Union of India and Anr Vs. S.B. Vohra & Ors  Insc 11 (5 January 2004)
S.B. Sinha & Dr. Ar. Lakshmanan. S.B. Sinha, J :
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.
respondents are Assistant Registrars of the Delhi High Court.
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.
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
High Court having regard to the decisions of this Court in S.B. Others [AIR
1988 SC 2073] 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.
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:
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:-
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
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
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.
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.
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."" 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
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-a-vis the
post of Assistant Registrar."
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.
learned counsel, appearing on behalf of the private respondents, on the other
hand, supported the order of the High Court.
would submit that the need for pay revision arose in the following factual background
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 [AIR 1988 SC 2073].
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 [ILR (1981) II Delhi 102].
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.
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.
After the Fourth Pay Commission Private Secretaries, Court Masters and
Superintendents were drawing pay in the scale of Rs.2000-3500.
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.
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
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.
thereafter representations were made by the Assistant Registration, pursuant
whereto a Committee of three Judges, as noticed hereinbefore, was constituted.
229 OF THE CONSTITUTION:
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.
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.
VIS-@-VIS ARTICLE 229(2) OF THE CONSTITUTION:
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.
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.
679) 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.
and Others, [(1999) 7 SCC 209] in a different context that the view taken in
the above decision and in Superintending Engineer, Public Health, 199] 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.
1008], a three Judge Bench of this Court observed :
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
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." India and Anr. [1989 (4) SCC 187] 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 :
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
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 :
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."
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 445] wherein
this Court noticed the commentary of Prof. Wade in his well- known treatise
'Administrative Law' in the following terms:
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.
book Administrative Law, Prof. Wade has said:
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
powers of public authorities are therefore essentially different from those of
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.
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." Others [(1991) 1
SCC 212], however, the Court sought to draw a distinction between the powers of
public authorities vis-`-vis the private authorities referring to Wade's
Administrative Law, 6th Edition, page 401 to the following effect and stating:
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.
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." 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 SCALE 171) In
any event, the modern trend also points to judicial restraint in Ulhasnagar
Municipal Corporation and Others [(2000) 5 SCC 287], W.B. SCC 451] and L.I.C.
v. Consumer Education and Research Centre, [AIR 1995 SC 1811].
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.
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.
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
usefully notice that Grahame Aldous and John Alder in "Applications for
Judicial Review, Law and Practice" stated the law thus:
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-justiciable
area judicial review is not entirely excluded, but very limited. It has also
been said that powers conferred by the royal prerogative are inherently unreviewable
but since the speeches of the House of Lords in Council of 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." However, we may notice that
in the Comptroller and Auditor General 1987 SC 537] this Court upon considering
a large number of decisions Revising Barrister for the Borough of Hanley
[(1912) 3 KB 518], Padfield Halsbury's Laws of England, Fourth Edition, Volume
I, paragraph 89 observed:
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] 622] this Court held:
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".
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.
if the "duty" is not set out clearly and specifically in the statute,
it may be implied as correlative to a "right".
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." 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:
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.
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.
also language which is apparently merely permissive is construed as imposing a
duty, as where 'may' is interpreted to mean 'shall'.
though no compulsory words are used, the scheme of the Act may imply a duty.
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.
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
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." 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 [(1985) A.C 374] 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
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
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 ex parte Fire Brigades Union
 2 WLR 1.
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:
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 ( 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 ( EWCA Civ 158,  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." 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.
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
8 SCC 143] this Court declined a suggestion that the Court itself examined and
decided the question in issue stating:
of sending any reply, the management filed the writ petition in the High Court,
leading to passing of the impugned orders.
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 :
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"
OF THE CHIEF JUSTICE
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.
Singh and another vs. State of Punjab and
Others [(1994) 5 SCC 392], this Court held:
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." 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
merger of the cadres must be made in terms of the statutory rules. For the said
purpose, an order is required to be passed.
or surmises in such a situation had no role to play.
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.
of this Court categorically held that the Chief Justice of a High Court has the
power to create posts.
Another [1998 (3) SCC 72], 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.
Court in no certain terms observed:
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." Anr. [(2002) 2 SCC
141], this Court interpreted the provisions Article 229 and proviso appended
thereto in the following terms :
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
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-`-vis the employees of the Supreme
Court, should equally apply to the Chief Justice of the High Court vis-`-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] In High Court Employees Welfare Association, Calcutta and others Court observed:
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 erdGovernment does not desire to meet the needs of the High
Court, the administration of the High Court will face severe crisis."
this case, the appellants admittedly have failed and/or neglected to perform a
P.N. Chopra (Supra) Rajindar Sachar, J. (as the learned Chief Justice then was)
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." 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.
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.
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
to be further borne in mind that it is not always helpful to raise the question
of financial implications vis-`-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.
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 India and Others [(1992) 1 SCC 119] and
[(2002) 4 SCC 247] as well as the report of the Shetty Commission.
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.
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.
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.
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.
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.
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
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.
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
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
appeal is accordingly dismissed. In the facts and circumstances of the case,
there shall be no order as to costs.
(civil)#Appeal (civil) 4051 of 1996#1996#M/s Pepsi Foods Limited #Collector of
Central Excise, Chandigarh #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr. AR.
Appeal (civil)#Appeal (civil) 4051 of 1996#1996#M/s Pepsi Foods Limited
#Collector of Central Excise, Chandigarh #2003-11-25#25622#4051#P. VENKATARAMA REDDI#Dr.
Appeal (crl.)#Appeal (crl.) 104-106 of 2003#2003#Bikau Pandey and Ors. #State
of Bihar #2003-11-25#25623#
104-106#DORAISWAMY RAJU # ARIJIT PASAYAT.
Appeal (civil)#Appeal (civil) 10906 of 1996#1996#Shanti Kumar Panda #Shakutala Devi
#2003-11-03#25624# 10906#R.C. LAHOTI # ASHOK BHAN.
Appeal (civil)#Appeal (civil) 11483 of 1996#1996#Amrendra Pratap Singh #Tej Bahadur
Prajapati & Ors. #2003-11-21#25625# 11483#R.C. LAHOTI # ASHOK BHAN.
Appeal (civil)#Appeal (civil) 9130 of 2003#2003#Ameer Trading Corporation Ltd.
#Shapoorji Data Processing Ltd. #2003-11-18#25626# 9130#CJI# S.B. Sinha # AR. Lakshmanan.
Appeal (civil)#Appeal (civil) 14178-14184 of 1996#1996#Brij Behari Sahai (Dead)
through L.Rs., etc. etc. #State of Uttar Pradesh #2003-11-28#25627#
14178-14184#Doraiswamy Raju # Arijit Pasayat.
Appeal (crl.)#Appeal (crl.) 1968 of 1996#1996#Goa Plast (P) Ltd.
Ursula D'Souza #2003-11-20#25628# 1968#B.P. Singh # Dr. AR. Lakshmanan ### Writ
Petition (crl.)#Writ Petition (crl.) 199 of 2003#2003#Ashok Kumar Pandey #The
State of West Bengal #2003-11-18#25629# 199#DORAISWAMY RAJU # ARIJIT PASAYAT.
Appeal (crl.)#Appeal (crl.) 20 of 2003#2003#Surendra Paswan #State of Jharkhand
#2003-11-28#25630# 20#DORAISWAMY RAJU # ARIJIT PASAYAT.
Appeal (crl.)#Appeal (crl.) 278 of 1997#1997#Vidyadharan #State of Kerala
#2003-11-14#25631# 278#DORAISWAMY RAJU # ARIJIT PASAYAT.
Appeal (crl.)#Appeal (crl.) 292 of 1997#1997#State of Madhya Pradesh.
Kishore Gupta and Ors.
292#DORAISWAMY RAJU # ARIJIT PASAYAT.
###State of Punjab & Anr.
Modern Brewaries Ltd. & Anr.
R.C. Lahoti # Dr. AR. Lakshmanan.
Appeal (crl.)#Appeal (crl.) 331 of 1997#1997#Shriram #State of Madhya Pradesh
#2003-11-24#25634# 331#DORAISWAMY RAJU # ARIJIT PASAYAT.
Appeal (civil)#Appeal (civil) 3630-3631 of 2003#2003#The Prohibition &
Excise Supdt., A.P. & Ors.
Tappers Coop. Society, Marredpally & Ors. #2003-11-17#25635# 3630-3631#CJI.#Dr.
AR. Lakshmanan ### Appeal (crl.)#Appeal (crl.) 371-372 of 2003#2003#Ram Dular Rai
of Bihar #2003-11-27#25636# 371-372#S.B. Sinha.
Appeal (civil)#Appeal (civil) 4075-4081 of 1998#1998#Nair Service Society
#Dist. Officer, Kerala Public Service Commission & Ors.
4075-4081#CJI. # Dr. AR. Lakshmanan.
Appeal (civil)#Appeal (civil) 4698-4700 of 1994#1994#State of U.P. & Ors.
Tandon (Dead) #2003-11-03#25638# 4698-4700#R.C. LAHOTI # ASHOK BHAN ### Appeal
(crl.)#Appeal (crl.) 506 of 1997#1997#State of Karnataka #Puttaraja
#2003-11-27#25639# 506#DORAISWAMY RAJU # ARIJIT PASAYAT.
#State of Andhra Pradesh #2003-11-19#25640# 519-521#DORAISWAMY RAJU # ARIJIT
Appeal (crl.)#Appeal (crl.) 530-531 of 2003#2003#Bhargavan & Ors.
of Kerala #2003-11-17#25641#
530-531#DORAISWAMY RAJU # ARIJIT PASAYAT.
Appeal (civil)#Appeal (civil) 7371 of 2002#2002#N.D. Thandani (Dead) By Lrs.
Rustom Printer & Anr.
7371#R.C. LAHOTI # ASHOK BHAN.
Appeal (civil)#Appeal (civil) 9205-07 of 2003#2003#The Land Acquisition
Officer, Nizamabad, District, Andhra Pradesh #Nookala Rajamallu and Ors.
9205-07#DORAISWAMY RAJU # ARIJIT PASAYAT.
Transfer Petition (crl.)#Transfer Petition (crl.) 77-78 of 2003#2003#K. Anbazhagan
#The Superintendent of Police & ors.
77-78#S.N. VARIAVA # H.K. SEMA.
Appeal (civil)#Appeal (civil) 7868 of 1995#1995#ITW Signode India Ltd.
of Central Excise #2003-11-19#25645# 7868#CJI# S.B. Sinha # Dr. AR. Lakshmanan.
Appeal (civil)#Appeal (civil) 857 of 1998#1998#Shyam Singh #Daryao Singh (dead)
by Lrs.& Ors
857#Shivaraj V. Patil # D.M. Dharmadhikari.
Appeal (civil)#Appeal (civil) 3630-3631 of 2003#2003#Prohibition & Excise Supdt.
Tappers Coop. Society, Marredpally & Ors.
3630-3631#S.B. Sinha #### Appeal (civil)#Appeal (civil) 62-65 of
1999#1999#Pramod K. Pankaj #State of Bihar and Ors.
62-65#CJI# # S.B. Sinha.
Appeal (civil)#Appeal (civil) 8232 of 1996#1996#Hindustan Lever & Anr.
of Maharashtra & Anr.
8232#R.C. Lahoti # Ashok Bhan.
Appeal (civil)#Appeal (civil) 5337-5339 of 1999#1999#Manager, Nirmala Senior,
Secondary School, Port Blair #N.I. Khan & Ors.
5337-5339#SHIVARAJ V. PATIL # ARIJIT PASAYAT.
Appeal (civil)#Appeal (civil) 9131 of 2003#2003#Rekha Mukherjee #Ashish Kumar Das
9131#CJI# S.B. Sinha # Dr. AR. Lakshmanan.
Appeal (civil)#Appeal (civil) 3130 of 2002#2002#Ashan Devi & Anr.
Devi & Ors.
3130#Shivaraj V. Patil # D.M. Dharmadhikari.
Appeal (civil)#Appeal (civil) 7096 of 2000#2000#Smt. Lila Ghosh (Dead) through
LR, Shri Tapas Chandra Roy #The State of West Bengal #2003-11-18#25653# 7096#S.
N. Variava # H. K. Sema.
###Harinagar Sugar Mills Ltd.
of Bihar & Ors.
Kumar # Arun Kumar.
Appeal (crl.)#Appeal (crl.) 115-120 of 2002#2002#R. Sai Bharathi #J. Jayalalitha
115-120#S. RAJENDRA BABU # P. VENKATARAMA REDDI ### Appeal (civil)#Appeal
(civil) 9136-9137 of 2003#2003#M/s.Sathyanarayana Brothers (P) Ltd.