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Union Of India And Others v. A.S Pillai And Others
Factual and Procedural Background
The respondents (original petitioners) have been engaged since 1982/1992 as part-time civilian Bandsmen at Air Force Station, Tambaram. They are paid on a daily-wage basis, receive small monthly incentives and allowances, and share 20% of fees earned when deputed to perform at civilian functions. Seeking absorption into regular Group-D posts, they:
- Submitted representations on 22-05-2001 and 21-06-2001, which were rejected on 20-09-2001.
- Filed O.A. No. 1162/2001 before the Central Administrative Tribunal, which was dismissed on 10-06-2002 for want of sanctioned posts.
- Challenged the CAT order in W.P. No. 41579/2002 before the Madras High Court; the High Court allowed the writ petition and directed regularisation.
- The Union of India and its officers (original respondents) appealed to the Supreme Court. Leave was granted and the appeal was heard finally.
Legal Issues Presented
- Whether part-time, daily-wage civilian Bandsmen, not appointed against any sanctioned post, possess a legal right to be regularised or absorbed into a regular cadre of the Indian Air Force or any Group-D post.
- Whether the Madras High Court was correct in directing such regularisation in light of the principles laid down in State of Karnataka v. Umadevi (3), (2006) 4 SCC 1.
Arguments of the Parties
Appellants (Union of India)
- The respondents work only as part-time daily wagers; no sanctioned cadre or post exists for them.
- They are paid from non-public funds and perform duties only two or three times a week; their functions differ from regular Air Force Bandsmen.
- No assurance of absorption was ever given; respondents are free to pursue other occupations.
- The High Court erred in equating them with regular employees and in treating the 20% performance fee as exploitation.
Respondents (Civilian Bandsmen)
- Many have served continuously for decades and are nearing superannuation without prospects of terminal benefits available to government servants.
- The remuneration is meagre; they receive only 20% of civilian performance fees while the authorities retain 80%, amounting to exploitation.
- The High Court’s decision was fair and should be upheld.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State of Karnataka v. Umadevi (3), (2006) 4 SCC 1 | No fundamental right of temporary/daily-wage/contract workers to be absorbed; regular appointment requires compliance with Arts. 14 & 16. | The Court relied on para 48 to hold that the respondents, as part-time daily wagers not selected under recruitment rules and with no sanctioned posts, cannot claim absorption or regularisation. |
Court's Reasoning and Analysis
The Supreme Court noted the following undisputed facts: the respondents are part-time workers, not engaged against any sanctioned posts, receive daily wages plus incentives, and are free to pursue other employment. It observed that:
- The working conditions, duties, and regulatory framework governing regular Air Force Bandsmen differ materially from those of the respondents.
- Payment of 20% of civilian performance fees, in addition to daily wages and allowances, does not constitute exploitation.
- No promise of regularisation was ever made; consequently no legitimate expectation arises.
- Applying Umadevi (3), daily-wage or part-time workers have no enforceable right to absorption in the absence of sanctioned posts and due recruitment process.
Accordingly, the High Court’s direction to regularise the respondents contradicted settled law and was set aside.
Holding and Implications
APPEAL ALLOWED; the Madras High Court’s order directing regularisation is quashed and the Central Administrative Tribunal’s order dismissing the claim for absorption is restored. No order as to costs.
Implications: The decision reaffirms Umadevi (3) by clarifying that part-time or daily-wage workers, especially those not borne on sanctioned posts, cannot seek regularisation merely on the basis of long service. It underscores the necessity of sanctioned vacancies and compliance with constitutional recruitment norms before any claim to permanent employment can arise.
Anil R. Dave, J.— Leave granted. At the request of the learned counsel, the appeal was finally heard. Being aggrieved by the judgment and order dated 26-11-2007 passed in Writ Petition No. 41579 of 2002 by the High Court of Madras, this appeal has been filed by the Union of India and its officers, who were the respondents in the writ petition.
2. The present respondents were the petitioners in the petition before the High Court of Madras and, therefore, for the sake of convenience, they have been described as the petitioners whereas the appellants before this Court were the respondents in the High Court and, therefore, they have been described as the respondents hereinbelow.
3. The facts giving rise to the present litigation in a nutshell are as under: the petitioners were working on part-time basis in Civilian Bandsmen Team at Air Force Station, Tambaram. They were paid remuneration on daily-wage 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.
4. Some of the petitioners were engaged in 1982 whereas some were engaged in 1992. As they were not being paid a regular pay scale, they had made representations on 22-5-2001 and 21-6-2001. The said representations had been rejected on 20-9-2001 and, therefore, the petitioners had approached the Central Administrative Tribunal by filing Original Application No. 1162 of 2001 praying for an order to the effect that the respondents be directed to absorb them in one of the Group D posts.
5. The respondent authorities had filed their reply before the Tribunal stating that the petitioners were not entitled to regularisation 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 regularisation nor was there any sanctioned post to which they could be appointed.
6. 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 10-6-2002. The Tribunal had observed in its order rejecting the application that the petitioners were not entitled to regularisation 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.
7. Being aggrieved by the order passed by the Tribunal, the petitioners had preferred Writ Petition No. 41579 of 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 unjust 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 regularise the services of the petitioners.
8. The learned Additional Solicitor General Shri Mohan Parasaran, appearing for the appellants, who are the 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-wage basis as Bandsmen in Civilian Bandsmen Team at Air Force Station. He further submitted that the petitioners are paid remuneration on daily-wage basis, however, certain monthly emoluments are paid to them in addition to certain allowances, like haircut allowance, uniform and uniform washing allowances, etc.
9. The learned ASG 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. 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.
10. Shri Parasaran, learned ASG 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 regularise the services of the petitioners.
11. On the other hand, Mr B.K Prasad, learned counsel appearing for the respondents, who are the 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.
12. Moreover, Mr Prasad also submitted that the petitioners are being exploited because they are paid a very meagre 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 unfair manner by retaining 80% of the amount received from the civilians. 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 v. Umadevi (3) (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. 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 are also 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.
16. 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 whereas 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 aforestated amount is paid to them whenever they perform a 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.
17. 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.
18. 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.
19. We have carefully gone through the judgment delivered in Umadevi (3) (2006) 4 SCC 1 which has been relied upon by both the counsel. In our opinion, this Court has rightly held in para 48 of the said case that:
“48. … 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 unequals 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.”
20. We are in respectful agreement with the aforestated judgment of this Court and, in our opinion, the aforestated 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.
21. 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 regularisation filed by the petitioners had been rejected.
22. The appeal is, therefore, allowed with no order as to costs.
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