TMI Blog2004 (1) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... ions therefor were made by the Chief Justice of the High Court of Delhi in terms of his letter dated 15.10.1991 to the effect that the scales of pay be revised with effect from 1.1.1986. Before making the said recommendations, the Chief Justice of the High Court constituted a committee which had gone into the said matter. The Committee submitted a report which was accepted by the Chief Justice. While fixing the scales of pay of the Assistant Registrars, it was noticed that the post of Assistant Registrar is a promotional post for the Superintendents, Court Masters and Private Secretaries who had been placed in the Scale of pay of ₹ 2000-3500. As despite such recommendations no heed was paid thereto by the appellant, the writ petition was filed. The appellants herein inter alia contended before the High Court that the Assistant Registrars should not have been placed in a higher scale of pay of ₹ 3000-4500 as the Fourth Pay Commission, had recommended the scale of pay of Superintendent, Court Master and Private Secretary as also the Assistant Registrar at ₹ 2000-3500 and thus it must have given a go- bye to the old relativities and treated both categories of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the post of Deputy Registrar and Joint Registrar. These posts carry the pay scales of ₹ 3700-5000 respectively. These officers besides administrative work, also hold Court in accordance with the powers delegated to them under the High Court Rules and Orders, as also under Delhi High Court (Original Side) Rules. The responsibilities attached to these posts are higher than those of the Assistant Registrar. (iii) The Registrar who is a senior Officer of Higher Judicial Service is the Head of the Office of this Court. Apart from administrative functions, the incumbent to the post of Registrar has also to discharge judicial functions and hold Court in exercise of powers under the High Court Rules and Orders and Original Side Rules of this Court. The present pay scale of the post of Registrar is ₹ 5900-6700. (iv) If the imbalance as stated above, is allowed to continue, it will, besides causing hardship, lead to frustration and heart-burning amongst the officers of this Court which would be detrimental to the smooth and efficient functioning of the Registry. Thus, in public interest, it is essential that the imbalance created in the pay structure of the officers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India [ILR (1981) II Delhi 102]. (iii) Sangram Singh, representing the Superintendents also filed a writ petition before the High Court claiming parity of pay scales with Private Secretaries and Court Master on the strength of pre-existing parity of status with the said two categories of posts. The writ petition was allowed. The Union of India challenged the decision by way of SLP (C) No.8934 of 1982, which was however dismissed by this Hon'ble Court on 3.1.1982. (iv) A writ petition being CWP No.2901 of 1984 (Trl. Narayanan and Ors. vs. Union of India and Ors.) came to be filed by Assistant Registrars, Deputy Registrars and Joint Registrars of the High Court of Delhi seeking enhancement of pay scales. A Division Bench of the High Court on 18.12.1985 allowed the same. (v) After the Fourth Pay Commission Private Secretaries, Court Masters and Superintendents were drawing pay in the scale of ₹ 2000-3500. (vi) Shri A.K. Gulati, a Private Secretary filed writ petition before the High Court of Delhi (CWP No.289 of 1991) contending inter alia that Private Secretaries to Secretaries, Government of India were drawing pay in the scale of ₹ 3000-4500 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment subject of course to the limitations imposed by the said provision. There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in Clause 2 of the Article 229 of the Constitution of India and the proviso appended thereto. Approval of the President/Governor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard, salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter of course. MANDAMUS VIS-@-VIS ARTICLE 229(2) OF THE CONSTITUTION: Mandamus literally means a command. The essence of mandamus in England was that it was a royal command issued by the King's Bench (now Queen's Bench) directing performance of a public legal duty. A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid finding, it was observed : We, however, trust and hope that the Government will give their second thought to the matter and see whether it is possible in the State of Andhra Pradesh to obliterate the distinction in the matter of pay scales etc. between the High Court and the Secretariat Staff. There does not seem to be any good and justifiable reason for maintaining the distinction. In Supreme Court Employees Welfare Association Vs. Union of India and Anr. [1989 (4) SCC 187] this Court, while considering the provisions of Article 146(2) of the Constitution of India which is in pari materia with Article 229 of the Constitution of India, held : 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 officers of the Court authorised by him in framing rules laying down the conditions of service, is legislative in nature. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The court must therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which legislature is presumed to have intended. The decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the court's function to look further into its merits. With the question whether a particular policy is wise or foolish the court is not concerned it can only interfere if to pursue it is beyond the powers of the authority. But in the same book Prof. Wade has also said: The powers of public authorities are therefore essentially different from those of private persons. A man making his will may, subject to any rights of his dependents, dispose of his pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court will not exercise its jurisdiction to entertain a writ application wherein public law element is not involved. (See Life Insurance Corporation Vs. Escorts AIR 1986 SC 1370, F.C.I. Vs. Jagannath Dutta, AIR 1993 SC 1494, State of Gujarat Vs. Meghraj Peth Raj Shah Charitable Trust, (1994) 3 SCC 552, Assistant Excise Commissioner Vs. Issac Peter, (1994) 4 SCC 104, National Highway Authority of India Vs. M/s. Ganga Enterprises Anr. 2003 (7) SCALE 171) In any event, the modern trend also points to judicial restraint in administration action as has been held in Tata Cellular Vs. Union of India [(1994) 6 SCC 651], Monarch Infrastructure (P) Ltd. Vs. Commissioner, Ulhasnagar Municipal Corporation and Others [(2000) 5 SCC 287], W.B. State Electricity Board Vs. Patel Engineering Co. Ltd. and Others [(2001) 2 SCC 451] and L.I.C. v. Consumer Education and Research Centre, [AIR 1995 SC 1811]. The legal right of an individual may be founded upon a contract or a statute or an instrument having the force of law. For a public law remedy enforceable under Article 226 of the Constitution, the actions of the authority need to fall in the realm of public law be it a legislative act or the St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kanpur [(1965) 3 SCR 536], Hochtief Gammon Vs. State of Orissa [(1976) 1 SCR 667], Mayor of Rochester Vs. Regina [1858 EB E 1024], The King Vs. Revising Barrister for the Borough of Hanley [(1912) 3 KB 518], Padfield Vs. Minister of Agriculture, Fisheries and Food [1968 AC 997] and Halsbury's Laws of England, Fourth Edition, Volume I, paragraph 89 observed: There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sometimes also language which is apparently merely permissive is construed as imposing a duty, as where 'may' is interpreted to mean 'shall'. Even though no compulsory words are used, the scheme of the Act may imply a duty. Having developed from a piece of purely administrative machinery, mandamus was never subject to the misguided notion which at one time afflicted its less fortunate relative certiorari, that it could apply only to 'judicial' functions. Administrative or ministerial duties of every description could be enforced by mandamus. It was, indeed, sometimes said that this remedy did not apply to judicial functions, meaning that where a public authority was given power to determine some matters, mandamus would not lie to compel it to reach some particular decision. The law as to this is explained below under 'Duty to exercise jurisdiction'. The fact that the statutory duty is directory as opposed to mandatory, so that default will not invalidate some other action or decision, is no reason for not enforcing it by mandamus. The broad principles of judicial review as has been stated in the speech of Lord Diplock in Council of Civil S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Acceptance of this approach is reflected in the judgments of Laws LJ in International Transport Roth GmbH v. Secretary of State for the Home Department ([2002] EWCA Civ 158, [2002] 3 WLR 344) and of Lord Nimmo Smith in Adams v. Lord Advocate (Court of Session, Times, 8 August 2002) in which a distinction was drawn between areas where the subject matter lies within the expertise of the courts (for instance, criminal justice, including sentencing and detention of individuals) and those which were more appropriate for decision by democratically elected and accountable bodies. If the courts step outside the area of their institutional competence, government may react by getting Parliament to legislate to oust the jurisdiction of the courts altogether. Such a step would undermine the rule of law. Government and public opinion may come to question the legitimacy of the judges exercising judicial review against Ministers and thus undermine the authority of the courts and the rule of law. It is not possible to lay down the standard exhaustively as to in what situation a writ of mandamus will issue and in what situation it will not. In other words, exercise of its discretion by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Superintendent in the Labour Department who is holding a higher pay scale and higher status cannot seek promotion to the post of Labour Inspector which post is lower in grade and status. Since a ministerial employee - under rule 8(1)(a)(i) - can be appointed as Labour Inspector only by the process of promotion, a Superintendent who is in a higher pay scale, cannot seek promotion to the post of Labour Inspector and as such is not eligible for the same under rule 8(1)(a)(i). Even otherwise it is difficult to comprehend why a person drawing a higher pay scale and enjoying a better status as a civil servant should hanker for a post which is carrying lesser pay and is comparatively of lower status. If the nature of duties performed by the Assistant Registrars had been more onerous than the Court Masters, a higher scale of pay was required to be fixed. The Appellant, therefore, took a stand before the High Court which was patently unsustainable. Furthermore, merger of the cadres must be made in terms of the statutory rules. For the said purpose, an order is required to be passed. Conjectures or surmises in such a situation had no role to play. In view of the aforementioned de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icular pay scale of an employee of the High Court. It is not the case of the employees that the Chief Justice made any rules, providing a particular pay scale for the employees of the Court, in accordance with the constitutional provisions and that has not been accepted by the governor. In the aforesaid premises, it requires consideration as to whether the High Court in its discretionary jurisdiction under Article 226 of the Constitution, can itself examine the nature of work discharged by its employees and issue a mandamus, directing a particular pay scale to be given to such employees. In the judgment under challenge, the Court appears to have applied the principle of equal pay for equal work and on an evaluation of the nature of duties discharged by the Court Stenographers, Personal Assistants and Personal Secretaries, has issued the impugned directions. In Supreme Court Employees' Welfare Asson. V. Union of India this Court has considered the powers of the Chief Justice of India in relation to the employees of the Supreme Court in the matter of laying down the service conditions of the employees of the Court, including the grant of pay scale and observed that the Chief Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue directing the respondents 1 4 to equate the posts of Private Secretaries and the Readers of Judges of this court to that of a Private Secretary to the Chief Secretary, Delhi Administration. This will take effect from 1.1.1973 in terms of the decision already taken by the Government of India, as mentioned in their memoranda of 8.8.1975 and 22.8.1975 (Annexures `G' `H' - to the petition. Decisions of this Court, as discussed hereinbefore, in no unmistakable terms suggest that it is the primary duty of the Union of India or the concerned State normally to accept the suggestion made by a holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. The appellant unfortunately did not perform its own duties. In a matter of this nature the Appellant, with a view to show that its action is reasonable, was bound to perform its duties within a reasonable time. Reasonablenes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice were not promptly attended to and the private respondents had to file a writ petition. The question as regard fixation of a revision of the scale of pay of the High Court being within exclusive domain of the Chief Justice of the High Court, subject to the approval, the State is expected to accept the same recommendations save and except for good and cogent reasons. The High Court, however, should not ordinarily issue a writ of or in the nature of mandamus and ought to refer the matter back to the Central/ State Government with suitable directions pointing out the irrelevant factors which are required to be excluded in taking the decision and the relevant factors which are required to be considered therefor. The statutory duties should be allowed to be performed by the statutory authorities at the first instance. In the event, however, the Chief Justice of the High Court and the State are not ad idem, the matter should be discussed and an effort should be made to arrive at a consensus. We are further of the opinion that only in exceptional cases the High Court may interfere on the judicial side, but ordinarily it would not do so. Even if an occasion arises for the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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