West Bengal Vs. Subhas Kumar Chatterjee & Ors.  INSC 641 (17 August
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5538 OF
2008 State of West Bengal ... Appellant VERSUS Subhas Kumar Chatterjee &
Ors. ... Respondents
SUDERSHAN REDDY, J.
This appeal by special leave is directed against the final
judgment and order dated 19th December, 2007 passed by the Division Bench of
the High Court of Calcutta in W.P.S.T No. 33 of 2007 whereby and whereunder the
High Court dismissed the writ petition preferred by the State of West 2 Bengal,
appellant herein and confirmed the judgment and order dated 18th August, 2005
passed by the State Administrative Tribunal, West Bengal.
In order to consider the question as to whether the judgment
suffers from any infirmities requiring our interference, it may be just and
necessary to notice the relevant facts.
The controversy involved in the present matter requiring
resolution centers around the issue as to whether the Senior Laboratory
Assistants in the Roads and Buildings Research Institute and various other
divisions under the Public Works (Roads) Department, Government of West Bengal
are entitled to the same pay scale at par with the Research Assistants in the
On 4th July, 1972 the Government of West Bengal, in exercise of
its power conferred by the proviso to Article 309 of the Constitution of India
made the Rules for regulation of recruitment to the post of Senior Research
Assistant, Research Assistant and Senior Laboratory Assistant in the 3 Roads
and Buildings Research Institute and various other divisions under the Public
Works (Roads) Department. The post of Senior Laboratory Assistant is a feeder
to the post of Research Assistant. The pay scale fixed under the Revision of
Pay and Allowances Rules, 1981 ( for short ROPA Rules) for the post of Research
Assistant was scale no. 9 ( Rs. 300-910) and for the post of Senior Laboratory
Assistant scale no. 6 (Rs. 300-685).
In the year 1982, three Senior Laboratory Assistants filed a Writ
Petition in the Calcutta High Court claiming scale no. 11 under ROPA Rules on
the allegation that they were performing similar duties as that of Senior
Research Assistants. The said Writ Petition was disposed of by a learned Single
Judge of the High Court granting scale no. 11 as claimed by the writ
petitioners therein vide judgment dated 25th November, 1987. Be it noted that
the said writ petition was disposed of on the doctrine of non-traverse since
the State Government was unrepresented and no affidavit filed on its behalf.
However, the learned Judge granted relief directing the said pay scale to be
paid w.e.f 4 1st April, 1981 but, directed that the petitioners therein would
be entitled to arrears only w.e.f April, 1987. The State was also directed to
place the matter before the 3rd Pay Commission so that the Commission could
consider the case of the Senior Laboratory Assistants for higher scale duly
taking into consideration their qualifications and duties.
On 30th June 1987, 3rd Pay Commission for the State of West Bengal
was constituted to consider the revision of pay and emoluments of its
employees. The Commission submitted its report in December, 1988, granting only
scale 6 (revised to Rs. 1040-1920) to the Senior Laboratory Assistants and
scale 9 (revised to Rs. 1260-2610) for the Research Assistants. The State
Government having accepted the recommendations framed ROPA Rules, 1990 allowing
scale nos. 6 and 9 respectively to the Senior Laboratory Assistants and
Research Assistants. The 4th Pay Commission retained the same pay scales.
However, the pay structure was revised. The State Government accordingly framed
ROPA Rules, 1998.
The respondents herein who are the Research Assistants approached
the Tribunal after a period of more than 12 years claiming revision of scale of
pay and fixation of benefits w.e.f 1st April, 1981 in scale no. 14. Their case
essentially was based upon the judgment of the High Court in Writ Petition No.
2893W of 1982 granting scale no. 11 to Senior Laboratory Assistant which was
the feeder post to the Research Assistant and therefore, the Research
Assistants were entitled to the proportionate hike in their scale of pay. The
Tribunal disposed of the O.A filed by the respondents herein directing the
Chief Engineer, Public Works (Roads) Directorate to treat the application filed
before it along with its annexures as a representation and to dispose of the
same by a reasoned order.
Be that as it may, by order dated 31st August, 2001 the Chief
Engineer extended the scale no. 11 to the respondents which was not acceptable
to the State Government. The respondents once again approached the
Administrative Tribunal in the year 2002 seeking appropriate directions as
against the State to revise the pay 6 scale in terms of the orders of the Chief
Engineer. The Tribunal while rejecting the objections of the State that the
Chief Engineer was not competent to modify or amend ROPA Rules as he did by his
order, allowed the claim of the respondents.
The appellant State challenged the said order of the Tribunal in a
writ petition filed before the High Court. The High Court vide impugned order
dismissed the writ petition and confirmed the order of the Tribunal. Hence this
Shri Bhaskar P. Gupta, learned senior counsel submitted that the
impugned order suffers from errors apparent on the face of the record. The High
Court completely misdirected itself in deciding the matter in controversy by
ignoring the well settled legal principles. It was submitted that Revision of
Pay and Allowances Rules (ROPA) are framed by the Government of West Bengal by
the directions of the Governor under Article 309 of the Constitution of India
and are binding in their nature. The Rules are amended from time to time based
upon the recommendations of successive Pay Commissions. The 7 successive Pay
Commissions have consistently recommended scale no. 9 for the Research
Assistants to which category the respondents belong. The State cannot be
compelled to act contrary to statutory rules framed by it in exercise of the
powers under proviso to Article 309 of the Constitution. It was also submitted
that the Pay Commission fixed pay scales after evaluation of duties of the
concerned class of employees, educational qualifications, total pay structure,
finances of the Government and various other factors. The State having accepted
the recommendations made necessary amendments to the Rules and cannot be
compelled to make isolated changes in one of the category inasmuch as such a
change may have a cascading effect on the whole pay structure of its employees.
The learned counsel for the respondents strongly supported the
impugned judgment. It was submitted that the Government having implemented the
directions of the learned Single Judge in case of Senior Laboratory Assistants
in the feeder category, cannot fix the pay scales of 8 Research Assistants in
the lower pay scale than that of the Senior Laboratory Assistants.
Now we shall proceed to consider the submissions made by the
counsel during the course of the hearing of this appeal.
This Court time and again cautioned that the court should avoid
giving a declaration granting a particular scale of pay and compel the
Government to implement the same.
of posts and equation of salaries is a matter which is best left to an expert
body. Fixation of pay and determination of parity in duties and
responsibilities is a complex matter which is for the executive to discharge.
recommendations of the Pay Commissions are subject to acceptance or rejection,
the Courts cannot compel the State to accept the recommendations of the Pay
Commissions though it is an expert body. The State in its wisdom and in
furtherance of its valid policy may or may not accept the recommendations of
the Pay Commission.
Union of India V. Arun Jyoti Kundu1 and State of 1 (2007) 7 SCC 472 9 Haryana
& Anr. V. Haryana Civil Secretariat Personal Staff Assn.2]. It is no doubt,
the constitutional courts clothed with power of judicial review have
jurisdiction and the aggrieved employees have remedy only if they are unjustly
treated by arbitrary State action or inaction while fixing the pay scale for a
In the present case, the 3rd Pay Commission vide its recommendations
made in December, 1988 allowed only scale no. 6, to the Senior Laboratory
Assistants and scale no. 9, for the Research Assistants. The Government having
accepted the recommendations framed rules allowing scale no. 6 and 9,
respectively to the Senior Laboratory Assistants and Research Assistants. The
4th Pay Commission retained same scales though the actual pay structure was
revised. It appears from the record that in the State of West of Bengal pay
scales are fixed under statutory rules. The constitutional validity of those
rules under which the pay scales are fixed has not been challenged.
6 SCC 72 10
Be that as it may, the Chief Engineer while acting under the
directions of the Tribunal passed the order declaring that the respondents are
entitled to the relief as prayed for by them and accordingly granted scale no.
11 to the respondents. The Chief Engineer completely ignored the statutory
rules under which the respondents are entitled to only scale no. 9. The
Government did not implement the same. The respondents once again approached
the Tribunal seeking appropriate directions for implementation of the order
passed by the Chief Engineer.
The Tribunal vide its order dated 18th August, 2005 having allowed
the OA of the Respondents held that they are entitled to fixation of pay as
recommended by the Chief Engineer and State must give effect to the same. We
fail to appreciate as to how the Administrative Tribunal could have directed
the State to implement the recommendations of the Chief Engineer which run
counter not only to the recommendations of the Pay Commission but also the ROPA
Being aggrieved by the order of the Tribunal the appellant-State
of West Bengal filed a writ petition in the High Court of Calcutta and the same
was dismissed by the High Court. The High Court while upholding the validity of
the order passed by the Administrative Tribunal adopted a very peculiar reason
which in our considered opinion is totally untenable and unsustainable in law.
The High Court took the view that "the Tribunal, in exercise of its power
under Article 226 read with Section 19 of the Central Administrative Tribunals
Act, has delegated rather conferred power upon" the Chief Engineer
"to decide the issue and has done it with reason and the same remains
unchallenged. As such, even if on fact or in law, both the two orders might or might
not be correct one, once the same is passed and is not set aside by the
appropriate forum and the same is binding between the parties."
According to the High Court the decision of the Chief Engineer is
a quasi judicial one in its nature and the same has been passed in exercise of
delegation of powers by the Tribunal to decide the dispute between the parties
as 12 regards the fixation of pay scales. The High Court also held that the
order of the Chief Engineer operates as res- judicata. We shall deal with this
aspect of the matter a little later.
This court on more than one occasion decried such practices
adopted by the tribunals directing applications filed before them to be treated
as representations before the executive authorities for their decision on
merits. It is for the tribunals that are empowered to examine service disputes
on merits. Such delegation of power apart from being illegal and
unconstitutional amounts to avoidance of constitutional duties and functions to
decide such disputes which are exclusively entrusted to them by law. In
pursuance of the power conferred upon it by Clause (1) of Article 323-A of the
Constitution, Parliament enacted Administrative Tribunals Act, 1985. The Statement of Objects and Reasons of the Act,
indicates that it was being enacted to provide for the adjudication or trial by
Administrative Tribunals of disputes and complaints with respect to recruitment
and conditions of service of persons 13 appointed to public services and posts
in connection with the affairs of the Union or of any State or of any local or
other authority within the territory of India. Chapter III deals with the
jurisdiction, powers and authority of the Tribunals. Sections 14, 15 and 16
deal with the jurisdiction, powers and authority of the Central Administrative
Tribunals, the State Administrative Tribunals and the Joint Administrative
Tribunals respectively. The Tribunals under the Act possess jurisdiction and
powers of every other court in the country except the jurisdiction of the
Supreme Court, in respect of all service related matters. The Administrative
Tribunals are conferred with the jurisdiction to hear matters where even the
vires of statutory provisions are in question. Their function, however, in this
regard is only supplementary inasmuch as such decisions are subject to scrutiny
of the High Courts.
the extent of awesome powers and jurisdiction conferred upon the Tribunals. It
is their bounden duty to adjudicate the matters coming before them but not
delegate its jurisdiction to extra constitutional authorities.
practice is fraught with undesirable consequences 14 destroying the very
purpose and scheme under which they are created and constituted to adjudicate
disputes in specified areas. We hope and trust that the Tribunals in the
country henceforth will not repeat such practice of sending the original
applications filed before them to the Executive Authorities for their disposal.
The origin of this controversy lies and is traceable to the
improper exercise of jurisdiction by the Tribunal remitting the original
application made to it to the Chief Engineer for his decision. We are at a loss
to appreciate as to how the tribunal could have issued such a direction
virtually surrendering its jurisdiction to the Chief Engineer.
Now we shall revert to the question as to whether the High Court
was justified in rejecting the writ petition filed by the appellant herein.
The High Court while rejecting the writ petition held that the
Chief Engineer has discharged "a solemn duty undertaking the task of
quasi-judicial duty has now reached its finality. Now, it is a question of
implementation of the 15 same". The High Court went to the extent of holding
that the decision rendered by the Chief Engineer pursuant to the order of the
Tribunal operates as res judicata if not issue estoppel. We are bewildered to
note that the High Court advanced such an unstatable proposition. The Chief
Engineer did not undertake any task of discharging of any quasi-judicial duty.
The Administrative Tribunals by their orders cannot create and constitute any
quasi-judicial authorities and entrust matters for their decision which
otherwise are not within their jurisdiction.
Whether the Administrative Tribunal can delegate its power of
judicial review and confer the same upon a Chief Engineer? The Tribunals cannot
travel beyond the power conferred on them and delegate their essential function
and duty to decide service related disputes. Such delegation is ab initio void.
It is too elementary to restate that no judicial tribunal can delegate its
responsibilities except where it is authorized to do so expressly. The power
conferred upon the Administrative Tribunals under the provisions of the said
Act flows from Article 323-A of the 16 Constitution. Such power can never be
delegated except under a valid law made by Parliament. The Tribunals by their
own act cannot delegate the power to decide any dispute which in law is
required to be decided exclusively by such Tribunals.
For the aforesaid reasons, the order of the Administrative
Tribunal directing the Chief Engineer, Public Works (Roads) Directorate to
decide the dispute raised by the respondents with regard to their pay scales is
void ab initio and cannot be given effect to.
The next question that arises for our consideration is whether the
decision of Chief Engineer operates as res- judicata? The High Court fell into
serious error in construing the orders passed by the Chief Engineer as a
no adjudication as such of any lis between the parties by the Chief Engineer.
The Chief Engineer in law was not entitled to decide any dispute and much less
with regard to any dispute and complaint with respect to conditions of service
of any persons appointed to public posts controlled 17 by the State Government.
The Chief Engineer was not acting in any judicial or quasi-judicial capacity.
decisions by the executive authorities do not bind the courts and much less
operate as res judciata. In the circumstances, the view taken by the Chief
Engineer that the respondents were entitled to scale No.11, cannot operate as
Yet another question that arises for our consideration is whether
a writ of mandamus lies compelling the State to act contrary to law? The State
Government having accepted the recommendations of the successive Pay
Commissions gave effect to those recommendations by framing statutory rules
being ROPA Rules and scales of the employees have been accordingly fixed. The
respondents did not challenge the vires of the said Rules under which they were
entitled to only a particular scale of pay. The State Government is under
obligation to follow the statutory rules and give only such pay scales as are
prescribed under the statutory provisions. Neither the Government can act
contrary to the rules nor the Court can direct the Government to act 18
contrary to rules. No Mandamus lies for issuing directions to a Government to
refrain from enforcing a provision of law.
can issue Mandamus directing the authorities to act in contravention of the
rules as it would amount to compelling the authorities to violate law. Such
directions may result in destruction of rule of law. In the instant case, the
impugned order of the High Court virtually compelled the State to give pay
scales contrary to statutory rules under which pay scales of the employees are
fixed. The decision of the Chief Engineer being contrary to ROPA Rules, 1998,
cannot be enforced even if such a decision was taken under the directions of
the Administrative Tribunal. The orders of the Tribunal as well as of the High
Court suffer from incurable infirmities and are liable to be set aside.
For the reasons above, the impugned judgment of the High Court as
well as the judgment of the Tribunal is set aside. However, the amounts if any
paid to the respondents pursuant to the impugned orders shall not be recovered.
The appeal is accordingly allowed without any order as to costs.
...............................................J. (B. SUDERSHAN
AUGUST 17, 2010.