{"id":86402,"date":"2003-04-03T00:00:00","date_gmt":"2003-04-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/phool-badan-tiwari-and-ors-vs-union-of-india-and-ors-on-3-april-2003"},"modified":"2018-04-14T18:19:54","modified_gmt":"2018-04-14T12:49:54","slug":"phool-badan-tiwari-and-ors-vs-union-of-india-and-ors-on-3-april-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/phool-badan-tiwari-and-ors-vs-union-of-india-and-ors-on-3-april-2003","title":{"rendered":"Phool Badan Tiwari And Ors vs Union Of India And Ors on 3 April, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Phool Badan Tiwari And Ors vs Union Of India And Ors on 3 April, 2003<\/div>\n<div class=\"doc_bench\">Bench: Shivaraj V. Paul, Arijit Pasayat<\/div>\n<pre>           CASE NO.:\nAppeal (civil)  272 of 2001\n\nPETITIONER:\nPHOOL BADAN TIWARI AND ORS.\n\nRESPONDENT:\nUNION OF INDIA AND ORS.\n\nDATE OF JUDGMENT: 03\/04\/2003\n\nBENCH:\nSHIVARAJ V. PAUL &amp; ARIJIT PASAYAT\n\nJUDGMENT:\n<\/pre>\n<p>JUDGMENT<\/p>\n<p>2003 (3) SCR 386<\/p>\n<p>The following Order of the Court was delivered:\n<\/p>\n<p>The appellants before us in this appeal, have called in question the<br \/>\nvalidity and correctness of the order dated 13. 1. 2000 passed by the High<br \/>\nCourt in CWP No. 6654\/99. The appellants in the first instance approached<br \/>\nthe Central Administrative Tribunal by filing O.A. No. 3099\/91 and O.A. No.<br \/>\n1014\/93. The Tribunal dismissed both the O. As. Not satisfied with and<br \/>\naggrieved by the said orders of the Tribunal they approached the High Court<br \/>\nby filing the writ petition afore-mentioned. The High Court did not find<br \/>\nany good reason or valid ground to take a different view than the one taken<br \/>\nby the Tribunal in that view the writ petition was dismissed, affirming the<br \/>\norders passed by the Tribunal.\n<\/p>\n<p>The appellants claimed that they were employees of Northern Railways and<br \/>\nwere working as supervisors in the Handicraft Centres; they were selected<br \/>\nand appointed as supervisors by the railway authorities; they have been<br \/>\nworking as railway employees and as such they were entitled for the reliefs<br \/>\nsought for in the original applications before the Tribunal. In O.A.<br \/>\n3099\/91 the appellant No. 1 herein, namely, Phool Badan Tiwari was<br \/>\naggrieved by the notice dated 17.12.1991 by which the President of Mahila<br \/>\nSewing Centre. Ghaziabad had invited applications for filing up the post of<br \/>\nsupervisor in the Handicraft Centre of Ghaziabad. It was her case that when<br \/>\nshe had already been appointed pursuant to the selection held on 1.7.1989,<br \/>\nno fresh appointment could be made for the same post. O. A. No. 1014\/93 was<br \/>\nfiled by the appellants and one more person seeking the reliefs that their<br \/>\nservices be regularised with all consequential benefits, declare them as<br \/>\nrailway servants, direct the respondents to pay them regular pay-scales<br \/>\nwith all allowances and to quash such policy\/ policies which may come in<br \/>\nthe way of seeking regularisation of their services.\n<\/p>\n<p>The Tribunal looking to the stand taken by the respondents came to the<br \/>\nconclusion that the appellants are not at all railway servants and they<br \/>\nbeing not railway servants the Tribunal had no jurisdiction to decide their<br \/>\ncases, although in O.A. No. 1014\/93, the Tribunal referred to the<br \/>\ncontentions of the parties and ultimately following the order passed in<br \/>\nO.A. No. 3099\/91, holding that it had no jurisdiction, dismissed O.A. No.<br \/>\n1014\/93 as well. As already noticed above, the High Court did not interfere<br \/>\nwith the orders passed by the Tribunal.\n<\/p>\n<p>Mr. Anis Suhrawardy, learned counsel for the appellants urged that the<br \/>\nappellants have been working with the railways for long number of years,<br \/>\nsome of them have been working for the last more than 30 years; these<br \/>\nHandicraft Centres are managed and controlled by railway authorities; for<br \/>\nall practical purposes it is the railway authorities which run these<br \/>\nHandicraft Centres; the appellants have been working as regular employees<br \/>\nof the railways and having regard to these facts their services need to be<br \/>\nregularised. According to him, the Tribunal as well the High Court were not<br \/>\nright in dismissing the claims made by the appellants. In support of his<br \/>\nsubmissions the learned counsel relied on the decision of this Court in<br \/>\n<a href=\"\/doc\/1205244\/\">M.M.R. Khan and Ors. v. Union of India and Ors.,<\/a> [1990] Supp SCC 191.\n<\/p>\n<p>In opposition, Mr. Mukul Rohtagi, learned Addl. Solicitor General, pointing<br \/>\nout to the counter filed on behalf of the respondents and drawing our<br \/>\nattention to the appointment orders issued to the appellants, contended<br \/>\nthat the Tribunal after detailed consideration of the respective<br \/>\ncontentions, concluded that the appellants were not employees of the<br \/>\nrailways and as such it had no jurisdiction. The High Court, having regard<br \/>\nto the facts and circumstances, was right in affirming the orders passed by<br \/>\nthe Tribunal. He added that the appellants were selected to work as<br \/>\nsupervisors in the Handicraft Centres under a beneficially intended scheme<br \/>\nto do good and help the wives and daughters of the railway employees and in<br \/>\nthat scheme the appellants were selected and appointed to work as<br \/>\nsupervisors, not as full time employees of the railways and not on any pay-<br \/>\nscale but on a fixed remuneration and also on commission to be the given on<br \/>\nthe basis of the work done. It is also submitted that they were only part-<br \/>\ntime employees. In this view, according to him it cannot be said that the<br \/>\nappellants are railway employees and the impugned judgment is valid and<br \/>\njustified.\n<\/p>\n<p>We have carefully considered the respective submissions urged on behalf of<br \/>\nthe parties. It is not shown to us that the appointment of the appellants<br \/>\nwere pursuant to or under any of the recruitment rules. The appointment<br \/>\norder relating to Kamala Rani indicates that those appointment were on<br \/>\nremuneration of a fixed sum varying from Rs. 55 to Rs. 300 per month, fixed<br \/>\nfor training and 3% supervision charges from the worker&#8217;s bill. The other<br \/>\nappointment order relating to Smt. Kamala Ahuja, indicates that as a result<br \/>\nof selection held, she has been offered appointment as a lady instructor<br \/>\nfor teaching, cutting, sewing etc., in the Railway Handicraft Centre at<br \/>\nLajpat Nagar, New Delhi. In that order it is also stated that the work<br \/>\ncentre will be run from the assistance received from Staff Benefit Fund and<br \/>\nthe fees collected from the trainees and it will not be a railway<br \/>\norganisation. It is made specifically clear in the said order that it does<br \/>\nnot carry any privileges admissible to railway servants. Yet another<br \/>\nappointment order, relating to Kumari Tulsi Rani, shows that she will not<br \/>\nbe entitled to any benefit as admissible to the railway employees as her<br \/>\nappointment would not be on railways. The other appointment orders relating<br \/>\nto the remaining appellants are, more or less on similar terms. In the<br \/>\ncounter filed on behalf of the respondents, as to the working and<br \/>\nfunctioning of the Handicraft Centres, in paragraph 3 it is stated thus:\n<\/p>\n<p>&#8220;(a) That the Lady Supervisor in the Handicraft Centre is appointed to<br \/>\nimpart training about 2 to 3 hours daily to the wives\/daughters\/ widows of<br \/>\nthe Railway employees admitted in Handicraft Centres. They are paid<br \/>\nremuneration to the tune of Rs. 300 per month from the Staff Benefit Fund<br \/>\nin terms of para 5(ii) of page No. 31 of Staff Benefit Fund Rule Book. This<br \/>\nremuneration is revised by the Central Staff Benefit Fund Committee from<br \/>\ntime to time and at present remuneration is Rs. 500 P. M. The funds<br \/>\nallotted by the Central Staff Benefit Fund Committee for this year vide L.<br \/>\nNo. 989-E\/l 17\/2000-2001\/E-IV dated 29\/30.8.2000 (copy enclosed for<br \/>\ninformation as Annexure P-l).&#8221;\n<\/p>\n<p>It may also be noticed that the appointment orders issued on behalf of the<br \/>\nHandicraft Centres are not by the Railway establishment as such. The<br \/>\nTribunal in the order passed in O.A. No. 3099\/91 noticed that it had no<br \/>\nterritorial jurisdiction stating that the applicant was aggrieved by the<br \/>\nnotice dated 17.12.1991 by which the President of the Manila Sewing Centre,<br \/>\nGhaziabad had invited applications for filling up the post of supervisor in<br \/>\nthe Handicraft Centre, Ghaziabad, the applicant had given place of her<br \/>\nresidence as Ghaziabad, situated in the State of U. P., the impugned notice<br \/>\nhad also been issued by the President of Mahila Sewing Centre, Ghaziabad,<br \/>\nand that there was nothing to indicate that any action had been taken by<br \/>\nthe officers of the Railways located at New Delhi. The Tribunal also stated<br \/>\nin paragraph 8 as under:\n<\/p>\n<p>&#8220;We further notice that even though the applicant has filed a copy of an<br \/>\norder dated 27. 7. 89 (Annexure A-3) finding the applicant qualified for<br \/>\nthe post of Lady Supervisor, the detailed order regarding the terms of the<br \/>\nappointment including the salary\/commission has not been filed and it is<br \/>\nadmitted by the applicant in the rejoinder that no such detailed<br \/>\nappointment letter was issued in her favour. We also find that the letter<br \/>\nas at Annexure A-3 has been issued by the Divisional Engineer, Northern<br \/>\nRailways, Ghaziabad in the capacity of President of the Handicarft Centre,<br \/>\nGhaziabad and not in his official capacity, thus supporting the contention<br \/>\nof the respondents that the Handicarft Centre is not a department of<br \/>\nrailways. &#8221;\n<\/p>\n<p>In the light of what is stated in paragraph 8, extracted above, the<br \/>\nTribunal concluded that the applicant in O.A. No. 3099\/91 was not a railway<br \/>\nservant and as such the application was not maintainable before the<br \/>\nTribunal. Following the said order the Tribunal disposed of O.A. No.<br \/>\n1014\/93 also as already noticed above. In other words, the Tribunal<br \/>\ndisposed of both the O. As. taking an overall view on consideration of the<br \/>\nmaterials placed before it that the applicants in those O. As. (the<br \/>\nappellants herein) were not the employees of the Indian Railways and they<br \/>\nwere not even appointed by the Railway authorities. The High Court did not<br \/>\ndisturb the said orders passed by the Tribunal. In the absence of any<br \/>\nmaterial to show that the appellants were appointed pursuant to any rules<br \/>\nof recruitment or orders issued by the Railways it is difficult to accept<br \/>\nthat the appellant were the employees of the Railways. Further the very<br \/>\nappointment orders, to some of which we have referred to above, clearly<br \/>\nindicate that they were not full time or regular employees of the Railways<br \/>\nfor the reasons more than one. No pay-scales are given in the appointment<br \/>\norders, a meagre amount was fixed as remuneration per month and a<br \/>\ncommission to be paid on the basis of the work done. It is also on record<br \/>\nthat they were employees on part-time basis. It is normally not acceptable<br \/>\nthat any Government servant or Railway servant could be appointed on a<br \/>\ncommission basis. The scheme under which the appellants were appointed was<br \/>\na beneficial scheme intended to help the wives and daughters of the Railway<br \/>\nservants. The appellants were only given an opportunity to work as<br \/>\nsupervisors. In this situation, it is not possible to hold by virtue of<br \/>\nsuch appointments that the appellants were regular Railway employees. Once<br \/>\nit is concluded that they are not Railway employees, irresistible<br \/>\nconclusion that follows is that the Tribunal had no jurisdiction to<br \/>\nentertain their applications. The judgment of this Court in the case of M.<br \/>\nM.R. Khan (supra) in our view, does not help the cause of the appellants as<br \/>\nis evident from the position made clear in paragraph 30, in which it is<br \/>\nstated thus;\n<\/p>\n<p>&#8220;We express no opinion on the subject as to whether the employees engaged<br \/>\nin other welfare activities will or will not be entitled to the status of<br \/>\nthe railway employees, since neither they nor the facts pertaining to them<br \/>\nare before us. Our conclusion that the employees in the statutory canteens<br \/>\nare entitled to succeed in their claim is based purely on facts peculiar to<br \/>\nthem as discussed above. If by virtue of all these facts they are entitled<br \/>\nto the status of railways employees and they cannot be deprived of that<br \/>\nstatus merely because some other employees similarly or dissimilarly<br \/>\nsituated may also claim the same status. The argument to say the least can<br \/>\nonly be described as one in terrorem, and as any other argument of the kind<br \/>\nhas to be disregarded.\n<\/p>\n<p>That was a case relating to the employees working in a statutory canteen.<br \/>\nFrom the very portion extracted above, it is clear that this Court did not<br \/>\nexpress any opinion as to whether the employees engaged in other welfare<br \/>\nactivities will or will not be entitled to the status of the railway<br \/>\nemployees. The position as to the scope of the M.M.R Khan&#8217;s case is<br \/>\nexplained by a three-Judge Bench of this Court in <a href=\"\/doc\/1010619\/\">Union of India and Ors.,<br \/>\nv. J. V. Subhaiah and Ors.,<\/a> [1996] 2 SCC 258. Paragraph 18 of the judgment<br \/>\nreads:\n<\/p>\n<p>&#8220;In other words, there is a dual control over the staff by the Society and<br \/>\nthe Registrar. In that behalf, the Railway Administration has no role to<br \/>\nplay. If the subsidy is considered to be a controlling factor and the<br \/>\nSocieties\/Stores as an intervening agency or veil between the Railway<br \/>\nAdministration and the employees, the same principle would equally be<br \/>\nextendible to the staff, teachers, professors appointed in private<br \/>\neducational institutions receiving aid from the appropriate State\/Central<br \/>\nGovernment to claim the status of government employees. Equally, other<br \/>\nemployees appointed in other Cooperative Stroes\/Societies organised by<br \/>\nappropriate Government would also be entitled to the same status as<br \/>\ngovernment servants. Appointment to a post or an office under the State is<br \/>\nregulated under the statutory rules either by direct recruitment or<br \/>\nappointment by promotion from lower ladder to higher service or appointment<br \/>\nby transfer in accordance with the procedure prescribed and the<br \/>\nqualifications specified. Any appointment otherwise would be vertical<br \/>\ntransplantation into services de hors the rules. Appointment through those<br \/>\ninstitutions becomes gateway for back &#8211; door entry into government service<br \/>\nand would be contrary to the prescribed qualifications and other conditions<br \/>\nand recruitment by Public Service Commission or appropriate agencies. As<br \/>\ncontended, if the employees of the societies like cooperative canteens are<br \/>\ndeclared to be Railway servants, there would arise dual control over them<br \/>\nby the Registrar and Railway Administration but the same was not brought to<br \/>\nthe attention of the Court when M. M. R. Khan case was decided. &#8221;\n<\/p>\n<p>In All India Institute Employees&#8217; Association v. Union of India, [1990] 1<br \/>\nSCR 594, this Court held that there is a material difference between the<br \/>\ncanteens run in the railway establishment and institutes and clubs and the<br \/>\nbenefit given to the railway employees were not extended to the employees<br \/>\nworking in the railway clubs. In the case on hand, the appellants are<br \/>\nworking in Handicraft Centres under a scheme of the Railway Department but<br \/>\nthat does not make them the railway employees. Be that as it may, on the<br \/>\nfacts of these cases, as already observed looking to the appointment orders<br \/>\nof the appellants and the nature of work and the scheme, it is not possible<br \/>\nto say that the appellants are railway employees. This being the position,<br \/>\nthe Tribunal was right and the High Court rightly did not interfere with<br \/>\nthe orders passed by the Tribunal. Under the circumstances, we do not find<br \/>\nany merit in this appeal. As such it is dismissed but with no order as to<br \/>\ncosts.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Phool Badan Tiwari And Ors vs Union Of India And Ors on 3 April, 2003 Bench: Shivaraj V. Paul, Arijit Pasayat CASE NO.: Appeal (civil) 272 of 2001 PETITIONER: PHOOL BADAN TIWARI AND ORS. RESPONDENT: UNION OF INDIA AND ORS. DATE OF JUDGMENT: 03\/04\/2003 BENCH: SHIVARAJ V. PAUL &amp; ARIJIT PASAYAT [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-86402","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Phool Badan Tiwari And Ors vs Union Of India And Ors on 3 April, 2003 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/phool-badan-tiwari-and-ors-vs-union-of-india-and-ors-on-3-april-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Phool Badan Tiwari And Ors vs Union Of India And Ors on 3 April, 2003 - Free Judgements of Supreme Court &amp; 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