VALMIKI J. MEHTA, J (ORAL)

1. This writ petition is filed under Article 226 of the Constitution of India by the erstwhile employees of the respondent no.2/Company, and which petitioners have already retired after taking the Voluntary Separation Scheme (VSS) benefits.

2. A similar petition claiming similar reliefs was W.P.(C) No. 705/1998 and this writ petition was dismissed by this Court on 2.7.2013. Even the review petition filed being Review Petition No. 436/2013 was dismissed on 6.9.2013. These judgments dated 2.7.2013 and 6.9.2013 read as under:-

“Judgment dated 2.7.2013:-

1. No one is present on behalf of the parties although it is 3.15 P.M. This matter is effective Item No. 5 on the Regular Board of this Court. I have therefore perused the record and am proceeding to decide the matter.

2. By this writ petition, the petitioner, which is an association of employees of the respondent No. 3/employer, seeks fixation of particular pay scales. The relief clauses of the writ petition read as under:

“A. Quashing the circular or direction of the first respondent expressed in letter annexed at Annexure P-4, and direct the Union of India to implement the new pay scales to all public Sector Enterprises uniformly, and in particular, to the respondent no. 3.

B. Directing the respondents no. 1 and 2 to treat the respondent no. 3 in parity with all other Public Sector Enterprises, and to give a rational and upgraded pay scales to the employees of the respondent no. 3, in accordance with the prevailing pay scales in other Public Sector Enterprises.

C. Directing respondents 1 and 2 to grant the new pay scales to the petitioner’s members with effect from 1 January, 1992.

D. Any other order that may be deemed fit in the circumstances may also be passed.”

3. In the counter affidavits filed by the respondents, it is stated that respondent No. 3 does not have the necessary financial resources to grant the higher scales of pay. In the counter affidavits, it is averred that the respondent No. 3 has been making losses and cannot generate the funds for higher scales of pay.

4. The Supreme Court in its recent judgment in the case of Indian Drugs & Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408 held that Courts cannot step in and fix salaries of employees of an organisation because the employer knows best its financial conditions and other circumstances for deciding about what should be the payments made to its employees. The Supreme Court has cautioned against taking over of executive functions because courts are ill-equipped to do so. The Supreme Court further observed that certain decisions are best left with the executive and the administration. The relevant observations of the Supreme Court are contained in paragraphs 16, 18, 37 and 40 and which read as under:

“16.We are afraid that the Labour Court and the High Court have passed their orders on the basis of emotions and sympathies, but cases in court have to be decided on legal principles and not on the basis of emotions and sympathies.

18. In State of M.P. v. Yogesh Chandra Dubey this Court held that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post he is not entitled to any scale of pay. In our opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case also.

37. Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, to, must know its limits.

40. The Courts must, therefore, exercise judic