TaxTMI 
TaxTMI 
1989 (7) TMI 333
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....airman, Mr. Justice V.D. Tulzapurkar, Mr. Justice D.A. Desai, Mr. Justice R.S. Pathak (as he then was) and Mr. Justice S. Murtaza Fazal Ali. The second event, which is the most important one, is the judgments of the Delhi High Court passed in writ proceedings instituted by its employees. 2. The Five-Judge Committee in its report stated, inter alia, that no attempt had been made to provide a separate and distinct identity to the ministerial staff belonging to the Registry of the Supreme Court. According to the Committee, the borrowed designations without any attempt at giving a distinct and independent identity to the ministerial staff in the Registry of the Supreme Court led to invidious comparison. The committee observed that the salary scale applicable to various categories to staff in the Registry would show that at least since the Second Pay Commission appointed by the Central Government for Central Government servants, the pay-scales devised by the Pay Commission were practically bodily adopted by the Chief Justice of India for comparable categories in the Supreme Court. This was repeated after the recommendations of the Third Pay Commission were published and accepted by the....
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....e staff in the Registry of the Supreme Court. The Committee recommended that the Chief Justice of India with the concurrence of the Central Government might refer the case of the Supreme Court staff to the Fourth Pay Panel presided over by Mr. Justice P.N. Singhal. 3. Several Writ Petitions were filed before the Delhi High Court by various categories of its employees, namely, the Private Secretaries and Readers to the Judges, Superintendents, Senior Stenographers, Assistants, Junior Readers, Junior Stenographers, Joint Registrars, Assistant Registrars, Deputy Registrars and certain categories of Class IV employees. In all these Writ Petitions, the Delhi High Court revised their respective pay-scales. With regard to certain categories of Class III and Class IV employees, the Delhi High Court revised their pay-scales also and granted them Punjab pay-scales and Central Dearness Allowance, the details of which are given below: SI. No. Date of Judgment No. of W.P. Post Revised scale of pay Rs. 1. 3.2.86 & 23.5.86 W.P. No. 1376/84 Restorer 400-600 2. 11.11.86 W.P. No. 1865/86 L.D.Cs. 400-600 3. 4.12.86 W.P. No. 2236/86 Class IV Sweepers Ushers....
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....rmation the Government is inclined to agree with the proposals made by the second respondent. We do not think, it is necessary to postpone the interim directions. The question of interim directions with regard to the categories of the Officers and the members of the staff not covered by the Delhi High Court scales of pay will be considered separately after two weeks. Mr. S.N. Kacker, Counsel for the petitioner, Mr. P.P. Rao for respondent No. 2, Supreme Court of India, and the learned Addl. Solicitor General are requested to assist us to arrive at a suitable formula in regard to them. The Writ Petition is adjourned for four weeks. In the meanwhile, respondent Nos. 1 & 2 may take steps to refer the question of revision of pay scales to the Fourth Pay Commission as suggested by the Committee consisting of Hon'ble Mr. Justice V.D. Tulzapurkar, Hon'ble Mr. Justice D.A. Desai, Hon'ble Mr. Justice R.S. Pathak and Hon'ble Mr. Justice S. Murtaza Fazal Ali." 7. It appears from the interim order extracted above that this Court directed that the officers and the members of the staff of the Registry might get the same pay and allowances which were then being enjoyed by the....
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....s under: 2(1). To examine the present structure of emoluments and conditions of service, taking into account the total packet of benefits, including death-cum-retirement benefits, available to the following categories of Government employees and to suggest changes which may be desirable and feasible: (i) Central Government employees--industrial and nonindustrial. (ii) Personnel belonging to the All India Services. (iii) Employees of the Union Territories." 11. Pursuant to the interim order of the Supreme Court dated July 25, 1986, the Ministry of Finance, Department of Expenditure, published a Resolution dated December 24, 1986 in the Gazette of India, Extraordinary, Part I--Section I. By the said Resolution, the terms of reference were amended by the addition of a new sub-clause (iv) below paragraph 2(1)(iii) which is as follows: "(iv) Officers and employees of the Supreme Court of India." 12. It thus appears that although initially the cases of the employees of the Supreme Court were not referred to the Fourth Pay Commission, the Government, however, in obedience to the order of this Court referred their cases by the amendment of the terms of reference. 13. After the....
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....rt, by his letter dated July 22, 1987 addressed to the Secretary, Government of India, Ministry of Finance, Department of Expenditure, New Delhi, stated inter alia that if the pay-scales as proposed by the Fourth Pay Commission were accepted, and implemented, it would result in a number of anomalies and the Supreme Court would encounter some difficulties in implementing the same. The Registrar General was of the opinion that the Pay Commission should not have made any such recommendation which had the effect of reducing the pay-scales than what had been given by this Court by its various interim orders dated 25.7.1986, 15.1.1987, 19.2. 1987, etc. to different categories of employees. Further, it was stated by him that the Pay Commission should not also have made recommendation which had the effect of taking away the benefit accrued to other categories of employees by the Court's order dated August 14, 1986. It is not necessary for us to refer to the anomalies as pointed out by the Registrar General in his said letter. Suffice, it to say that the Registrar General dealt with the case of each category of employees affected by the report of the Fourth Pay Commission and stressed t....
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....o communication has been made to this Court as to the result of such consideration, yet the Government has made up its mind not to allow the pay-scales given to them by the interim order of this Court. Be that as it may, we may now proceed to consider the contentions of the respective parties in these proceedings. 17. Mr. Thakur, learned Counsel appearing in Writ Petition No. 801 of 1986 on behalf of the Supreme Court Employees' Welfare Association, has made his submissions in two parts. The first part relates to the Junior Clerks and the Class IV employees of the Supreme Court and the second part relates to the other employees of the Supreme Court, who are members of the Supreme Court Employees' Welfare Association. It may be stated here that the Class IV employees have filed a separate Writ Petition, that is, the Writ Petition No. 1201 of 1986. 18. We shall first of all deal with the submissions of Mr. Thakur with regard to the Junior Clerks and Class IV employees of the Supreme Court. The learned Counsel has placed much reliance upon the judgments of the Delhi High Court in revising the pay-scales of certain categories of Class III and Class IV employees, as stated her....
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....n of India. The learned Attorney General has made elaborate submissions as to the applicability of the said doctrine to the cases of the employees of the Delhi High Court and also of the Supreme Court. We shall, of course, consider the submissions of the learned Attorney General in regard to the doctrine of 'equal pay for equal work', but before we do that we may consider his other submissions. 20. It is urged by him that the judgments of the Delhi High Court are absolutely erroneous and that, in any event, they are neither final nor do they operate as res judicata, between the parties as contended on behalf of the petitioners. It is pointed out by him that the scales of pay of Rs. 400-600 and Rs. 300-430 are Punjab pay-scales. Punjab pay scales were higher than the Central pay-scales because the Punjab pay-scales were linked to higher Consumer Price Index (for short 'CPI') 320 as on 1.1.1978 instead of CPI 200. On the other hand, the Central pay-scales were linked to CPI 200 as on 1.1.1973. The Punjab High Court employees were getting higher pay-scales because the Dearness Allowance up to 1.1.1978 had been merged in the pay-scales which related to CPI 320 as on 1.....
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....ected by the Supreme Court. It has been further held that the effect of a non-speaking order of dismissal of a Special Leave Petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where Special Leave Petition should be granted. In Union of India v. All India Services Pensioners Association, AIR 1988 SC 50 1 this Court has given reasons for dismissing the Special Leave Petition. When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. It, therefore, follows that when no reason is given, but a Special Leave Petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 14 1 of the Constitution. 23. It is true that by the dismissal of a Special Leave Petition in limine, this Court does not lay down any law under Article 141 of the Constitution, but the question is whether after the dismissal of the Special Leave Petition t....
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....earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in s. 11 Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule or res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, 'for a rule of procedure cannot supersede the law of the land." 24. Thus, a deci....
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....he context of the facts of that case, this Court laid down the above proposition of law that the doctrine of res judicata or the principles of finality of judgment could not be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the Constitution. 26. It is, however, the contention of the petitioners, that is, the employees of the Supreme Court, that they are being discriminated against by the Union of India because while the Delhi High Court employees are given a higher scale of pay, the Supreme Court employees who perform at least the same duties are paid a lower scale of pay. The observation that has been made in Kirit Kumar's case-was in the context of the facts of that case, namely, that even though certain points were not raised before the High Court that would not preclude the detenu from urging those points in a petition under Article 32 of the Constitution relating to the violation of a provision of Article 22(5) of the Constitution. The fact remains that the Delhi High Court employees would be getting higher scale of pay than the employees of the Supreme Court. It is not the case of the Union of India ....
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....l doctrine laying down the finality of litigation between the parties. When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution. So far as the parties are concerned, they will always be bound by the said decision. In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Constitution. There is no question of overruling the provision of Article 14, as contended by the learned Attorney General. The judgment which is binding between the parties and which operates as res judicata between them, cannot be said to overrule the provision of Article 14 of the Constitution even though it may be, to some extent, violative of Article 14 of the Constitution. So far as the Supreme Court employees are concerned in these proceedings the only enquiry to be made is whether the judgments of the Delhi High Court relating to the L.D.Cs. and the Class IV employees have become final and conclusive between the employees of the Delhi High Court and the Union of I....
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....d extended the benefit of its G.O. owing to a mistake to four other persons, similarly placed, it was not fair to deny the same treatment to the petitioner. This contention must be repelled for the obvious reason that two wrongs never make a right." 32. It is submitted that this Court is both a court of law and a court of equity, as held in Chandra Bansi Singh v. State of Bihar, [1985] 1 SCR 579. The equitable principles require that the court should not apply the result of an erroneous decision in regard to the pay-scales to the employees of the Supreme Court. 33. The learned Attorney General has also placed reliance upon the doctrine of prospective overruling and points out that this Court has given effect to the doctrine of prospective overruling in Waman Rao v. Union of India, [1981] 2 SCR 1; Minor P. Rajendran v. State of Madras, [1968] 2 SCR 786 and State of M.P.v. Ram Raghubir Prasad Agarwal, [1979] 3 SCR 41. We are pressed to hold that the judgments of the Delhi High Court are wrong and even though the benefit which has been conferred under the judgments may not be interfered with in respect of those who have got the same, but such benefits may not be conferred on the fut....
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....this Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution. So far as the judgments of the Delhi High Court are concerned, they do not infringe the fundamental rights of the employees of the Supreme Court or any of the petitioners, who are the petitioners before us in the Writ Petitions, and so the question of considering whether the judgments of the Delhi High Court are right or wrong does not arise. If the judgments of the Delhi High Court had in any manner interfered with the fundamental rights of the petitioners before us, in that case, the question as to the correctness of those judgments would have been germane. The petitioners, far from making any complaint against the judgments of the Delhi High Court, have strongly relied upon them in support of their respective cases for pay hike and, accordingly, we do not think that we are called upon to examine the propriety or validity of the judgments of the Delhi High Court. 37. We may also deal with the contention of the learned Attorney General as to the doctrine of 'equal pay for equal work' which we have so long deferred consideration. It is urged by him that ....
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....tion, it will be a case of 'equal pay for equal work', as envisaged by Article 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved, the doctrine of 'equal pay for equal work' will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of 'equal pay for equal work', as envisaged by Article 39(d) of the Constitution, has no manner of application, nor is it enforceable in view of Article 37 of the Constitution. Dhirendra Chamoli v. State of U.P., [1986] 1 SCC 637 is a case of 'equal pay for equal work', as envisaged by Article 14, and not of the abstract doctrine of 'equal pay for equal work'. 39. The learned Attorney General has also placed reliance on some recent decisions of this Court on the question as to the applicability of the doctrine of 'equal pay for equal work'. In State of Andhra Pradesh v. G. Sreenivasa Rao, [1989] 1 JT 615 it has been observed that 'equal pay for equal work' does not mea....
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....ly that the Chief Justice of India, who is the appropriate authority, is entitled to accept or reject the recommendations or any finding of the Pay Commission. 42. Again, in Urnesh Chandra Gupta v. Oil and Natural Gas Commission, AIR 1989 SC 29 it has been observed by this Court that the nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the Court to determine by relying upon the averments in the affidavit in the interest of the parties. It has been observed by us earlier in this judgment that it is not the business of this Court to fix the pay-scales in exercise of its jurisdiction under. Article 32 of the Constitution. It is really the business of the Government or the management to fix the pay-scales after considering various other matters and the Court can only consider whether such fixation of pay-scales has resulted in an invidious discrimination or is arbitrary or patently erroneous in law or in fact. 43. The last case that has been relied on by the learned Attorney General is the decision in Tarsem Lal Gautam v. State Bank of Patiala, AIR 1989 SC 30. In that case, this Court held that it was not an instance to which ....
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....ns, require the approval of the President." 46. Under Article 146(2) the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by the rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose. This is, however, subject to the provisions of any law that may be made by Parliament. It is apparent from Article 146(2) that it is primarily the responsibility of Parliament to lay down the conditions of service of the officers and servants of the Supreme Court, but so long as Parliament does not lay down such conditions of service, the Chief Justice of India or some other Judge or officer of the Court authorised by the Chief Justice of India is empowered to make rules for the purpose. 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 officer 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....
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....a. In this connection, we may refer to the statement of law as to the delegated legislation in Foulkes' Administrative Law, Sixth Edition, Page 57 which reads as follows: "It is common for Parliament to confer by Act on ministers and other executive bodies the power to make general rules with the force of law--to legislate. Parliament is said to delegate to such bodies the power to legislate. Thus the phrase 'delegated legislation' covers every exercise of a power to legislate conferred by Act of Parliament. The phrase is not a term of art, it is not a technical term, it has no statutory definition. To decide whether the exercise of a power constitutes 'delegated legislation' we have to ask whether it is a delegated power that is being exercised and whether its exercise constitutes legislation. Clearly an Act, public or private. is not delegated: it is primary legislation. When a minister or other authority is given power by Act of Parliament to make rules, regulations etc. the power has been delegated to him, and insofar as the rules made by that authority are legislative in their nature. they comprise delegated legislation. If the contents of the document (m....
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....rity. But the rcise of that power, whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact." There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority. 51. The next decision which has been relied on by the learned Attorney General is the decision in State of Andhra Pradesh v. T. Gopalakrishnan Murthi, AIR 1976 SC 123. This case relates to the proviso to Article 229(2) of the Constitution of India. Provision of Article 229(2) including the proviso thereto is a similar to Article 146(2) and its proviso. Under Article 229....
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....e function cannot be directed to do a particular act. Similarly the President of India cannot be directed by the Court to grant approval to the proposals made by the Registrar General of the Supreme Court, presumably on the direction of the Chief Justice of India. It is not also the contention of any of the parties that such a direction can be made by the Court. 55. The real question is how and in what manner the President of India should act after the Chief Justice of India submits to him the rules framed by him relating to the salaries, allowances, leave and pensions of the officers and servants of the Supreme Court. The President of India is the highest dignitary of the State and the Chief Justice of India also is a high dignitary of the State. Upon a comparative study of some other similar provisions of the Constitution, we find that under Article 98(3), the President of India has been empowered to make rules regulating the recruitments and the conditions of service of persons appointed to the secretarial staff of the House of the People or the Council of States, after consultation with the Speaker of the House of the People or the Chairman of the Council of States, as the cas....
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....enerally the approval should be accorded. Although the said observation relates to the provision of Article 229(2), it also equally applies to the provision of Article 146(2) relating to the grant of approval by the President of India. In this connection, we may also refer to a decision of this Court in Gurumoorthy v. Accountant General Assam & Nagaland, [1971] Suppl. SCR 420, which was also considered in Gopalakrishnan's case (supra). In Gurumoorthy's case, this Court took the view that the unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the matter of appointments of officers and servants. of a High Court, it is the Chief Justice or his nominee who is to be the supreme authority and there can be no interference by the Executive except to the limited extent that is provided in that Article. The same observation will apply to the rules framed by the Chief Justice of India under Article 146(2) of the Constitution. 58. At this stage, it may be noticed that it has been conceded by the learned Attorney General that the validity of the subordinate legislation as provided in Article 146(2) of the Constitution can be ....
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....roval of the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions. This condition should be fulfilled and should appear to have been so fulfilled from the records of both the Government and the Chief Justice of India. The application of mind will include exchange of thoughts and views between the Government and the Chief Justice of India and it is highly desirable that there should be a consensus between the two. The rules framed by the Chief Justice of India should normally be accepted by the Government and the question of exchange of thoughts and views will arise only when the Government is not in a position to accept the rules relating to salaries, allowances, leave or pensions. 62. It has been already noticed that this Court by its interim order directed the respondents Nos. 1 and 2 to refer the question of revision of pay-scales of the Supreme Court employees to the Fourth Pay Commission pursuant to the recommendation in that regard by the Five-Judge Committee and as directed such reference was made. The report of the Fourth Pay Commission was not sent directly to the Chief Justice of India, but it came through the Ministry of Finance....
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....was done or not, is not the question at the present moment. The most significant fact is that no rules were framed by the Chief Justice of India in accordance with the provision of Article 146(2) of the Constitution. Instead, what was done was that the Registrar General made certain proposals to the Government and those proposals were turned down as not acceptable to the Government. There is a good deal of difference between rules framed by the Chief Justice of India under Article 146(2) and certain proposals made by the Registrar General of the Supreme Court, may be under the instructions of the Chief Justice of India. The provision of Article 146(2) requires that rules have to be framed by the Chief Justice of India and if such rules relate to salaries, allowances, leave or pension, the same shall require the approval of the President of India. This procedure was not followed. So, the stage for the consideration by the President of India as to the question of granting approval, as required under the proviso to Article 146(2), had not then reached. Indeed, it is still in the preliminary stage, namely, that the rules have to be framed by the Chief Justice of India. 64. We have als....
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.... the provision of Article 146(2) and, accordingly, the question of granting approval to the rules by the President of India under Article 146(2) does not at all arise because that stage has not yet reached. We are, therefore, of the view that the Chief Justice of India should frame rules under Article 146(2) after taking into consideration all relevant factors including the recommendations of the Fourth Pay Commission and submit the same to the President of India for his approval, 67. It has been strenuously urged by Mr. Thakur that the staff and the servants of the Supreme Court of India constitute a class by themselves totally distinct in the civil services under the Union and the States, having a totally distinct personality and a culture, both because of the nature of the functions assigned to them and because of their being an integral part of the institution which stands on a wholly different pedestal. Counsel submits that it is because of this distinctive function and locational status of the staff and servants of the Supreme Court that the Constitution treated them as a class by themselves, apart from the other services under the Union and the States by providing that unli....
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....urse of the debate. Shri T.T. Krishnamachari stated before the Constituent Assembly as follows: "At the same time. Sir, I think it should be made clear that it is not the intention of this House or of the framers of this Constitution that they want to create specially favoured bodies which in themselves become an Imperium in Imperio, completely independent of the Executive and the legislature and operating as a sort of superior body to the general body politic. If that were so, I think we should rather chary of introducing a provision of this nature, not merely in regard to the Supreme Court but also in regard to the Auditor-General, in regard to the Union Public Service Commission, in regard to the Speaker and the President of the two Houses of Parliament and so on, as we will thereby be creating a number of bodies which are placed in such a position that they are bound to come into conflict with the Executive in every attempt they make to superiority. In actual practice, it is better for all these bodies to more or less fall in line with the regulations that obtain in matters of recruitment to the public services, conditions of promotion and salaries paid to their staff." 69. ....
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.... amendments to the existing rules relating to the salaries and allowances of the Supreme Court employees in accordance with Article 146 of the Constitution after considering the recommendations of the Fourth Pay Commission and all other relevant materials, and that the said amendments will be forwarded to the President of India for approval. Mr. Rao has filed a statement in writing signed by the Registrar General, which is extracted below: "After obtaining instructions from the Hon'ble the Chief Justice, I hereby state that necessary amendments to the existing rules relating to the salaries and allowances of the Supreme Court employees will be made in accordance with Article 146 of the Constitution after considering the recommendations of the Fourth Pay Commission in respect of the Supreme Court employees and all other relevant materials and that the said amendments to the Rules will be forwarded to the President of India for approval and after obtaining the approval of the President, in terms of the proviso to Clause (2) of Article 146 of the Constitution, the same will be implemented." 72. In view of the said statement, our task has become easy. It appears from the said st....
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.... and they are better qualified. In view of our decision that the rules have not been framed as per Article 146(2) of the Constitution, we do not think we are called upon to decide the question raised by the learned Counsel. 75. In the circumstances, as agreed to by the Chief Justice of India he may, after considering the recommendations of the Fourth Pay Commission and other materials that would be available to him and the representations of the employees of the Supreme Court and other matters, as stated hereinbefore, frame rules by making necessary amendments to the existing rules relating to salaries and allowances of the Supreme Court employees and forward the same to the President of India for his approval. 76. The parties are directed to maintain status quo as regards the scales of pay, allowances and interim relief, as on this day, till the framing of the rules by the Chief Justice of India and the consideration by the President of India as to the grant of approval of such rules relating to salaries, allowances, leave or pensions, and the interim orders passed by this Court will also continue till such consideration by the President of India. All the Writ Petitions and the ....
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....y General contends that the Punjab pay scales of Rs. 400600 in the case of Class III employees and Rs. 300-430 in the case of Class IV employees are higher than the corresponding Central pay scales because the Punjab pay scales are linked to the higher price index of 320 as on 1.1.1978 while the Central pay scales are linked to the price index of 200 as on 1.1.1973. The higher Punjab scales have already absorbed all the D.A. instalments sanctioned upto 1.1.1978. The Punjab D .A. formula is, therefore, correspondingly lower. There is no justification in linking the Punjab pay scales with the Central D.A. The decision of the Delhi High Court, although final being res judicata between the parties, is based on wrong reasoning and cannot, therefore, form a legitimate basis for paying the Class III and Class IV employees of this Court the Punjab pay scales and the Central D.A. Their legitimate entitlement is to the Central Pay scales with the Central D .A. This has been recommended by the Pay Commission. 81. Referring to the Delhi High Court employees, the Attorney General, in his written submissions, points out: "His counterpart in the Punjab High Court enjoyed higher scale of pay bu....
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....me Court lies in the suggestions of the Committee of Judges of the Supreme Court in may, 1985 to the effect: "The Chief Justice of India may (a) appoint a Committee of Judges, and experts to devise a fair pay structure for the staff of the Supreme Court of India keeping in view the principles of pay determination; or (b) refer the matter to the 4th Pay Commission which is. at present considering the question of revision of pay-scalas of the Central Government employees and ask it to examine: the question of independent pay structure for the staff of the Supreme Court Registry and submit a separate report in this respect to the Chief Justice of India." Pursuant to the above suggestions and the decision taken thereon, the Government amended; the terms of reference of the Pay Commission to include officers and employees of the Supreme Court of India. A. copy of the Report of the Committee of Judges was made available to the Pay Commission. The Committee of Judges had pointed out the functional differences between the Central Secretariat Services and the Service in the Registry of the Supreme Court. The Pay Commission visited the Registry of the Supreme Court to familiarise....
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....ter than, the employees of the Delhi High Court. The Supreme Court employees, they say, have to be paid a higher scale of pay than what is paid to the corresponding categories of employees in the Central Government Secretariat or the Secretariat of the Central Legislature because of the functional and institutional distinction of the Supreme Court. Although the employees of the Central Government Secretariat and those of the Supreme Court Registry at various levels are designated alike, there is no functional similarity between them, the nature and quality of their work being dissimilar. If a proper comparison is possible, they say, the Supreme Court employees must be compared with the employees of the Delhi High Court. It would be an anomaly, and a source of discontent, if the Supreme Court employees are not paid at least as much as, if not better than, what the employees of the Delhi High Court are paid. The fact that the judgment of the Delhi High Court, pursuant to which the employees of that court are placed on a higher scale of pay, may be regarded as wrong in law and fact does not make any difference because those judgments have become final and binding, and consequently the....
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....endations of the Third Pay Commission were published and accepted by the Central Government. Apparently with a view to avoiding the arduous task of devising a fair pay structure for various categories of staff in the Registry, this easy course both facile and superficial was adopted which led to the inevitable result of linking the pay structure for the various categories of staff in the Registry with the pay structure in the Central Services for comparable posts. And the comparison was not functional but according to the designations. No attempt was made to really ascertain the nature of work of an employee in each category of staff and determine the pay structure and then after framing proper rules invite the President to approve the rules under Art. 146 of the Constitution." The Committee further pointed out: "Equal pay for equal work postulates scientific determination of principles of fair comparison and primarily it must be functional and not by designation because a comparison by designation is more often misleading ..... not the slightest attempt has been made to compare the workload, skill, educational qualification, responsibilities and duties of various categories of ....
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....pointed out that implementation of such recommendations would have the unfortunate effect of reducing the pay scales of certain categories of employees of the Supreme Court whose pay has already been enhanced by reason of various orders of this Court. This anomaly, he pointed out,. was glaringly striking in respect of Class IV and Class III employees and certain other categories. The various suggestions of the Registrar General were rejected by the Government except his suggestion for the enhancement of the salaries of the Private Secretaries to the Judges of this Court. This is what is stated on the point by Shri S. Ghosh, Additional Registrar, in his affidavit sworn on 3rd March, 1989: "That except the enhancement of the salaries of the Private Secretaries of the Judges of the Supreme Court of India, the rest of the anomalies and infirmities as pointed out by the Registrar General, on behalf of the Chief Justice of India were not appreciated by the Ministry of Finance and the pay 'scales recommended by the Registrar General in respect of various cadres on behalf of the Chief Justice of India were not approved as those recommended by the Pay Commission were sanctioned." 90.....
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....ssion on account of the recommendations of the Committee of Judges. The Judges had intended the Pay Commission to study all aspects of the matter in depth and make their recommendations to the Chief Justice of India to aid him in the discharge of his constitutional function under clause (2) of Article 146. In this respect the Chief Justice must necessarily act on the basis of data made available to him by persons he might in that regard appoint, or, as has been done in the present case, by the Pay Commission themselves to whom a reference was made by the Government pursuant to the recommendations of the Judges' Committee. The cardinal function of the Pay Commission, while duly acting in connection with the employees of the Supreme Court, is to render effective assistance to the Chief Justice of India to discharge his responsibility of formulating rules under Article 146(2). This is the first step towards the final adoption of the rules governing the conditions of service in relation to salaries, allowances, etc. It is only by formulating specific rules in that respect can the President (that means the Government of India) exercise the mind over the question and approve or disap....
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....ining the approval of the President, in terms of the proviso to clause (2) of Article 146 of the Constitution, the same will be implemented." 93. It is not and cannot be disputed that the Chief Justice of India, by virtue of the constitutional grant, exercises legislative power when he makes rules under Article 146(2). Those rules are in the nature of subordinate legislation having .the force of law to the extent, and subject to the conditions, prescribed by the Constitution. Like all statutory instruments, they are subordinate to the parent law. The power of the President under the proviso to clause (2) of Article 146 to approve or disapprove the rules made by the Chief Justice of India (relating to salaries, allowances etc.) is likewise legislative in character. It is the approval of the President that stamps such rules, so far as they relate to salaries, allowances, etc,, with the authority of subordinate legislation. The making of the rules by the Chief Justice of India in that respect is a step--indeed a vital step--in the process of law making, but they assume the character of subordinate legislation only on their approval by the President. 94. The Attorney General strenuou....
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....at the power exercised by the Chief Justice of India or the President under Article 146(2) is derived directly from the Constitution, and not from a statute, makes no difference to the power of judicial review by a competent court. Any action taken (or refusal to act) on the strength of power derived directly by constitutional delegation is as much justiciable or reviewable upon the same grounds and to the same extent as in the case of any statutory instrument. The fundamental question in determining whether the exercise of power by an authority is subject to judicial review is not whether the source of his power is the Constitution or a statute, but whether the subject matter under challenge is susceptible to judicial review. Pure questions of facts or questions which cannot be decided without recourse to elaborate evidence or matters which are generally regarded as not justiciable--such as, for example, those relating to the conduct of the external affairs or the defence of the nation--are not amenable to judicial review. See in this connection the principle enunciated in C.C.S.U. & Ors. v. Minister for the Civil Service, [1984] 3 All E.R. 935,948,950. 97. Rules made under Artic....
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....tive of the general principles of the law of the land or so vague that it cannot be predicated with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. In the words of Lord Russel of Kilowen, C.J. in Kruse v. Johnson, [1898] 2 Q.B. 91, 99: 101. "If, for instance, they were found to be partial or unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men, the Court might well say, "Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires." 102. In Union of India & Anr. v. Cynamide 'India Ltd. & Anr., [1987] SCC 720, 734 Chinnappa Reddy, J. observed that price fixation being a legislative activity, it was: "neither the function nor the forte of the court. We concern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to enquire into the question, in appropriate proc....
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....exercised in good faith, but for an unauthorised purpose or on irrelevant grounds, etc. As stated by Lord Magnaghten in Westminster Corporation v. London and North Western Railway, [1905] AC 426, 430: " .... It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. 1t must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first ...." 108. This principle was restated by this Court in Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295; " .... Even if (the statutory order) is passed in good faith and with the best of intention to further the purpose of the legislation which confers the powers, since the Authority has to act in accordance with and within the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds extraneous to the legislation or if there are no grounds at all for passing it or if the grounds are such that no one can reasonably arrive at the opinion or satisfaction requisit....
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....ating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to malla fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice; in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16." 111. These are some of the general principles which must guide the repository of power in all his actions. They apply with equal force to the exercise of power contemplated under Article 146(2), including its proviso. These principles must, therefore, necessarily weigh with the court whenever the a....
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....See A.K. Roy etc. v. Union of India and Anr., (supra) Narinder Chand Hem Raj & Ors. v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh & Ors., [1972] 1 SCR 940. 945. But the President must, upon submission to him of the Rules made by the Chief Justice of India under Article 146(2), exercise his mind as to whether or not he would grant approval, and, without undue delay, come to a decision on the point: See Aeltemesh Rein, Advocate Supreme Court of India v. Union of India and Others, [1988] 4 SCC 54. In the present case, the time for decision by the President has of course not come. 115. The approval of the President is not a matter of mere formality. It would, of course, be wrong to say that in no case can the President, which means the Government, refuse to accord approval. However, once the rules are duly framed by so high a constitutional dignitary as the Chief Justice of India, it will only be in the truly exceptional cases that the President would withhold assent. It is but proper and appropriate that, in view of the spirit of the constitutional provision, approval would be accorded in all but the exceptional cases: see the observations of this Court in State o....