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

2. At the request of the learned counsel, the appeal was finally heard.

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 3 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 4 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.

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.

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.

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