TaxTMI 
TaxTMI 
2007 (12) TMI 518
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....ishment. However for a number of years they continued to be paid wages for the post of Mali. 5. Thereafter on a recommendation made by the Head Office, the appellants started paying them wages of tractor driver on daily wage basis, as per rates recommended by the Deputy Commissioner. Though they continued to work for about a decade as tractor drivers, their services were regularized against the post of Mali in the year 1999 and not as tractor driver. When despite representations their grievance was not redressed, the respondents herein filed civil suit in the month of April, 2001 claiming regularization against the posts of tractor driver. Their claim was rejected by the Trial Court which observed that there was no post of tractor driver in the establishment, and the suit was dismissed. The Trial Court held that plying a tractor is part and parcel of the job of Mali in a Golf Club, since the Golf Field of the Club is vast and needs to be maintained with mechanical gadgets. 6. Aggrieved against the said order of dismissal of the suit, the respondents herein preferred an appeal before the Additional District Judge, Faridabad. Their appeal was accepted and the judgment and decre....
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....o.1 made representation for regularization of his service on 2.5.1991. The plaintiff- respondent was informed vide order dated 14.5.1991 that there was no post of tractor driver and his case for regularization would be considered as and when sanctioned post of the tractor deriver will be available. 11. The plaintiff-respondent was paid wages of tractor deriver from August 1990 to 11.5.1999 on daily wage basis on D.C. rate as he was asked to work as a tractor driver. He was also informed that whenever a post of tractor driver was created, his case for appointment of tractor deriver will be considered. In the meanwhile services of plaintiff No.1 was regularized as Mali vide order dated 11.5.1999 which was duly accepted by him without any protest. Similar is the case of respondent No.2 herein. He was engaged as Mali on daily wage basis w.e.f. 1.9.1988 and his services were also regularized as Mali vide order dated 11.5.1999. 12. In the written statement in the suit the appellants took preliminary objection that as there is no sanctioned post of tractor driver and hence there is no question of their being appointed on the post of tractor driver. It was also asserted in the writte....
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....nd regularize the services of the respondents against the said posts cannot be sustained and are hereby set aside. 16. Consequently, this appeal is allowed and the judgment and order of the High Court as well as that of the First Appellate Court are set aside and the judgment of the Trial Court is upheld. The suit is dismissed. No costs. 17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State. 18. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain vide Indian Drugs & Pharmaceuticals Ltd. vs. The Workman of Indian Drugs & Pharmaceuticals Ltd. (2007) 1 SCC 408 and S.C. Chandra and Ors. vs. State of Jharkhand and Ors. JT 2007 (10) 4 SC 272 (See concurring judgment of M. Katju, J.). 19. Under our Con....
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....cisions and are trying to perform legislative or executive functions. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges preferences. The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does not. In the word of Chief Justice Neely: I have very few illusions about my own limitations as a judge. I am not an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator. 23. In Ram Jawaya vs. State of Punjab AIR 1955 SC 549 (vide paragraph 12), a Constitution Bench of this Court observed: The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or bran....
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....bsp;. Rigorous observance of the difference between limits of power and wise exercise of power between questions of authority and questions of prudence requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one s own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court s giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do. 19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if ....
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....ive or legislative domain. If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it. 27. For instance, the Delhi High Court directed that there can be no interview of children for admissions in nursery schools. There is no statute or statutory rule which prohibits such interviews. Hence the Delhi High Court has by a judicial order first created a law (which was wholly beyond its jurisdiction) and has then sought to enforce it. This is clearly illegal, for Judges cannot legislate vide Union of India vs. Deoki Nandan Agarwal, AIR 1992 SC 96. In V.K. Reddy vs. State of Andhra Pradesh J.T. 2006(2) SC 361 (vide para 17) this Court observed The Judges should not proclaim that they are playing the role of law maker merely for an exhibition of judicial valour . Similarly, the Court cannot direct the legislature to make a particular law vide Suresh Seth vs. Commissioner, Indore Municipal Corporation & Ors. AIR 2006 SC 767, Bal Ram Bali vs. Union of India JT 2007 (10) SC 509, but this settled principle is also often breached by Courts. 28. The Jagadambika Pal s case of 1998, involving the U.P. Legislative Assembly, and the Jharkhand Asse....
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.... the executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations, or by other lawful methods e.g. peaceful demonstrations. The remedy is not in the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions. 32. Of the three organs of the State, the legislature, the executive, and the judiciary, only the judiciary has the power to declare the limits of jurisdiction of all the three organs. This is a great power and hence must never be abused or misused, but should be exercised by the judiciary with the utmost humility and self-restraint. 33. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by mini....
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....ly refer to the well-known episode in the history of the U.S. Supreme Court when it dealt with the New Deal Legislation of President Franklin Roosevelt. When President Roosevelt took office in January 1933 the country was passing through a terrible economic crisis, the Great Depression. To overcome this, President Roosevelt initiated a series of legislation called the New Deal, which were mainly economic regulatory measures. When these were challenged in the U.S. Supreme Court the Court began striking them down on the ground that they violated the due process clause in the U.S. Constitution. As a reaction, President Roosevelt proposed to reconstitute the Court with six more Judges to be nominated by him. This threat was enough and it was not necessary to carry it out. The Court in 1937 suddenly changed its approach and began upholding the laws. `Economic due process met with a sudden demise. 38. The moral of this story is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere t....