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2004(1) Supreme 471
SUPREME COURT OF INDIA
(From Delhi High Court)
V.N. Khare, CJI., S.B. Sinha and AR. Lakshmanan, JJ.
Union of India and Anr. -Appellants
versus
S.B. Vohra and Ors. -Respondents
Civil Appeal No. 2887 of 2001
Decided on 5-1-2004
Counsel for the Parties :
For the Appellants : L.N. Rao, Additional Solicitor General, Hemant Sharma, Rajeev Sharma, B.K. Prasad, P. Parmeswaran, Advocates.
For the Respondents : S.R. Bhat, Advocate (NP), Ashok K. Gupta, Farrukh Rasheed, Advocates.
Held : Clause 2 of Article 229 of the Constitution of India empowers the Chief Justice of the High Court to prescribe by rules the conditions of service of Officers and servants of the High Court. Such Rule shall, however, be subject to :(1) the provision of any law made by the legislature of the State: (2) the approval of the President/Governor of the State so far as it relates to salary, allowances, leave or pensions. Independence of the High Court is an essential feature for working of the democratic form of the Government in the country. An absolute control, therefore, have been vested in the High Court over its staff which would be free from interference from the Government subject of course to the limitations imposed by the said provision. There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in Clause 2 of the Article 229 of the Constitution of India and the proviso appended thereto. Approval of the President/Governor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard, salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter course. (Paras 10 and 11)
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. (Paras 32 and 33)
The matter as regard fixation of scale of pay of the officers working in the different High Courts must either be examined by an expert body like Pay Commission or any other body but in absence of constitution of any such expert body the High Court itself is to undertake the task keeping in view the special constitutional provisions existing in this behalf in terms of Article 229 of the Constitution of India. (Paras 49)
The High Court, however, should not ordinarily issue a writ of or in the nature of mandamus and ought to refer the matter back to the Central/State Government with suitable directions pointing out the irrelevant factors which are required to be excluded in taking the decision and the relevant factors which are required to be considered therefor. The statutory duties should be allowed to be performed by the statutory authorities at the first instance. In the event, however, the Chief Justice of the High Court and the State are not ad idem, the matter should be discussed and an effort should be made to arrive at a consensus. We are further of the opinion that only in exceptional cases the High Court may interfere on the judicial side, but ordinarily it would not do so. Even if an occasion arises for the High Court to interfere on its judicial side, the jurisdiction of the High Court should be exercised with care and circumspection. (Paras 52 and 53)
(ii) SERVICE LAW-Pay scales-High Court Officers-Assistant Registrar of Delhi High Court-Their scale of pay was fixed at Rs. 3000-4500-Recommendations made by Chief Justice of High Court that scales of pay be revised w.e.f. 1-1-1986-While fixing scales of pay of Assistant Registrars, it was noticed that post of Assistant Registrar is a promotional post for Superintendents, Court Masters and Private Secretaries who had been placed in scale of pay of Rs. 2000-3500-No action taken despite recommendations made-Writ petition-Appellants submitted that such posts must be held to have merged-High Court allowed writ petition rejecting appellant s case of merger-It was further observed that repercussion of a higher scale of pay upon officers of equivalent rank of Central Government cannot be a ground to deny legitimate scale of pay of Assistant Registrar-Appeal-Whether High Court can issue a writ of or in nature of mandamus directing Union of India to pay salary to Officers of High Court in a particular scale of pay-(No)-Only in exceptional cases the High Court may interfere on judicial side, but ordinarily it would not.
Held : We agree with the submission of the Learned Addl. Solicitor General to the effect that the decision of the High Court had been rendered having its origin in A.K. Gulati (CW. 289/91) which had a spiraling effect particularly in the case of Assistant Registrars. That was more a reason why a competent authority of the appellant should have taken immediate steps in holding a meeting with the Chief Justice or an authorized officer of the High Court. Having regard to the aforementioned authoritative pronouncements of this Court there cannot be any doubt whatsoever that the recommendations of the Chief Justice should ordinarily be approved by the State and refusal thereof must be for strong and adequate reasons. In this case the appellants even addressed itself on the recommendations made by the High Court. They could not have treated the matter lightly. It is unfortunate that the recommendations made by a high functionary like the Chief Justice were not promptly attended to and the private respondents had to file a writ petition. The question as regard fixation of a revision of the scale of pay of the High Court being within exclusive domain of the Chief Justice of the High Court, subject to the approval, the State is expected to accept the same recommendations save and except for good and cogent reasons. (Paras 50 and 51)
As the matter has been pending for a long time and keeping in view the fact and the situation obtaining herein, namely, the officers holding the post of Private Secretaries to the Judges have been given a particular scale of pay, we are of the opinion that it is not a fit case wherein this Court should exercise its discretionary jurisdiction. (Para 54)
(iii) Constitution of India-Article 226-Writ of mandamus-Nature of.
Held : 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. (Paras 12 and 13)
(iv) ADMINISTRATIVE LAW-Judicial Review-Scope in the context of grant of contract-Public law remedy-Power of judicial review of High Court as also Supreme Court-Court will not exercise its jurisdiction to entertain a writ application wherein public law element is not involved-Judicial restraint in administrative action.
Held : 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 actions. The question as to whether this Court, would permit judicial review and, if any, to what extent will vary from case to case and no broad principles can be laid down therefor. (Paras 22 and 23)
Judicial review is a highly complex and developing subject. It has its roots long back and its scope and extent varies from case to case. It is considered to be the basic feature of the Constitution. The Court in exercise of its power of judicial review would jealously guard the human rights, fundamental rights and the citizens right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds which could be expended on building hospitals, roads and the like, or overseas aid, or compensating victims of crime. (Para 30)
The Court, however, exercises its power of restraint in relation to interference of policy. (Para 31)
Certainly. Based on the provided legal document, here are the key points:
The fixation of pay scales for officers working in different High Courts should ideally be examined by an expert body such as a Pay Commission or a similar entity. In the absence of such a body, the High Court itself is responsible for undertaking this task, keeping in view the constitutional provisions relevant to this matter (!) .
The power to determine pay scales of High Court officers, such as Assistant Registrars, is primarily within the domain of the Chief Justice of the High Court. The Chief Justice's recommendations regarding pay scales should generally be accepted by the State or the relevant authority, and any refusal to approve such recommendations must be justified with strong and adequate reasons (!) .
The constitutional framework requires that rules related to the conditions of service, including pay scales, must be made by the Chief Justice of the High Court and are subject to the prior approval of the Governor or the President, as applicable (!) (!) .
The courts generally exercise restraint in interfering with administrative and policy decisions, exercising judicial review only in exceptional cases where there is arbitrariness, mala fide conduct, or violations of principles of natural justice. The scope of judicial review is to ensure fairness and legality, not to substitute the courts' judgment for that of the administrative authorities (!) (!) .
The issuance of a writ of or in the nature of mandamus is appropriate when a public legal duty has been neglected or improperly performed. Such a writ is issued to compel authorities to perform their statutory or public duties, especially when there has been arbitrary or mala fide exercise of power (!) (!) (!) .
When disputes arise regarding the merger of posts or the fixing of pay scales, the decision lies within the statutory and constitutional powers of the Chief Justice or the relevant authority. The courts generally do not substitute their judgment unless there is clear arbitrariness or violation of statutory procedures (!) (!) .
The process of fixing pay scales should be based on relevant factors such as the responsibilities attached to the posts, the nature of duties, and the comparative status of similar posts in other government departments. Conjectures or surmises are not sufficient grounds for decision-making in this context (!) .
The constitutional independence of the High Court is a fundamental feature, and the authority to prescribe conditions of service and pay scales resides primarily with the High Court's Chief Justice, subject to constitutional and statutory limitations (!) (!) .
Any delay or failure by the authority to act in accordance with constitutional duties and recommendations may be subject to judicial review, but courts exercise caution and generally avoid intervening unless there is a clear violation of principles of natural justice or statutory procedures (!) (!) .
Overall, the decision-making process regarding pay scales and posts should be transparent, based on relevant criteria, and involve the cooperation of the statutory authorities, the High Court, and the State or Central Government, with courts exercising restraint in judicial interference (!) (!) .
Please let me know if you need further analysis or specific legal advice related to this document.
JUDGMENT
S.B. Sinha, J.-
Introduction :
How far and to what extent a writ of or in the nature of mandamus should issue directing the Union of India to pay salary to the Officers of the High Court in a particular scale of pay is the question involved in this appeal which arises out of a judgment and order dated 21.07.2000 passed by the High Court of Delhi in Writ Petition No. 1131 of 1993.
Background Facts :
2. The respondents are Assistant Registrars of the Delhi High Court. Their scale of pay was fixed at Rs. 3000-4500 and recommendations therefor were made by the Chief Justice of the High Court of Delhi in terms of his letter dated 15.10.1991 to the effect that the scales of pay be revised with effect from 1.1.1986. Before making the said recommendations, the Chief Justice of the High Court constituted a committee which had gone into the said matter. The Committee submitted a report which was accepted by the Chief Justice. While fixing the scales of pay of the Assistant Registrars, it was noticed that the post of Assistant Registrar is a promotional post for the Superintendents, Court Masters and Private Secretaries who had been placed in the Scale of pay of Rs. 2000-3500. As despite such recommendations no heed was paid thereto by the appellant, the writ petition was filed.
3. 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 :
4. 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 High Court and Others [AIR 1988 SC 2073] wherein Kania, J. held that the three categories of posts, namely, Private Secretary, Court Master and Superintendent are of equal status and they are interchangeable and further having regard to the fact that the post of Assistant Registrar was still a promotional post rejected the contention of the appellant that such posts must be held to have merged. It was observed:
"Another stand taken by respondents Nos. 1 and 2 in their reply affidavit that in case same scales of pay have been prescribed by Pay Commission for two posts, one promotional to another, the old relativities are no more valid and new relativities have been established by the Commission and the two posts are treated equal/merged. In other words after 1.1.1986, no promotion can be made from the feeder cadre to the promotion cadre since the post of Private Secretary, Court Master, Superintendent and those of Assistant Registrar will be deemed to have merged. This contention is also not tenable since as per the rules, promotion is made and is being made to the post of Assistant Registrar from only three feeder cadres of Superintendent, Court Master and Private Secretary and from no other source. These posts cannot be said to have deemed merged as alleged."
The High Court opined:
"The Committee submitted its report recommending higher pay scales. Hon ble the Chief Justice agreed with the recommendations made by the Committee. The reasons which prevailed with the Chief Justice in agreeing with the recommendations of the Committee may be stated as follows:-
"(i) FR 22-C lays down that an officer performing duties and functions involving higher responsibility should draw higher pay. Admittedly, the post of Assistant Registrar carries duties and functions of a higher responsibility than those attached to the posts of Private Secretaries, Court Masters and Superintendents.
(i
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