IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 26.11.2007 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Writ Petition No.41579 of 2002 1.A.S.Pillai 2.P.Mani 3.A.Devasahayam 4.N.Varadan 5.P.Samuel 6.V.Velmurugan ... Petitioners Vs. 1.Union of India, rep.by Air Officer Commanding Air Force Station, Tambaram, Chennai-600046. 2.Air Officer Commanding-in-Chief, Air Force Station, Bangalore-6. 3.Chief of the Air Staff, Air Headquarters (Vayubhavan), New Delhi-110011. 4.The Registrar, Central Administrative Tribunal Chennai Bench, Chennai-600104. ... Respondents Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for all the connected records pertaining to the passing of the order dated 10.6.2002 made in O.A.No.1162 of 2001 on the file of the 4th respondent and quash the same and consequently direct the respondents 1 to 3 to regularise the services of the petitioners with effect from the date of their initial appointment with all benefits. https://hcservices.ecourts.gov.in/hcservices/ For petitioners : Mr.G.Justin For R.1 to R.3 : Mr.S.M.Deenadayalan O R D E R ELIPE DHARMA RAO, J. The petitioners are employed as Civilian Bandsmen in Station Bands Selection in the first respondent establishment. Some of the petitioners are employed as such from 1982 onwards and some of them from 1992 onwards as casual employees on a consolidated pay and the terms and conditions of the services of the petitioners in the first respondent establishment are governed by the existing administrative instructions. The petitioners and others have given representations to the respondents on 22.5.2001 and 21.6.2001 praying to fix the pay scale of Civilian Bandsmen on par with the pay scales of Bandsmen in the Indian Air Force and the respondents, though, at the first instance have replied to the petitioners by their letter dated 20.12.2000 that their claim is under consideration, but, subsequently, by their letter dated 20.9.2001 have rejected the request of the petitioners. Therefore, the petitioners along with others have filed Original Application No.1162 of 2001 before the Central Administrative Tribunal praying to direct the respondents to absorb them in any one of the Group 'D' posts in the first respondent establishment and regulate the services of the applicants with effect from the date of their initial appointment as Casual Labourers in the first respondent establishment and sanction all service benefits including arrears of salary. The petitioners have also submitted that in the year 1992, the applicants were called upon, following their applications, by the Commandant, CISF, RTC, Arakkonam for interview and test for appointment as Bandsmen in CISF, RTC, Arakkonam, but they were not allowed to report to test for selection by the first respondent stating that since they were appointed at Air Force Station, Tambaram, they would be made permanent and their pay scales would be fixed on par with the pay scales of Bandsmen in the Indian Air Force. 2. Before the Tribunal, the respondents have filed a reply statement stating that the Air Force Station, Tambaram has engaged Civilian Bandsmen Team consisting of 10 bandsmen as a Non-Public Fund Venture and they all are paid from local Non Public Fund and are not governed under the Central Government Rule; that they are working as part-time and their terms and conditions are governed by DACL.29/99; that the services rendered by them as Bandsmen cannot be accounted or regulated for any Government appointments as they are not Government servants and not paid from Defence Service Estimate (Public Fund) and there are no provisions and Rules to absorb any employee, whether paid from public fund or non- public fund to any existing regular vacancies. The respondents would deny the allegation of the petitioners that they were not allowed to https://hcservices.ecourts.gov.in/hcservices/ participate in the interview and would further submit that the existing regular vacancies are laid down in SRO 365, dated 15.12.1989, which are framed under Article 309 of the Constitution and these regular vacancies can be filled either by transfer or by direct recruitment and not by absorption; that the non-Government employees are not eligible and entitled for any relaxation for Government appointment and has to follow the procedure which is laid down for other citizens for direct recruitment and the claim of Bandsmen for absorption for released Group 'D' post is illegal. 3. The respondents would further submit that the Government of India has released some vacancies for Group 'C' and 'D' posts after relaxing ban on recruitment which was in existence since 1984 and these vacancies are to be filled up by direct recruitment and a publication to this effect was effected in the Employment News, dated 24/30.12.2001 and no Bandsman has ever been given any assurance for absorption in Government appointments and not prevented to seek employment elsewhere; that the petitioners are not engaged against any existing vacancies and not paid from Public Fund Account and their duties are for limited hours and occasional; that petitioners 1 to 4 were engaged for a consolidated salary, which was revised from time to time and the last revision was done in 1997 and rest of the petitioners were engaged on daily wages and at present they are paid at Rs.40/= per day and Rs.200/= per month as incentive in addition to other financial packages; that the petitioners are not eligible and entitled for absorption in Group 'D' posts and there is no Rule for their absorption in Group 'D' posts, which are to be filled under Recruitment Rules, framed under Article 309 of the Constitution and the petitioners, instead of following the procedure for applying for direct recruitment, want a back door entry for these posts. On such averments, the respondents prayed to dismiss the claim of the petitioners. 4. The Tribunal, by its order dated 10.6.2002, dismissed the claim of the petitioners on the ground that they have not been appointed against any post or vacancy, but worked as casual labourerers for long period and casual labourers cannot claim regular benefit, unless they have been appointed as per Rules and worked against a vacant post. Aggrieved against the said decision of the Tribunal, this writ petition has been filed. 5. There is no denial of the fact that the petitioners are working as Bandsmen in Station Band Section of the respondents, some from the year 1982 and some from the year 1992. According to the respondents, the petitioners were appointed on casual and daily basis and since the petitioners are being paid from out of the Non-public fund, their services are governed by 'the Rules Regulating the Terms and Conditions of Service of Civilian Employees of Non-Public Funds (Welfare Fund) other than AF Canteen and AF School' and would quote Rule 2(2) of the said Rules, which reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "All employees, whether under probation or temporary or permanent do not get the status of a government employee at any stage. All employees are employees of NPF and will remain so till the superannuation or till the date of resignation/termination of service." Pointing out this Rule, the respondents would argue that the petitioners, being the employees of NPF, could never get the status of a government employee at any stage and therefore, the relief sought for by them is rather misconceived. 6. While on one hand, the respondents rely on Rule 2(2), to reject the claim of the petitioners, they are silent rather tight-lipped about Rule 2(1) of the same Rules, which reads as follows: "All employees shall be classified as under probation during first year of service. On successful completion of one year of probation, they shall be termed as temporary employees till five years of service (including the period of probation). On completion of five years of qualifying service, they shall be treated as permanent employees up to the age of superannuation or up to the date of resignation/termination." 7. If the respondents cling on these Rules for other purposes, that is to say, to deny or reject the claim of the petitioners, they should have been fair enough in their approach by complying with the other part of the same Rules viz. Rule 2(1), which mandates to treat the employees as permanent employees after completion of five years of qualifying service since, admittedly, the petitioners are in service from 1982 and 1992. None of the petitioners was made permanent by the respondents in spite of they being in service from 1982 and 1992, which fact remained unchallenged. 8. At this juncture, we feel it appropriate to quote the application clause of the said Rules in Rule 1(2), which reads as follows: "These rules shall apply to all civilian employees of Non- Public Funds paid out of Non-Public fund Accounts, but shall not be applicable to any person engaged on daily wages or on casual employment. These rules shall not be applicable to any Government employee, who may, for the time being be detailed to work therein in any capacity whatsoever." (emphasis supplied) 9. These Rules have come into operation on 30.11.1999 under Para 1 of Air HQ Letter No.Air HQ/26051/Accts/PC-II and since, admittedly, all the petitioners having been engaged years prior to the coming into being of these Rules i.e. from 1982 and 1992, they cannot be given retrospective effect so as to affect the accrued interest of the personnel already in service. From this a legal presumption would arise in the mind of this Court that only to deprive such of the employees engaged by the respondents on casual and daily wage basis, these Rules are brought into force inducting draconian and sweeping https://hcservices.ecourts.gov.in/hcservices/ clauses into it, such as Rule 2(2), extracted supra, paving way for exploitation of the employees for years together till the date of their superannuation by the respondents. In the considered opinion of this Court, such draconian clauses invented and introduced into the so-called Rules by the respondents is unethical rather unconstitutional. The other aspect which this Court wants to point out is that on one hand the respondents name them as terms and conditions and on the other hand, they call it as Rules, which shows the confused state in which the respondents are hovering. 10. At this juncture, we deem it proper to look at the above said Rules so as to know their nature. Rule (3) deals with Appointment, Rule (4) deals with probation period; Rule (8) deals with hours of work and closed days; Rule (9) deals with attendance; Rule (10) deals with Leave; Rule (11) deals with fitness for work; Rule (13) deals with wages; Rule (14) deduction that may be made from wages; Rule (15) deals with Medical facilities, House Rent Allowances and Conveyance allowances; Rule (16) deals with Rules of conduct; Rule (17) deals with Act of commission/omission constituting misconduct; Rule (18) deals with suspension from duty; Rule (19) deals with punishment for misconduct; Rule (20) deals with procedure for dealing with cases of misconduct; Rule (21) deals with review of the punishment; Rule (23) deals with resignation; Rule (24) deals with termination of service; Rule (25) deals with resignation/termination of services; Rule (26) deals with superannuation; Rule (27) deals with contributory provident fund; Rule (28) deals with payment of bonus; Rule (29) deals with loan; Rule (30) deals with Service Book; Rule (31) deals with terminal benefits. 11. Thus, when all the Rules are similar to that of the regularly appointed employees, and when the respondents impose and follow all such conditions in respect of the casual and daily wage employees, denying them the benefits being enjoyed by such similarly placed employees, appears to be unfair and amounting to violation of Article 14 of the Constitution of India. 12. The respondents would further argue that the petitioners were not appointed against any post or vacancy. There is more than sufficient material available on record to show that the services of the bandsmen is part and parcel of each and every event undertaken by the respondents and thus the work being undertaken by the petitioners is perennial in nature. When such is the service being rendered by the petitioners, which is perennial in nature, the respondents having appointed them and getting their services from the years 1982 and 1992, had never thought of creating such a compulsory cadre and have taken the stand that they were not appointed against any post or vacancy, only with an ulterior motive of denying the due to the depressed class people like the petitioners, whose rights were upheld by the Constitution. If really the respondents are not in the need of the services of such of the employees, what made them to employ them and extract work from them for the last 25 years or so, is a billion dollar question that remained unanswered throughout. https://hcservices.ecourts.gov.in/hcservices/ The administrative convenience adopted by the respondents regarding the payment of their remuneration under a different head, cannot be pitted against the petitioners, as being an obstacle to confer them their due status and benefits flowing from it. 13. At this juncture, we also want to point out that the respondents by their Station Routine Order dated 31.3.2000, have announced that the Air Force Station Band can be taken on hire for functions, marriage parties etc. and Service Personnel/AF Civilians/outside civilians could hire the band, with a hiring charge of Rs.3000/= for three years (minimum). It is also seen that after much persuasion, the respondents by their proceedings dated 20.9.2001, considering the request of the petitioners, have started paying 20% of band hiring charges to the petitioners besides providing breakfast and lunch, hair cut and washing charges for band uniform. Therefore, it is clear that till the representation of the petitioners dated 1.12.2000, they were not getting any remuneration from out of the hire charges being received by the respondents and even thereafter, only 20% of the band hiring charges are being paid to the petitioners, the rest of the 80% of the band hiring charges being credited to the accounts of the respondents. 14. Had the petitioners been not attending the functions through the respondents, and had they attended the functions on their own, they would have received whole of the hiring charges and not just the pittance of 20%. Thus, when the respondents have treated the petitioners as their employees, and sent them even for the private functions and swallowed 80% of the hiring charges, using the petitioners as tools to augment their income, the petitioners should not be allowed to get deprived further at the hands of the respondents. It seems, the petitioners have served the organisation with a fond hope of getting their services absorbed since the work which they are pursuing is perennial in nature, and this was taken advantage of by the respondents, as has been discussed supra. 15. As has been held by the Apex Court in AIR INDIA STATUTORY CORPORATION vs. UNITED LABOUR UNION [(1997) 9 SCC 377] 'there are constitutional limitations in the trinity, viz., Preamble, the Fundamental Rights and the Directive Principles on the respondent- Management, a public sector undertaking, and it share the burden and shoulder constitutional obligations to provide facilities and opportunities enjoined in the Directive Principles, the Preamble and the Fundamental Rights enshrined in the Constitution' and not to resort to such illegal unfair labour practices, as has been clearly established in this case. 16. In GUJARAT AGRICULTURAL UNIVERSITY vs. RATHOD LABHU BECHAR [(2001) 3 SCC 574], considering the case of daily rated labourers engaged dehors the rules as plumbers, carpenters, sweepers, pump operators, helpers and masons by a fully State-aided University and continued as such for long period of 10 years or so without considering their regularisation, the Apex Court has held: https://hcservices.ecourts.gov.in/hcservices/ "Where work taken is not for a short period or limited for a season or where work is not of a part-time nature and if pattern shows that work is to be taken continuously year after year, there is no justification to keep such persons hanging as daily-rate workers. In such a situation a legal obligation is cast on an employer; if there be vacant post, to fill it up with such workers in accordance with rules, if any, and where necessary by relaxing the qualifications, where long experience could be equitable with such qualifications. If no posts exist then duty is cast to assess the quantum of such work and create such equivalent posts for their absorption.... It is true, creation of posts does involve financial implication. Hence financial health of a particular institution plays an important role which courts also keep in mind. The court does exercise its restraint where facts are such where extent of creation of posts create financial disability. But this does not give largess to an institution to engage larger number of daily-wage workers for a long number of years without absorbing them or creating posts, which constitutes an unfair labour practice." 17. It is not the case of the respondents that the petitioners are not qualified or eligible to hold the post, which they are holding for the last 25 years or so. A strong case has been put up on the part of the petitioners that in the year 1992, they were called upon, following their applications by the Commandant, CISF, RTC, Arakkonam for interview and test for appointment as Bandsmen in CISF, RTC, Arakkonam, but they were not allowed to report to test for selection by the first respondent authority stating that since they were appointed at Air Force Station, Tambaram, they would be made permanent and their pay scales would be fixed on par with the pay scales of Bandsmen in the Indian Air Force. Though this allegation of the petitioners was denied by the respondents, from the facts and circumstances of the case and the manner in which the things had gone against the petitioners all these days, at the instance of the respondents, this Court is able to presume, legally, that there is truth in the contention of the petitioners since otherwise, having got the call to attend the interview, there is no rhyme or reason for the petitioners to abstain from attending the interview, which would have made them the permanent employees long back. Having denied or restrained the petitioners from attending even the interview on a false promise, the respondents cannot now take a 'U' turn, that too, pitting against them the so-called Rules of the year 1999 and give a deep burial to the interest of such a depressed class. 18. On the part of the respondents, it is argued that the petitioners having joined the services of the respondents, knowing fully well their status as daily wage and casual labourers and that they could never be absorbed, cannot, now claim absorption. The learned counsel for the respondents would also submit that the petitioners being the casual https://hcservices.ecourts.gov.in/hcservices/ labour, do not have any right to regular or permanent public employment and would rely on a Constitutional Bench judgment of the Apex Court in SECRETARY, STATE OF KARNATAKA AND OTHERS vs. UMADEVI AND OTHERS [(2006) 4 SCC 1], wherein it has been held: "Casual/temporary employees do not have any right to regular or permanent public employment. Further, temporary, contractual, casual, ad hoc or daily-wage public employment must be deemed to be accepted by the employee concerned fully knowing the nature of it and the consequences flowing from it." In Para No.53 of the said Judgment, it has been held: "One aspect needs to be clarified. There may be cases where irregular appointments (not illegal appointments) as explained in S.V.Narayanappa (State of Mysore V. S.V.Narayanappa (1967) 1 SCR 128: AIR 1967 SC 1071), R.N.Nanjundappa (R.N.Nanjundappa V. T.Thimmiah (1972) 1 SCC 409: (1972) 2 SCR 799) and B.N.Ngarajan (B.N.Nagarajan V. State of Karnataka, (1979) 4 SCC 507: 1980 SCC (L&S) 4: (1979) 3 SCR 937) and referred to in para 15 above, of duly qualified persons in duly sanctioned vacant posts might have been made and the employees have continued to work for ten years or more but without the intervention of orders of the courts or of tribunals. The question of regularisation of the services of such employees may have to be considered on merits in the light of the principles settled by this Court in the cases above referred to and in the light of this judgment. In that context, the Union of India, the State Governments and their instrumentalities should take steps to regularise as a one-time measure, the services f such irregularly appointed, who have worked for ten years or more in duly sanctioned posts but not under cover of orders of the courts or of tribunals and should further ensure that regular recruitments are undertaken to fill those vacant sanctioned posts that require to be filled up in cases where temporary employees or daily wagers are being now employed. The process must be set in motion within six months from this date. We also clarify that regularisation,l of any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of the constitutional requirement and regularising or making permanent, those not duly appointed as per the constitutional scheme." 19. There is no quarrel with regard to the proposition laid down by the Honourable Apex Court. But, as has already been adverted to supra, the draconian Rules were brought into existence by the respondents well after the appointment of the petitioners. Therefore, by the time the petitioners joined the services of the respondents, no such draconian Rules were in operation and the petitioners were also serving, with required qualifications, with a fond hope of absorption and they were restrained by the respondents from attending even the interview in the year 1992 on the ground that they would be made permanent in their posts and therefore, they need not have to attend the interview any more. In https://hcservices.ecourts.gov.in/hcservices/ this factual matrix of the case on hand, the above part of the judgment of the Honourable Apex Court would not apply to the facts of the case on hand. 20. Further more, in the recent judgment of the Honourable Apex Court in U.P.STATE ELECTRICITY BOARD vs. POORAN CHANDRA PANDEY AND OTHERS [2007 (7) SUPREME 374], where 34 petitioners who were daily wage employees of the Cooperative Electric Supply Society had prayed for regularization of their services in the U.P.State Electricity Board, Their Lordships of the Honourable Apex Court, while referring to various pronouncements made by the Apex Court earlier, have held: "The decision in Uma Devi's case [(2006) 4 SCC 1], cannot be applied to a case where regularization has been sought for in pursuance of Article 14 of the Constitution and often Uma Devi's case is being applied by Courts mechanically as if it were a Euclid's formula without seeing the facts of a particular case. The ratio of any decision must be understood in the background of the facts of that case. A case is only an authority for what it actually decides, and not what logically follows from it. A little difference in facts or additional facts may make a lot of difference in the precedential value of a decision." It has also been held in para No.18 of the Judgment: "We may further point out that a seven-Judge Bench decision of this Court in MANEKA GANDHI vs. UNION OF INDIA AND ANOTHER [AIR 1978 SC 597] has held that reasonableness and non-arbitrariness is part of Article 14 of the Constitution. It follows that the government must act in a reasonable and non-arbitrary manner otherwise Article 14 of the Constitution would be violated. Maneka Gandhi's case (supra) is a decision of a seven-Judge Bench, whereas Uma Devi's case (supra) is a decision of a five- Judge Bench of this Court. It is well settled that a smaller bench decision cannot override a larger bench decision of the Court. No doubt, Maneka Gandhi's case (supra) does not specifically deal with the question of regularization of government employees, but the principle of reasonableness in executive action and the law which it has laid down, in our opinion, is of