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TMI Blog1989 (7) TMI 333X X X X Extracts X X X X X X X X Extracts X X X X ..... he Chairman, Mr. Justice V.D. Tulzapurkar, Mr. Justice D.A. Desai, Mr. Justice R.S. Pathak (as he then was) and Mr. Justice S. Murtaza Fazal Ali. The second event, which is the most important one, is the judgments of the Delhi High Court passed in writ proceedings instituted by its employees. The Five-Judge Committee in its report stated, inter alia, that no attempt had been made to provide a separate and distinct identity to the ministerial staff belonging to the Registry of the Supreme Court. According to the Committee, the borrowed designations without any attempt at giving a distinct and independent identity to the ministerial staff in the Registry of the Supreme Court led to invidious comparison. The committee observed that the salary scale applicable to various categories to staff in the Registry would show that at least since the Second Pay Commission appointed by the Central Government for Central Government servants, the pay-scales devised by the Pay Commission were practically bodily adopted by the Chief Justice of India for comparable categories in the Supreme Court. This was repeated after the recommendations of the Third Pay Commission were published and accepted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the staff in the Registry of the Supreme Court. The Committee recommended that the Chief Justice of India with the concurrence of the Central Government might refer the case of the Supreme Court staff to the Fourth Pay Panel presided over by Mr. Justice P.N. Singhal. Several Writ Petitions were filed before the Delhi High Court by various categories of its employees, namely, the Private Secretaries and Readers to the Judges, Superintendents, Senior Stenographers, Assistants, Junior Readers, Junior Stenographers, Joint Registrars, Assistant Registrars, Deputy Registrars and certain categories of Class IV employees. In all these Writ Petitions, the Delhi High Court revised their respective pay-scales. With regard to certain categories of Class III and Class IV employees, the Delhi High Court revised their pay-scales also and granted them Punjab pay-scales and Central Dearness Allowance, the details of which are given below: SI. No. Date of Judgment No. of W.P. Post Revised scale of pay Rs. 1. 3.2.86 23.5.86 W.P. No. 1376/84 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey are higher or better than what the Officers and the members of the Registry of the Supreme Court are getting, as proposed by Respondent No. 2. The Statement showing the posts in the Registry of the Supreme Court and the corresponding posts in the Delhi High Court, which is annexed to the proposal made by Respondent No. 2 will be annexed to this order also. Learned Addl. Solicitor General submits that the Petition for interim directions may be adjourned for a period of four weeks since the Government is actively considering the matter and to his information the Government is inclined to agree with the proposals made by the second respondent. We do not think, it is necessary to postpone the interim directions. The question of interim directions with regard to the categories of the Officers and the members of the staff not covered by the Delhi High Court scales of pay will be considered separately after two weeks. Mr. S.N. Kacker, Counsel for the petitioner, Mr. P.P. Rao for respondent No. 2, Supreme Court of India, and the learned Addl. Solicitor General are requested to assist us to arrive at a suitable formula in regard to them. The Writ Petition is adjourned for four weeks. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 400-600 from 1.1.1978 as given to Lower Division Clerks in the Delhi High Court. The Court also ordered that Class IV employees would be given the same payscale of ₹ 300-430 from 1.1.1978 as given to Class IV employees of the Delhi High Court. The scales of pay of ₹ 400-600 and ₹ 300-430 were Punjab pay-scales. All these employees, who were given the Punjab pay-scales, were also granted the Central D.A., which brought them at par with the Delhi High Court employees. Sub-clause (1) of clause 2 of the terms of reference of the Fourth Central Pay Commission provides as under: 2(1). To examine the present structure of emoluments and conditions of service, taking into account the total packet of benefits, including death-cum-retirement benefits, available to the following categories of Government employees and to suggest changes which may be desirable and feasible: (i) Central Government employees--industrial and nonindustrial. (ii) Personnel belonging to the All India Services. (iii) Employees of the Union Territories. Pursuant to the interim order of the Supreme Court dated July 25, 1986, the Ministry of Finance, Depar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interim orders passed by this Court in the Writ Petitions following the pay scales as revised by the Delhi High Court by its judgments passed in the Writ Petitions filed by its employees. A copy of the Fourth Pay Commission's report relating to the pay-structure of the officers and employees of the Supreme Court was first sent to the Ministry of Finance, Government of India. The Ministry of Finance forwarded the said copy to the Chief Justice of India. After the receipt of the said copy of the report of the Fourth Pay Commission with regard to the Supreme Court employees, the Registrar General of this Court, by his letter dated July 22, 1987 addressed to the Secretary, Government of India, Ministry of Finance, Department of Expenditure, New Delhi, stated inter alia that if the pay-scales as proposed by the Fourth Pay Commission were accepted, and implemented, it would result in a number of anomalies and the Supreme Court would encounter some difficulties in implementing the same. The Registrar General was of the opinion that the Pay Commission should not have made any such recommendation which had the effect of reducing the pay-scales than what had been given by this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to them by this Court by the interim orders and/or the Government has accepted the pay-scales as recommended by the Fourth Pay Commission. Indeed, the learned Attorney General vehemently opposed the granting of Punjab pay-scales and also the Central Government D.A. to the Junior Clerks and the Class IV employees. In view of the submissions made on behalf of the Government, it is clear that although it is stated in the said letter dated November 23, 1987 that the revision of pay-scales of the Junior Clerks and the Class IV employees of the Supreme Court is under consideration of the Government and although no communication has been made to this Court as to the result of such consideration, yet the Government has made up its mind not to allow the pay-scales given to them by the interim order of this Court. Be that as it may, we may now proceed to consider the contentions of the respective parties in these proceedings. Mr. Thakur, learned Counsel appearing in Writ Petition No. 801 of 1986 on behalf of the Supreme Court Employees' Welfare Association, has made his submissions in two parts. The first part relates to the Junior Clerks and the Class IV employees of the Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the reduction of the salaries of the Junior Clerks and Class IV employees to a level lower than what they were receiving on the date of the revision and it would be highly discriminatory and violative of Article 14 of the Constitution. On the other hand, the learned Attorney General appearing on behalf of the Union of India, in the first instance, points out that the Delhi High Court judgments, particularly the judgment in C.W.P. No. 1376 of 1984, Shri Kamalanand v. Union of India and others, are based on the doctrine of 'equal pay for equal work' as enshrined in Article 39(d) of the Constitution of India. The learned Attorney General has made elaborate submissions as to the applicability of the said doctrine to the cases of the employees of the Delhi High Court and also of the Supreme Court. We shall, of course, consider the submissions of the learned Attorney General in regard to the doctrine of 'equal pay for equal work', but before we do that we may consider his other submissions. It is urged by him that the judgments of the Delhi High Court are absolutely erroneous and that, in any event, they are neither final nor do they operate as res judicata, betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well settled principle of law that when a Special Leave Petition is summarily dismissed under Article 136 of the Constitution, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney General. In Indian Oil Corporation Ltd. v. State of Bihar, [1986] 4 SCC 146 it has been held by this Court that the dismissal of a Special Leave Petition in limine by a non-speaking order does not justify any inference that, by necessary implication, the contentions raised in the Special Leave Petition on the merits of the case have been rejected by the Supreme Court. It has been further held that the effect of a non-speaking order of dismissal of a Special Leave Petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where Special Leave Petition should be granted. In Union of India v. All India Services Pensioners Association, AIR 1988 SC 50 1 this Court has given reasons for dismissing the Special Leave Petition. When such reasons are given, the decision becomes one which attra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act was upheld by the High Court. The petitioner filed a Special Leave Petition against the impugned order of the High Court and also a petition under Article 32 of the Constitution urging certain additional grounds which were not taken before the High Court. A preliminary objection was raised on behalf of the State that the points not taken in the High Court by the detenu could not be agitated in the Writ Petition under Article 32 of the Constitution because that would be barred by the principle of constructive res judicata. In the context of the facts of that case, this Court laid down the above proposition of law that the doctrine of res judicata or the principles of finality of judgment could not be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the Constitution. It is, however, the contention of the petitioners, that is, the employees of the Supreme Court, that they are being discriminated against by the Union of India because while the Delhi High Court employees are given a higher scale of pay, the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce of law, notwithstanding anything contained in any judgment in any court, the Act did not supersede the judgment of the High Court. It could not be contended that the judgment of the High Court should not be treated as res judicata on that ground that if it was regarded as binding between the parties the equal protection clause of the Constitution would be violated if another person, similarly situated, was to be differently treated by the Board of Revenue. The decision in Thakore Sobhag Singh's case is an answer to the contention of the learned Attorney General. The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties. When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution. So far as the parties are concerned, they will always be bound by the said decision. In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Constitution. There is no question of overruling the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the respondent's plea of discrimination was accepted on the strength of the single case of Mr. Beuria, it would follow that because the appellant placed a misconstruction on the relevant Rule, it is bound to give effect to the said misconstruction for all times; that, plainly cannot be said to be sound. The learned Attorney General has also relied on the decision of this Court in G.V. Ramanaiah v. The Superintendent of Central Jail, Rajahmundry, [1974] 1 SCR 852. In that case, this Court observed as follows: Mr. P.K. Rao next contends in a somewhat half-hearted manner that even if the State Government had extended the benefit of its G.O. owing to a mistake to four other persons, similarly placed, it was not fair to deny the same treatment to the petitioner. This contention must be repelled for the obvious reason that two wrongs never make a right. It is submitted that this Court is both a court of law and a court of equity, as held in Chandra Bansi Singh v. State of Bihar, [1985] 1 SCR 579. The equitable principles require that the court should not apply the result of an erroneous decision in regard to the pay-scales to the employees of the Supreme Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdship. We are unable to accept the suggestion of the learned Attorney General that reconciliation can be made by freezing the pay-scales of Supreme Court employees, which they are getting by virtue of the interim orders of this Court, to be adjusted or neutralised against the increments. It is not the business of this Court to fix the pay-scales of the employees of any institution in exercise of its jurisdiction under Article 32 of the Constitution. If there be violation of any fundamental right by virtue of any order or judgment, this Court can strike down the same but, surely, it is not within the province of this Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution. So far as the judgments of the Delhi High Court are concerned, they do not infringe the fundamental rights of the employees of the Supreme Court or any of the petitioners, who are the petitioners before us in the Writ Petitions, and so the question of considering whether the judgments of the Delhi High Court are right or wrong does not arise. If the judgments of the Delhi High Court had in any manner interfered with the fundamental rights of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ork under the same employer. It follows from the above decisions that although the doctrine of 'equal pay for equal work' does not come within Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay-scales and such classification is unreasonable and/or if unequal pay is based on no classification, then Article 14 w411 at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work. In other words, where unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of 'equal pay for equal work', as envisaged by Article 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved, the doctrine of 'equal pay for equal work' will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of 'equal pay for equal work', as envisaged by Article 39(d) of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it, The Court should not try to tinker with such equivalent unless it is shown that it was made with extraneous consideration. Relying upon the decision in Chaurasia's case, it has been urged by the learned Attorney General that in the instant case also this Court should accept the recommendations of the Fourth Pay Commission. Normally, when a Pay Commission has evaluated the nature of duties and responsibilities of posts and has also made the equation of posts, the Court should not interfere with the same. The question is not whether the Court should interfere with such findings or not, but it will be discussed presently that the Chief Justice of India, who is the appropriate authority, is entitled to accept or reject the recommendations or any finding of the Pay Commission. Again, in Urnesh Chandra Gupta v. Oil and Natural Gas Commission, AIR 1989 SC 29 it has been observed by this Court that the nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the Court to determine by relying upon the averments in the affidavit in the interest of the parties. It has been observed by us earlier in this judgment that it is not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been made by the learned Counsel of the parties as to the interpretation and scope of Article 146(2) of the Constitution of India. Article 146(2) provides as follows: 146(2). Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President. Under Article 146(2) the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by the rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose. This is, however, subject to the provisions of any law that may be made by Parliament. It is apparent from Article 146(2) that it is primarily the responsibility of Parliament to lay down the conditions of serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 146. It is contended by the learned Attorney General that the function of the President of India approving of the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions is legislative in character and it is analogous to the President of India giving assent to a Bill. It is difficult to accept the contention that the function of the President of India approving of the rules is analogous to giving assent to a Bill. The rules framed by the Chief Justice of India though it is a piece of subordinate legislation, it is not a fullfledged legislative act requiring assent of the President of India. In this connection, we may refer to the statement of law as to the delegated legislation in Foulkes' Administrative Law, Sixth Edition, Page 57 which reads as follows: It is common for Parliament to confer by Act on ministers and other executive bodies the power to make general rules with the force of law--to legislate. Parliament is said to delegate to such bodies the power to legislate. Thus the phrase 'delegated legislation' covers every exercise of a power to legislate conferred by Act of Parliament. The phrase is not a term ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing for the Court observed as follows: What the appellant really wants is a mandate from the court to the competent authority to delete the concerned entry from Schedule A and include the same in Schedule B. We shall not go into the question whether the Government of Himachal Pradesh on its own authority was competent to make the alteration in question or not. We shall assume for our present purpose that it had such a power. The power to impose a tax is undoubtedly a legislative power. That power can be exercised by the legislature directly or subject to certain conditions, the legislature may delegate that power to some other authority. But the rcise of that power, whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rth Amendment Act into force. On the basis of the principles of law laid down in the above decisions, it is urged by the learned Attorney General that this Court cannot issue a mandate to the President of India to grant approval to the rules framed by the Chief Justice of India relating to salaries, allowances, leave and pensions of the officers and servants of the Supreme Court. In other words, the President of India cannot be compelled to grant approval to the proposals of the Registrar General of the Supreme Court, as contained in his letter dated July 22, 1987. There can be no doubt that an authority exercising legislative function cannot be directed to do a particular act. Similarly the President of India cannot be directed by the Court to grant approval to the proposals made by the Registrar General of the Supreme Court, presumably on the direction of the Chief Justice of India. It is not also the contention of any of the parties that such a direction can be made by the Court. The real question is how and in what manner the President of India should act after the Chief Justice of India submits to him the rules framed by him relating to the salaries, allowances, leave and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh dignitary of the State, it should be looked upon with respect and unless there is very good reason not to grant approval, the approval should always be granted. If the President of India is of the view that the approval cannot be granted, he cannot straightaway refuse to grant such approval, but before doing there must be exchange of thoughts between the President of India and the Chief Justice of India. In Gopalakrishnan's case (supra), relied on by the learned Attorney General, it has been observed that one should expect in the fitness of things and in view of the spirit of Article 229 that ordinarily and generally the approval should be accorded. Although the said observation relates to the provision of Article 229(2), it also equally applies to the provision of Article 146(2) relating to the grant of approval by the President of India. In this connection, we may also refer to a decision of this Court in Gurumoorthy v. Accountant General Assam Nagaland, [1971] Suppl. SCR 420, which was also considered in Gopalakrishnan's case (supra). In Gurumoorthy's case, this Court took the view that the unequivocal purpose and obvious intention of the framers of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Justice of India has to apply his mind when he frames the rules under Article 146(2) with the assistance of his officers. In such circumstances, it would not be unreasonable to hold that the delegation of the legislative function on the Chief Justice of India and also on the President of India relating to the salaries, allowances, leave and pensions of the officers and servants of the Supreme Court involve, by necessary implication, the application of mind. So, not only that the Chief Justice of India has to apply his mind to the framing of rules, but also the Government has to apply its mind to the question of approval of the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions. This condition should be fulfilled and should appear to have been so fulfilled from the records of both the Government and the Chief Justice of India. The application of mind will include exchange of thoughts and views between the Government and the Chief Justice of India and it is highly desirable that there should be a consensus between the two. The rules framed by the Chief Justice of India should normally be accepted by the Government and the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India, by his letter dated July 22, 1987, addressed to the Secretary, Government of India, Ministry of Finance, Department of Expenditure, did not agree with some of the recommendations of the Fourth Pay Commission relating to the revision of pay-scales including the revision of pay-scales of Junior Clerks and Class IV employees of the Supreme Court. It does not appear that there was any exchange of thoughts or views between the Government Department and the Registry of the Supreme Court. The Government has not produced before us any material showing that there was exchange of thoughts and views. But whether that was done or not, is not the question at the present moment. The most significant fact is that no rules were framed by the Chief Justice of India in accordance with the provision of Article 146(2) of the Constitution. Instead, what was done was that the Registrar General made certain proposals to the Government and those proposals were turned down as not acceptable to the Government. There is a good deal of difference between rules framed by the Chief Justice of India under Article 146(2) and certain proposals made by the Registrar General of the Supreme Court, may be under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... still under consideration of the Government, before us the Government proceeded on the basis that upon such consideration the revision of pay-scales, as suggested by the Registrar General in his said letter, has been turned down. In other words, the President of India has not granted approval to the payscales, as suggested by the Registrar General on behalf of the Chief Justice of India in respect of the Junior Clerks and Class IV employees of the Supreme Court. It is, thus, apparent that the provision of Article 146(2) has not been complied with. No rules have been framed by the Chief Justice of India as per the provision of Article 146(2) and, accordingly, the question of granting approval to the rules by the President of India under Article 146(2) does not at all arise because that stage has not yet reached. We are, therefore, of the view that the Chief Justice of India should frame rules under Article 146(2) after taking into consideration all relevant factors including the recommendations of the Fourth Pay Commission and submit the same to the President of India for his approval, It has been strenuously urged by Mr. Thakur that the staff and the servants of the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at should be done by giving them higher pay-scales than the rest of the employees of the Government and that to provide them with different pay-scales on the basis of the alleged separate identity of the institution would be contrary to the basic tenets of equality enshrined in the Constitution. The learned Attorney General has drawn our attention to the Constituent Assembly debates on the draft Article. 122 which is the same as Article 146 of the Constitution. In particular, the learned Attorney General has drawn our attention to the statements of Shri T.T. Krishnamachari and Dr. B.R. Ambedkar made in course of the debate. Shri T.T. Krishnamachari stated before the Constituent Assembly as follows: At the same time. Sir, I think it should be made clear that it is not the intention of this House or of the framers of this Constitution that they want to create specially favoured bodies which in themselves become an Imperium in Imperio, completely independent of the Executive and the legislature andoperating as a sort of superior body to the general body politic. If that were so, I think we should rather chary of introducing a provision of this nature, not merely in regard to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iture of ₹ 8,640 crores. Further, this D.A. would get merged in the pay-scale from 1.1.1986 and would also qualify for D.A. after 1.1.1986 leading to a huge additional expenditure. At this stage, it may be stated that in the course of the hearing, we enquired from Mr. P.P. Rao, learned Counsel appearing on behalf of the Registrar of the Supreme Court, as to whether the Chief Justice of India was agreeable to prescribe the rules relating to the salaries, allowances, etc. of the Supreme Court employees. We are glad to record that Mr. Rao has informed us that the Chief Justice of India has agreed to make necessary amendments to the existing rules relating to the salaries and allowances of the Supreme Court employees in accordance with Article 146 of the Constitution after considering the recommendations of the Fourth Pay Commission and all other relevant materials, and that the said amendments will be forwarded to the President of India for approval. Mr. Rao has filed a statement in writing signed by the Registrar General, which is extracted below: After obtaining instructions from the Hon'ble the Chief Justice, I hereby state that necessary amendments to the exis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolutely in the discretion of the Chief Justice of India or his nominee as to how and in what manner the rules will be framed. Before we conclude, it may be recorded that Mr. Kalra, Mr. Gujral, Mr. Ravi Prakash Gupta, Mr. A.K. Sanghi and Mr. A.D. Malhotra have, besides adopting the arguments of Mr. Thakur, made their own submissions. Mr. Kalra and Mr. Aggarwal have, in particular, drawn our attention to different pay-scales sanctioned to the employees of the Central Secretariat, Lok Sabha and Rajya Sabha and submit that the Supreme Court employees have been discriminated, although their nature of work is more arduous and they are better qualified. In view of our decision that the rules have not been framed as per Article 146(2) of the Constitution, we do not think we are called upon to decide the question raised by the learned Counsel. In the circumstances, as agreed to by the Chief Justice of India he may, after considering the recommendations of the Fourth Pay Commission and other materials that would be available to him and the representations of the employees of the Supreme Court and other matters, as stated hereinbefore, frame rules by making necessary amendments to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... those two Classes, constituting about 60 per cent of the total strength of the Supreme Court Staff, claim pay scales in parity with their counterparts in the Delhi High Court who are paid, by virtue of various judgments of that Court, salary and allowances on the basis of the Punjab pay scales coupled with the Central dearness allowance. The Class III and Class IV employees of this Court also receive the Punjab pay scales and the Central dearness allowance, notwithstanding the revised pay scales recommended by the Pay Commission, because of the interim orders of this Court in the present proceedings. The Attorney General contends that the Punjab pay scales of ₹ 400600 in the case of Class III employees and ₹ 300-430 in the case of Class IV employees are higher than the corresponding Central pay scales because the Punjab pay scales are linked to the higher price index of 320 as on 1.1.1978 while the Central pay scales are linked to the price index of 200 as on 1.1.1973. The higher Punjab scales have already absorbed all the D.A. instalments sanctioned upto 1.1.1978. The Punjab D .A. formula is, therefore, correspondingly lower. There is no justification in linking the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contends, is not in conformity with Article 14 of the Constitution. In any view of the matter, the Attorney General submits, the exercise of power by the Constitutional authorities under Article 146 of the Constitution is beyond judicial scrutiny on grounds other than those relevant to judicial review of legislation. The President's approval or disapproval of rules made by the Chief Justice of India is an exercise of legislative power and no direction can be issued to the President as regards the exercise of that power. The genesis of the recommendations of the Pay Commission regarding the employees of the Supreme Court lies in the suggestions of the Committee of Judges of the Supreme Court in may, 1985 to the effect: The Chief Justice of India may (a) appoint a Committee of Judges, and experts to devise a fair pay structure for the staff of the Supreme Court of India keeping in view the principles of pay determination; or (b) refer the matter to the 4th Pay Commission which is. at present considering the question of revision of pay-scalas of the Central Government employees and ask it to examine: the question of independent pay structure for the staff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pendent identity of the Registry of the Supreme court, no detailed study of the various aspects of the problem could be undertaken by the Pay Commission within the short time available to them. The Report of the Pay Commission is apparently not based on any thorough study of the job contents of the different functionaries of the Supreme Court Registry. The main thrust of the contentions of the employees of the Supreme Court is not that they should be paid the Punjab scales of pay and the Central D.A. as such, as in the case of the Delhi High Court employees, but that they should be paid at least as much as, if not better than, the employees of the Delhi High Court. The Supreme Court employees, they say, have to be paid a higher scale of pay than what is paid to the corresponding categories of employees in the Central Government Secretariat or the Secretariat of the Central Legislature because of the functional and institutional distinction of the Supreme Court. Although the employees of the Central Government Secretariat and those of the Supreme Court Registry at various levels are designated alike, there is no functional similarity between them, the nature and quality of their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... designations without any attempt at giving a distinct and independent indentity to the ministerial staff in the Registry of the Supreme Court led to invidious comparison and as a sequel to an unacceptable outcome. History with regard to the salary scale applicable to various categories of staff in the Registry would show that at least since the Second Pay Commission appointed by the Central Government for Central Government servants, the payscales devised by the Pay Commission were practically bodily adopted by the Chief Justice of India for comparable categories in the Supreme Court. This was repeated after the recommendations of the Third Pay Commission were published and accepted by the Central Government. Apparently with a view to avoiding the arduous task of devising a fair pay structure for various categories of staff in the Registry, this easy course both facile and superficial was adopted which led to the inevitable result of linking the pay structure for the various categories of staff in the Registry with the pay structure in the Central Services for comparable posts. And the comparison was not functional but according to the designations. No attempt was made to really as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Pay Commission for theft recommendations. It is pursuant to the recommendations of the Committee of Judges that the matter was, as stated earlier, referred to the Pay Commission. The Pay Commission's report was forwarded by the Government to the Registrar of the Supreme Court for his comments on the pay structure of the Supreme Court employees as recommended by the Pay Commission. The Registrar General of this Court wrote to the concerned Secretary of the Central Government a detailed letter pointing out various anomalies and difficulties if the recommendations of the Pay Commission were implemented. He pointed out that implementation of such recommendations would have the unfortunate effect of reducing the pay scales of certain categories of employees of the Supreme Court whose pay has already been enhanced by reason of various orders of this Court. This anomaly, he pointed out,. was glaringly striking in respect of Class IV and Class III employees and certain other categories. The various suggestions of the Registrar General were rejected by the Government except his suggestion for the enhancement of the salaries of the Private Secretaries to the Judges of this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not reflect the enhanced pay scales adopted on the basis of the interim orders of this Court or the pay scales recommended by the Pay Commission. The regulation of the conditions of service of the Supreme Court employees is thus the constitutional responsibility and power of the Chief Justice of India, subject, of course, to the two conditions postulated in clause (2) of Article 146. The Pay Commission was in the past not concerned with this category of employees because of the special position of the latter under the Constitution. These employees, however, came to be included within the purview of the Pay Commission on account of the recommendations of the Committee of Judges. The Judges had intended the Pay Commission to study all aspects of the matter in depth and make their recommendations to the Chief Justice of India to aid him in the discharge of his constitutional function under clause (2) of Article 146. In this respect the Chief Justice must necessarily act on the basis of data made available to him by persons he might in that regard appoint, or, as has been done in the present case, by the Pay Commission themselves to whom a reference was made by the Government pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement dated 5.5. 1989 has been filed by the Registrar General of this Court reading as follows: After obtaining instructions from the Hon'ble the Chief Justice, I hereby state that necessary amendments to the existing rules relating to the salaries and allowances of the Supreme Court employees will be made in accordance with Article 146 of the Constitution after considering the recommendations of the Fourth Pay Commission in respect of the Supreme Court employees and all other relevant materials and that the said amendments to the Rules will be forwarded to the President of India for approval and after obtaining the approval of the President, in terms of the proviso to clause (2) of Article 146 of the Constitution, the same will be implemented. It is not and cannot be disputed that the Chief Justice of India, by virtue of the constitutional grant, exercises legislative power when he makes rules under Article 146(2). Those rules are in the nature of subordinate legislation having .the force of law to the extent, and subject to the conditions, prescribed by the Constitution. Like all statutory instruments, they are subordinate to the parent law. The power of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proval of the rules made by the Chief Justice of India. It is indeed this power of approval, which the Constitution has under the proviso to clause (2) of Article 146 delegated to the President that can vitalise and activate the rules, so far as they relate to salaries, allowances etc., as subordinate legislation. In the making of such instruments, both the Chief Justice and the President act as delegates by virtue of the constitutional conferment of power. They must in this regard necessarily act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts. The fact that the power exercised by the Chief Justice of India or the President under Article 146(2) is derived directly from the Constitution, and not from a statute, makes no difference to the power of judicial review by a competent court. Any action taken (or refusal to act) on the strength of power derived directly by constitutional delegation is as much justiciable or reviewable upon the same grounds and to the same extent as in the case of any statutory instrument. The fundamental question in determining whether the exercise of power by an authority is subject to judicial revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India, [1975] 4 SCC 13, 14 and B.S. Vadera v. Union of India, [1968] 3 SCR 574. Where the validity of a subordinate legislation (whether made directly under the Constitution or a statute) is in question, the Court has to consider the nature, objects and scheme of the instrument as a whole, and, on the basis of that examination, it has to consider what exactly was the area over which, and the purpose for which, power has been delegated by the governing law. Rules are liable to be declared invalid if they are manifestly unjust or oppressive or outrageous or directed to an unauthorised end or violative of the general principles of the law of the land or so vague that it cannot be predicated with certainty as to what is prohibited by them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. In the words of Lord Russel of Kilowen, C.J. in Kruse v. Johnson, [1898] 2 Q.B. 91, 99: If, for instance, they were found to be partial or unequal in their operation as between different classes; if they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n act is ultra vires either because the authority has acted in excess of its power in the narrow sense, or because it has abused its power by acting in bad faith or for an inadmissible purpose or on irrelevant grounds or without regard to relevant considerations or with gross unreasonableness: see the principle stated by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1947] 2 All. E.R. 880,885. Power is exercised in bad faith where its repository is motivated by personal animosity towards those who are directly affected by its exercise. Power is no less abused even when it is exercised in good faith, but for an unauthorised purpose or on irrelevant grounds, etc. As stated by Lord Magnaghten in Westminster Corporation v. London and North Western Railway, [1905] AC 426, 430: .... It is well settled that a public body invested with statutory powers such as those conferred upon the Corporation must take care not to exceed or abuse its powers. 1t must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably. The last proposition is involved in the second, if not in the first .... Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such legislative efficacy and amplitude that they cannot be questioned on grounds ordinarily sufficient to invalidate the generality of statutory instruments, they are nevertheless liable to be struck down if found to be intrinsically arbitrary or based on an irrational classification or otherwise repugnant to constitutional principles. As stated by this Court in E.P. Royappa v. State of Tamil Nadu, (Supra): Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14 and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also take into account the objections raised by the Government to the suggestions made by the Registrar General who, of course, acted as an agent of the Chief Justice. But the refusal of the Government to accede to the proposals of the Registrar General is not a refusal of the President under Article 146(2), for such refusal or approval can arise only upon submission to him of duly framed rules. It is of course true that no court will direct the President to grant approval, for a writ of mandamus will not lie to compel a person to exercise a legislative function in a particular fashion (See A.K. Roy etc. v. Union of India and Anr., (supra) Narinder Chand Hem Raj Ors. v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh Ors., [1972] 1 SCR 940. 945. But the President must, upon submission to him of the Rules made by the Chief Justice of India under Article 146(2), exercise his mind as to whether or not he would grant approval, and, without undue delay, come to a decision on the point: See Aeltemesh Rein, Advocate Supreme Court of India v. Union of India and Others, [1988] 4 SCC 54. In the present case, the time for decision by the President has of course not come. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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