W.P.(C) No.705/1998 Page 1 of 4

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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W.P.(C) No. 705/1998

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2^nd July, 2013

WELFARE ASSOCIATION OF ELECTRONIC

TRADE & TECHNOLOGY DEVELOPMENT

CORPORATION OFFICERS

..... Petitioner

Through:

None

versus

THE UNION OF INDIA & ORS.

..... Respondents

Through:

None

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

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

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W.P.(C) No.705/1998 Page 2 of 4

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 SC 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

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W.P.(C) No.705/1998 Page 3 of 4

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 employ