Supreme Court Employees' Welfare Association v. Union Of India And Another

Per Thommen, J. (concurring)

While framing the rules under Article 146(2), the Chief Justice must necessarily act on the basis of data made available to him by persons he might in that regard appoint, or, as has been done in the present case, by the Pay Commission themselves to whom a reference was made by the Government pursuant to the recommendations of the Judges’ Committee. 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 Justice of India to discharge his responsibility of formulating rules under Article 146(2). Whatever has been done till now form the components of a link in the chain leading to the ultimate end; but they are not themselves the ultimate end. It is only by formulating specific rules in that respect can the President (that is the Government of India) exercise the mind over the question and approve or disapprove the rules. Similar provisions are contained in Article 229 in relation to the High Court. These constitutional requirements are mandatory meant to insulate the judiciary from undue executive interference and according it a special position of comparative independence in the fundamental constitutional scheme of maintaining a harmonious balance between the three organs of State. 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 the Supreme 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.

(Paras 92, 93 and 108)

The Chief Justice of India, by virtue of the constitutional grant, exercises legislative power when he makes rules under Article 146(2). Those rules are in the nature of subordinate legislation having the force of law to the extent, and subject to the conditions, prescribed by the Constitution. Like all statutory instruments, they are subordinate to the parent law. The power of the President under the proviso to clause (2) of Article 146 is likewise legislative in character. It is the approval of the President that stamps such rules, so far as they relate to salaries, allowances, etc., with the authority of subordinate legislation. The making of the rules by the Chief Justice of India in that respect is indeed a vital step in the process of law-making.

(Para 94)

However, the power of the President under proviso to Article 146(2) is not comparable in its nature, ambit and quality to the President's power under Article 111 which is primary and plenary and not delegated and subordinate. The President under Article 111 acts as a part of the legislature. On the other hand, he acts as a delegate in the capacity of the executive head under the proviso to Article 146(2). This power though legislative in character is subordinate in quality and efficiency. Thus, both the Chief Justice and the President act as delegates by virtue of the constitutional conferment of power. They must in this regard necessarily act in good faith, reasonably, intra vires the power granted, and on relevant consideration of material facts.

(Paras 95 and 96)

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. But the President must, upon submission to him of the Rules made by the Chief Justice of India under Article 146(2), exercise his mind as to whether or not he would grant approval, and, without undue delay, come to a decision on the point. Once the rules are duly framed by so high a constitutional dignitary as the Chief Justice of India, it is but proper and appropriate that, in view of the spirit of the constitutional provision, approval would be accorded in all but the exceptional cases.

(Paras 110 and 111)

Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory, H.P, (1971) 2 SCC 747 : (1972) 1 SCR 940; State of Andhra Pradesh v. T. Gopalakrishnan Murthi, (1976) 2 SCC 883 : 1976 SCC (L&S) 363 : AIR 1976 SC 123; A.K Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152 : (1982) 2 SCR 272; Aeltemesh Rein, Advocate, Supreme Court of India v. Union of India, (1988) 4 SCC 54; State of U.P v. Renusagar Power Co., (1988) 4 SCC 59, relied on

But the fact that the power exercised by the Chief Justice of India or the President under Article 146(2) is derived directly from the Constitution, and not from a statute makes no difference to the power of judicial review by a competent court. Any action taken or refusal to act on the strength of power derived directly by constitutional delegation is as much justiciable or reviewable upon the same grounds and to the same extent as in the case of any statutory instrument. The fundamental question is not whether the source of his power is 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. The amenability of the impugned subject-matter to judicial review, must in each case, when challenged, be decided by the court with reference to the facts in issue.

(Paras 97 and 107)

C.C.S.U v. Minister for the Civil Service, (1984) 3 All ER 935, referred to

A.K Roy v. Union of India, (1982) 1 SCC 271 : 1982 SCC (Cri) 152 : (1982) 2 SCR 272; K. Nagaraj v. State of A.P, (1985) 1 SCC 523 : 1985 SCC (L&S) 280; R.K Garg v. Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30, relied on

There is a higher degree of presumption of constitutionality in favour of subordinate legislation than in respect of administrative orders. This is especially the case where rules are made by virtue of constitutional conferment 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.

(Para 99)

Raj Kumar v. Union of India, (1975) 4 SCC 13 : 1975 SCC (L&S) 198; B.S Vadera v. Union of India, AIR 1969 SC 118 : (1968) 3 SCR 574 : (1970) 1 LLJ 499, relied on

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.

(Para 100)

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. If the rules do not tend in some degree to the accomplishment of the objects for which power has been delegated to the authority Court will declare them to be unreasonable and therefore, void. This is so 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.

(Paras 98, 105 and 106)

Kruse v. Johnson, (1898) 2 QB 91 : 67 LJQB 782 : 78 LT 647; Union of India v. Cynamide India Ltd., (1987) 2 SCC 720; Sarswati Industries Syndicate Ltd. v. Union of India, (1974) 2 SCC 630 : AIR 1975 SC 460; Panipat Cooperative Sugar Mills v. Union of India, (1973) 1 SCC 129 : AIR 1973 SC 537; Shree Meenakshi Mills v. Union of India, (1974) 1 SCC 468 : AIR 1974 SC 366; E.P Royappa v. State of T.N, (1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555; Maneka Gandhi v. Union of India, (1977) 1 SCC 248 : AIR 1978 SC 597; Ajay Hasia v. Khalid Mujib, (1981) 1 SCC 722 : AIR 1981 SC 485; D.S Nakara v. Union of India, (1983) 1 SCC 305 : AIR 1983 SC 126; Aeltemesh Rein v. Union of India, (1988) 4 SCC 54, relied on

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 unreasonableness. Power is exercised in bad faith where its repository is motivated by personal animosity towards those who are directly affected by its exercise. Power is no less abused even when it is exercised in good faith, but for an unauthorised purpose or on irrelevant grounds, etc.

(Para 105)

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1947) 2 All ER 680; Westminster Corporation v. London and North Western Railway, 1905 AC 426; Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295, relied on

These principles must necessarily weigh with the court whenever the action of a constitutional or statutory authority is under challenge. These principles are, however, subject to the overriding consideration as to the amenability of the impugned subject-matter to judicial review.

(Para 107)

Constitution of India — Articles 39(d) and 14 and 32 — “Equal pay for equal work” — Enforceability of principle of — Not enforceable as an abstract doctrine under Article 39(d) but enforceable when violation of Article 14 is demonstrated — Normally court would not interfere with executive decision and fix pay scales under Article 32 unless it is shown to be violative of Article 14

Held :

Per Dutt, J. (Thommen, J., concurring)

Although the doctrine of “equal pay for equal work” does not come within Article 14 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 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work. Where unequal pay has brought about a discrimination within the meaning of Article 14, it will be a case of “equal pay for equal work”, as envisaged by Article 14. If the classification is proper and reasonable and has a nexus to the object sought to be achieved, the doctrine of “equal pay for equal work”, will not have any application even though the persons doing the same work are not getting the same pay. Normally, when a Pay Commission has evaluated the nature of duties and responsibilities of posts and has also made the equation of posts, the court should not interfere with the same. It is not the business of the Court to fix the pay scales in exercise of its jurisdiction under Article 32. It is for the Government or the management to fix the pay scales after considering various other matters 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. The Delhi High Court in the judgments relating to pay of its employees has not straightway applied the doctrine of “equal pay for equal work” as an abstract doctrine, as envisaged by Article 39(d).

(Paras 38, 41, 42 and 44)

Kishori Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139 : (1962) 44 ITR 532; State of Punjab v. Joginder Singh, AIR 1963 SC 913 : 1963 Supp 2 SCR 169; Randhir Singh v. Union of India, (1982) 1 SCC 618 : 1982 SCC (L&S) 119; State of Andhra Pradesh v. G. Sreenivasa Rao, (1989) 2 SCC 290 : 1989 SCC (L&S) 339 : (1989) 10 ATC 61; V. Markendeya v. State of Andhra Pradesh, (1989) 3 SCC 191; State of U.P v. J.P Chaurasia, (1989) 1 SCC 121 : 1989 SCC (L&S) 71 : (1988) 8 ATC 929; Umesh Chandra Gupta v. Oil and Natural Gas Commission, 1989 Supp (1) SCC 584 : AIR 1989 SC 29; Tarsem Lal Gautam v. State Bank of Patiala, (1989) 1 SCC 182 : 1989 SCC (L&S) 139 : AIR 1989 SC 30, referred to

Dhirendra Chamoli v. State of U.P, (1986) 1 SCC 637 : 1986 SCC (L&S) 187, explained

Constitution of India — Articles 226 and 136 — Res judicata — Supreme Court dismissing SLP in limine — Held, decision of High Court against which the SLP had been filed would not thereby operate as res judicata — Civil Procedure Code, 1908, Section 11

Constitution of India — Articles 136 and 141 — Legal effect of not granting SLP by a non-speaking order indicated

Constitution of India — Articles 226, 32 and 136 — Res judicata — Applicability — HC decision against which SLP denied — Even an erroneous decision of the High Court on question of law relating to the fact in issue operates as res judicata — However, decision on abstract question of law or on question of jurisdiction would not operate as res judicata in a subsequent suit or proceeding — Civil Procedure Code, 1908, Section 11

Constitution of India — Articles 226, 32 and 136 — Res judicata — Applicability — SLP against HC decision denied — Held, once a decision becomes final and binding it cannot be reopened on ground of the decision being violative of Article 14 — However, if a decision is violative of any Fundamental Right, Supreme Court being also a court of equity may not allow the error to perpetuate in future — But, while doing so in service matters Supreme Court cannot fix scales of pay — Service Law — Pay — Civil Procedure Code, 1908, Section 11

Held :

Per Dutt, J. (Thommen, J. concurring)

When Supreme Court gives reasons while dismissing a special leave petition under Article 136 the decision becomes one which attracts Article 141. But when no reason is given and the special leave petition is summarily dismissed, the Court does not lay down any law under Article 141. 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.

(Para 22)

On the question whether the decision of the High Court against which SLP has not been granted will operate as res judicata, 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 jurisdiction 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. The Delhi High Court judgments do not decide any abstract question of law and there is also no question of jurisdiction 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.

(Para 24)

Mathura Prasad Bajoo Jaiswal v. Dossibai N.B Jeejeebhoy, (1970) 1 SCC 613 : (1970) 3 SCR 830, followed

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. There is no question of overruling the provision of Article 14, even though the judgment may be, to some extent, violative of Article 14. 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 LDCs and the Class IV employees have become final and conclusive between the employees of the Delhi High Court and the Union of India.

(Para 28)

Thakore Sobhag Singh v. Thakur Jai Singh, AIR 1968 SC 1328 : (1968) 2 SCR 848, followed

Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat, (1981) 2 SCC 436 : 1981 SCC (Cri) 471 : (1981) 2 SCR 718, explained and distinguished

It is not possible to accept the submission that because the special leave petitions against the Delhi High Court judgments have been dismissed by the Supreme Court, the judgments may be final between the parties, but the benefit of that wrong decision should not be conferred on the future employees of the Delhi High Court and on the employees of the Supreme Court as the Court being a court of law as well as a court of equity, cannot allow the error to perpetuate. If there be violation of any fundamental right by virtue of any order or judgment, the Supreme Court can strike down the same but, surely, it is not within the province of the Supreme Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32. The judgments of the High Court do not infringe the fundamental rights of the employees of the Supreme Court or any of the petitioners and so the question of considering whether the judgments of the Delhi High Court are right or wrong does not arise. If the judgments of the Delhi High Court had in any manner interfered with the fundamental rights of the petitioners, in that case, the question as to the correctness of those judgments would have been germane.

(Paras 29, 33 and 36)

State of Orissa v. Durga Charan Das, AIR 1966 SC 1547 : (1966) 2 SCR 907 : (1967) 1 LLJ 394; C.V Ramanaiah v. Superintendent of Central Jail, Rajahmundry, (1974) 3 SCC 531 : 1974 SCC (Cri) 6 : (1974) 1 SCR 852; Chandra Bansi Singh v. State of Bihar, (1984) 4 SCC 316 : (1985) 1 SCR 579; Waman Rao v. Union of India, (1981) 2 SCC 362 : (1981) 2 SCR 1; Minor P. Rajendran v. State of Madras, AIR 1968 SC 1012 : (1968) 2 SCR 786; State of M.P v. Ram Raghubir Prasad Agarwal, (1979) 4 SCC 696 : (1979) 3 SCR 41; Roshanlal Kuthiala v. R.B Mohan Singh Oberai, (1974) 4 SCC 628 : (1975) 2 SCR 491; Tamil Nadu Education Deptt. Ministerial & General Subordinate Service Association v. State of T.N, (1980) 3 SCC 97 : 1980 SCC (L&S) 294 : (1980) 1 SCR 1026, referred to

R-M/9445.CL