Non-Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.              OF 2010 (Arising out of SLP(Civil.) No.21461 of 2008)

UNION OF INDIA & ORS .....APPELLANTS.

        VERSUS

A.S. PILLAI & ORS. .....RESPONDENTS

J U D G M E N T

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 26th  

November, 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,  for  

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. Some  of  the  petitioners  were  engaged  in  1982  

whereas some were engaged in 1992. As they were not being  

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paid a regular pay scale,  they had made representations on  

22nd 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.  1162/2001  

praying  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  

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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. 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 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 regularize  

the services of the petitioners.

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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.

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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  

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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  

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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  

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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  

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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  

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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  

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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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