TaxTMI 
TaxTMI 
2004 (1) TMI 681
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....e 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. The appellants herein inter alia contended before the High Court that the Assistant Registrars should not have been placed in a higher scale of pay of Rs. 3000-4500 as the Fourth Pay Commission, had recommended the scale of pay of Superintendent, Court Master and Private Secretary as also the Assistant Registrar at Rs. 2000-3500 and thus it must have given a go- bye to the old relativities and treated both categories of the post as equal or merged. The appellant also highlighted the repercussions thereof on the officers of the equivalent rank of Central Government who might also agitate for higher scale of pay. JUDGMENT OF THE HIGH COURT: The High Court having regard to the decisions of this Court in S.B. Mathur and Others Vs. Hon'ble the Chief Justice of Delhi ....
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....hese posts are higher than those of the Assistant Registrar. (iii) The Registrar who is a senior Officer of Higher Judicial Service is the Head of the Office of this Court. Apart from administrative functions, the incumbent to the post of Registrar has also to discharge judicial functions and hold Court in exercise of powers under the High Court Rules and Orders and Original Side Rules of this Court. The present pay scale of the post of Registrar is Rs. 5900-6700. (iv) If the imbalance as stated above, is allowed to continue, it will, besides causing hardship, lead to frustration and heart-burning amongst the officers of this Court which would be detrimental to the smooth and efficient functioning of the Registry. Thus, in public interest, it is essential that the imbalance created in the pay structure of the officers of this Court be removed without undue delay."" It was further observed that the repercussion of a higher scale of pay upon the officers of the equivalent rank of the Central Government cannot be a ground to deny the legitimate scale of pay to the Assistant Registrar stating: "The respondents have not refuted and cannot legitimately refute the fact ....
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....hallenged the decision by way of SLP (C) No.8934 of 1982, which was however dismissed by this Hon'ble Court on 3.1.1982. (iv) A writ petition being CWP No.2901 of 1984 (Trl. Narayanan and Ors. vs. Union of India and Ors.) came to be filed by Assistant Registrars, Deputy Registrars and Joint Registrars of the High Court of Delhi seeking enhancement of pay scales. A Division Bench of the High Court on 18.12.1985 allowed the same. (v) After the Fourth Pay Commission Private Secretaries, Court Masters and Superintendents were drawing pay in the scale of Rs. 2000-3500. (vi) Shri A.K. Gulati, a Private Secretary filed writ petition before the High Court of Delhi (CWP No.289 of 1991) contending inter alia that Private Secretaries to Secretaries, Government of India were drawing pay in the scale of Rs. 3000-4500/- whereas the pay-scale of Private Secretaries in the High Court was kept at Rs. 2000-3500. The claim was that the pre-existing and unbroken parity, crystallized by judgment that had become final, was broken. The writ petition was allowed on 7.5.1991 granting the pay scales at par with the Private Secretaries in the Government of India. The special leave pe....
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....rnor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard, salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter of course. MANDAMUS VIS-@-VIS ARTICLE 229(2) OF THE CONSTITUTION: Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is a most extensive remedial nature. The object of mandamus is of to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted. In Comptroller and Auditor General Vs. K.S. Jaganathan, (1986 (2) SCC 679) it was held that, "Article 226 is designedl....
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....istinction." In Supreme Court Employees Welfare Association Vs. Union of 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 : "The legislative function of Parliament has been delegated to the Chief Justice of India by Article 146(2). It is not disputed that the function of the Chief Justice of India or the Judge or the officers of the Court authorised by him in framing rules laying down the conditions of service, is legislative in nature. The conditions of service that may be prescribed by the rules framed by the Chief Justice of India under Article 146(2) will also necessarily include salary, allowances, leave and pensions of the officers and servants of the Supreme Court. The proviso to Article 146(2) puts a restriction on the power of the the Chief Justice of India by providing that the rules made under Article 146(2) shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President of India. Prima facie, therefore, the conditions of service of the employees of the Supreme Court tha....
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....ccording to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended. The decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the court's function to look further into its merits. With the question whether a particular policy is wise or foolish the court is not concerned it can only interfere if to pursue it is beyond the powers of the authority."" But in the same book Prof. Wade has also said: "The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependents, dispose of his property just as he may wish. He may act out of malice or a spirit of revenge, but in law this does not affect his exercise of his power. In the same way a private person has an absolute power to allow whom he likes to use his land, to release a debtor, or, where the law permits, to evict a tenant, regardless of his motives. This is unfettered discretion. But a public authority may do none of th....
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.... Vs. M/s. Ganga Enterprises & Anr. 2003 (7) SCALE 171) In any event, the modern trend also points to judicial restraint in administration action as has been held in Tata Cellular Vs. Union of India [(1994) 6 SCC 651], Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and Others [(2000) 5 SCC 287], W.B. State Electricity Board Vs. Patel Engineering Co. Ltd. and Others [(2001) 2 SCC 451] and L.I.C. v. Consumer Education and Research Centre, [AIR 1995 SC 1811]. The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law be it a legislative act or the State, an executive act of the State or an instrumentality or a person or authority imbued with public law element. The question is required to be determined in each case having the aforementioned principle in mind. However, it may not be possible to generalize the nature of the action which would come either under public law remedy or private law field nor is it desirable to give exhaustive list of such a....
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....n 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....
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....ri, that it could apply only to 'judicial' functions. Administrative or ministerial duties of every description could be enforced by mandamus. It was, indeed, sometimes said that this remedy did not apply to judicial functions, meaning that where a public authority was given power to determine some matters, mandamus would not lie to compel it to reach some particular decision. The law as to this is explained below under 'Duty to exercise jurisdiction'. The fact that the statutory duty is directory as opposed to mandatory, so that default will not invalidate some other action or decision, is no reason for not enforcing it by mandamus." 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 legitimate expectations. In R. Vs. North and East Devon Health Authority, ex parte Coughlan [2000] 2 W....
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....ce, 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. It is, however, trite that ordinarily the Court will not exercise the power of the statutory authorities. It will at the first instance allow the statutory authorities to perform their own functions and would not usher the said jurisdiction itself. In State of West Bengal and Others Vs. Nuruddin Mallic and....
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....le 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 unsustainable. Furthermore, merger of the cadres must be made in terms of the statutory rules. For the said purpose, an order is required to be passed. Conjectures or surmises in such a situation had no role to play. In view of the aforementioned decision, the Chief Justice was entitled to hold the opinion that hierarchy of the posts was required to be maintained in respect whereof the necessary scales of pay could be directed to be revised. In State of U.P. Vs. C.M. Agarwal [(1997) 5 SCC 1], a Constitution Bench of this Court categorically held that the Chief Justice of a High Court has the power to create posts. In High Court of Judicature for Rajasthan Vs. Ramesh Chand Paliwal and A....
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....xamine the nature of work discharged by its employees and issue a mandamus, directing a particular pay scale to be given to such employees. In the judgment under challenge, the Court appears to have applied the principle of "equal pay for equal work" and on an evaluation of the nature of duties discharged by the Court Stenographers, Personal Assistants and Personal Secretaries, has issued the impugned directions. In Supreme Court Employees' Welfare Asson. V. Union of India this Court has considered the powers of the Chief Justice of India in relation to the employees of the Supreme Court in the matter of laying down the service conditions of the employees of the Court, including the grant of pay scale and observed that the Chief Justice of India should frame rules after taking into consideration all relevant factors including the recommendations of the Pay Commission and submit the same to the President of India for his approval. What has been stated in the aforesaid judgment in relation to the Chief Justice of India vis-`-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 me....
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....o unmistakable terms suggest that it is the primary duty of the Union of India or the concerned State normally to accept the suggestion made by a holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. The appellant unfortunately did not perform its own duties. In a matter of this nature the Appellant, with a view to show that its action is reasonable, was bound to perform its duties within a reasonable time. Reasonableness being the core of Article 14 of the Constitution of India would imply that the constitutional duties be performed within a reasonable time so as to satisfy the test of reasonableness adumbrated under Article 14 of the Constitution of India. It has 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 ....