No Acts & Articles mentioned in this case
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PETITIONER:
SUPREME COURT EMPLOYEES WELFAREASSOCIATION ETC. ETC.
Vs.
RESPONDENT:
UNION OF INDIA & ANR. ETC. ETC.
DATE OF JUDGMENT24/07/1989
BENCH:
DUTT, M.M. (J)
BENCH:
DUTT, M.M. (J)
THOMMEN, T.K. (J)
CITATION:
1990 AIR 334 1989 SCR (3) 488
1989 SCC (4) 187 JT 1989 (3) 188
1989 SCALE (2)107
CITATOR INFO :
R 1992 SC1546 (12)
ACT:
Constitution of India--Articles 14, 16, 32, 136, 141 and
146--Special Leave Petition dismissed simpliciter--No decla-
ration of law-When does a decision of Court operate as res
judicata--Conditions of Service of Officers' and servants of
Supreme Court--Primarily the responsibility of
Parliaments--But if Parliament does not lay down the condi-
tions of service--Chief Justice or any other person autho-
rised by him can do so--Service Rules are liable to be
struck down, it unjust, oppressive, outrageous or directed
to an unauthorised end.
Article 226--Writ--Dismissal of--In limine or on ground
of laches or availability of alternative remedy---Dismiss-
al--Would not operate as res-judicata.
Supreme Court Officers' and Servants (Conditions of Service
and Rules--l961--Rules amended upto December 1985--Rules not
reflect the enhanced pay Scales adopted on the basis of
interim Orders of the Supreme Court or pay scales recommend-
ed by Pay Commission Supreme Court employees--Revision of
pay scales--Reference to Pay Commission whether valid or
incompetent.
HEADNOTE:
These writ Petitions have been filed by the employees of
the Supreme Court through their Welfare Associations pray-
ing, in substance, for enhancement of their present pay
scales. Writ Petition No. 801 of 1986 has been filed by the
Welfare Association representing class II and class 111
employees whereas Writ Petition No. 1201/86 has been filed
by Welfare Association representing class IV employees and
the third Writ Petition has been filed by retired employees.
In order to deal with and make recommendations in regard
to various representations highlighting grievances regarding
service conditions made by the staff. of the Supreme Court,
the Chief Justice of India constituted a committee consist-
ing of five Judges of the Supreme Court. The committee was
also asked to make recommendations whether the pay scales of
different categories of the staff warranted
489
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upward revision. The Committee after consideration of the
issues raised, made several recommendations but as regards
the pay scale revision, it recommended that the matter be
referred to the Third Pay Commission, then sitting. However
in the meanwhile, the High Court of Delhi, allowed various
Writ Petitions filed before it by the members of the staff
of Delhi High Court belonging to different categories. The
result of the Orders passed by the Delhi High Court was.
that the staff of that High Court started drawing more pay
in some categories of class IV, class Il & III employees,
than the employees of the Supreme Court similarly placed.
Taking cue from the orders of the Delhi High Court, the
petitioners have filed these petitions invoking in aid the
principle of "Equal pay for equal work". It is urged by the
petitioners that the duties performed by the staff of the
Supreme Court are similar rather more responsible, arduous
and onerous to those performed by the members of the staff
of Delhi High Court, hence they are entitled to pay like
similar if not enhanced pay scales. It is urged that Special
Leave Petition filed by the Government before this Court
against the orders of the Delhi High Court having been
dismissed by this Court, the order of Delhi High Court has
became final.
In Writ Petition No. 801 of 1986, by an interim order
dated 25.7.86 this Court directed that the officers and
members of the staff of the registry should get the same pay
and allowances which were then being enjoyed by the officers
and the members of the staff of the Delhi High Court belong-
ing to the same category with effect from the date from
which such scales of pay has been allowed to the officers
and the members of the staff of the Delhi High Court. The
Court also by the same order directed Respondent Nos. 1 and
2 to take necessary steps to refer the question of revision
of pay scales to the Fourth Pay Commission as suggested by
the five Judges Committee.
Some other interim orders were also passed giving higher
pay to certain categories of employees, as was done by Delhi
High Court.
The Fourth Pay Commission to which the question of
revision of pay scales of the staff of Supreme Court was
referred did not grant any enhancement. It did not even
grant the benefit of higher pay given under the interim
orders of this Court. After the report of Fourth Pay Commis-
sion, the petitions have been listed for final hearing.
Disposing of the Writ Petitions, this Court
490
HELD: Per M. M. Dutt, J.
When no reason is given, but a Special Leave Petition is
dismissed simpliciter, it cannot be said that there has been
a declaration of law by this Court under Article 141 of the
Constitution. [505B]
Indian Oil Corporation Ltd. v. State of Bihar, [1986] 4
SCC 146; Union of India v. All India Services Pensioner
Association, AIR 1988 SC 501.
A decision on an abstract question of law unrelated to
facts which give rise to a right cannot operate as res-
judicata. Nor, also can a decision on the question of juris-
diction be res-judicata in a subsequent suit or proceeding
but, if the question of law is related to the fact in issue,
an erroneous decision on such a question of law may operate
as res-judicata between the parties in a subsequent, suit or
proceeding, if the cause of action is the same. [506G-H;
507A-B]
Mathura.. Prasad Rajoo Jaiswal v. Dossibai N.B. Jeejeeb-
hoy, [1970] 3 SCR 830 and Thakore Sobhag Singh v. Thakur Jai
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 45
Singh, [1968] 2 SCR 848.
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 Constitu-
tion. [508H; 509A-B]
From Article 146(2) it is apparent that it is primarily
the responsibility of Parliament to lay down the conditions
of service of the officers and servants of the Supreme
Court, but so long as Parliament does not lay down such
conditions of service. the Chief Justice of India or some
other Judge or officer of the Court authorised by the Chief
Justice of India is empowered to make rules for the purpose.
[516B-C]
The conditions of service that may be prescribed by the
rules framed by the Chief Justice of India under Article
146(2) will also necessarily include salary. allowances,
leave and pensions of the officers and servants of the
Supreme Court. [516D]
491
The proviso to Article 146(2) puts a restriction on the
power of the Chief Justice of India by providing that the
rules made under Article 146(2) shall. so far as they.
relate to salaries, allowances, leave or pensions, require
the approval of the President of India. [516E]
The rules framed by the Chief Justice of India though it
is a piece of subordinate legislation, it is not a full-
fledged legislative act requiring assent of the President of
India. [517C]
Going strictly by Article 146(2) of the Constitution,
the question of any reference to the Pay Commission does not
arise. The Chief Justice of India has to frame rules with
the aid and assistance of his own officers and other Judges.
The Chief Justice of India may appoint a Committee of Judges
or a Committee of experts for the purpose of assisting him
in framing the rules relating to the conditions of service
of the employees of the Supreme Court. Although there is no
such provision in Article 146(2), but that is implied and it
may be said that the reference to the Fourth Pay Commission
was made so that the report or the recommendations of the
Fourth Pay Commission relating to the revision of the pay-
scales of the Supreme Court employees will be of some as-
sistance to the Chief Justice of India to frame rules.
[523D-F]
What should go to the President of India for his approv-
al under the proviso to Article 146(2) is not the report or
the recommendation of the Fourth Pay Commission, but the
rules framed by the Chief Justice of India. In considering
the rules framed by the Chief Justice of India relating to
salaries, allowances, leave and pension, it will not be the
concern of the President of India how and in what manner the
Chief Justice of India has laid down the rules. [523F-G]
All this can be done by the Chief Justice of India or by
some other Judge or officer of this Court authorised by the
Chief Justice of India. The Chief Justice of India may
appoint a Committee of Judges to submit a report relating to
all relevant matters and, thereafter, the Chief Justice of
India may frame rules after taking into consideration the
report of the Committee. It will be absolutely in the dis-
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 45
cretion of the Chief Justice of India or his nominee as to
how and in what manner the rules will be framed. [529D-E]
Per Thommen, J.
The regulation of the conditions of service of the Supreme
Court
492
employees is 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. [538E]
Rules were made in this regard by the Chief Justice of
India with the approval of the President of India and they
are contained in Part II of the Supreme Court Officers and
Servants' (Conditions of Service and Conduct) Rules, 1961 as
amended upto 16th December, 1985. No amendment of these
Rules has been made subsequent to 1985 and consequently the
Rules do 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. [538C-D]
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 predi-
cated 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. [542F]
Union of India & Ant. v. Cynamide India Ltd. & Anr.,
[1987] 2 SCC 720, 734; S.I. Syndicate Ltd. v. Union of
India, AIR (1975) SC 460; P.C.S. Mills v. Union of India,
AIR (1973) SC 537; Shree Meenakshi Mills' v. Union of India,
AIR (1974) SC 366; E.P. Royappa v. State of Tamil Nadu. AIR
(1974) SC 555; Maneka Gandhi v. Union of India, AIR (1978)
SC 597; Ajay Hasia v. Khalid Mujib, AIR (1981) SC 485; D.S.
Nakara v. Union of India, AIR (1983) SC 126; Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation,
[1947] 2 All. E.R. 680; Westminster Corporation v. London
and North Western Railway, [1905] AC 426. 430; Barium Chemi-
cals Ltd. v. Company Law Board, AIR (1967) SC 295. referred
to.
Until the rules are made by the Chief Justice (or by a
Judge or Officer of the Court authorised by him), the ques-
tion of approval or disapproval by the President does not
arise. In making the rules, the Chief Justice would no doubt
take into account the recommendations of the Pay Commission
or of any other body of experts he may have consulted. He
will 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), 1or such refusal or approval can arise
only upon submission to him to duly framed rules. [546G-H;
547A-B]
493
The approval of the President is not a matter of mere
formality. It would, of course, be wrong to say that in no
case can the President, which means the Government, refuse
to accord approval. However. once the rules are duly framed
by so high a constitutional dignitary as the Chief Justice
of India, it will only be in the truly exceptional cases
that the President would withhold assent. [547D-E]
Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat,
[1981] 2 SCR 718; State of Orissa v. Durga Charan Das,
[1966] 2 SCR 907; G.V. Ramanaiah v. The Superintendent of
Central Jail. Rajahmundry. [1974] 1 SCR 852; Chandra Bansi
Singh v. State of Bihar, [1985] 1 SCR 579; Waman Rao v.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 45
Union of India, [1981] 2 SCR 1; Minor P. Rajendran v. State
of Madras, [1968] 2 SCR 786; State of M.P.v. Ram Raghubir
Prasad Agarwal, [1979] 3 SCR 41; Roshanlal Kuthiala v. R.B.
Mohan Singh Oberai. [1975] 2 SCR 491; Tamil Nadu Education
Department Ministerial & General Subordinate Service Associ-
ation v. State of Tamil Nadu, [1980] 1 SCR 1026; Kishori
Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139; State
of Punjab v. Joginder Singh. [1963] Supp. 2 SCR 169; Randhir
Singh v. Union of India, [1982] 1 SCC 618; Dhirendra Chamoli
v. State of U.P., [1986] 1 SCC 687; State of Andhra Pradesh
v.G. Sreenivasa Rao, [1989] 1 .IT 615; V. Markendeya v.
State of Andhra Pradesh, [1989] 2 JT 108; State of U.P. v.
J.P. Chaurasia, AIR 1989 SC 19; Umesh Chandra Gupta v. Oil &
Natural Gas Commission, AIR 1989 SC 29; Tarsera Lal Gautam
v. State Bank of Patiala, AIR 1989 SC 30;Narinder Chand Hem
Raj v. Lt. Governor, Administrator, Union Territory, Hima-
chal Pradesh, [1972] 1 SCR 940; State of Andhra Pradesh v.T.
Gopalakrishnan Murthi, AIR 1976 SC 123; A.K. Roy v. Union of
India,, [1982] 2 SCR 272; Gurumoorthy v. Accountant
General Assam & Nagaland, [1971] Suppl. SCR 420; K.
Nagaraj & Ors. v. State of A.P. & Anr., [1985] 1 SCC 523,
548; R.K. Garg v. Union of India, [1981] 4 SCC 675, 687;
Aeltemesh Rein, Advocate Supreme Court of India v. Union of
India & Ors., [1988] 4 SCC 54; State of U. P. & Ors. v.
Renusagar Power Co. & Ors., [1988] 4 SCC 59, 104; Kruse v.
Johnson, [1989] 2 Q.B. 91; Associated Provincial Picture
Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223;
Mixnam Properties Ltd. v. Chertsey U.D.C., [1965] AC 735;
Commissioners of Customs & Excise v. Cure & Deeley Ltd.,
[1962] 1 Q.B. 340; Mceldowney v. Forde, [1971] AC 632;
Carltona Ltd., v. Commissioners of Works & Ors., [1943] 2
All E.R. 560, 564; Point of Ayr. Collieries Ltd. v. Lloyd
George, [1943] 2 All E.R. 546; Scott v. Glasgow Corporation.
[1899] AC 47,492; Robert Baird L.D. & Ors. v. City of Glas-
gow, [1936] AC 32.42; Manhattan General Equipment Co. v.
Commissioner. [1935] 297 US 129, 134; Yates (Arthur) &
494
Co. Pty Ltd., v. Vegetable Seeds Committee, [1945] 46--72
CLR 37; Bailey v. Conole, [1931] 34 W.A.L.R. 18; Boyd Build-
ers Ltd. v. City of Ottawa, [1964] 45 D.L.R. (2nd) 211; Re
Burns &. Township of Haldimand, [1966] 52 DLR (2d) 101 and
Lynch v. Tilden Produce Co., 265 U.S. 315, 320-322, referred
to.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition No. 801 of 1986 &
Etc. Etc.
(Under Article 32 of the Constitution of India)
K. Parasaran, Attorney General, B. Dutta, Additional
Solicitor General, D.D. Thakur, G.L. Sanghi (N.P.) M.S.
Gujral, Anil Dev Singh, E.C. Agrawala, V.K. Pandian, Atul
Sharma, A.K. Sanghi, N.D. Garg, Pankaj Kalra, H.K. Puri,
S.K. Bisaria, R.P. Gupta, Ms. A. Subhashini, R. Venkatarama-
ni, S.K. Sinha, A.D. Malhotra, P.P. Rao and Sushil Kumar
Jain for the appearing parties.
The Judgment of the Court was delivered by
DUTT, J. These Writ Petitions and Civil Miscellaneous
Petitions have been filed by the employees of the Supreme
Court praying for their pay hike. Two events, which will be
stated presently, seem to have inspired the employees of the
Supreme Court to approach the Court by filing Writ Peti-
tions. The first of the two events is the report of a Com-
mittee of Five Judges of this Court consisting of Mr. Jus-
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tice P.N. Bhagwati (as he then was) as the Chairman, Mr.
Justice V.D. Tulzapurkar, Mr. Justice D.A. Desai, Mr. Jus-
tice 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 Commit-
tee, 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 com-
parison. The committee observed that the salary scale ap-
plicable 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
495
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. Further, it is observed that apparently
with a view to avoiding the arduous task of devising a fair
pay-structure of various categories of staff in the Regis-
try, 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
ascertain the nature of work of an employee in each category
of staff and determine the pay-structure and then after
framing proper rules invite the President of India to ap-
prove the rules under Article 146 of the Constitution. The
Committee pointed out that the slightest attempt had not
been made to compare the workload, skill, educational quali-
fications, responsibilities and duties of various categories
of posts in the Registry and that since the days of Rajad-
hyakhsa Commission the work had become so complex and the
work of even a clerk in the Supreme Court had such a dis-
tinct identity that it would be necessary not only to fix
the minimum remuneration keeping in view the principles for
determination of minimum remuneration but also to add to it
the functional evaluation of the post. This, according to
the Committee, required a very comprehensive investigation
and the Committee was ill-equipped to do it. The Committee,
inter alia, recommended that the Chief Justice of India
might appoint a Committee of 'experts to devise a fair pay-
structure for the staff of the Supreme Court keeping in view
the principles of pay determination and on the recommenda-
tions of the Committee, the Chief Justice of India might
frame rules under Article 146 of the Constitution and submit
them for the approval of the President of India. The Commit-
tee also took notice of the fact that the Fourth Central Pay
Commission appointed by the Central Government and presided
over by a former Judge of the Supreme Court, Mr. Justice
P.N. Singhal, was then examining the question of pay-scales
and other matters referred to it in respect of the stuff of
the Central Government. According to the Committee, it was
an ideal situation that a former Judge of this Court was
heading the Panel and he was ideally situated for examining
the question of independent pay-structure for the staff in
the Registry of the Supreme Court. The Committee recommended
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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.
496
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, Superintend-
ents, Senior Stenographers, Assistants, Junior Readers,
Junior Stenographers, Joint Registrars, Assistant Regis-
trars, 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 de-
tails of which are given below:
SI. Date of Revised scale
No. Judgment No. of W.P. Post of pay
Rs.
1. 3.2.86 & W.P. No. 1376/84 Restorer 400-600
23.5.86
2. 11.11.86 W.P. No. 1865/86 L.D.Cs. 400-600
3. 4.12.86 W.P. No. 2236/86 Class IV
Sweepers
Ushers etc. 300-430
4. 8.1.87 W.P. No. 2318/86 Gestetner
Operator 400-600
5. 6.2.87 W.P. 2402/87 Staff Car
Drivers 400-600
6. 20.8.87 W.P. No. 1656/87 Despatch
Van Drivers 400-600
Several Special Leave Petitions were filed on behalf of
the Government to this Court, but all these Special Leave
Petitions were summarily rejected by this Court.
The Supreme Court employees have approached this Court
by filing the instant Writ Petitions and the Civil Miscella-
neous Petitions for upward revision of their pay-scales as
were allowed in the case of the employees working in the
Delhi High Court. According to the petitioners, the duties
and the job assignments in respect of the staff of the
Supreme Court being more onerous and arduous compared to the
work done by the staff of the Delhi High Court, the peti-
tioners
497
claimed that they are entitled to equal pay for equal work
and. therefore, they are approaching this Court for redres-
sal of their grievances by means of the present Writ Peti-
tions.
The Writ Petition No. 801 of 1986 has been filed by the
Supreme Court Employees Welfare Association seeking higher
pay-scales parity in the pay-scales with Delhi High Court
employees in the corresponding categories. On July 25, 1986,
this Court passed an interim order which provides as fol-
lows:--
"By way of an interim arrangement, pending
final disposal of the Writ Petition, we direct
that the Officers and staff of the Supreme
Court Registry may be paid same pay scales and
allowances which are at present being enjoyed
by the Officers and the members of the staff
of the High Court of Delhi belonging to the
same category with effect from the date from
which such scales of pay have been allowed to
the Officers and the members of the staff of
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the High Court of Delhi, if and in so far as
they are higher or better than what the Offi-
cers 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 direc-
tions may be adjourned for a period of four
weeks since the Government is actively consid-
ering 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.
In the
498
meanwhile, respondent Nos. 1 & 2 may take
steps to refer the question of revision of pay
scales to the Fourth Pay Commission as sug-
gested by the Committee consisting of Hon'ble
Mr. Justice V.D. Tulzapurkar, Hon'ble Mr.
Justice D.A. Desai, Hon'ble Mr. Justice R.S.
Pathak and Hon'ble Mr. Justice S. Murtaza
Fazal Ali."
It appears from the interim order extracted above that
this Court directed that the officers and the members of the
staff of the Registry might get the same pay and allowances
which were then being enjoyed by the officers and the mem-
bers of the staff of the Delhi High Court belonging to the
same category with effect from the date from which such
scales of pay had been allowed to the officers and the
members of the staff of the Delhi High Court. This Court
also by the same interim order directed the respondents Nos.
1 and 2 to take steps to refer the question of revision of
pay-scales to the Fourth Pay Commission as suggested by the
Five-Judge Committee.
Another interim order dated August 14, 1986 was passed
by this Court in Writ Petition No. 801 of 1986. The said
interim order reads as follows:
"Those employees who are not covered by our
earlier order will be paid by way of an inter-
im arrangement, a sum equal to 10% of their
basic pay, subject to a minimum of Rs.50. The
order will take effect from 1.1.1986.
The matter was left to us by counsel
for all the parties and we have made this
interim arrangement.
This interim order will be subject to
the result of final order in the writ peti-
tion.
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The writ petition is adjourned and
will be listed for further hearing in usual
course."
The said interim order dated August 14, 1986 was, howev-
er, modified by a subsequent interim order dated November
14, 1986. The modification was to the effect that the 10 per
cent interim relief, subject to a minimum of Rs.50 per
month, which was granted with effect from January 1, 1986,
was directed to be granted with effect from January 1, 1978,
in respect of Class IV staff. Some other interim orders were
also passed by this Court. This Court passed interim orders
499
giving higher pay-scales to certain categories of employees
holding Group B, C and D posts. The Court also ordered that
certain Group C posts, that is to say, Junior Clerks, Senior
Library Attendants, etc. would be given the same pay-scales
of Rs.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
Rs.300-430 from 1.1.1978 as given to Class IV employees of
the Delhi High Court. The scales of pay of Rs.400-600 and
Rs.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, Department of Ex-
penditure,published a Resolution dated December 24, 1986 in
the Gazette of India, Extraordinary, Part I--Section I. By
the said Resolution, the terms of reference were amended by
the addition of a new sub-clause (iv) below paragraph
2(1)(iii) which is as follows:
"(iv) Officers and employees of the Supreme
Court of India."
It thus appears that although initially the cases of
the employees of the Supreme Court were not referred to the
Fourth Pay Commission, the Government, however, in obedience
to the order of this Court referred their cases by the
amendment of the terms of reference.
500
After the reference of the cases of the Supreme Court
employees to the Fourth Pay Commission, the Registry of this
Court sent to the Fourth Pay Commission a copy of the report
of the Five-Judge Committee and also copies of all the
interim orders passed by this Court. A team of officers of
the Commission visited various sections of the Registry of
the Supreme Court and spent a number of days for a proper
understanding of the working of the various categories of
the employees. The FoUrth Pay Commission also visited the
Registry to familiarize itself with the nature of their
work. The Commission requested the Registrar to bring to the
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notice of the Associations as also individual employees of
the Supreme Court to submit their Memoranda to the Commis-
sion. The Commission had also some discussions with Hon'ble
Mr. Justice Y.V. Chandrachud and Hon'ble Mr. Justice P.N.
Bhagwati, two former Chief Justices of India, and also with
Hon'ble Mr. Justice D.A. Desai, Chairman Law Commission, on
various aspects of the pay-structure etc. of the employees
of the Supreme Court. The Commission had also met Hon'ble
Mr. Justice R.S. Pathak (as he then was) in his chamber on
May 18, 1987.
The Fourth Pay Commission submitted its recommendations
with regard to the Supreme Court employees. The recommenda-
tions are contained in Part III of its report. It is not
necessary to state in detail as to the revision of pay-
scales made by the Fourth Pay Commission with regard to the
employees of the Supreme Court. In a nut-shell, it may be
stated that the Fourth Pay Commission reduced the existing
153 pay-scales to 36 pay-scales. The Commission, however,
did not revise the pay-scales of the employees of the Su-
preme Court on the basis of the pay~scales granted to them
by the interim orders passed by this Court in the Writ
Petitions following the payscales 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
501
Supreme Court would encounter some difficulties in imple-
menting the same. The Registrar General was of the opinion
that the Pay Commission should not have made any such recom-
mendation which had the effect of reducing the pay-scales
than what had been given by this Court by its various inter-
im orders dated 25.7.1986, 15.1.1987, 19.2. 1987, etc. to
different categories of employees. Further, it was stated by
him that the Pay Commission should not also have made recom-
mendation which had the effect of taking away the benefit
accrued to other categories of employees by the Court's
order dated August 14, 1986. It is not necessary for us to
refer to the anomalies as pointed out by the Registrar
General in his said letter. Suffice, it to say that the
Registrar General dealt with the case of each category of
employees affected by the report of the Fourth Pay Commis-
sion and stressed that while accepting the pay-scales pro-
posed by the Fourth Pay Commission for the officers and
employees of the Supreme Court, the Ministry must give full
consideration to the anomalies and difficulties pointed out
and the suggestions made in his letter and representations
enclosed therewith and intimate its decision to the Registry
at an early date.
The Joint Secretary to the Government of India, Ministry
of Finance, by her letter dated November 23, 1987 addressed
to the Registrar General, communicated to him the sanction
of the President of India to the revised pay-scales in
respect of posts as shown in column 4 of the annexure to the
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said letter. In other words, the scales of pay as revised
and/or recommended by the Fourth Pay Commission in respect
of the posts mentioned in the annexure to the said letter,
were accepted by the Government. Further, it was stated that
such scales of pay would have effect from January 1, 1986.
In the last paragraph of the said letter, it has been stated
that the revision of pay-scales for the remaining posts in
the Supreme Court Registry, mentioned in Part III of the
Report of the Fourth Central Pay Commission, is separately
under consideration of the Government. The pay-scales of
Junior Clerks and Class IV employees of the Supreme Court,
which have not been mentioned in the annexure, are therefore
under consideration of the Government. Nothing has been
produced before us to show that the Government has separate-
ly considered the revision of pay-scales of the Junior
Clerks and Class IV employees of the Supreme Court. All the
parties including the learned Attorney General, however,
proceeded on the assumption that the Government has not
sanctioned the pay-scales of the Junior Clerks and the Class
IV employees as granted to them by this Court by the interim
orders and/or the Government has accepted the pay-scales as
recommended
502
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 Court and the second part relates
to the other employees of the Supreme Court, who are members
of the Supreme Court Employees' Welfare Association. It may
be stated here that the Class IV employees have filed a
separate Writ Petition, that is, the Writ Petition No. 1201
of 1986.
We shall first of all deal with the submissions of Mr.
Thakur with regard to the Junior Clerks and Class IV employ-
ees of the Supreme Court. The learned Counsel has placed
much reliance upon the judgments of the Delhi High Court in
revising the pay-scales of certain categories of Class III
and Class IV employees, as stated hereinbefore, granting the
pay-scales of Rs.400-600 and Rs.300-430 respectively to
L.D.Cs. and Class IV employees. It is submitted that the
Delhi High Court was fully empowered under Article 226 of
the Constitution to issue appropriate writs, if in its
opinion the recommendations of the Third Pay Commission as
adopted by the Government of India and as reflected in the
revised pay Rules of 1973, in so far as these Rules related
to the staff of the Delhi High Court, amounted to discrimi-
nation and consequently violated Article 14 of the Constitu-
tion of India. Counsel submits that the Special Leave Peti-
tions filed by the Government against the judgments of the
Delhi High Court having been dismissed by this Court, the
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Delhi High Court judgment revising the pay-scaleS of its
employees including the pay-scales of the L.D.Cs. annd Class
IV employees have attained finality and operate as res
judicata between the parties, namely, the employees of the
Delhi High Court and the Union of India. It is submitted
that this Court was fully
503
justified in passing the interim orders on the basis of the
judgments of the Delhi High Court which had become final and
conclusive between the parties and binding on them, and that
the pay-scales granted by this Court by the interim orders
were consonant to justice and equity. It is urged that it
was not open to the Fourth Pay Commission while revising the
pay-scales of the staff of the Supreme Court to take a pay-
scale lower than the one prescribed by this Court by the
interim orders, as the basis for revision, as that would
amount to negativing and nutralising the effect of the
orders passed by this Court. It is submitted by the learned
Counsel that the recommendations of the Fourth Pay Commis-
sion, if allowed to prevail, would result 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 appear-
ing 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,
between the parties as contended on behalf of the petition-
ers. It is pointed out by him that the scales of pay of
Rs.400-600 and Rs.300-430 are Punjab pay-scales. Punjab
payscales were higher than the Central pay-scales because
the Punjab pay-scales were linked to higher Consumer Price
Index (for short 'CPI') 320 as on 1.1.1978 instead of CPI
200. On the other hand, the Central pay-scales were linked
to CPI 200 as on 1.1.1973. The Punjab High Court employees
were getting higher pay-scales because the Dearness Allow-
ance up to 1.1.1978 had been merged in the pay-scales which
related to CPI 320 as on 1.1.1978 instead of CPI 200. The
Delhi High Court employees were given the higher Punjab
scales of pay linked to CPI 320 and also got the benefit of
the difference between
504
CPI 200 and CPI 320 according to the Central Government D.A.
formula which came into effect from 1.1.1973. The Punjab
D.A. formula is correspondingly lower than the Central D.A.
which is clear from the letter dated April 16, 1980 of the
Government of Punjab. It is submitted by the learned Attor-
ney General that the employees of the High Court as also of
the Supreme Court cannot have the best of both the worlds,
that is to say, they cannot get both the Punjab pay-scales
merging into it the Dearness Allowance between CPI 200 and
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CPI 320 and, at the same time, the Central Government D.A.
Accordingly, it is submitted that the Delhi High Court
judgments are absolutely erroneous and should not be relied
upon.
The question whether the High Court judgments relating
to the L.D.Cs. and the Class IV employees are right or
wrong. may not be necessary to be considered. But, the
relevant question that requires consideration is whether the
said judgments of the Delhi High court have become final and
conclusive and binding on the parties. In case it is held
that the judgments have not attained finality and do not
operate as res judicata between the parties, the question as
to the correctness of the judgments may be considered. Let
us, therefore, advert to the contention of Mr. Thakur that
the Delhi High Court judgments have become final and conclu-
sive between the parties and operate as res judicata.
It has been already noticed that the Special Leave
Petitions filed on behalf of the Union of India against the
said judgments of the Delhi High Court were summarily dis-
missed by this Court. It is now a well settled principle of
law that when a Special Leave Petition is summarily dis-
missed under Article 136 of the Constitution, by such dis-
missal 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
505
Petition. When such reasons are given, the decision becomes
one which attracts Article 141 of the Constitution which
provides that the law declared by the Supreme Court shall be
binding on all the courts within the territory of India. It,
therefore, follows that when no reason is given, but a
Special Leave Petition is dismissed simpliciter, it cannot
be said that there has been a declaration of law by this
Court under Article 14 1 of the Constitution.
It is true that by the dismissal of a Special Leave
Petition in limine, this Court does not lay down any law
under Article 141 of the Constitution, but the question is
whether after the dismissal of the Special Leave Petition
the judgment against which the Special Leave Petition was
filed becomes final and conclusive so as to operate as res
judicata between the parties thereto. In repelling the
contention of the petitioners that the Delhi High Court
judgments relating to the L.D. Cs. and Class IV employees
operate as res judicata between the parties, the learned
Attorney General has strongly relied upon the decision of
this Court in Mathura Prasad Rajoo Jaiswal v. Dossibai N.B.
Jeejeebhoy, [1970] 3 SCR 830. In that case, this Court
observed as follows :--
"The previous decision on a matter in issue
alone is res judicata: the reasons for the
decision are not res judicata. A matter in
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issue between the parties is the right claimed
by one party and denied by the other, and the
claim of right from its very nature depends
upon proof of facts and application of the
relevant law thereto. A pure question of law
unrelated to facts which give rise to a right,
cannot be deemed to be a matter in issue. When
it is said that a previous decision is res
judicata, it is meant that the right claimed
has been adjudicated upon and cannot again be
placed in contest between the same parties. A
previous decision of a competent Court on
facts which are the foundation of the right
and the relevant law applicable to the deter-
mination of the transaction which is the
foundation of the right and the relevant law
applicable to the determination of the trans-
actions which is the source of the right is
res judicata. A previous decision on a matter
in issue is a composite decision: the decision
of law cannot be dissociated from the decision
on facts on which the right is founded. A
decision on an issue of law will be as res
judicata in a subsequent proceeding between
the same parties, if the cause of action of
the subsequent proceeding be the same as in
the
506
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 applica-
tion of the rule of res judicata the Court is
not concerned with the correctness or other-
wise 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 pro-
ceeding 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 "the
matter in issue" in s. 11 Code of Civil Proce-
dure means the right litigated between the
parties, i.e. the facts on which the right is
claimed or denied and the law applicable to
the determination of that issue. Where, howev-
er, the question is one purely of law and it
relates to the jurisdiction of the Court or a
decision of the Court sanctioning something
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which is illegal, by resort to the rule or res
judicata a party affected by the decision will
not be precluded from challenging the validity
of that order under the rule of res judicata,
'for a rule of procedure cannot supersede the
law of the land."
Thus, a decision on an abstract question of law unrelat-
ed to facts which give rise to a right, cannot operate as
res judicata. Nor also can a decision on the question of
jurisdiction be res judicata in a subsequent suit or pro-
ceeding. But, if the question of law is related to the fact
in issue, an erroneous decision on such a question of law
may operate as res judicata between the parties in a subse-
quent suit or proceeding, if the cause of action is the
same. The Delhi High Court judgments do not decide any
abstract question of law and there is also no question of
507
jurisdiction involved. Assuming that the question of juris-
diction involved. Assuming that the judgments of the Delhi
High Court are erroneous, such judgments being on questions
of fact would still operate as res judicata between the same
parties in a subsequent suit or proceeding over the same
cause of action.
In Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat,
[1981] 2 SCR 7 18 it has been laid down by this Court that
the doctrine of res judicata or the principles of finality
of judgment cannot be allowed to whittle down or override
the express constitutional mandate to the Supreme Court
enshrined in Article 32 of the Constitution. On the basis of
this principle, it has been argued by the learned Attorney
General that the judgments of the Delhi High Court might
operate as res judicata, but they cannot override the provi-
sion of Article 14 of the Constitution. In other words, in
spite of the judgments of the Delhi High Court, it is per-
missible to contend that if the judgments are given effect
to the employees of the Supreme Court, it would be discrimi-
natory inasmuch as those who are similarly situated will be
getting lesser pay. In Kirit Kumar's case, the order of
detention of the petitioner under the Conservation of For-
eign 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 Peti-
tion 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 judi-
cata or the principles of finality of judgment could not be
allowed to whittle down or override the express constitu-
tional 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 Court employees who perform at least the
same duties are paid a lower scale of pay. The observation
that has been made in Kirit Kumar's case-was in the context
of the facts of that case, namely, that even though certain
points were not raised before the High Court that would not
preclude the detenu from urging those points in a petition
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under
508
Article 32 of the Constitution relating to the violation of
a provision of Article 22(5) of the Constitution. The fact
remains that the Delhi High Court employees would be getting
higher scale of pay than the employees of the Supreme Court.
It is not the case of the Union of India that the Delhi High
Court employees are not similarly situated as the Supreme
Court employees and that, therefore, there is a reasonable
justification for making a discrimination between these two
classes of employees.
In this connection, we may consider the contention of
Mr. P.P. Rao, learned Counsel appearing on behalf of the
Registrar of the Supreme Court. His contention is that the
judgments of the Delhi High Court cannot be collaterally
challenged and should be treated as res judicata between the
parties, even though the said judgments will be violative of
Article 14 of the Constitution. In support of this conten-
tion, the learned Counsel has placed much reliance upon the
decision of this Court in Thakore Sobhag Singh v. Thakur Jai
Singh, [1968] 2 SCR 848. What happened in that case was that
the Board of Revenue rejected the claim of the respondent to
be recognised as an adopted son on the ground that under the
Jaipur Matmi Rules the adoption, without the previous sanc-
tion of the Ruler, could not be recognised for the purpose
of determining succession to the jagir. In the Writ Petition
filed by the respondents, the High Court held that the
Jaipur Matmi Rules had no statutory force because the Ruler
had not given his assent to them. The High Court sent the
case back on remand to the Board of Revenue to decide the
case in accordance with law declared by the High Court.
After the case was sent back on remand by the High Court,
Validation Act, 1961 was passed validating the Matmi Rules.
The Board of Revenue, however, held after remand that the
respondent was the adopted son. On appeal to this Court, it
has been held that even though the said Validation Act
declared that the Matmi Rules shall have and shall be deemed
always to have had the force of law, notwithstanding any-
thing 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
509
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 provision of Article 14, as contended by
the learned Attorney General. The judgment which is binding
between the parties and which operates as res judicata
between them, cannot be said to overrule the provision of
Article 14 of the Constitution even though it may be, to
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some extent, violative of Article 14 of the Constitution. So
far as the Supreme Court employees are concerned in these
proceedings the only enquiry to be made is whether the
judgments of the Delhi High Court relating to the L.D.Cs.
and the Class IV employees have become final and conclusive
between the employees of the Delhi High Court and the Union
of India.
It is the contention of the learned Attorney General
that the judgments of the Delhi High Court are erroneous on
the face of them inasmuch as by these judgments the Delhi
High Court has granted to the Restorers L.D.Cs. and the
Class IV employees Punjab pay-scales as also the Central
D.A. It is urged by the learned Attorney General that such
judgments should not be given effect to so far as the Junior
Clerks and Class IV employees of the Supreme Court are
concerned. It is submitted that because the Special Leave
Petitions against the Delhi High Court judgments have been
dismissed by this Court, the judgments may be final between
the parties, but the benefit of that wrong decision should
not be conferred on the employees of the Supreme Court or
persons similarly situated. The Delhi High Court has made an
error and that error should not be perpetuated.
In support of that contention, the learned Attorney
General has placed reliance upon a decision of this Court in
State of Orissa v. Durga Charan Das, [1966] 2 SCR 907. In
that case, the respondent claimed that he was discriminated
by the State of Orissa is not fixing the amount of his
pension on the basis of his confirmation as the Registrar of
the High Court on August 28, 1956, that is, the date on
which his junior had been confirmed as Registrar. The re-
spondent relied upon the fact that one Mr. Beuria was held
entitled to get the pay of the Registrar from December 1,
1958 and his junior was promoted. to the rank of Registrar
on that date. It was held by this Court
510
that granting to Mr. Beuria the salary of the Registrar with
effect from December 1, 1948 was erroneous, as it was grant-
ed to him on the misconstruction of the relevant rule and,
thereafter, it was observed as follows:
"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 Superintend-
ent 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 conten-
tion 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 em-
ployees of the Supreme Court.
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The learned Attorney General has also placed reliance
upon the doctrine of prospective overruling and points out
that this Court has given effect to the doctrine of prospec-
tive overruling in Waman Rao v. Union of India, [1981] 2 SCR
1; Minor P. Rajendran v. State of Madras, [1968] 2 SCR 786
and State of M.P.v. Ram Raghubir Prasad Agarwal, [1979] 3
SCR 41. We are pressed to hold that the judgments of the
Delhi High Court are wrong and even though the benefit which
has been conferred under the judgments may not be interfered
with in respect of those who have got the same, but such
benefits may not be conferred on the future employees of the
Delhi High Court and on the employees of this Court.
511
It is also submitted by the learned Attorney General
that if this Court is of the opinion that the judgments of
the Delhi High Court are erroneous, this Court should ignore
that by such judgments a certain section of the employees of
the Delhi High Court has been benefitted and also the hard-
ship that may result in not giving effect to such judgments,
so far as the employees of the Supreme Court are concerned.
In support of that contention, the learned Attorney General
has placed reliance upon a decision of this Court in Roshan-
lal Kuthiala v. R.S. Mohan Singh Oberai, [1975] 2 SCR 491.
In that case, it has been observed by Krishna Iyer, J. that
our equitable jurisdiction is not hidebound by tradition and
blinkered by precedent, though trammelled by judicially
approved rules of conscience. In this connection, we may
refer to another observation of Krishna Iyer, J. in Tamil
Nadu Education Department Ministerial & General Subordinate
Service Association v. State of Tamil Nadu, [1980] 1 SCR
1026. It has been observed that once the principle is found
to be rational the fact that a few freak instances of hard-
ship may arise on either side cannot be a ground to invali-
date the order or the policy.
At the same time, the learned Attorney General submits
that the benefit which has been conferred on the employees
of the Supreme Court should not be taken away all at a time
but, as a court of equity, this Court may by way of recon-
ciliation direct freezing of the payscales of the Supreme
Court employees, which they are getting by virtue of the
interim order of this Court, to be adjusted or neutralised
against increments, and if that be done, they would not
suffer any appreciate hardship.
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 fundamen-
tal 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
512
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 petitioners before us, in that case, the
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question as to the correctness of those judgments would have
been germane. The petitioners, far from making any complaint
against the judgments of the Delhi High Court, have strongly
relied upon them in support of their respective cases for
pay hike and, accordingly, we do not think that we are
called upon to examine the propriety or validity of the
judgments of the Delhi High Court.
We may also deal with the contention of the learned
Attorney General as to the doctrine of 'equal pay for equal
work' which we have so long deferred consideration. It is
urged by him that the doctrine of equal pay for equal work',
as enshrined in Article 39(d) of the Constitution of India,
cannot be relied on by the petitioners in support of their
claim for the same pay-scales as granted by the Delhi High
Court by the said judgments. Article 39(d) being a provision
contained in Part IV of the Constitution dealing with Direc-
tive Principles of State Policy is not enforceable by any
court in view of Article 37 of the Constitution. He submits
that as laid down in Kishori Mohanlal Bakshi v. Union of
India, AIR 1962 SC 1139 and State of Punjab v. Joginder
Singh, [1963] Supp. 2 SCR 169 the abstract doctrine of
'equal pay for equal work' has nothing to do with Article
14. In Randhir Singh v. Union of India, [1982] 1 SCC 618
this Court has considered the decision in Kishori Mohanlal
Bakshi's case and came to same view that the principle of
'equal pay for equal work' was not an abstract doctrine but
one of substance. Thereafter, this Court observed as fol-
lows:
"The Preamble to the Constitution of the
International Labour Organisation recognises
the principle of 'equal remuneration for work
of equal value' as constituting one of the
means of achieving the improvement of condi-
tions "involving such injustice, hardship and
privation to large numbers of people as to
produce unrest so great that the peace and
harmony of the world are imperilled". Constru-
ing Articles 14 and 16 in the light of the
Preamble and Article 39(d), we are of the view
that the principle 'equal pay for equal work'
is deducible from those Articles and may be
properly applied to cases of unequal scales of
pay based on no classification or irrational
classification though those drawing the dif-
ferent scales of pay do identical work under
the same employer."
513
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 discrimi-
nation within the meaning of Article 14 of the Constitution,
it will be a case of 'equal pay for equal work', as envis-
aged by Article 14 of the Constitution. If the classifica-
tion 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
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for equal work', as envisaged by Article 39(d) of the Con-
stitution, has no manner of application, nor is it enforce-
able in view of Article 37 of the Constitution. Dhirendra
Chamoli v. State of U.P., [1986] 1 SCC 637 is a case of
'equal pay for equal work', as envisaged by Article 14, and
not of the abstract doctrine of 'equal pay for equal work'.
The learned Attorney General has also placed reliance on
some recent decisions of this Court on the question as to
the applicability of the doctrine of 'equal pay for equal
work'. In State of Andhra Pradesh v. G. Sreenivasa Rao,
[1989] 1 JT 615 it has been observed that 'equal pay for
equal work' does not mean that all the members of a cadre
must receive the same pay-packet irrespective of their
seniority, source of recruitment, educational qualifications
and various other incidents of service. In V. Markendeya v.
State of Andhra Pradesh, [1989] 2 JT 108 it is laid down
that on an analysis of the relevant rules, orders, nature of
duties, functions, measure of responsibility and educational
qualifications required for the relevant posts, if the Court
finds that the classification made by the State in giving
different treatment to the two classes of employees is
rounded on rational basis having nexus to the object sought
to be achieved, the classification must be upheld.
In State of U.P. v J.P. Chaurasia, AIR 1989 SC 19 this
Court observed as follows:
"The first question regarding entitlement to
the pay scale admissible to Section Officers
should not detain us longer.
514
The answer to the question depends upon sever-
al factors. It does not just depend upon
either the nature of work or volume of work
done by Bench Secretaries. Primarily it re-
quires among others, evaluation of duties and
responsibilities of the respective posts. More
often functions of two posts may appear to be
the same or similar, but there may be differ-
ence in degrees in the performance. The quan-
tity of work may be the same, but quality may
be different that cannot be determined by
relying upon averments in affidavits of.
interested parties. The equation of posts or
equation of pay must be left to the Executive
Government. It must be determined by expert
bodies like Pay Commission. They would be the
best judge to evaluate the nature of duties
and responsibilities of posts. If there is any
such determination by a Commission or Commit-
tee, the Court should normally accept 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 recommenda-
tions of the Fourth Pay Commission. Normally, when a Pay
Commission has evaluated the nature of duties and responsi-
bilities 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
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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 the
business of this Court to fix the pay-scales in exercise of
its jurisdiction under. Article 32 of the Constitution. It
is really the business of the Government or the management
to fix the pay-scales after considering various other mat-
ters and the Court can only consider whether such fixation
of pay-scales has resulted in an invidious discrimination or
is arbitrary or patently erroneous in law or in fact.
515
The last case that has been relied on by the learned
Attorney General is the decision in Tarsem Lal Gautam v.
State Bank of Patiala, AIR 1989 SC 30. In that case, this
Court held that it was not an instance to which principle of
'equal pay for equal work' could straightaway be applied
inasmuch as the qualitative differences in regard to degrees
of reliability and responsibility could not be put aside as
irrelevant.
So far as the judgments of the Delhi High Court are
concerned, we find that the High Court has taken into con-
sideration the decision of this Court on the doctrine of
'equal pay for equal work'. In one of these judgments in
Civil Writ Petition No. 1376 of 1984 relating to the pay-
scale of the petitioner, who was a Restorer which is equiva-
lent to L.D.C./Junior Clerk, the learned Judges of the Delhi
High Court have held that the principle of 'equal pay for
equal work' would be squarely available to the petitioner,
particularly having regard to the admitted fact that of the
two High Courts in relation to which parity is claimed one
was the predecessor of this Court and the other its succes-
sor. The Delhi High Court before applying the doctrine of
'equal pay for equal work' has come to the finding that if
the Restorers working in the Delhi High Court are given a
pay-scale lower than the Restorers working in the Punjab
High Court, which is a predecessor of the Delhi High Court
and in Himachal Pradesh High Court which is a successor of
the Delhi High Court, it will be discriminatory and viola-
tive of Article 14 of the Constitution. It has been already
stated by us that we are not called upon to consider the
correctness or otherwise of the judgments of the Delhi High
Court, but what we would like to point out is that the Delhi
High Court has not straightaway applied the doctrine of
'equal pay for equal work' as an abstract doctrine, as
envisaged by Article 39(d) of the Constitution.
Elaborate submissions have 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,
516
so far as they relate to salaries, allowances,
leave or pensions, require the approval of the
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President."
Under Article 146(2) the conditions of service of offi-
cers 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 autho-
rised 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 service of the
officers and servants of the Supreme Court, but so long as
Parliament does not lay down such conditions of service, the
Chief Justice of India or some other Judge or officer of the
Court authorised by the Chief Justice of India is empowered
to make rules for the purpose. The legislative function of
Parliament has been delegated to the Chief Justice of India
by Article 146(2). It is not disputed that the function of
the Chief Justice of India or the Judge or the officer of
the Court authorised by him in framing rules laying down the
conditions of service, is legislative in nature. The condi-
tions of service that may be prescribed by the rules framed
by the Chief Justice of India under Article 146(2) will also
necessarily include salary, allowances, leave and pensions
of the officers and servants of the Supreme Court. The
proviso to Article 146(2) puts a restriction on the power of
the Chief Justice of India by providing that the rules made
under Article 146(2) shall, so far as they relate to sal-
aries, allowances, leave or pensions, require the approval
of the President of India. Prima facie, therefore, the
conditions of service of the employees of the Supreme Court
that are laid down by the Chief Justice of India by framing
the rules will be final and conclusive, except that with
regard to salaries, allowances, leave or pensions the ap-
proval of the President of India is required. In other
words, if the President of India does not approve of the
salaries, allowances, leave or pensions, it will not have
any effect. The reason for requiring the approval of the
President of India regarding salaries, allowances, leave or
pensions is the involvement of the financial liability of
the Government.
One important thing that is to be noticed is that under
clause (3) of Article 146 the administrative expenses of the
Supreme Court including all salaries, allowances, leave and
pensions payable to or in respect of the officers and serv-
ants of the Court shall be charged upon the Consolidated
Fund of India. In view of the provision of clause (3), such
administrative expenses shall not be submitted to the vote
of Parliament, as provided in Article 113 of the Constitu-
tion. It is appa-
517
rent that in order to maintain the independence of the
judiciary, the framers of the Constitution thought it wise
and expedient to make such a provision as contained in
clause (3) of Article 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 subordi-
nate legislation, it is not a fullfledged legislative act
requiring assent of the President of India. In this connec-
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tion, we may refer to the statement of law as to the dele-
gated 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 legis-
late. Thus the phrase 'delegated legislation'
covers every exercise of a power to legislate
conferred by Act of Parliament. The phrase is
not a term of art, it is not a technical term,
it has no statutory definition. To decide
whether the exercise of a power constitutes
'delegated legislation' we have to ask whether
it is a delegated power that is being exer-
cised and whether its exercise constitutes
legislation. Clearly an Act, public or pri-
vate. is not delegated: it is primary legisla-
tion. When a minister or other authority is
given power by Act of Parliament to make
rules, regulations etc. the power has been
delegated to him, and insofar as the rules
made by that authority are legislative in
their nature. they comprise delegated legisla-
tion. If the contents of the document (made
under delegated powers) are not legislative
the document will obviously not be a piece of
(delegated) legislation. Ministers and others
are in fact given power to make orders, give
directions, issue approvals and notices etc.
which one would not, because of their lack of
generality. classify as legislative but rather
as administrative ......."
It has been observed in the statement of law that if the
contents
518
of the document made under delegated powers are not legisla-
tive, the document would obviously not be a piece of dele-
gated legislation. Again, it is stated that Ministers and
others are, in fact, given powers to make orders, give
directions, issue approval and notices etc. which one would
not, because of their lack of generality, classify as legis-
lative but rather as administrative. In view of the said
statement of law, it may be contended that the function of
the President of India is not strictly legislative in na-
ture, but an administrative act. We do not think it neces-
sary to come to any final decision on the question and we
propose to proceed on the assumption that the function of
the President of India in approving the rules framed by the
Chief Justice of India relating to salaries, allowances,
leave or pensions is a legislative act.
It is vehemently contended by the learned Attorney
General that as the President of India performs a legisla-
tive act in approving the rules framed by the Chief Justice
of India, no writ can lie to compel him to give the approval
or to withhold the approval. In support of his contention,
reliance has been placed on a decision of this Court in
Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union
Territory, Himachal Pradesh, [1972] 1 SCR 940. In that case,
Hegde, J. speaking 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
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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 pur-
pose 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 .exer-
cise of that power, whether by the legislature
or by its delegate is an exercise of a legis-
lative 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. Simi-
larly no court can direct a subordinate legis-
lative 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
519
enact a particular law. Similarly, when an executive author-
ity exercises a legislative power by way of subordinate
legislation pursuant to the delegated authority of a legis-
lature, such executive authority cannot be asked to enact a
law which he has been empowered to do under the delegated
legislative authority.
The next decision which has been relied on by the
learned Attorney General is the decision in State of Andhra
Pradesh v. T. Gopalakrishnan Murthi, AIR 1976 SC 123. This
case relates to the proviso to Article 229(2) of the Consti-
tution of India. Provision of Article 229(2) including the
proviso thereto is a similar to Article 146(2) and its
proviso. Under Article 229(2), it is the Chief Justice of
the High Court or his delegate who frames rules relating to
the conditions of service of officers and servants of the
High Court. Under the proviso to Article 229(2), if the
rules framed by the Chief Justice of the High Court or his
delegate relate to salaries, allowances, leave or pensions,
it shall require the approval of the Governor of the State.
So far as the two provisos are concerned, while under provi-
so to Article 229(2) the rules relating to salaries, allow-
ances, leave or pensions require the approval of the Gover-
nor of the State, under the proviso to Article 146(2) it
will require the approval of the President of India.
In Gopalakrishnan's case it has been observed that it is
not possible to take the view that merely because the State
Government does not see its way to give the required approv-
al, it will justify the issuance of a writ of mandamus under
Article 226 of the Constitution, as if the refusal of the
State Government was ultra vires or made mala fide and
arbitrarily.
Another case which has been cited and relied upon by the
learned Attorney General in this regard is the decision in
A.K. Roy v. Union of India, [1982] 2 SCR 272. What happened
in that case was that by a Notification the Central Govern-
ment had brought into force all the sections of the Forty-
fourth Amendment act except section 3. The question before
this Court was whether this Court could issue a writ of
mandamus directing the Central Government to bring into
force section 3 of the Fortyfourth Amendment Act. It has
been observed by Chandrachud, C.J. delivering the majority
judgment that a mandamus cannot be issued to the Central
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Government compelling it to bring the provisions of section
3 of the Fortyfourth Amendment Act into force.
On the basis of the principles of law laid down in the above
520
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 pen-
sions 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 Presi-
dent 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 pensions of the officers and
servants of the Supreme Court. The President of India is the
highest dignitary of the State and the Chief Justice of
India also is a high dignitary of the State. Upon a compara-
tive study of some other similar provisions of the Constitu-
tion, we find that under Article 98(3), the President of
India has been empowered to make rules regulating the re-
cruitments and the conditions of service of persons appoint-
ed to the secretarial staff of the House of the People or
the Council of States, after consultation with the Speaker
of the House of the People or the Chairman of the Council of
States, as the case may be. Article 148(5) provides that the
conditions of service of persons serving in the Indian Audit
and Accounts Department and the administrative powers of the
Comptroller and Auditor-General shall be such as may be
prescribed by rules made by the President of India after
consultation with the Comptroller and Auditor-General.
Similarly, the Governor has been empowered under Article
187(3) to make rules regulating the recruitment, and the
conditions of service of persons appointed to the secretari-
al staff of the Assembly or the Council after consultation
with the Speaker of the Legislative Assembly or the Chairman
of the Legislative Council, as the case may be. Thus, it
appears that except in the cases of the officers and serv-
ants of the Supreme Court and those of the High Courts, in
other cases either the President of India or the Governor
has been empowered to frame rules.
So far as the Supreme Court and the High Courts are con-
cerned,
521
the Chief Justice of India and the Chief justice of the
concerned High Court, are empowered to frame rules subject
to this that when the rules are framed by the Chief Justice
of India or by the Chief Justice of the High Court relating
to salaries, allowances, leave or pensions, the approval of
the President of India or the Governor, as the case may, is
required. It is apparent that the Chief Justice of India and
the Chief Justice of the High Court have been placed at a
higher level in regard to the framing of rules containing
the conditions of service. It is true that the President of
India cannot be compelled to grant approval to the rules
framed by the Chief Justice of India relating to salaries,
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allowances, leave or pensions, but it is equally true that
when such rules have been framed by a very high dignitary of
the State, it should be looked upon with respect and unless
there is very good reason not to grant approval, the approv-
al 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 connec-
tion, 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 Gopalakrish-
nan's case (supra). In Gurumoorthy's case, this Court took
the view that the unequivocal purpose and obvious intention
of the framers of the Constitution in enacting Article 229
is that in the matter of appointments of officers and serv-
ants. of a High Court, it is the Chief Justice or his nomi-
nee who is to be the supreme authority and there can be no
interference by the Executive except to the limited extent
that is provided in that Article. The same observation will
apply to the rules framed by the Chief Justice of India
under Article 146(2) of the Constitution.
At this stage, it may be noticed that it has been
conceded by the learned Attorney General that the validity
of the subordinate legislation as provided in Article 146(2)
of the Constitution can be challenged on such grounds as any
other legislative acts can be challenged. So, if the rules
framed by the Chief Justice of India and approved by
522
the President of India relating to the salaries, allowances,
leave or pensions offend against Article 14 or 16, the same
may be struck down by the Court.
In Wade's Administrative Law, Sixth Edition, Page 863 it
is stated as follows:
"Acts of Parliament have sovereign force, but
legislation made under delegated power can be
valid only if it conforms exactly to the power
granted. Even where, as is often the case, a
regulation is required to be approved by
resolutions of both Houses of Parliament, it
still fails on the 'subordinate' side of the
line, so that the court may determine its
validity."
Again, at page 868 it is observed that just as with
other kinds of administrative action, the courts must some-
times condemn rules or regulations for unreasonableness.
Thus a delegated legislation or a subordinate legisla-
tion must conform exactly to the power granted. So far as
the question of grant of approval by the President of India
under the proviso to Article 146(2) is concerned, no such
conditions have been laid down to be fulfilled before the
President of India grants or refuses to grant approval. By
virtue of Article 74(1) of the Constitution, the President
of India shall, in exercise of his functions, act in accord-
ance with the advice of the Council of Ministers. In other
words, it is the particular Department in the Ministry that
considers the question of approval under the proviso to
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article 146(2)of the Constitution and whatever advice is
given to the President of India in that regard, the Presi-
dent of India has to act in accordance with such advice. On
the other hand, the 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, allow-
ances, 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
523
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 ques-
tion of exchange of thoughts and views will arise only when
the Government is not in a position to accept the rules
relating to salaries, allowances, leave or pensions.
It has been already noticed that this Court by its
interim order directed the respondents Nos. 1 and 2 to refer
the question of revision of pay-scales of the Supreme Court
employees to the Fourth Pay Commission pursuant to the
recommendation in that regard by the Five-Judge Committee
and as directed such reference was made. The report of the
Fourth Pay Commission was not sent directly to the Chief
Justice of India, but it came through the Ministry of Fi-
nance, Department of Expenditure, Government of India. It is
significant to note that this is the first time that a
reference has been made to the Pay Commission for the revi-
sion of the pay-scales of the employees of the Supreme
Court. If we are to go strictly by Article 146(2) of the
Constitution, the question of any reference to the Pay
Commission does not arise. The Chief Justice of India has to
frame rules with the aid and assistance of his own officers
and other Judges. The Chief Justice of India may appoint a
Committee of Judges or a Committee of experts for the pur-
pose of assisting him in framing the rules relating to the
conditions of service of the employees of the Supreme Court.
Although there is no such provision in Article 146(2), but
that is implied and it may be said that the reference to the
Fourth Pay Commission was made so that the report or the
recommendations of the Fourth Pay Commission relating to the
revision of the pay-scales of the Supreme Court employees
will be of some assistance to the Chief Justice of India to
frame rules. What should go to the President of India for
his approval under the proviso to Article 146 is not the
report or the recommendation of the Fourth Pay Commission,
but the rules framed by the Chief Justice of India. In
considering the rules framed by the Chief Justice of India
relating to salaries, allowances, leave and pensions, it
will not be the concern of the President of India how and in
what manner the Chief Justice of India has laid down the
rules.
Be that as it may, after the report or recommendation
of the Fourth Pay Commission, was forwarded by the Ministry
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of Finance to the Chief Justice of India, the Registrar
General of the Supreme Court, presumably under the authority
of the Chief Justice of India, by
524
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 accord-
ance with the provision of Article 146(2) of the Constitu-
tion. 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 the instructions of the Chief Justice of
India. The provision of Article 146(2) requires that rules
have to be framed by the Chief Justice of India and if such
rules relate to salaries, allowances, leave or pension, the
same shall require the approval of the President of India.
This procedure was not followed. So, the stage for the
consideration by the President of India as to the question
of granting approval, as required under the proviso to
Article 146(2), had not then reached. Indeed, it is still in
the preliminary stage, namely, that the rules have to be
framed by the Chief Justice of India.
We have also noticed that after the Registrar General's
letter a communication in the form of a letter dated Novem-
ber 23, 2987 was made by the Joint Secretary to the Govern-
ment of India, Ministry of Finance, Department of Expendi-
ture, addressed to the Registrar General. By that letter,
the Registrar General was informed of the sanction of the
President of India to the revised scales as shown in column
4 of the annexure to the said letter in respect of certain
posts. The revised scales of pay, stated to have been sanc-
tioned by the President of India, were at par with the
recommendations of the Fourth Pay Commission. The sanction
of the President of India, as communicated by the said
letter, does not relate to all categories of employees of
the Supreme Court. The most significant fact that should be
taken notice of is that contained in paragraph 5 of the said
letter which is extracted below:
525
"5. The revision of pay scales, for the re-
maining posts in the Supreme Court Registry,
mentioned in Part III of the Report of the
Fourth Central Pay Commission, is separately
under consideration of the Government."
The remaining posts referred to in paragraph 5 includes
,the posts held by Junior Clerks and Class IV employees.
Even assuming ;that the Chief Justice of India had prepared
the rules as per the provision of Article 146(2) of the
Constitution and submitted the same for the approval of the
President of India relating to the salaries, allowances.
leave or pensions, the question of approval of the revision
of payscales of the remaining posts including the posts held
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by the Junior Clerks and Class IV employees, is still under
consideration of the Government. It is curious that although
the question as to the revision of pay-scales of the remain-
ing posts is 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 Arti-
cle 146(2) and, accordingly, the question of granting ap-
proval 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 includ-
ing 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 Court of India consti-
tute a class by themselves totally distinct in the civil
services under the Union and the States, having a totally
distinct personality and a culture, both because of the
nature of the functions assigned to them and because of
their being an integral part of the institution which stands
on a wholly different pedestal. Counsel submits that it is
because of this distinctive function and locational status
of the staff and servants of the Supreme Court that the
Constitution treated them as a class by themselves,
526
apart from the other services under the Union and the States
by providing that unlike other services the Chief Justice of
India and not the President of India or the Governor will
prescribe their service conditions. We have been pressed to
hold that the staff and servants of the Supreme Court con-
stitute a class by themselves having a totally distinct
personality. It is submitted that the pay-scales of the
employees of the Supreme Court shall be fixed on the basis
of their distinct personality, qualifications and the ardu-
ous nature of work performed by them and not by a mere
comparison with the designations of Government employees. In
this connection, our attention has been drawn to the obser-
vation of the Five-Judge Committee. According to the Commit-
tee, the borrowed designations without any attempt at giving
distinct and independent identity to the staff in the Regis-
try of the Supreme Court have led to invidious comparison.
The Committee took the view that no attempt was made to
really ascertain the nature of the work of the employees in
each category of staff and to determine the pay-structure
and then after framing proper rules invite the President of
India to approve the rules under Article 146 of the Consti-
tution. It also appears from paragraph 4.6 of Chapter IV of
Part III of the report of the Fourth Central Pay Commission
that the Commission could not undertake a detailed study of
the job contents and different functions in the Supreme
Court.
On the other hand, it is the contention of the learned
Attorney General that the fact that this Court is the apex
Court where the Judges lay down the law for the country and
whose independence has been ensured by the Constitution
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cannot, in any manner, lead to the conclusion that the
Supreme Court employees should be treated as a separate
class having a distinct and separate identity and that
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 particu-
lar, 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. Krishnama-
chari 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
527
Constitution that they want to create special-
ly favoured bodies which in themselves become
an Imperium in Imperio, completely independent
of the Executive and the legislature and-
operating as a sort of superior body to the
general body politic. If that were so, I think
we should rather chary of introducing a provi-
sion of this nature, not merely in regard to
the Supreme Court but also in regard to the
Auditor-General, in regard to the Union Public
Service Commission, in regard to the Speaker
and the President of the two Houses of Parlia-
ment and so on, as we will thereby be creating
a number of bodies which are placed in such a
position that they are bound to come into
conflict with the Executive in every attempt
they make to superiority. In actual practice,
it is better for all these bodies to more or
less fall in line with the regulations that
obtain in matters of recruitment to the public
services, conditions of promotion and salaries
paid to their staff."
The submission of Dr. B .R. Ambedkar is also
extracted below:
"But it seems to me that there is another
consideration which goes to support the propo-
sition that we should retain the phrase "with
the approval of the President" and it is this.
It is undoubtedly a desirable thing that
salaries, allowances and pensions payable to
servants of the State should be uniform, and
there ought not to be material variations in
these matters with regard to the civil serv-
ice. It is likely to create a great deal of
heart-burning and might impose upon the treas-
ury an unnecessary burden. Now, if you leave
the matter to the Chief Justice to decide, it
is quite conceivable--I do not say that it
will happen--but it is quite conceivable that
the Chief Justice might fix scales of allow-
ances, pensions and salaries very different
from those fixed for civil servants, who are
working in other departments besides the
judiciary, and I do not think that such a
state of things is desirable thing."
Another contention of the learned Attorney General is
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that if the Junior Clerks and the Class IV employees are
given the Punjab scales of pay and the Central D.A., there
would be a heavy financial liability of the Central Govern-
ment. The Junior Clerks and Class IV employees of the Su-
preme Court have already been given the Punjab scales and
the Central D .A. with effect from January 1, 1978 and this
528
has cost the exchequer Rs.2 crores. It is submitted that
other employees of the Supreme Court who have not been given
this benefit as well as all other Central Government employ-
ees including armed forces personnel numbering about 50
lakhs may also demand similar benefit and if they are to be
given the same benefit with effect from 1.1.1978 to
21.12.1985, it would involve an expenditure of Rs.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 Con-
stitution 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 neces-
sary 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 ap-
proval 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."
In view of the said statement, our task has become easy.
It appears from the said statement that the Chief Justice of
India has agreed to prescribe the rules relating to salaries
and allowances in accordance with Article 146(2) of the
Constitution and has further agreed to forward the same to
the President of India for approval and to implement the
same after obtaining the approval of the President of
529
India in terms of the proviso to Article 146(2).
In our opinion, the Chief Justice of India is the proper
authority to consider the question as to the distinctive
nature and personality of the employees of the Supreme
Court, keeping in view the statements made by Shri T.T.
Krishnamachari and Dr. B.R. Ambedkar in course of the de-
bates in the Constituent Assembly on the draft Article 122
which is the same as Article 146 of the Constitution. Fur-
ther, before laying down the pay-structure of the employees
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of the Supreme Court, it may be necessary to ascertain the
job contents of various categories of employees and the
nature of duties which are performed by them. There can be
no doubt that at the time of preparing the rules for pre-
scribing the conditions of service including fixing of the
pay-scales, the Chief Justice of India will consider the
representations and suggestions of the different categories
of employees of the Supreme Court also keeping in view the
financial liability of the Government as pointed out by the
learned Attorney General. All this can be done by the Chief
Justice of India or by some other Judge or officer of this
Court authorised by the Chief Justice of India. The Chief
Justice of India may appoint a Committee of Judges to submit
a report relating to all relevant matters and, thereafter,
the Chief Justice of India may frame rules after taking into
consideration the report of the Committee. It will be abso-
lutely 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. Aggar-
wal have, in particular, drawn our attention to different
pay-scales sanctioned to the employees of the Central Secre-
tariat, Lok Sabha and Rajya Sabha and submit that the Su-
preme 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 the existing
rules relating to salaries and allowances of
530
the Supreme Court employees and forward the same to the
President of India for his approval.
The parties are directed to maintain status quo as
regards the scales of pay, allowances and interim relief, as
on this day, till the framing of the rules by the Chief
Justice of India and the consideration by the President of
India as to the grant of approval of such rules relating to
salaries, allowances, leave or pensions, and the interim
orders passed by this Court will also continue till such
consideration by the President of India. All the Writ Peti-
tions and the Civil Miscellaneous Petitions are disposed of
as above. There will, however, be no order as to costs in
any of them.
THOMMEN, J. I agree with the judgment of my learned
brother, M.M. Dutt, J. I add the following observations with
particular reference to the scope and ambit of clause (2) of
Article 146 of the Constitution of India.
This Court has, by order dated 25.7.1986, directed, in
the present proceedings, that the officers and servants of
the Supreme Court should be placed on the same scales of pay
as in the case of the staff of the Delhi High Court. To the
employees of this Court not falling within any of the cate-
gories of employees corresponding to those of the Delhi High
Court, this Court directed payment of a sum equal to 10 per
cent of their basic pay subject to a minimum of. Rs.50 per
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month.
Counsel appearing for the petitioners in these cases
submit that the interim orders of this Court which were made
with a view to introducing parity between the employees of
this Court and those of the Delhi High Court in regard to
pay scales must be made absolute, without prejudice to the
claim of the employees of this Court to be placed on a
higher scale of pay than the employees of the Delhi High
Court by reason of their more arduous duties and responsi-
bilities and functional and locational distinctions. The
Fourth Central Pay Commission (the "Pay Commission"), coun-
sel point out, had ignored the legitimate claims of the
officers and servants of the Supreme Court.
It is contended on behalf of the Government that it has
issued sanction to implement the recommendations of the Pay
Commission, and all categories of employees of this Court
have benefited by the recommendations except those belonging
to Classes III and IV. Employees of those two Classes,
constituting about 60 per cent of the
531
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, notwithstand-
ing the revised pay scales recommended by the Pay Commis-
sion, because of the interim orders of this Court in the
present proceedings. The Attorney General contends that the
Punjab pay scales of Rs.400600 in the case of Class III
employees and Rs.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 Punjab pay scales with the Central D.A. The
decision of the Delhi High Court, although final being res
judicata between the parties, is based on wrong reasoning
and cannot, therefore, form a legitimate basis for paying
the Class III and Class IV employees of this Court the
Punjab pay scales and the Central D.A. Their legitimate
entitlement is to the Central Pay scales with the Central
D .A. This has been recommended by the Pay Commission.
Referring to the Delhi High Court employees, the Attor-
ney General, in his written submissions, points out:
"His counterpart in the Punjab High Court
enjoyed higher scale of pay but lesser allow-
ances than he, because the D.A. upto 1978 had
been merged with pay scales of employees of
the Punjab High Court by taking into account
the higher price index of 320 as on 1.1. 1978
whereas the Delhi High Court employees' pay
scales had been fixed as on 1.1. 1973 by
linking to price index of 200 but giving him
D.A. for the higher price index of the differ-
ence between 200 and 320."
This contention of the Attorney General is sought to be
met by counsel appearing for the Class IV Employees' Associ-
ation in his written submissions in the following words:
"The Delhi High Court in Kamalanand's case has
decided that the Class IV employees of that
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court will get Punjab
532
pay scales and Central D.A. It is submitted
that D.A. has relationship with the place and
not with the scale. As the Delhi High Court
happens. to be located in Delhi it is the
Delhi D.A. which is Central D A. which will
apply and the same will be the position of the
Supreme Court employees who are also in
Delhi."
The Attorney General refutes the petitioners' contention
that the Supreme Court employees, by virtue of the special
nature of their work or locational or institutional distinc-
tion, can legitimately claim higher scales of pay than those
applicable to corresponding categories of employees in other
sectors of public life. Any such contention, the Attorney
General points out, is contrary to the intent of the Consti-
tution makers. The fact that the Delhi High Court has, on a
mistaken assumption of law and fact, directed payment to its
employees on the basis of Punjab scales of pay with Central
D.A. does not justify repetition of the same mistake in
respect of other employees, for two wrongs never make a
right. To perpetuate any such error, he 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 of
533
the Supreme Court Registry and submit a sepa-
rate report in this respect to the Chief
Justice of India."
Pursuant to the above suggestions and the decision taken
thereon, the Government amended; the terms of reference of
the Pay Commission to include officers and employees of the
Supreme Court of India. A. copy of the Report of the Commit-
tee of Judges was made available to the Pay Commission. The
Committee of Judges had pointed out the functional differ-
ences between the Central Secretariat Services and the
Service in the Registry of the Supreme Court. The Pay Com-
mission visited the Registry of the Supreme Court to famil-
iarise themselves with the nature of the work in the Court.
They say:
"The Judges Committee had observed that the
pay structure for the Supreme Court employees
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should be devised keeping in view the inde-
pendent identity of tile Registry of the Su-
preme Court, in evolving the pay structure,
the workload, skill, educational qualifica-
tions, responsibilities and duties of various
categories of posts in the Registry need to be
taken into account. We considered it necessary
to collect information about these matters by
a small team comprising officers from the
Secretariat of the Commission' and the Regis-
try of the Supreme Court. The team spent a
number of days visiting various sections in
the Registry for a proper understanding of the
work of different functionaries. They had
discussions with the concerned staff and the
officers in charge of the sections and also
observed in, detail the work being performed
by different task holders. The work done by
the team of officers within the short: time
available and our own visit proved very
useful in acquainting ourselves with the role
and functions of the personnel in the Supreme
Court Registry. While it has not been
possible for us to undertake a detailed study,
of the job contents of different functionaries
in the Supreme Court, we have examined the
duties and responsibilities of various catego-
ries of posts with the help and assistance
of senior officials of the Supreme Court."
(emphasis
supplied)
This observation of the Pay Commission shows that while
an earnest attempt had been made by them to study the dis-
tinctive characteristics of the job contents of the Supreme
Court employees at
534
various levels, and they had borne in mind the observations
of Judges' Committee as regards the independent 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 func-
tionaries 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 work being dissimilar. If a proper compari-
son is possible, they say, the Supreme Court employees must
be compared with the employees of the Delhi High Court. It
would be an anomaly, and a source of discontent, if the
Supreme Court employees are not paid at least as much as, if
not better than, what the employees of the Delhi High Court
are paid. The fact that the judgment of the Delhi High
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Court, pursuant to which the employees of that court are
placed on a higher scale of pay, may be regarded as wrong in
law and fact does not make any difference because those
judgments have become final and binding, and consequently
the employees of the Delhi High Court, in the absence of any
law made by the legislature to the contrary, are entitled to
be paid according to the Punjab scales of pay and the Cen-
tral D.A. It is neither just nor fair, they say, to deny the
Supreme Court employees at least the same salary scale as is
now current in respect of the Delhi High Court employees.
In the written submissions on behalf of the Assistant
Registrars and Deputy Registrars, it is pointed out that the
recommendations of the Pay Commission have resulted in their
being subjected to invidious discrimination vis-a-vis the
Section Officers. It is further contended that there is no
justification to place these two categories of Officers on a
lower scale of pay than what is applicable to the Under
Secretaries and Deputy Secretaries in the Secretariat of the
Lok Sabha or the
535
Rajya Sabha. They contend that the Pay Commission, in view
of the admitted constraint of time, did not make an exhaus-
tive and proper study of the nature of the functions per-
formed by different categories of employees of the Supreme
Court Registry in comparison to those working in the Central
Government Secretariat and that of the Lok Sabha and the
Rajya Sabha.
These are weighty arguments and they require thorough
investigation. In this connection, reference may be made to
Part II, Chapter I, of the Report of the Committee of Judges
stating that despite the functional distinctions, no attempt
had been made to provide a separate and distinct identity to
the ministerial staff of the Supreme Court Registry. The
Committee pointed out that even the designations of various
posts had been borrowed from the Central Secretariat Service
with marginal modifications. So stating the Committee ob-
served:
"These borrowed 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 ac-
cepted 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 ascertain the
nature of work of an employee in each category of staff and
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determine the pay structure and then after framing proper
rules invite the President to approve the rules under Art.
146 of the Constitution."
The Committee further pointed out:
536
"Equal pay for equal work postulates scientific determina-
tion of principles of fair comparison and primarily it must
be functional and not by designation because a comparison by
designation is more often misleading ..... not the slight-
est attempt has been made to compare the workload, skill,
educational qualification, responsibilities and duties of
various categories of posts in the Registry."
The Committee concluded:
"Art. 146(2) casts a duty on the Chief Justice of India to
frame rules for determining the conditions of service of
officers and servants of the Supreme Court. This is undoubt-
edly subject to the provisions of any law that may be made
by Parliament but so far none has been made. This power
conferred on the Chief Justice of India precludes and pro-
hibits the Central Government from undertaking any exercise
unless the Parliament enacts a law on the subject to deter-
mine conditions of service of officers and staff of the
Supreme Court. Whenever therefore the Central Government
decides to set up a Pay Panel for revising the pay structure
of the Central Government staff, the terms of reference do
not include the officers and servants of the Supreme Court.
As a necessary corollary they cannot appear before the Pay
Panel because their case is not covered by the terms of
reference of the Pay Panel. However, when the Pay Panel
completes its task and submits its recommendations and the
Govt. after accepting the recommendations devises a revised
pay structure, the same is bodily applied to the staff of
the Supreme Court of India by comparison by designation.
Consequently the staff of the Supreme Court of India without
any opportunity to influence the thinking of the Pay Panel
by its representations and submissions has the unenviable
misfortune of being bound by the recommendations of the Pay
Panel." (emphasis supplied)
For these reasons the Committee of Judges recommended
that in order to assist the Chief Justice in making the
rules under Article 146, either a Committee of Judges and
experts should be appointed to devise a fair pay structure
for the staff of the Supreme Court or refer the whole ques-
tion to the Pay Commission for theft recommendations. It is
pursuant to the recommendations of the Committee of Judges
that
537
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 Cen-
tral Government a detailed letter pointing out various
anomalies and difficulties if the recommendations of the Pay
Commission were implemented. He pointed out that implementa-
tion 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 cate-
gories. 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
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to the Judges of this Court. This is what is stated on the
point by Shri S. Ghosh, Additional Registrar, in his affida-
vit sworn on 3rd March, 1989:
"That except the enhancement of the salaries of the Private
Secretaries of the Judges of the Supreme Court of India, the
rest of the anomalies and infirmities as pointed out by the
Registrar General, on behalf of the Chief Justice of India
were not appreciated by the Ministry of Finance and the pay
'scales recommended by the Registrar General in respect of
various cadres on behalf of the Chief Justice of India were
not approved as those recommended by the Pay Commission were
sanctioned."
In the light of these facts, which my learned brother,
Dutt, J. has discussed more elaborately, I must now examine
the scope and ambit of Article 146 of the Constitution of
India so far as it concerns the salaries, allowances, leave
or pensions of the officers and servants of this Court. The
relevant portion of this Article is clause (2) which reads:
"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:
538
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."
It is clear from clause (2) that, subject to the provisions
of any law made by Parliament, the conditions of service of
officers and servants of the Supreme Court are governed by
rules made by the Chief Justice of India or by some other
Judge or officer of the Court duly authorised by him. Howev-
er, these rules, to the extent that they relate to the
salaries, allowances, leave or pensions, require the approv-
al of the President of India. These provisions, albeit
subject to the abovesaid conditions, are intended to protect
the special position of the Court. Rules were made in this
regard by the Chief Justice of India with the approval of
the President of India and they are contained in Part II of
the Supreme Court Officers' and Servants' (Conditions of
Service and Conduct) Rules, 1961 as amended upto 16th Decem-
ber, 1985. No amendment of these Rules has been made subse-
quent to 1985 and consequently the Rules do 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 responsi-
bility 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 con-
cerned with this category of employees because of the spe-
cial 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 Commis-
sion themselves to whom a reference was made by the Govern-
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ment pursuant to the recommendations of the Judges' Commit-
tee. The cardinal function of the Pay Commission, while duly
acting in connection with the employees of the Supreme
Court, is to render effective assistance to the Chief Jus-
tice of India to discharge his responsibility of formulating
rules under Article 146(2). This is the first step towards
the final adoption of the rules governing the conditions of
service in relation to salaries, allowances, etc. It is only
by
539
formulating specific rules in that respect can the President
(that means the Government of India) exercise the mind over
the question and approve or disapprove the rules. The ap-
proval of the President follows the making of the rules, and
unless and until rules are made by the Chief Justice of
India specifically in regard to salaries, allowances, etc.,
the President, acting as a constitutional authority, does
not and cannot exercise the power of granting or refusing
approval. Similar provisions are contained in the Constitu-
tion in relation to the High Court (see Article 229). These
constitutional requirements are not an empty formality, but
are prescriptions required to be strictly complied with to
insulate the judiciary from undue executive interference
with a view to according it, subject to any law made by the
competent legislature, a special position of comparative
independence in accordance with the fundamental constitu-
tional scheme of maintaining a harmonious balance between
the three organs of State. [See M. Gurumoorthy v. Accountant
General Assam & Nagaland & Ors., [1971] Suppl. SCR 420,429].
In the present case, as stated earlier, no rules have
been so far made with reference to the recommendations of
the Pay Commission or with reference to the pay scales of
the Delhi High Court employees, which have been extended to
the Class III and Class IV employees of this Court, pursuant
to the interim orders of this Court, and consequently the
disapproval of the Registrar General's proposals was not an
exercise of power by the constitutional authority in terms
of clause (2) of Article 146. That this is the correct
position is not seriously disputed by any party to the
present proceedings. The Attorney General does not dispute
that rules have not been so far made by the Chief Justice of
India, although certain suggestions had been received from
the Registrar General by the concerned Ministry. A 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 recom-
mendations 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
540
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 statu-
tory instruments, they are subordinate to the parent law.
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The power of the President under the proviso to clause (2)
of Article 146 to approve or disapprove the rules made by
the Chief Justice of India (relating to salaries, allowances
etc.) is likewise legislative in character. It is the ap-
proval of the President that stamps such rules, so far as
they relate to salaries, allowances, etc,, with the authori-
ty of subordinate legislation. The making of the rules by
the Chief Justice of India in that respect is a step--indeed
a vital step--in the process of law making, but they assume
the character of subordinate legislation only on their
approval by the President.
The Attorney General strenuously contended that the
power of the President under the proviso to clause (2) of
Article 146 to grant or refuse approval tantamounts to a
legislative function comparable in its nature, ambit and
quality to the President's power under Article 111 to assent
to, or withhold assent from, a Bill passed by the Houses of
Parliament, and consequently his actions in that regard are
beyond judicial review. No court can, he says, sit in judg-
ment over the validity or correctness or reasonableness of
the President's act of approval or disapproval of the rules.
This comparison of the President's power under Article 146
with his power under Article 111 is, with great respect to
the Attorney General, misplaced.
The power of the President under Article 111 is primary
and plenary and not delegated and subordinate. He exercises
legislative power under Article 111 in his capacity as a
part of the legislature (see Article 79) and not as a dele-
gate. On the other hand, he acts as a delegate when he acts
under the proviso to Article 146(2). This power is no doubt
legislative in character, but subordinate in quality and
efficacy. The Constitution envisages that the President is
not only a part of the legislature, but he is also the
ultimate repository of the executive power of the Union (see
Article 53(1). It is in the latter capacity that the Presi-
dent acts as a delegate. In the exercise of this function,
he does not assume the mantle of the legislature, but func-
tions as the head of the executive to whom the Constitution
has delegated specific legisla-
541
tive power to make subordinate legislation. This power is
limited by the terms, and subordinate to the objects, of
delegation. On the advice of his Council of Ministers, the
President grants or refuses approval 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 constitu-
tional conferment of power. They must in this regard neces-
sarily 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 delega-
tion is as much justiciable or reviewable upon the same
grounds and to the same extent as in the case of any statu-
tory instrument. The fundamental question in determining
whether the exercise of power by an authority is subject to
judicial review is not whether the source of his power is
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the Constitution or a statute, but whether the subject
matter under challenge is susceptible to judicial review.
Pure questions of facts or questions which cannot be decided
without recourse to elaborate evidence or matters which are
generally regarded as not justiciable--such as, for example,
those relating to the conduct of the external affairs or the
defence of the nation--are not amenable to judicial review.
See in this connection the principle enunciated in C.C.S.U.
& Ors. v. Minister for the Civil Service, [1984] 3 All E.R.
935,948,950.
Rules made under Article 146 being subordinate legisla-
tion do not partake of the character of ordinances which are
legislation in the true sense for the limited period of
their operation, K. Nagaraj & Ors. v. State of A.P. & Anr.,
[1985] I SCC 523; 548; A.K. Roy v. Union India. [1982] 1 SCC
271, 291 and R.K. Garg v. Union of India, [1981] 4 SCC
675,687. While ordinances cannot perhaps be questioned on
any ground which is not relevant to the validity of legisla-
tion, it is not so in the case of rules made by virtue of
power granted under the Constitution which are, as stated
above, liable to be declared void for any of the reasons for
which instruments made by virtue of delegation by Acts of
Parliament can be declared void. Rules, whether made under
the
542
Constitution or a statute, must be intra vires the parent
law-under which power has been delegated. They must also be
in harmony with the provisions of the Constitution and other
laws. If they do not tend in some degree to the accomplish-
ment of the objects for which power has been delegated to
the authority, courts will declare them to be unreasonable
and, therefore, void.
There is indeed a higher degree of presumption of con-
stitutionality in favour of subordinate legislation than in
respect of administrative orders. This.is especially the
case where rules are made by virtue of constitutional con-
ferment of power. Rules made directly under the Constitution
may have in a certain sense greater legislative efficacy
than rules made under a Statute; within the field demarcated
by the Constitution, the former can, if so provided, operate
retrospectively. These rules are, of course, as in the case
of all statutory instruments, controlled by the Constitution
and the laws: see K. Nagaraj v. State of A.P., (supra); Raj
Kumar v. Union 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 predi-
cated 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 with the
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rights of those subject to them as could find no justifica-
tion in the minds of reasonable men, the Court might well
say, "Parliament never intended to give authority to make
such rules; they are unreasonable and ultra vires."
543
In Union of India & Anr. v. Cynamide 'India Ltd. &
Anr., [1987] SCC 720, 734 Chinnappa Reddy, J. observed that
price fixation being a legislative activity, it was:
"neither the function nor the forte of the court. We concern
ourselves neither with the policy nor with the rates. But we
do not totally deny ourselves the jurisdiction to enquire
into the question, in appropriate proceedings, whether
relevant considerations have gone in and irrelevant consid-
erations kept out of the determination of the price."
(emphasis supplied)
In S.I. Syndicate Ltd. v. Union of India, AIR (1975) SC
460 this Court stated:
"Reasonableness, for purposes of judging whether there was
an 'excess of power' or an 'arbitrary' exercise of it, is
really the demonstration of a reasonable nexus between the
matters which are taken into account in exercising a power
and the purposes of exercise of that power."
In P.C.S. Mills v,. Union of India, AIR (1973) SC 537, this
Court, referring to statutory fixation of fair price, stat-
ed:
"... But this does not mean that Government can fix any
arbitrary price or a price fixed on extraneous considera-
tions or such that it does not secure a reasonable return on
the capital employed in the industry. Such a fixation would
at once evoke a challenge, both on the ground of its being
inconsistent with the guidelines build in the sub-section
and its being in contravention of Arts. 19(1)(f) and (g)."
(emphasis supplied)
See also observation to the same effect in Shree Meenakshi
Mills v. Union of India, AIR 1974 SC 366.
Any arbitrary exercise of power by a public authority,
whether or not it is in the nature of subordinate legisla-
tion, is liable to be condemned as violative of Article 14.
As stated in E.P. Royappa v. State of Tamil Nadu, AIR 1974
SC 555:
" ..... equality and arbitrariness are sworn enemies; one
belongs to the rule of law in a republic while the other, to
544
the whim and caprice of an absolute monarch ..."
See also Maneka Gandhi v. Union of India, AIR 1978 SC 597
Ajay Hasia v. Khalid Mujib, AIR (1981) SC 485 and D.S.
Nakara v. Union of India, AIR 1983 SC 126.
An 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 unreasona-
bleness: 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 irrele-
vant grounds, etc. As stated by Lord Magnaghten in Westmin-
ster 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 Corpora-
tion must take care not to exceed or abuse its powers. 1t
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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 ...."
This principle was restated by this Court in Barium Chemi-
cals Ltd. v. Company Law Board, AIR 1967 SC 295;
" .... Even if (the statutory order) is passed in good
faith and with the best of intention to further the purpose
of the legislation which confers the powers, since the
Authority has to act in accordance with and within the
limits of that legislation, its order can also be challenged
if it is beyond those limits or is passed on grounds extra-
neous to the legislation or if there are no grounds at all
for passing it or if the grounds are such that no one can
reasonably arrive at the opinion or satisfaction requisite
under the legislation. In any one of these situations it can
well be said that the authority did not honestly form its
opinion or that in forming it, it did not apply its mind to
the relevant facts.
545
The true position thus appears to be that, just as in
the case of an administrative action, so also in the case of
subordinate legislation (whether made directly under the
Constitution or a Statute), its validity is open to question
if it is ultra vires the Constitution or the governing Act
or repugnant to the general principles of the laws of the
land or it is so arbitrary or unreasonable that no fair
minded authority could ever have made it. See the test
adopted by Lord Russet in Kruse v. Johnson, [1898] 2 Q.B. 91
and by Lord Greene M.R. in Associated Provincial Picture
Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223.
See also Mixnam Properties Ltd. v. Chertsey U.D.C., [1965]
AC 735; Commissioners of Customs and Excise v. Cure and
Deeley Ltd., [1962] 1 Q.B. 340; Meeldowney v. Forde, [1971]
AC 632; Carltona Ltd. v. Commissioners of Works and others,
[19431 2 All E.R. 560, 564; Point of Ayr. Collieries Ltd. v.
Lloyd George, [1943] 2 All E.R. 546; Scott v. Glasgow Corpo-
ration, [1899] AC 470, 492; Robert Baird L.D. and others v.
City of Glasgow, [1936] AC 32, 42; Manhattan General Equip-
ment Co. v. Commissioner, [1935] 297 US 129, 134; Yates
(Arthur) & Co. Pty. Ltd. v. Vegetable Seeds Committee,
[1945-46] 72 CLR 37; Bailey v. Conole, [1931] 34 W.A.L.R.
18; Boyd Builders Ltd. v. City of Ottawa, [1964] 45 D.L.R.
(2d) 211; Re Burns and Township of Haldimand, [1966] 52 DLR
(2d) 101 and Lynch v. Tilden Produce Co., 265 U.S. 315,320-
322.
Even if it were to be assumed that rules made by virtue
of power granted by a provision of the Constitution are of
such legislative efficacy and amplitude that they cannot be
questioned on grounds ordinarily sufficient to invalidate
the generality of statutory instruments, they are neverthe-
less liable to be struck down if found to be intrinsically
arbitrary or based on an irrational classification or other-
wise 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 arbi-
trariness 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 simi-
larly situate and it must not be guided by any extraneous or
irrelevant considerations because that would be denial of
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equality. Where the operative reason for State action, as
distin-
546
guished from motive inducing from the antechamber of the
mind, is not legitimate and relevant but is extraneous and
outside the area of permissible considerations, it would
amount to malla fide exercise of power and that is hit by
Articles 14 and 16. Mala fide exercise of power and arbi-
trariness are different lethal radiations emanating from the
same vice; in fact the latter comprehends the former. Both
are inhibited by Articles 14 and 16."
These are some of the general principles which must
guide the repository of power in all his actions. They apply
with equal force to the exercise of power contemplated under
Article 146(2), including its proviso. These principles
must, therefore, necessarily weigh with the court whenever
the action of a constitutional or statutory authority is
under challenge. These principles are, however, subject, as
stated earlier, to the overriding consideration as to the
amenability of the impugned subject matter to judicial
review. That of course is a question which must in each
case, when challenged, be decided by the court with refer-
ence to the facts in issue.
As stated earlier, the constitutional process envisaged
under Article 146(2) has not been completed. Initial steps
had indeed been taken in that regard and to that end. Con-
stituting the Committee of Judges and their suggestion to
refer the question to the Pay Commission, the decision to
refer the matter to the Pay Commission, the recommendations
of the Pay Commission, and, consideration of the same by the
Registrar General and his letter to the Government contain-
ing certain suggestions, form the components of a link in
the chain leading to the ultimate end; but they are not
themselves the ultimate end, which means the making of the
rules by the Chief Justice and submitting the same to the
President for approval, and the final decision of the.
President in that behalf. The Registrar General's letter and
the Government's reaction to that letter were at best only
the process of consultation preceding the rule making act.
The ultimate authority in this regard being the Chief
Justice of India, he alone is competent to make, or autho-
rise the making of the rules. Until the rules are made by
him (or by a Judge or officer of the court authorised by
him), the question of approval or disapproval by the Presi-
dent does not arise. In making the rules, the Chief Justice
would no doubt take into account the recommendations of the
Pay Commission or of any other body or experts he may have
consulted. He will also take into account the objections
raised by the Government
547
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
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or not he would grant approval, and, without undue delay,
come to a decision on the point: See Aeltemesh Rein, Advo-
cate 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.
The approval of the President is not a matter of mere
formality. It would, of course, be wrong to say that in no
case can the President, which means the Government, refuse
to accord approval. However, once the rules are duly framed
by so high a constitutional dignitary as the Chief Justice
of India, it will only be in the truly exceptional cases
that the President would withhold assent. It is but proper
and appropriate that, in view of the spirit of the constitu-
tional provision, approval would be accorded in all but the
exceptional cases: see the observations of this Court in
State of Andhra Pradesh & Anr. v. T. Gopalakrishna Murthi &
Ors., [1976] 1 SCR 1008. In this connection the observation
of Mukharji, J. in State of U.P. & Ors. v. Renusagar Power
Co. & Ors., [1988] 4 SCC 59, 104 is apposite:
"The exercise of power whether legislative or administrative
will be set aside if there is manifest error in the exercise
of such power or the exercise of the power is manifestly
arbitrary. Similarly, if the power has been exercised on a
non-consideration or non-application of mind to relevant
factors the exercise of power will be regarded as manifestly
erroneous. If a power (whether legislative or administra-
tive) is exercised on the basis of facts which do not exist
and which are patently erroneous, such exercise of power
will stand vitiated."
548
We place on record the statement made by the Registrar
General 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
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.
In the circumstances, no further order is required in
the present proceedings', apart from directing that, until
rules are properly made by way of amendments to the existing
rules in accordance with Article 146 of the Constitution,
the interim orders of this Court dated 25.7.1986, 14.8.1986
and 15.1.1987 shall remain in full force and the status quo
as on this day as regards pay and allowances shall be main-
tained. Accordingly, I agree that there shall be a direction
as stated by my learned brother in the final paragraph of
his judgment.
Y. Lal. Petitions Disposed of.
549
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