2007 (12) TMI 518 - SC - Indian Laws

Jurisdiction of Judiciary for directing creation of posts in any organization - Prayer to sustained and set aside the directions given by the High Court and First Appellate Court to create the posts of tractor driver and regularize the services of the respondents - HELD THAT - The Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the Court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the Courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and First Appellate Court to create the posts of tractor driver and regularize the services of the respondents against the said posts cannot be sustained and are hereby set aside. 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. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint. If the legislature or 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. 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. Thus, we are clearly of the view that both the High Court and First Appellate Court acted beyond their jurisdiction in directing creation of posts of tractor driver to accommodate the respondents. Appeal Allowed.

Summary

Issues Involved:
1. Regularization of employees against non-existent posts.
2. Jurisdiction of courts in directing the creation of posts.
3. Separation of powers between the judiciary, executive, and legislature.

Issue-wise Detailed Analysis:

1. Regularization of Employees Against Non-Existent Posts:
The plaintiffs were initially appointed as Mali (gardeners) on daily wages and later were assigned the duties of tractor drivers, despite no official post of tractor driver existing in the employer's establishment. They continued to be paid as Mali for several years before being paid as tractor drivers on a daily wage basis. Their services were regularized as Mali in 1999. Dissatisfied, they filed a civil suit in 2001 seeking regularization as tractor drivers. The Trial Court dismissed their suit, stating that there was no sanctioned post of tractor driver. The First Appellate Court, however, directed the creation of the post of tractor driver and regularization of the plaintiffs on these posts. The High Court upheld this decision, leading to the present appeal.

2. Jurisdiction of Courts in Directing the Creation of Posts:
The Supreme Court emphasized that the creation and sanction of posts is an executive or legislative function, not a judicial one. The Court stated, "The Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the Court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization." The directions given by the First Appellate Court and the High Court to create posts of tractor driver were beyond their jurisdiction and thus were set aside.

3. Separation of Powers Between the Judiciary, Executive, and Legislature:
The judgment extensively discussed the principle of separation of powers, emphasizing that each organ of the State-the legislature, the executive, and the judiciary-must function within its own domain. The Court remarked, "Judges must exercise judicial restraint and must not encroach into the executive or legislative domain." The judgment cited various precedents and theoretical frameworks, including Montesquieu's theory of separation of powers, to underline the importance of maintaining the delicate balance among the three branches of government. The Court warned against judicial overreach, stating, "If the judiciary does not exercise restraint and over-stretches its limits, there is bound to be a reaction from politicians and others."

Conclusion:
The Supreme Court allowed the appeal, setting aside the judgments of the High Court and the First Appellate Court, and upheld the Trial Court's decision. The suit was dismissed, reaffirming that the judiciary should not encroach upon the functions of the executive or legislature. The Court reiterated the need for judicial restraint and respect for the separation of powers to maintain the constitutional balance.