SUPREME COURT OF INDIA
Union of India
Vs
S.B. Vohra
Civil Appeal No. 2887 of 2001
(S. B. Sinha and A. S. Lakshmanan)
05/01/2004
JUDGMENT
S.B. SINHA, J
INTRODUCTION:-
1. How far and to what extent a writ of or in the nature of mandamus should
issue directing the Union of India to pay salary to the Officers of the High
Court in a particular scale of pay is the question involved in this appeal
which arises out of a judgment and order dated 21.07.2000 passed by the High
Court of Delhi in Writ Petition No. 1131 of 1993.
BACKGROUND FACTS:
2. The respondents are Assistant Registrars of the Delhi High Court. Their
scale of pay was fixed at Rs.3000-4500 and recommendations therefor were made
by the Chief Justice of the High Court of Delhi in terms of his letter dated
15.10.1991 to the effect that the scales of pay be revised with effect from
1.1.1986. Before making the said recommendations, the Chief Justice of the High
Court constituted a committee which had gone into the said matter. The
Committee submitted a report which was accepted by the Chief Justice. While
fixing the scales of pay of the Assistant Registrars, it was noticed that the
post of Assistant Registrar is a promotional post for the Superintendents,
Court Masters and Private Secretaries who had been placed in the Scale of pay
of Rs. 2000-3500. As despite such recommendations no heed was paid thereto by
the appellant, the writ petition was filed.
3. The appellants herein inter alia contended before the High Court that the
Assistant Registrars should not have been placed in a higher scale of pay of
Rs. 3000-4500 as the Fourth Pay Commission, had recommended the scale of pay of
Superintendent, Court Master and Private Secretary as also the Assistant
Registrar at Rs. 2000-3500 and thus it must have given a go- bye to the old
relativities and treated both categories of the post as equal or merged. The
appellant also highlighted the repercussions thereof on the officers of the
equivalent rank of Central Government who might also agitate for higher scale
of pay.
JUDGMENT OF THE HIGH COURT:
4. The High Court having regard to the decisions of this Court in S.B. Mathur
and Others Vs. Hon'ble the Chief Justice of Delhi High Court and Others
] wherein Kania, J. held that the three categories of posts, namely, Private
Secretary, Court Master and Superintendent are of equal status and they are
interchangeable and further having regard to the fact that the post of Assistant
Registrar was still a promotional post rejected the contention of the appellant
that such posts must be held to have merged. It was observed:
"Another stand taken by respondents Nos. 1 and 2 in their reply
affidavit that in case same scales of pay have been prescribed by Pay
Commission for two posts, one promotional to another, the old relativities are
no more valid and new relativities have been established by the Commission and
the two posts are treated equal/merged. In other words after 1.1.1986, no promotion
can be made from the feeder cadre to the promotion cadre since the post of
Private Secretary, Court Master, Superintendent and those of Assistant
Registrar will be deemed to have merged. This contention is also not tenable
since as per the rules, promotion is made and is being made to the post of
Assistant Registrar from only three feeder cadres of Superintendent, Court
Master and Private Secretary and from no other source. These posts cannot be
said to have deemed merged as alleged." *
The High Court opined:
"The Committee submitted its report recommending higher pay scales.
Hon'ble the Chief Justice agreed with the recommendations made by the
Committee. The reasons which prevailed with the Chief Justice in agreeing with
the recommendations of the Committee may be stated as follows:-
"(i) FR 22-C lays down that an officer performing duties and functions
involving higher responsibility should draw higher pay. Admittedly, the post of
Assistant Registrar carries duties and functions of a higher responsibility
than those attached to the posts of Private Secretaries, Court Masters and
Superintendents.
(ii) The Delhi High Court Establishment (Appointment and Conditions of Service)
Rules, 1972 lay down the mode of appointment to the post of Deputy Registrar and
Joint Registrar. These posts carry the pay scales of Rs. 3700-5000
respectively. These officers besides administrative work, also hold Court in
accordance with the powers delegated to them under the High Court Rules and
Orders, as also under Delhi High Court (Original Side) Rules. The
responsibilities attached to these posts are higher than those of the Assistant
Registrar. *
(iii) The Registrar who is a senior Officer of Higher Judicial Service is
the Head of the Office of this Court. Apart from administrative functions, the
incumbent to the post of Registrar has also to discharge judicial functions and
hold Court in exercise of powers under the High Court Rules and Orders and
Original Side Rules of this Court. The present pay scale of the post of Registrar
is Rs. 5900-6700.
(iv) If the imbalance as stated above, is allowed to continue, it will, besides
causing hardship, lead to frustration and heart-burning amongst the officers of
this Court which would be detrimental to the smooth and efficient functioning
of the Registry. Thus, in public interest, it is essential that the imbalance
created in the pay structure of the officers of this Court be removed without
undue delay."" *
5. It was further observed that the repercussion of a higher scale of pay upon
the officers of the equivalent rank of the Central Government cannot be a
ground to deny the legitimate scale of pay to the Assistant Registrar stating:
"The respondents have not refuted and cannot legitimately refute the
fact that the post of Assistant Registrar is a higher status post attaching to
it higher responsibility and moreover it is a promotional post from the post of
Superintendent, Court Master and Private Secretary. Similar is the position
with respect to the post of Deputy Registrar and Joint Registrar vis-à-vis the
post of Assistant Registrar." *
SUBMISSIONS:
6. Mr. L. Nageshwar Rao, learned Additional Solicitor General, appearing for
the Union of India, inter alia, submitted that the Division Bench of the High
Court committed a manifest error in passing the impugned judgment insofar as it
failed to take into consideration that no writ of or in the nature of mandamus
directing the Central Government and the Respondents herein to grant the pay
scale of Rs.2000-3500/- w.e.f. 1.1.1986 in favour of the respondents can be
issued. The learned counsel would urge that having regard to the provisions
contained in Clause 2 of Article 229 of the Constitution of India, the Chief
Justice of the High Court may in his wisdom fix the pay scale but therefor
approval of the President of India was required to be obtained.
7. Mr. Bhat, learned counsel, appearing on behalf of the private respondents,
on the other hand, supported the order of the High Court.
8. Mr. Bhat would submit that the need for pay revision arose in the following
factual background:
(i) Superintendents, Court Masters and Private Secretaries constitute feeder
channel for promotion to the post of Assistant Registrar. These three posts are
interchangeable. It was held so specifically by this Hon'ble Court in a
decision in SB Mathur vs. Hon'ble the Chief Justice of Delhi High Court and
Others ].
(ii) After the implementation of the IIIrd Pay Commission recommendations,
Private Secretaries and Court Masters of the High Court of Delhi filed Writ
Petition seeking parity of pay with that of Private Secretary to the Chief
Secretary, Delhi Administration. The same was allowed by the High Court of
Delhi in a judgment in P.N. Chopra vs. Union of India 1981 (2) ILR (Del) 102].
(iii) Sangram Singh, representing the Superintendents also filed a writ
petition before the High Court claiming parity of pay scales with Private
Secretaries and Court Master on the strength of pre-existing parity of status
with the said two categories of posts. The writ petition was allowed. The Union
of India challenged the decision by way of SLP (C) No.8934 of 1982, which was
however dismissed by this Hon'ble Court on 3.1.1982.
(iv) A writ petition being CWP No.2901 of 1984 (Trl. Narayanan and Ors.
vs. Union of India and Ors.) came to be filed by Assistant Registrars, Deputy
Registrars and Joint Registrars of the High Court of Delhi seeking enhancement
of pay scales. A Division Bench of the High Court on 18.12.1985 allowed the
same.
(v) After the Fourth Pay Commission Private Secretaries, Court Masters and
Superintendents were drawing pay in the scale of Rs.2000-3500.
(vi) Shri A.K. Gulati, a Private Secretary filed writ petition before the High
Court of Delhi (CWP No.289 of 1991) contending inter alia that Private
Secretaries to Secretaries, Government of India were drawing pay in the scale
of Rs.3000-4500/- whereas the pay-scale of Private Secretaries in the High
Court was kept at Rs.2000-3500. The claim was that the pre-existing and
unbroken parity, crystallized by judgment that had become final, was broken.
The writ petition was allowed on 7.5.1991 granting the pay scales at par with
the Private Secretaries in the Government of India. The special leave petition
filed by the Union of India (SLP (C) No.13229/1991 was dismissed by this
Hon'ble Court on 26.8.1991. The matter, thus, attained finality and pay scales
of Private Secretaries in the High Court and Private Secretaries in the
Government of India were brought on par.
(vii) In the wake of Gulati's judgment, Court Masters and Superintendents also
approached the High Court of Delhi by way of a writ petition (CWP No.2756 of
1991; Hari Sharma and Ors. vs. Union of India) which was allowed on 14.11.1991,
following the reasoning in Mathur's case (supra). Accordingly, their pay
fixation and payment of arrears were directed by this Hon'ble Court. The
judgment was implemented. Here too, the matter attained finality, and the
Government of India did not raise any objection.
(viii) As a result of the implementation of the said judgment, Court Master,
Superintendents and Private Secretaries in the High Court of Delhi started
drawing pay on the same scale of pay as prescribed for Assistant Registrars
(Rs.3000-4500). As already stated the post of Assistant Registrar is a
promotional post for the three feeder cadres mentioned.
9. Only thereafter representations were made by the Assistant Registration,
pursuant whereto a Committee of three Judges, as noticed hereinbefore, was
constituted.
ARTICLE 229 OF THE CONSTITUTION:
10. Clause 2 of Article 229 of the Constitution of India empowers the Chief
Justice of the High Court to prescribe by rules the conditions of service of
Officers and servants of the High Court. Such Rule shall, however, be subject
to : (1) the provision of any law made by the legislature of the State; (2) the
approval of the President/Governor of the State so far as it relates to salary,
allowances, leave or pensions.
11. Independence of the High Court is an essential feature for working of the
democratic form of the Government in the country. An absolute control,
therefore, have been vested in the High Court over its staff which would be
free from interference from the Government subject of course to the limitations
imposed by the said provision. There cannot be, however, any doubt whatsoever
that while exercising such a power the Chief Justice of the High Court would
only be bound by the limitation contained in Clause 2 of the Article 229 of the
Constitution of India and the proviso appended thereto. Approval of the
President/Governor of the State is, thus, required to be obtained in relation
to the Rules containing provisions as regard, salary, allowances, leave or
promotion. It is trite that such approval should ordinarily be granted as a
matter of course.
MANDAMUS VIS-À-VIS ARTICLE 229(2) OF THE CONSTITUTION:
12. Mandamus literally means a command. The essence of mandamus in England was
that it was a royal command issued by the King's Bench (now Queen's Bench)
directing performance of a public legal duty.
13. A writ of mandamus is issued in favour of a person who establishes a
legal right in himself. A writ of mandamus is issued against a person who has a
legal duty to perform but has failed and/or neglected to do so. Such a legal
duty emanates from either in discharge of a public duty or by operation of law.
The writ of mandamus is a most extensive remedial nature. The object of
mandamus is of to prevent disorder from a failure of justice and is required to
be granted in all cases where law has established no specific remedy and
whether justice despite demanded has not been granted.
14. In Comptroller and Auditor General Vs. K.S. Jaganathan, ) it was
held that, "Article 226 is designedly couched in wide language in order
not to confine the power conferred by it on the High Courts only to the power
to issue prerogative writs as understood in England. The High Courts exercising
jurisdiction under Article 226 can issue directions, orders or writs so as to
enable the High Courts to reach injustice wherever it is found and to mould the
reliefs to meet the particular and complicated needs of this country.
15. It was, however, held in Ajit Singh and Others (II) Vs. State of Punjab and
Others, [ ] in a different context that the view taken in the above
decision and in Superintending Engineer, Public Health, U.T. Chandigarh and
Others Vs. Kuldeep Singh and Others [ 4 ]
cannot be said to be correct as Article 16(4) confers a discretion and does not
confer any constitutional duty or obligation and therefore the view taken in
the aforementioned cases that a writ of mandamus can be issued in such cases,
cannot be said to be correct.
16. In State of A.P. & Anr. Vs. T.Gopalakrishna Murthi & Ors. ],
a three Judge Bench of this Court observed:
"One should expect in the fitness of things and in view of the spirit
of Article 229 that ordinarily and generally the approval should be accorded.
But surely it is wrong to say that the approval is a mere formality and in no
case it is open to the Government to refuse to accord their approval. On the
facts and in the circumstances of this case and in the background of the
conditions which are prevalent in other States Government could have been
well-advised to accord approval to the suggestion of the Chief Justice, as the
suggestion was nothing more than to equate the pay scales of the High Court
staff with those of the equivalent posts in the Secretariat. That merely
because the Government is not right in accepting the Chief Justice's view and
refusing to accord the approval is no ground for holding that by a writ of
mandamus the Government may be directed to accord the approval." #
Despite the said finding, it was observed:
"We, however, trust and hope that the Government will give their second
thought to the matter and see whether it is possible in the State of Andhra
Pradesh to obliterate the distinction in the matter of pay scales etc. between
the High Court and the Secretariat Staff. There does not seem to be any good
and justifiable reason for maintaining the distinction." *
17. In Supreme Court Employees Welfare Association Vs. Union of India and Anr.
] this Court, while considering the provisions of Article 146(2) of the
Constitution of India which is in pari materia with Article 229 of the
Constitution of India, held :
"The legislative function of Parliament has been delegated to the Chief
Justice of India by Article 146(2). It is not disputed that the function of the
Chief Justice of India or the Judge or the officers of the Court authorised by
him in framing rules laying down the conditions of service, is legislative in
nature. The conditions of service that may be prescribed by the rules framed by
the Chief Justice of India under Article 146(2) will also necessarily include
salary, allowances, leave and pensions of the officers and servants of the
Supreme Court. The proviso to Article 146(2) puts a restriction on the power of
the the Chief Justice of India by providing that the rules made under Article
146(2) shall, so far as they relate to salaries, allowances, leave or pensions,
require the approval of the President of India. Prima facie, therefore, the
conditions of service of the employees of the Supreme Court that are laid down
by the Chief Justice of India by framing the rules will be final and
conclusive, except that with regard to salaries, allowances, leave or pensions
the approval of the President of India is required. In other words, if the
President of India does not approve of the salaries, allowances, leave or
pensions, it will not have any effect. The reason for requiring the approval of
the President of India regarding salaries, allowances, leave or pensions is the
involvement of the financial liability of the government." *
It was further observed:
"It is true that the President of India cannot be compelled to grant
approval to the rules framed by the Chief Justice of India relating to
salaries, allowances, leave or pensions, but it is equally true that when such
rules have been framed by a very high dignitary of the State, it should be
looked upon with respect and unless there is very good reason not to grant
approval, the approval should always be granted. If the President of India is
of the view that the approval cannot be granted, he cannot straightway refuse
to grant such approval, but before doing so, there must be exchange of thoughts
between the President of India and the Chief Justice of India." *
JUDICIAL REVIEW:
18. The scope of judicial review in the context of grant of contract has been
the subject matter of a decision of this Court in Sterling Computers Limited
Vs. M/s. M&N Publications Limited and Others [ 5
] wherein this Court noticed the commentary of Prof. Wade in his well- known
treatise 'Administrative Law' in the following terms:
"It is true that by way of judicial review the Court is not expected to
act as a court of appeal while examining an administrative decision and to
record a finding whether such decision could have been taken otherwise in the
facts and circumstances of the case. In the book Administrative Law, Prof. Wade
has said:
"The doctrine that powers must be exercised reasonably has to be
reconciled with the no less important doctrine that the court must not usurp
the discretion of the public authority which Parliament appointed to take the
decision. Within the bounds of legal reasonableness is the area in which the
deciding authority has genuinely free discretion. If it passes those bounds, it
acts ultra vires. The court must therefore resist the temptation to draw the
bounds too tightly, merely according to its own opinion. It must strive to
apply an objective standard which leaves to the deciding authority the full
range of choices which legislature is presumed to have intended. The decisions
which are extravagant or capricious cannot be legitimate. But if the decision
is within the confines of reasonableness, it is no part of the court's function
to look further into its merits. With the question whether a particular policy
is wise or foolish the court is not concerned it can only interfere if to
pursue it is beyond the powers of the authority."" *
But in the same book Prof. Wade has also said:
"The powers of public authorities are therefore essentially different
from those of private persons. A man making his will may, subject to any rights
of his dependents, dispose of his property just as he may wish. He may act out
of malice or a spirit of revenge, but in law this does not affect his exercise
of his power. In the same way a private person has an absolute power to allow
whom he likes to use his land, to release a debtor, or, where the law permits,
to evict a tenant, regardless of his motives. This is unfettered discretion.
But a public authority may do none of these things unless it acts reasonably
and in good faith and upon lawful and relevant grounds of public interest.
There are many cases in which a public authority has been held to have acted
from improper motives or upon irrelevant considerations, or to have failed to
take account of relevant considerations, so that its action is ultra vires and
void." *
The Court further noticed:
" While exercising the power of judicial review, in respect of
contracts entered into on behalf of the State, the Court is concerned primarily
as to whether there has been any infirmity in the "decision making
process". In this connection reference may be made to the case of Chief
Constable of the North Wales Police v. Evans where it was said that: (p. 144 a)
"The purpose of judicial review is to ensure that the individual receives
fair treatment, and not to ensure that the authority, after according fair
treatment, reaches on a matter which it is authorised or enjoined by law to
decide for itself a conclusion which is correct in the eyes of the court."
*
19. In Kumari Shrilekha Vidyarthi and Others Vs. State of U.P. and Others [
], however, the Court sought to draw a distinction between the powers of
public authorities vis-à-vis the private authorities referring to Wade's
Administrative Law, 6th Edition, page 401 to the following effect and stating:
"For the same reasons there should in principle be no such thing as
unreviewable administrative discretion, which should be just as much a
contradiction in terms as unfettered discretion. The question which has to be
asked is what is the scope of judicial review, and in a few special cases the
scope for the review of discretionary decisions may be minimal. It remains
axiomatic that all discretion is capable of abuse, and that legal limits to
every power are to be found somewhere." *
20. The power of judicial review of High Court as also this Court is now
well-defined in a series of decisions of this Court. It is trite that the court
will not exercise its jurisdiction to entertain a writ application wherein
public law element is not involved. (See Life Insurance Corporation Vs. Escorts
, F.C.I. Vs. Jagannath Dutta, , State of Gujarat Vs. Meghraj Peth
Raj Shah Charitable Trust, , Assistant Excise Commissioner Vs. Issac
Peter, 6 , National Highway Authority of
India Vs. M/s. Ganga Enterprises & Anr. 2003 (7) SCALE 171 )
21. In any event, the modern trend also points to judicial restraint in
administration action as has been held in Tata Cellular Vs. Union of India
, Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal
Corporation and Others 6 , W.B. State
Electricity Board Vs. Patel Engineering Co. Ltd. and Others 67 and L.I.C. v. Consumer Education and Research Centre,
.
22. The legal right of an individual may be founded upon a contract or a
statute or an instrument having the force of law. For a public law remedy
enforceable under Article 226 of the Constitution, the actions of the authority
need to fall in the realm of public law be it a legislative act or the State,
an executive act of the State or an instrumentality or a person or authority
imbued with public law element. The question is required to be determined in
each case having the aforementioned principle in mind. However, it may not be
possible to generalize the nature of the action which would come either under
public law remedy or private law field nor is it desirable to give exhaustive
list of such actions.
23. The question as to whether this Court, would permit judicial review and, if
any, to what extent will vary from case to case and no broad principles can be
laid down therefor. #
24. We may usefully notice that Grahame Aldous and John Alder in
"Applications for Judicial Review, Law and Practice" stated the law
thus:
"There is a general presumption against ousting the jurisdiction of the
courts, so that statutory provisions which purport to exclude judicial review
are construed restrictively. There are, however, certain areas of governmental
activity, national security being the paradigm, which the courts regard
themselves as incompetent to investigate, beyond an initial decision as to
whether the government's claim is bona fide. In this kind of non-justifiable
area judicial review is not entirely excluded, but very limited. It has also
been said that powers conferred by the royal prerogative are inherently
unrevealed but since the speeches of the House of Lords in Council of Civil
Service Unions Vs. Minister for the Civil Service this is doubtful. Lords Diplock,
Scaman and Roskili appeared to agree that there is no general distinction
between powers, based upon whether their source is statutory or prerogative but
that judicial review can be limited by the subject matter of a particular
power, in that case national security. Many prerogative powers are in fact
concerned with sensitive, non-justiciable areas, for example, foreign affairs,
but some are reviewable in principle, including where national security is not
involved. Another non-justiciable power is the Attorney General's preprogative
to decide whether to institute legal proceedings on behalf of the public
interest."
25. However, we may notice that in the Comptroller and Auditor General of
India and Anr. Vs. K.S. Jagannathan and another [ : 1987 SC 537] this
Court upon considering a large number of decisions including Dwarkanath Vs.
Income-Tax Officer, Special Circle, Kanpur [ ], Hochtief Gammon Vs.
State of Orissa [ ], Mayor of Rochester Vs. Regina [1858 EB & E
1024], The King Vs. Revising Barrister for the Borough of Hanley [ 1912
(3) KB 518 ], Padfield Vs. Minister of Agriculture, Fisheries and Food 1968 Indlaw HL 16 ] and Halsbury's Laws of England,
Fourth Edition, Volume I, paragraph 89 observed:
"There is thus no doubt that the High Courts in India exercising their
jurisdiction under Article 226 have the power to issue a writ of mandamus or a
writ in the nature of mandamus or to pass orders and give necessary directions
where the government or a public authority has failed to exercise or has wrongly
exercised the discretion conferred upon it by a statute or a rule or a policy
decision of the government or has exercised such discretion mala fide or on
irrelevant considerations or by ignoring the relevant considerations and
materials or in such a manner as to frustrate the object of conferring such
discretion or the policy for implementing which such discretion has been
conferred. In all such cases and in any other fit and proper case a High
Court can, in the exercise of its jurisdiction under Article 226, issue a writ
of mandamus or a writ in the nature of mandamus or pass orders and give
directions to compel the performance in a proper and lawful manner of the
discretion conferred upon the government or a public authority, and in a proper
case, in order to prevent injustice resulting to the concerned parties, the
court may itself pass an order or give directions which the government or the
public authority should have passed or given had it properly and lawfully
exercised its discretion. " $
[Emphasis supplied] *
26. In Mansukhlal Vithaldas Chauhan Vs. State of Gujarat [1] this Court held:
"Mandamus which is a discretionary remedy under Article 226 of the
Constitution is requested to be issued, inter alia, to compel performance of
public duties which may be administrative, ministerial or statutory in nature.
Statutory duty may be either directory or mandatory. Statutory duties, if they
are intended to be mandatory in character, are indicated by the use of the
words "shall" or "must". But this is not conclusive as
"shall" and "must" have, sometimes, been interpreted as
"may". What is determinative of the nature of duty, whether it is
obligatory, mandatory or directory, is the scheme of the statute in which the "duty"
has been set out. Even if the "duty" is not set out clearly and
specifically in the statute, it may be implied as correlative to a
"right". *
In the performance of this duty, if the authority in whom the discretion is
vested under the statute, does not act independently and passes an order under
the instructions and orders of another authority, the Court would intervene in
the matter, quash the order and issue a mandamus to that authority to exercise
its own discretion." *
27. Prof. Wade, also, in his well-known treatise 'Administrative Law', 8th
Edition, at page 609 makes a distinction between a discretionary power and
obligatory duties in the following terms:
"Obligatory duties must be distinguished from discretionary powers.
With the latter mandamus has nothing to do: it will not, for example, issue to
compel a minister to promote legislation. Statutory duties are by no means
always imposed by mandatory language with words such as 'shall' or 'must'.
Sometimes they will be the implied counterparts of rights, as where a person
'may appeal' to a tribunal and the tribunal has a correlative duty to hear and
determine the appeal. Sometimes also language which is apparently merely
permissive is construed as imposing a duty, as where 'may' is interpreted to
mean 'shall'. Even though no compulsory words are used, the scheme of the Act
may imply a duty.
Having developed from a piece of purely administrative machinery, mandamus was
never subject to the misguided notion which at one time afflicted its less
fortunate relative certiorari, that it could apply only to 'judicial'
functions. Administrative or ministerial duties of every description could be
enforced by mandamus. It was, indeed, sometimes said that this remedy did not
apply to judicial functions, meaning that where a public authority was given
power to determine some matters, mandamus would not lie to compel it to reach
some particular decision. The law as to this is explained below under 'Duty to
exercise jurisdiction'.
The fact that the statutory duty is directory as opposed to mandatory, so that
default will not invalidate some other action or decision, is no reason for not
enforcing it by mandamus." *
28. The broad principles of judicial review as has been stated in the speech of
Lord Diplock in Council of Civil Service Unions v. Minister for the Civil
Service [ 1984 Indlaw HL 42 ] i.e.,
illegality, irrationality and procedural impropriety, have greatly been
overtaken by other developments as for example, generally not only in relation
to proportionality and human rights but also in the direction of principles of
legal certainty, notably legitimate expectations.
29. In R. Vs. North and East Devon Health Authority, ex parte Coughlan
2000 (2) WLR 622 , CA the Court of Appeals held that a health authority
which promised a small number of residents in a care home for the severely
disabled that it would be their home for life was not entitled to frustrate the
legitimate expectation they had generated by closing the home as this would be
an abuse of power.
30. Judicial review is a highly complex and developing subject. It has its
roots long back and its scope and extent varies from case to case. It is
considered to be the basic feature of the Constitution. The Court in exercise
of its power of judicial review would jealously guard the human rights,
fundamental rights and the citizens' right of life and liberty as also many
non-statutory powers of governmental bodies as regards their control over
property and assets of various kinds which could be expended on building
hospitals, roads and the like, or overseas aid, or compensating victims of
crime (See for example, R. Vs. Secretary of State for the Home Department, ex
parte Fire Brigades Union 1994 Indlaw CA 83 .
31. The Court, however, exercises its power of restraint in relation to
interference of policy. In his recent book 'Constitutional Reform in the UK' at
page 105, Dawn Oliver commented thus:
"However, this concept of democracy as rights- based with limited
governmental power, and in particular of the role of the courts in a democracy,
carries high risks for the judges and for the public. Courts may interfere
inadvisedly in public administration. The case of Bromley London Borough
Council v. Greater London Council 1983 (1) AC 768 , HL) is a classic
example. The House of Lords quashed the GLC cheap fares policy as being based
on a misreading of the statutory provisions, but were accused of themselves
misunderstanding transport policy in so doing. The courts are not experts in
policy and public administration hence Jowell's point that the courts should
not step beyond their institutional capacity (Jowell, 2000). Acceptance of this
approach is reflected in the judgments of Laws LJ in International Transport Roth
GmbH v. Secretary of State for the Home Department ([2002] EWCA Civ 158,
2002 (3) WLR 344 and of Lord Nimmo Smith in Adams v. Lord Advocate (Court
of Session, Times, 8 August 2002) in which a distinction was drawn between
areas where the subject matter lies within the expertise of the courts (for
instance, criminal justice, including sentencing and detention of individuals)
and those which were more appropriate for decision by democratically elected
and accountable bodies. If the courts step outside the area of their
institutional competence, government may react by getting Parliament to
legislate to oust the jurisdiction of the courts altogether. Such a step would
undermine the rule of law. Government and public opinion may come to question
the legitimacy of the judges exercising judicial review against Ministers and
thus undermine the authority of the courts and the rule of law." *
32. It is not possible to lay down the standard exhaustively as to in what
situation a writ of mandamus will issue and in what situation it will not. In
other words, exercise of its discretion by the Court will also depend upon the
law which governs the field, namely, whether it is a fundamental law or an
ordinary law.
33. It is, however, trite that ordinarily the Court will not exercise the power
of the statutory authorities. It will at the first instance allow the statutory
authorities to perform their own functions and would not usher the said
jurisdiction itself. #
34. In State of West Bengal and Others Vs. Nuruddin Mallic and Others [ 6 ] this Court declined a suggestion that the Court
itself examined and decided the question in issue stating:
"28-.Instead of sending any reply, the management filed the writ
petition in the High Court, leading to passing of the impugned orders. Thus,
till this date the appellant-authorities have not yet exercised their
discretion. Submission for the respondents was that this Court itself should
examine and decide the question in issue based on the material on record to set
at rest the long- standing issue. We have no hesitation to decline such a
suggestion. The courts can either direct the statutory authorities, where it is
not exercising its discretion, by mandamus to exercise its discretion, or when
exercised, to see whether it has been validly exercised. It would be
inappropriate for the Court to substitute itself for the statutory authorities
to decide the matter."
It was further observed :
"30-As we have held above, without the statutory authority applying its
mind for their approval and the impugned order not adjudicating the issue in
question how could the impugned orders be sustained-" *
JURISDICTION OF THE CHIEF JUSTICE
35. The Chief Justice of the High Court in this case was not bound to accept
that the posts of Assistant Registrar and Court Masters should be merged. The
question as regard merger of the two posts was within the exclusive domain of
the Chief Justice. Whether the post of Assistant Registrar should be a
promotional post or not, thus, could not fall for decision of the Central
Government. #
36. In Tarsem Singh and another vs. State of Punjab and Others [ ], this
Court held:
"Promotion as understood under the service law jurisprudence means
advancement in rank, grade or both. Promotion is always a step towards
advancement to a higher possession, grade or honour. Opting to come to a lower
pay scale or lower post cannot be considered a promotion, it is rather a
demotion. A Superintendent in the Labour Department who is holding a higher pay
scale and higher status cannot seek promotion to the post of Labour Inspector
which post is lower in grade and status. Since a ministerial employee - under
rule 8(1)(a)(i) - can be appointed as Labour Inspector only by the process of
promotion, a Superintendent who is in a higher pay scale, cannot seek promotion
to the post of Labour Inspector and as such is not eligible for the same under
rule 8(1)(a)(i). Even otherwise it is difficult to comprehend why a person
drawing a higher pay scale and enjoying a better status as a civil servant
should hanker for a post which is carrying lesser pay and is comparatively of
lower status." *
37. If the nature of duties performed by the Assistant Registrars had been
more onerous than the Court Masters, a higher scale of pay was required to be
fixed. The Appellant, therefore, took a stand before the High Court which was
patently unsustainable.
38. Furthermore, merger of the cadres must be made in terms of the statutory
rules. For the said purpose, an order is required to be passed. Conjectures or
surmises in such a situation had no role to play.
39. In view of the aforementioned decision, the Chief Justice was entitled to
hold the opinion that hierarchy of the posts was required to be maintained in
respect whereof the necessary scales of pay could be directed to be revised. #
40. In State of U.P. Vs. C.M. Agarwal [ ], a Constitution Bench of this
Court categorically held that the Chief Justice of a High Court has the power
to create posts.
41. In High Court of Judicature for Rajasthan Vs. Ramesh Chand Paliwal and
Another ], a Division bench of this Court inter alia held that the Chief
Justice has the requisite power to revise the scales of pay subject of course
to the approval granted in this behalf by the Governor. This Court in no certain
terms observed :
"We again reiterate the hope and feel that once the Chief Justice, in
the interest of High Court administration, has taken a progressive step
specially to ameliorate the service conditions of the officers and staff
working under him, the State government would hardly raise any objection to the
sanction of creation of posts or fixation of salary payable for that post or
the recommendation for revision of scale of pay if the scale of pay of the
equivalent post in the Government has been revised." *
42. In State of Maharashtra Vs. Association of Court Stenos, PA, PS and Anr. [
], this Court interpreted the provisions Article 229 and proviso appended
thereto in the following terms:
"On a plain reading of Article 229(2), it is apparent that the Chief
Justice is the sole authority for fixing the salaries etc. of the employees of
the High Court, subject to the Rules made under the said article. Needless to
mention rules made by the Chief Justice will be subject to the provisions of
any law made by the legislature of the State. In view of proviso to sub-article
(2) of Article 229, any rule relating to the salaries, allowances, leave or
pension of the employees of the High Court would require the approval of the
governor, before the same can be enforced. The approval of the governor,
therefore, is a condition precedent to the validity of the rules made by the
Chief Justice and the so-called approval of the Governor is not on his
discretion, but being advised by the Government. It would, therefore, be
logical to hold that apart from any power conferred by the rules framed under
Article 229, the Government cannot fix the salary or authorise any particular
pay scale of an employee of the High Court. It is not the case of the employees
that the Chief Justice made any rules, providing a particular pay scale for the
employees of the Court, in accordance with the constitutional provisions and
that has not been accepted by the governor. In the aforesaid premises, it
requires consideration as to whether the High Court in its discretionary
jurisdiction under Article 226 of the Constitution, can itself examine the
nature of work discharged by its employees and issue a mandamus, directing a
particular pay scale to be given to such employees. In the judgment under
challenge, the Court appears to have applied the principle of "equal pay
for equal work" and on an evaluation of the nature of duties discharged by
the Court Stenographers, Personal Assistants and Personal Secretaries, has
issued the impugned directions. In Supreme Court Employees' Welfare Asson. V.
Union of India this Court has considered the powers of the Chief Justice of
India in relation to the employees of the Supreme Court in the matter of laying
down the service conditions of the employees of the Court, including the grant
of pay scale and observed that the Chief Justice of India should frame rules
after taking into consideration all relevant factors including the
recommendations of the Pay Commission and submit the same to the President of
India for his approval. What has been stated in the aforesaid judgment in
relation to the Chief Justice of India vis-à-vis the employees of the Supreme
Court, should equally apply to the Chief Justice of the High Court vis-à-vis
the employees of the High Court. Needless to mention, notwithstanding the
constitutional provision that the rules framed by the Chief Justice of a High
Court, so far as they relate to salaries and other emoluments are concerned,
require the prior approval of the Governor. It is always expected that when the
Chief Justice of a High Court makes a rule, providing a particular pay scale
for its employees, the same should be ordinarily approved by the Governor,
unless there is any justifiable reason, not to approve the same. $ The
aforesaid assumption is on the basis that a high functionary like the Chief
Justice, before framing any rules in relation to the service conditions of the
employees of the Court and granting any pay scale for them is expected to
consider all relevant factors and fixation is made, not on any arbitrary
basis." *
[Emphasis supplied]
43. In High Court Employees Welfare Association, Calcutta and others Vs. State
of West Bengal and Others 2003 AIR(SCW) 6338 ] a Bench of this Court
observed:
"The Government will have to bear in mind the special nature of the
work done in the High Court of which the Chief Justice and his colleagues alone
could really appreciate. If the erd Government does not desire to meet the
needs of the High Court, the administration of the High Court will face severe
crisis." *
THE APPELLANT'S DUTY:
44. In this case, the appellants admittedly have failed and/or neglected to
perform a constitutional duty. #
45. In P.N. Chopra (Supra) Rajindar Sachar, J. (as the learned Chief Justice
then was) held:
"As a result we are quite satisfied that the refusal to equate the
Private Secretaries and Readers of this Court with the Private Secretary to the
Chief Secretary in the matter of pay scale is so arbitrary as to amount to an
act of discrimination. We would, therefore, in the circumstances quash
Annexures `G' and `H' and the latest decision communicated on 7.8.1979 (R-2
filed in reply by the Delhi Administration). A mandamus will, therefore, issue
directing the respondents 1 & 4 to equate the posts of Private Secretaries
and the Readers of Judges of this court to that of a Private Secretary to the
Chief Secretary, Delhi Administration. This will take effect from 1.1.1973 in
terms of the decision already taken by the Government of India, as mentioned in
their memoranda of 8.8.1975 and 22.8.1975 (Annexures `G' & `H' - to the
petition."
46. Decisions of this Court, as discussed hereinbefore, in no
unmistakable terms suggest that it is the primary duty of the Union of India or
the concerned State normally to accept the suggestion made by a holder of a
high office like a Chief Justice of a High Court and differ with his
recommendations only in exceptional cases. The reason for differing with the
opinion of the holder of such high office must be cogent and sufficient. Even
in case of such difference of opinion, the authorities must discuss amongst
themselves and try to iron out the differences. The appellant unfortunately did
not perform its own duties. #
47. In a matter of this nature the Appellant, with a view to show that its
action is reasonable was bound to perform its duties within a reasonable time.
Reasonableness being the core of Article 14 of the Constitution of India would
imply that the constitutional duties be performed within a reasonable time so as
to satisfy the test of reasonableness adumbrated under Article 14 of the
Constitution of India.
48. It has to be further borne in mind that it is not always helpful to raise
the question of financial implications vis-à-vis the effect of grant of a
particular scale of pay to the officers of the High Court on the ground that
the same would have adverse effect on the other employees of the State. Scale
of pay is fixed on certain norms; one of them being the quantum of work
undertaken by the officers concerned as well as the extent of efficiency,
integrity, etc. required to be maintained by the holder of such office. # This
aspect of the matter has been highlighted by this Court in the case of the
judicial officers in All India Judges' Association Vs Union of India and Others
[ 2 ] and [ 5
] as well as the report of the Shetty Commission.
CONCLUSION
49. The matter as regard fixation of scale of pay of the officers working in
the different High Courts must either be examined by an expert body like Pay
Commission or any other body but in absence of constitution of any such expert
body the High Court itself is to undertake the task keeping in view the special
constitutional provisions existing in this behalf in terms of Article 229 of
the Constitution of India # .
50. We agree with the submission of the Learned Addl. Solicitor General to
the effect that the decision of the High Court had been rendered having its
origin in A.K. Gulati (CW.289/91) which had a spiraling effect particularly in
the case of Assistant Registrars. That was more a reason why a competent
authority of the appellant should have taken immediate steps in holding a
meeting with the Chief Justice or an authorized officer of the High Court. #
51. Having regard to the aforementioned authoritative pronouncements of this
Court there cannot be any doubt whatsoever that the recommendations of the
Chief Justice should ordinarily be approved by the State and refusal thereof
must be for strong and adequate reasons. In this case the appellants even
addressed itself on the recommendations made by the High Court. They could not
have treated the matter lightly. It is unfortunate that the recommendations
made by a high functionary like the Chief Justice were not promptly attended to
and the private respondents had to file a writ petition. The question as regard
fixation of a revision of the scale of pay of the High Court being within
exclusive domain of the Chief Justice of the High Court, subject to the
approval, the State is expected to accept the same recommendations save and
except for good and cogent reasons. #
52. The High Court, however, should not ordinarily issue a writ of or in the
nature of mandamus and ought to refer the matter back to the Central/ State
Government with suitable directions pointing out the irrelevant factors which
are required to be excluded in taking the decision and the relevant factors
which are required to be considered therefor. The statutory duties should be
allowed to be performed by the statutory authorities at the first instance. In
the event, however, the Chief Justice of the High Court and the State are not
ad idem, the matter should be discussed and an effort should be made to arrive
at a consensus.
53. We are further of the opinion that only in exceptional cases the High Court
may interfere on the judicial side, but ordinarily it would not do so. Even if
an occasion arises for the High Court to interfere on its judicial side, the
jurisdiction of the High Court should be exercised with care and circumspection.
#
54. As the matter has been pending for a long time and keeping in view the fact
and the situation obtaining herein, namely, the officers holding the post of
Private Secretaries to the Judges have been given a particular scale of pay, we
are of the opinion that it is not a fit case wherein this Court should exercise
its discretionary jurisdiction. #
55. This appeal is accordingly dismissed. In the facts and circumstances of the
case, there shall be no order as to costs.