Union Of India & Ors vs A.S.Pillai & Ors

5

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. 6

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. On the other hand, Mr. B.K. Prasad, learned

counsel appearing for the respondents, who are original 7

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

unfair 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 8

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.

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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. 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 10

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. 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 11

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 para

48 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 12

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.....".

19. 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.

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 13

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