally Government servants get upon their
superannuation. Moreover, he also submitted that the petitioners are being exploited
because they are paid a very meager amount by way of remuneration. Not only
that, he further submitted that substantial amount received by the respondents
from the civilians in consideration of the petitioners' orchestral performance
is taken away by the respondent-authorities. According to him the
respondent-authorities are acting in an un-fair manner by retaining 80% of the
amount received from the civilians.
12.
He,
therefore, submitted that the order passed by the High Court is just and proper
and the present appeal deserves to be dismissed with costs.
13.
We
have heard the learned counsel at length and have also considered the judgment
delivered in State of Karnataka Vs. Uma Devi (2006)4 SCC, 1 cited by both the counsel.
14.
It
is an admitted fact that the petitioners have been working for several years
under the respondent-authorities as Bandsmen in Civilian Bandsmen Team at an
Air Force Station. It is also an admitted fact that the petitioners are working
as part timers and they are not working in any sanctioned cadre and, therefore,
they are not working on any sanctioned post. It appears that the
respondent-authorities have imparted training to the petitioners as musicians
and the petitioners play musical instruments belonging to and maintained by the
respondent-authorities either for the respondents or at the functions organised
by civilians. If the respondents depute the petitioners for playing orchestra
in pursuance of a request from civilians, the petitioners put on special
uniform given to them by the respondents and the petitioners get 20% of the amount
received by the respondents from the civilians. The said amount is in addition
to the usual wages paid to the petitioners by the respondents.
15.
15.
It is true that the petitioners have been working for several years under the
respondents as part timers and they are not getting salary which is given to
regular employees but it is also pertinent to note that working conditions of
the petitioners and other Bandsmen appointed by the respondents are not same.
The petitioners are not in regular employment. They are only part timers, who
perform their duties twice or thrice in a week and they are paid daily wages
whenever they perform their duties. In addition to the daily wages, they areal so
paid certain monthly amount by way of incentive and they are also given
allowances for haircut, washing of uniform and at times they are also provided
breakfast or lunch. The petitioners were never given regular appointment in any
regular cadre. In our opinion, the petitioners do not have any right to get
absorbed in any cadre to which they do not belong. In our opinion, the High
Court was in error when it expressed its view to the effect that the
petitioners were exploited by the respondent-authorities, because 80% of the
amount received from the civilians was retained by the respondents where as only
20% of the amount was given to the petitioners. It is pertinent to note that
the petitioners are daily wagers and in addition to the daily wages and other
allowances referred to hereinabove, the afore-stated amount is paid to them whenever
they perform show at a function organised by civilians. The
respondent-authorities have imparted training to the petitioners as musicians
and uniform is also provided to them by the respondents. In the circumstances, when
the petitioners are paid 20% of the amount received by the respondents in
addition to the daily wages paid to them, in our opinion it cannot be said that
the petitioners are exploited by the respondents. The petitioners knew well
that they were appointed as part timers and there was no scope for them to be
absorbed in any regular cadre. Moreover, at no point of time any assurance was
given to the petitioners that they would be given regular appointment or they
would be absorbed in any of the Group `D' Posts.
16.
16.
It is also very pertinent to note that the petitioners are part timers and they
are free to get themselves engaged elsewhere as musicians and they are not
restrained from working elsewhere when they are not working for the respondent-authorities.
On the other hand, those who are part of Bandsmen Team of Air Force, are not
permitted to work elsewhere privately. Moreover, the petitioners are not full
time employees and they are also not subject to service rules or other
regulations which govern and control the regularly appointed staff of the Air
Force. Thus, in our opinion, the petitioners cannot compare themselves with
other regularly selected Bandsmen of Indian Air Force. So the petitioners cannot
be compared with those who are in regular cadre of Bandsmen of the Indian Air
Force.
17.
We
have carefully gone through the judgment delivered in case of Umadevi (supra)
which has been relied upon by both the counsel.
18.
In
our opinion, this Court has rightly held in para48 of the said case that:- "
......There is no Fundamental Right in those who have been employed on daily wages
or temporarily or on contractual basis, to claim that they have a right to be absorbed
in service. As has been held by this Court, they cannot be said to be holders
of a post, since, a regular appointment could be made only by making
appointments consistent with the requirements of Articles 14 and 16 of the Constitution.
The right to be treated equally with the other employees employed on daily
wages, cannot be extended to a claim for equal treatment with those who were
regularly employed. That would be treating un equals as equals. It cannot also be
relied on to claim a right to be absorbed in service even though they have
never been selected in terms of the relevant recruitment rules.....".
19.
We
are in respectful agreement with the afore stated judgment of this Court and in
our opinion the afore stated judgment will not render any help to the
petitioners because there is no separate cadre of civilian Bandsmen to which
the petitioners can be absorbed. Moreover, they being part-timers cannot be
absorbed in another full time cadre. Therefore, no direction with regard to
absorption of the petitioners in any cadre can be given.
20.
20.
For the reasons stated hereinabove, we are not in agreement with the impugned
order passed by the High Court. We, therefore, quash and set aside the order
passed by the High Court so as to restore the order passed by the Central
Administrative Tribunal, by virtue of which the application praying for
regularization filed by the petitioners had been rejected.
21.
The
appeal is, therefore, allowed with no order as to costs.
...........................................J
(Dr. MUKUNDAKAM SHARMA)
.............................................J.
(ANIL R. DAVE)
New
Delhi
November
19, 2010
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