SUPREME COURT EMPLOYEES WELFARE ASSOCIATION ETC. ETC. v. UNION OF INDIA & ANR. ETC. ETC.

D · · The Judgment of the Court was delivered by I

DUTI, 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, seeni to have inspired the employees of the Supreme Court to E approach the Court by filing Writ Petitions. The first of the two events )_ ! is the report_ of a Committee of Five Judges of this Court consistmg of Mr. Justice P.N. Bhagwati (as he then was) as the Chairman, Mr. Justice V.D. Tulzapurkar, Mr._ Justice D._A. Desai, Mr. Justice R.S. Pathak (as he then was) and Mr. Justice S. Murtaza Fazal Ali. The second event, which is the most important one, is the judgments of the · F Delhi High Court passed in writ proceedings instituted by .its ~ emp l oyees. v __ ,

The Five-Judge Committee in its report stated, inter alia, that no j attempt had been made to provide a separate and distinct identity to the ministerial staff belonging to the Registry of the Supreme Court. I G According to the Committee, the borrowed designations without any attempt at giving a distinct and independent identity to the ministerial staff in the Registry of the Supreme Court led to invidious comparison. The committee observed that the salary scale applicable to various -'f. categories to staff in the Registry would show that at least since the Second Pay Commission appointed by the Central Government for H Central Government servants, the pay-scales devised by the Pay

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.. SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. [DUTT,J.] 495

-"". Commission were practically .bodily adopted by the Chief Justice of A 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 Govern·ment. 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 ~ Registry, this easy course, both facile and superficial, was adopted B 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 -j , 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 c y rul,es invite the President of India to approve 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, educa- tional qualifications, responsibilities and duties of various categories of posts in the Registry and that since the days of Rajadhyakhsa Commission the work had become so complex and the work of even a D clerk in the Supre'me Court had such a distinct 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 J add to it the functional evaluation of the post. This, according to the Committee, required a very comprehensive investigation and the Committee was ill-equippd to do it. The Committee, inter alia, recom· E mended 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 recom- mendations 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 Committee also took notice of F 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 staff of the Central Government. According to the Committee, it was an ideal situation that a former Judge of this Court was heading the G Panel and he was ideally situated for examining the question of inde- 1 pendent pay-structure for the staff in the Registry of the Supreme Court. The Committee recommended that the Chief Justice of India with the concurrence of the Central Government might refer the case of the Supreme Court staff to the Fourth Pay Panel presided over by Mr. Justice P.N. Singhal. H

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p. 496

Several Writ Petitions were filed before the Delhi High Court by .,._ A various categories of its employees, namely, the Private Secretaries and Readers to the Judges, Superintendents, Senior Stenographers, Assistants, Junior .Readers, Junior Stenographers, Joint Registrars, Assistant Registrars, Deputy Registrars and certain categories of Class IV employees. In all these Writ Petitions, the Delhi High Court B 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 Dear- ness Allowance, the details of which are given below:

~ . SI. Date of Revised scale c No. Judgment No. ofW.P. Post of pay 'f Rs. I. 3.2.86& W.P.No.1376/84 Restorer 400-600 23.5.86

2Copy pinpoint2. 11.11.86 W.P. No. 1865/86 400-600 LO.Cs.

3Copy pinpoint3. 4.12.86 W.P. No. 2236/86 Class IV Sweepers Ushers etc. 300-430

4Copy pinpoint4. 8.1.87 W.P. No. 2318/86 Gestetner E Operator 400-600

5Copy pinpoint5. 6.2.87 W.P. 2402/87 Staff Car • Drivers 400-600

6Copy pinpoint6. 20.8.87 W.P. No. 1656/87 Despatch Vah Drivers 400-600 F 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 G filing the instant Writ Petitions and the Civil Miscellaneous 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 petitioners H

SUPREMECOURTEMPLOYEESWELFAREASSN. "· U.O.l. [DUTT,J.l 497 ,, ..

claimed that they are entitled to equal pay for equal work and, there- A ~ fore, they are approaching this Court for redressal of their grievances by means of the present Writ Petitions.

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 cor- B -1 responding categories. On July 25, 1986, this Court passed an interim order which provides as follows:-

"By way of an interim arrangement, pending final disposal -J . 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 en joyed by the c y 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 the High Court of Delhi, if and in so far as they are higher or better than D what the Officers and the members of the Registry of the Supreme Court are getting, as proposed by Respondent No. 2. The Statement showing the posts in the Registry of the Supreme Court an<l the corresponding posts in the Delhi High Court, which is annexed to the proposal made J. by Respondent No. 2 will be annexed to this order also. E Learned Addi. Solicitor General submits that the Petition for interim directions may be adjourned for a period of • four weeks since the Government is actively considering the matter and to his information the Government is inclined to agree with the proposals made by the second respondent. We do not think, it Is necessary to postpone F 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, G Counsel for the petitioner, Mr. P.P. Rao for respondent No. 2, Supreme Court of India, and the learned Addi. i 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 H

p. 498

meanwhile, respondent Nos. 1 & 2 may take steps to refer A the question of revision of pay scales to the Fourth Pay Commission as suggested 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." B 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 members 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 c 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.

D Another interim order dated August 14, 1986 was passed by this Court in Writ Petition No. 80 I 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 interim arrangement, a sum E equal to 10% of their basic pay, subject to a minimum of Rs.50. The order will take effect from I. I. 1986.

The matter was left to us by counse I for all the parties • and we have made this interim arrangement.

F This interim order will be subject to the result of final order in the writ petition.

The writ petition is adjourned and will be listed for further hearing in usual course."

G The said interim order dated August 14, 1986 was, however, modified by a subsequent interim order dated November 14, 1986. The modification was to the effect that the 10 per cent interim relief, sub- \.. _ ject to a minimum of Rs.50 per month, which was granted with effect r from January I, 1986, was directed to be granted with effect from January I, 1978, in respect of Class IV staff. Some other interim orders H were also passed by this Court. This Court passed interim orders

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SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. [DUTT,J.] 499

giving higher pay-scales to certain categories of employees holding A Group B, C and D posts. The Court also ordered that certain Groui; C posts, that is to ~ay, 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 pay- scale of Rs.300-430 from 1.1.1978 as given to Class IV employees of B 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: c y "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 Govern- D ment employees and to suggest changes which may be desirable and feasible:

(i) Central Government employees-industrial and non- industrial. E (ii) Personnel belonging to the All India Services.

• (iii) Employees of the Union Territories."

Pursuant to the interim order of the Supreme Court d.ated July 25, 1986, the Ministry of Finance, Department of Expenditure, F 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(l)(iii) which is as follows:

"(iv) Officers and employees of the Supreme Court of G India.".

i It thus appears that although initially the cases of the employees of the Supreme Court were not referred to the Fourth Pay Commis- sion, the Government, however, in obedience to the order of this Court referred their cases by the amendment of the terms of reference. H

p. 500

After the reference of the cases of the Supreme Court employees A 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 B proper understanding of the working of the various categories of the employees. The Fourth Pay Commission also visited the Registry to familiarise itself with the nature of their work. The Commission reg uested the Registrar to bring to the notice of the Associations as also individual employees of the Supreme Court to submit their Memoranda to the Commission. The Commissmn had also some dis- cussions with Hon'ble Mr. Justice Y.V. Chandrachud and Hon'ble Mr. c 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. D The Fourth Pay Commission submitted its recommendations with 1egard to the Supreme Court employees. The recommendations are contained in Part III of its report. It is not necessary to state in detail as to the revision of pay-sea.Jes made by the Fourth Pay Commis- sion with regard to the employees of the Supreme Court. In a l E nut-shell, it may be stated that the Fourth Pay Commission reduced the existing 153 pay-scales to 36 pay-scales. The Commission, how- ever, did not revise the pay-scales of the employees of the Supreme 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 pay- scales as revised by the Delhi High Court by its judgments passed in F 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 G India. After the receipt of the said copy of the report of the Fourth l.'ay Commission with regard to the Supreme Court employees, the Registrar General of this Court, by his letter dated July 22, 1987 addressed to the Secretary, Government of India, Ministry of Finance, Department of Expenditure, New Delhi, stated inter alia that if the pay-scales as proposed by the Fourth Pay Commission were accepted, and implemented, it would result in a number of anomalies and the

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. [DUTT, J.] 501

Supreme Court would encounter some difficulties in implementing the same. The Registrar General was of the opinion that the Pay Commis- sion should not have made any such recommendation which had the effect of reducing the pay-scales than what had been given by this Court by its various interim 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 recommendation 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 Commission and stressed that while accepting the pay-scales proposed by the Fourth c 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. D

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 th,e revised pay-scales in respect of posts as shown in column 4 of the annexure to the said letter. In other words, the scales E 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, F mentioned in Part III of the Report of the Fourth Central Pay Com- mission, 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 separately considered the G revision of pay-scales of the Junior Clerks and Class TV 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 H

p. 502

A 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 Govern- ment, 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 B and the Class IV employees of the Supreme Court is under considera- tion 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. c Mr. Thakur, learned Counsel appearing in Writ Petition No. 801 of 1986 on behalf of the Supreme Court Employees' Welfare Associa- tion, 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 Associa- tion. It may be stated here that the Class IV employees have filed a separate Writ Petition, that is, the Writ Petition No. 1201of1986.

We shall first of all deal with the submissions of Mr. Thakur with regard to the Junior Clerks and Class IV employees of the Supreme Court. The learned Counsel has placed much reliance upon the judg- ments 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 Deihi High p Court was fully empowered under Article 226 of the Constitution to l issue appropriate writs, if in its opinion the recommendations of the l. 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 discrimina- tion and consequently violated Article 14 of the Constitution of India. G Counsel submits that the Special Leave Petitions filed by the Govern- ment against the judgments of the Delhi High Court having been dismissed by this Court, the Delhi High Court judgment revising the \. pay-scales of its employees including the pay-scales of the L.D.Cs. r annd Class IV employees have attained finality and operate as res judicata between the parties, namely, the employees of the Delhi High H Court and the Union of India. It is submitted that this Court was fully

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SUPREME COURT EMPLOYEES WELFARE ASSN. v. U .O.I. [DUTT, J .] 503

justified in passing the interim orders on the basis of the judgments of ·~ A 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 B '1 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 Commission, if allowed to prevail, would result in the - -I I 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 c y 14 of the Constitution.

On the other hand, the learned Attorney General appearing on behalf of the Union of India, in the first instance, points out that the Delhi High Court judgments, particularly the judgment in C.W.P. No. D 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 E 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 F -~ do they operate as res judicata, between the parties as contended on behalf of the petitioners. It is pointed out by him that the scales of pay · of Rs.400-600 and Rs.300-430 are Punjab pay-scales. Punjab pay- scales 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 G°'\. 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 Allowance 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 H

p. 504

CPI 200 and CPI 320 according to the Central Government D.A. 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 Attorney General that the employees of the High Court as also of the Supreme Court cannot have the best of both B the worlds, that is to say, they cannot get both the Punjab pay-scales merging into it the Dearness Allowance between CPI 200 and 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 c L.D .Cs. and the Class IV employees are right or wrong., may not he 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 D 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 conclusive between the parties and operate as res judicata.

E It has been already noticed that the Special Leave Petitions filed on behalf of the Union oflndia against the said judgments of.the Delhi High Court were summarily dismissed by this Court. It is now a well settled principle of law that when a Special Leave Petition is sum- . marily dismissed under Article 136 of the Constition, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of F 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 Peti- tion on the merits of the case have been rejected by the Supreme G Court. It has been further held that the effect of a non-speaking order of dismissal of a Special Leave Petition without anything more indicat- ing the grounds or reasons of its dismissal must, by necessary implica- tion, 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 H SC 501 this Court has given reasons for dismissing the Special Leave

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SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. [DUTT,J.] 505

' -1 Petition. When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the A law declared by the Supreme Court shall be binding on all the co.urts 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 141 of the Constitution. B

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 f Special Leave Petition the judgment against which the Special Leave Petition was filed becomes final and conclusive so as to operate as res y judicata between the parties thereto. In repelling the contention of the c 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 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 appli- .. cation of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot he deemed to. he a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right i claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previqus decision of a competent Court on facts which are the found- ation of the right and the relevant law applicable to the determination of the transaction which is the foundation of the right and the relevant law applicable to the determina- lion of the transactions which is the source of the right is res judicata. A previous decision on a matter in issue is a com- 1 posite 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 subse- ( quent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the H

p. 506

previous proceeding, but not when the cause of action is A different, nor when the law has since the earlier decision been altered by a competent authority, nor when the deci- sion 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." B

"It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if c it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may D not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the deci- sion 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" ins. 11 Code E of Civil Procedure 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, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something 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 can- not supersede the law of the land."

Thus, 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

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SUPREME COURT EMPLOYEES WELFARE ASSN. v. U,0.1. [DUTT, J.l 507

· jurisdiction involved. Asfoming that the question of Jurisdiction A 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] B 2 SCR 718 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 provision of Article 14 of the c Constitution. In other words, in spite of the judgments of the Delhi High Court, it is permissible to contend that if the judgments are given effect to the employees of the Supreme Court, it would be discri- minatory inasmuch as those who are similarly situated will be getting lesser pay. In Kirit Kumar's case, the order of detention of the D petitioner under the Conservation of Foreign.Exchange and Preven- tion 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 E that the points not taken in the High Court by the detenu could not be agitated in the Writ Petition under Article 32 of the Constitution because that would be barred by the principle of constructive res judicata. In the conti:xt of the facts of that case, this Court laid down the above proposition of law that the doctrine of res judicata or the principles of finality of judgment could not be allowed to whittle down F or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the Constitution.

lt is, however, the contention of the petitioners, that is, the employees of the Supreme Court, that they are being discri_minated against by the Union of India because while the Delhi High Court G 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 under H

p. 508

Article 32 of the Constitution relating to the violation of a provision of A 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 11$ the Supreme Court employees and that, therefore, there is a reason- B able justification for making a discrimination between these two clas- ~- ses 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 c res judicata between the parties, even though the said judgments will "( be violative of Article 14 of the Constitution. In support of this conten- lion, 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 D 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 sanction 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 l E 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 decla.red by the High Court. After the case was sent back on remand by fhe High Court, Validation Act, 1961 was passed validating the Matml Rules. The Beard of Revenue, however, held after remand that the respondent was the adopted son. On appeal to this Court, it has been -~ F held that even though the said Validation Act delcared that the Matmi Rules shall have and shall be deemed always to have had the force of law, notwithstanding anything contained in any judgment in any court, the Act did not supersede the judgment of the High Court. It could not be contended that the judgment of the High Court should not be treated as res judicata on that ground that if it was regarded as binding ... G between the parties the equal protection clause of the Constituticn would be violated if another person, similarly situated, was to be diffe- rently 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. ... H The doctrine of res judicata is a universal doctrine laying down

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U. 0.1. IDUTI, J.] 509

the finality of litigation between the parties. When a particular deci- ~ sion has become final and binding between the parties, it cannot be set A 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 .j not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Con- B ~ stitution. 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 some extent, violative of i Article 14 of the Constitution. So far as the Supreme Court employees are concerned in these proceedings the only enquiry tu be made is c y 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. D 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 Resforers L.D.Cs. and the Class IV employees Punjab pay-scales - ,J 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 ·:.- E 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 l has made an error and that error should not be perpetuated. F

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 G 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 respondent 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 pro· moted.to the rank of Registrar on that date. It was held by this Court H

p. 510

that granting to Mr. Beuria the salary of the Registrar wiih effect from A December I, 1948 was erroneous, as it was granted 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 B 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 I C this Court in G. V. Ramanaiah v. The Superintendent of Central Jail, Rajahmundry, I 1974) 1 SCR 852. In that case, this Cburt observed as follqws:

"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. 0. owing to a mistake to four other persons, similarly placed, it was not fair to deny the same treatment to the petitioner. This contention must be repel- led for the obvious reason that two wrongs never make a· right."

It is submitted that this Court is both a court of law and a court of equity, as held in Chandra Bansi Singh v. State of Bihar; [1985) 1 SCR

579. The equitable principles require that the court should not apply the result of an erroneous decision in regard to the pay-scales to the employees of the Supreme Court. F 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 prospective 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 G 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.

,,,, 40'2'!

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. [DUTT, J.l 511

It is also submitted by the learned Attorney General that if this A 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 als<:> the hardship that may result in not. giving effect to such judgments, so far as the employees of the Supreme Court are con- cerned. In support of that contention, the learned Attorney General B has placed reliance upon a decision of this Court in Roshanlal 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 trammel- led by judicially approved rules of conscience. In this connection, we I I may refer to another observation of Krishna Iyer, J. in Tamil Nadu Education Department Ministerial & General Subordinate Service c Association v. State of Tamil Nadu, [1980] 1 SCR 1026. It has been y observed that once the principle is found to be rational the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy. D 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 reconciliation direct freezing of the pay- scales 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 tl\e pay-scales of Supreme Court employees, which they are getting by virtue of the F J 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 dny 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 G !- the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution. So far as the judgments of the Delhi High Court are concerned, they do not infringe the fundamental rights 1

- 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 H

_-,,

•

p. 512

A right _or wrong does not arise. If the judgments of the Delhi High Court had m any manner interfered with the fundamental rights of the petitioners before us, in that case, the 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 B 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 c 'equal pay for equal work', as enshrined in Article 39(d) of the Con- stitution 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 Directive Principles of State D Policy is not enforceable by any court in view of Article 37 of the Constitution. He submits that as laid down in Kishori Mohan/al Bakshi v. Union of India, AIR 1962 SC 1139 and Stale 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 deci- E sion in Kishori Mohan/al 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 follows:

"The Preamble to the Constitution of the International Labour Organisation recognises the principle of 'equal F remuneration for work of equal value' as constituting one . of the means of achieving the improvement of conditions "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 G 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 different scales of pay do identical work under the same employer." H

SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. [DUTT, J.I 513

It follows from the above decisions that although the doctripe of 'equal pay for equal work' does not come within Article 14 of the A 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 wm 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 B unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of 'equal pay for equal work', as envisaged by Article 14 of the Constitution. If the 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 discrimina- c tion under Article 14 of the Constitution, the abstract doctrine of/ 'equal pay for equal work', as envisaged by Article 39(d) of the Con- stitution, has no manner of application, nor is it enforceable 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 D 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 E v. G. Sreenivasa Rao, [1989] 1JT615 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 recruiiment, 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, F 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 treat- ment to the two classes of employees is founded on rational basis having nexus to the object sought to be achieved, the classification must be upheld. G

1. 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. H

514 SUPREME COURT REPORTS . [1989] 3 S.C.R.

The answer to the question depends upon several factors. A It does not just depend upon either the·riatlire·Of work or volume of work done by Bench Secretaries. Primarily L requires among others, evaluation of duties and responsibi· ' lities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may B be difference in degrees in the performance. The quant.ity .. 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 post~ or ..... equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commis· sion. They would be the best judge to evaluate .the nature c · of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should· normally accept it. The Court should not tty to tin~er with such equivalent unless it is shown that it was made with extraneous consideration." 1 D I Relying upon the decision in Chaurasia's case, it has been mged, by the lea.med Attorney General that in the instant case also this C(Jurt should accept the recommendations of the Fourth Pay Commission. Normally, when a Pay Commission has evaluated the nature of duties and responsibilities of posts and has also made the equation of posts, E tlle Court should not interfere with the same. The question is not whether the Court shciuld 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 recommenda· tions or any finding of the Pay Commission. ·

F '· Again, in Umesh Chandra Gupta v. Oil and Natural Gas Com- mission, 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 earlief in this judgment that it is not , G the business of this Court to fix the pay-scales in exercise of its jurisdic· tion 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 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. H

SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.I. [DUTT,J.] 515

The last case that has been relied on by the learned Attorney 1 General is the decision in Tarsem Lal Gautam v. State Bank of Patiala, A 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 straightway be applied inasmuch as the qualitative differences in re- gard to degrees of reliability and responsibility could not be put aside as irrelevant. B ~ So far as the judgments of the Delhi High Court are concerned, we find that the High Court has taken into consideration the decision of this Court on the doctrine of 'equal pay for equal work'. In one of

f these judgments in Civil Writ Petition No. 1376 of 1984 relating to the pay-scale·of the petitioner, who was a Restorer which is equivalent to L.D.C./Junior Clerk, the learned Judges of the Delhi High Court have c r 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 successor. 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 work- ing 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 _....I Delhi High Court, it will be discriminatory and violative 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 straightway applied the doctrine of 'equal pay for equal work' as an abstract doctrine, as envisaged by Article 39{d) of the Constitution. } F 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 G servants of the Supreme Court shall be such as may be 1 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, H

p. 516

so far as they relate to salaries, allowances, leave or pen- A sions, require the approval of the President." ~

• Under Article 146(2) the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by the rules made by the Chief Justice of India or by some other Judge or B officer of the Court authorised by the Chief Justice of India to make rules for the purpose. This is, however, subject to the provisions of any ~ law that may be made by Parliament. It is apparent from Article 146(2) that it is primarily the responsibility of Parliament to lay down the conditions of 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 c 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 D the conditions of service, is legislative in nature. The conditions of service that may be prescribed by the r_ules framed by the Chief Justice of India under Article 146(2) will also necessarily include salary, al)o- wances, 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 l E Article 146(2) shall, so far as they relate to salaries, 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 wlll be final and conclusive, except that with regard to salaries, allowances, leave or pensions the approval of the President F 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 involve- ment of the financ;al liability of the Government.

G 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 servants 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 H Parliament, as provided in Article 113 of the Constitution. It is appa-

\ SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. [DUIT,J.] 517

rent 'that in order to maintain the independence of the judiciary, the A "'( 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 func- tion of the President of India approving of the iules framed by the Chief Justice of India relating to salaries, allowances, leave or pen- B sions 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 bf the President of India approving of the rules is analo- gous to giving assent to a Bill. The rules framed by the Chief Justice of India though it is a· piece of subordinate legislation, it is not a fullfledged legislative act requiring assent of the President of India. In C this connection, we may refer to the statement· of law as. to the delegated legislation in Foulkes' Administrative Law, Sixth Edition, Fage 57 which reads as follows:

"It is common for Parliament to confe~ by Act on ministers and other executive bodies the power to make general rules D with the force of law-to legislate. Parliament is said to delegate to such bodies the power to legislate. Thus the phrase 'delegated legislation' covers every exercise of a power to legislate conferred, by Act of Parliament. The phrase is not a tenn of art, it" is not a technical term, it has .rio statutory definition. To decide whether the exercise of a E power constitutes 'delegated legislation' we have to ask whether it is a delegated power that is being exercised and whether its exercise constitutes legislation. Clearly an Act, public or private, is not delegated: it is primary legislation. When a minister or other authority is given power by Act of Parliam_ent to make rules, regulations etc. the power has F, beeh delegated to him, and insofar as the rules made by that authority are legislative in their nature, they comprise delegated legislation. If the contents of the document (made under delegated powers) are not .legislative the document will obviously not be a piece of (delegated) legis- lation. Ministers and others are in fact given power to make G orders, give· directions, issue approvals and notices etc. which one would not, because of their lack of generalit}. classify as legislative but rather as administrative. ...................... j •• ' "

It has been observed in the statement of law that if the contents H

p. 518

of the document made under delegated powers are not legislative. the document would obviously not be a piece of delegated 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 legisla· tive 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 nature, but an administrative act. We do not think it necessary to come to any final decision on the question and we propose to proceed on the assumption that the function of the Presi· derit of India in approving the rules framed by the Chief Justice of

c India relating to salaries, allowances, leave or pensions is a legislative act. 1 ~ It is vehemently contended by the learned Attorney General that as the President of India performs a legislative 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 D 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 go into the question whether the Government of Himachal Pradesh on its own authority was competent to make the alteration in question or not. We shall assume for our present purpose that it had such a power. The power to impose a tax is undoubtedly a legislative power. That ~ ., power can be exercised by the legislature directly or subject to certain conditions, the legislature may delegate that power to some other authority. But the exercise of that power, whether by the legislature or by its delegate is an exercise of a legislative power. The fact that the power was delegated to the executive does not convert that power into an executive or administrative power. No court can issue· a mandate to a legislature to enact a particular law. Similarly '):'. no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to eriact." '

H There can be no doubt that no court can direct a legislature to /

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. [DUTT,J.l 519

·-1 enact a particular law. Similarly, when an executive authority exercises A a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority.

·'1 The next decision which has been relied on by the learned At- B torney 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 Constitution of India. Provision of - ., i 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 condi- Y tions of service of officers and servants of the High Court. Under the c proyiso 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·appi6val of the Governor of the State. So far as the two provisos are concerned, while under proviso to Article 229(2) the rules reiating to salaries, allowances, leave or pen- D sions require the approval of the Governor 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 ob.served that it is not possi- ble to take the view that merely because the State Government does E not see its way to give the required approval, it will justify the issuance of a writ of mandamus under Article 226 of the Constitution, as if the refus~I of the State Government was ultra vires or made mala fide and arbitrarily.

J 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. F

Union of India, [1982] 2 SCR 272. What happened in that case was that by a Notification the Central Government had brought into force all the sections of the Fortyforth 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 sec- G ~i..,. . tion 3 of the Fortyfourth Amendment Act. It has been observed by J,? Chandra.chud, C.J. delivering the majority judgment that a mandamus ,,,,. cannot be issued to the Central 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 H1

p. 520

A decisions, it is urged by the learned Attorney General that this Court )- cannot issue a mandate to the President of India to grant approval to the rules framed by the Chief Justice of India relating to salaries, allowances, leave and pensions of the officers and servants of the Supreme Court. In other words, the President of India cannot be compelled to grant approval to the proposals of the Registrar General B of the Supreme Court, as contained in his Jetter 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 pro- posals made by the Registrar General of the Supreme Court, presum- ably on the direction of the Chief Justice of India. It is not also the c contention of any of the parties that such a direction can be made by the Court. - y The real question is how and in what manner the President of India should act after the Chief Justice of India submits to him the • rules framed by him relating to the salaries, allowances, leave and D pensions of the officers and servants of the Supreme Court. The Presi- dent 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 comparative study of some other similar provisions of the Constitution, we find that under Article 98(3), the President of India has been empowered to make rules regulating the recruitments and the conditions of service of ~ E persons appointed 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 Comptoller and Auditor-General shall be F such as may be prescribed by rules made by the President of India after consultation with the Comptroller and Auditor-General. Similarly, the 1 Governor has been empowered under Article 187(3) to make rules regulating the recruitment, and the conditions of service of persons appointed to the secretarial staff of the Assembly or the Council after consultation with the Speaker of the Legislative Assembly or the G Chairman of the Legislative Council, as the case may be. Thus, it appears that except in the cases of the officers and servants 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.

H So far as the Supreme Court and the High Courts are concerned, '

SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. IDUTT,J.] 521

the Chief Justice of India and the Chief Justice of the concerned High A -1 Court, are empowered to frame rules subject to ihis 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 B ---{' 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, allowances, leave or pensions, but it is equally true that when such -f rules have been framed by a very hil)h dignitary of the State, it should be looked upon with respect and unless there is very good reason not to grant approval, the approval should alw.,ays be granted. If the Presi- c y dent of India is of the view that the approval cannot be granted, he cannot straightway refuse to grant such approval, but before doing so, there must be exchange of thoughts between the President of India and the Chief Justice of India. D 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 _j. applies to the provision of Article 146(2) relating to the grant olap- E proval by the President of India. In this connection, we may also refer to a decision of this Court in Gurumoorthy v. Accountant General Assam & Nagaland, I1971] Suppl. SCR 420, which was also considered in Gopalakrishnan's case (supra). In Gurumoorthy's case·, this Court took the view thaLthe unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the F -~ matter of appo.intmen,ts of officers and servants. of a High Court,, it is the Chief Justice or his nominee who is to be the supreme authority and ther~ 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. G At this stage, it may be noticed that it has been conceded by the ~ learned Attorney General that the validity of the subordinate legisla- · tion as provided in Article 146(2) of the Constitution can be chal- lenged on such grounds as any other legisfative acts can be challenged. So, if the rules framed by the Chief_ Justice of India and approved by H

522 SUPREME COURT REPORTS 11989] 3 S.C.R.

the Presideri.t of India relating to the salaries, allowances, leave or A 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: B "Acts of Parliament have sovereign force, but legislation made under delegated power can be valid only if it con- forms exactly to the power granted. Even where, as is often the case, a regulation is required to be approved by resolu- tions of both Houses of Parliament, it still falls on the 'sub- ordinate' side of the line, so that the court may determine c its validity."

Again, at page 868 it is observed that just as with other kinds of Y administrative action, the courts must sometimes condemn rules or regulations for unreasonableness. D Thus a delegated legislation or a subordinate legislation 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 E virtue of Article 74(1) of the Constitution, the President of India shall, .,L in exercise of his functions, act in accordance 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 Article 146(2) of the Constitution and whatever advice is given to the Presid,nt of India in that regard, the President of India has to act in accorda.1ce with such advice. On the other hand, the Chief Justice of i India has to apply his mind when he frames the rules under Anicle ~ 146(2) with the assistance of nis officers. In such circumstances, it would not be unreasonable to hold that the delegation of the legisla- tive function on the Chief Justice of India and also on the President of India relating to the salaries, allowances, leave and pensions of the officers and servants of the Supreme Court involve, by necessary implication, the application of mind. So, not only that the Chief Justice of India has to apply his mind to the framing of rules, but also the Government has to apply its mind to the question of approval of ~ the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions. This condition should be fulfilled and should appear to have been so fulfilled from the records of both the

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. (DUTT, J.] 523

Government and the Chief Justice of India. The application of mind will mciude exchange of thoughts and views between the 1..rovernment and the Chief Justice of India and it is highly desirable that there shou]ri be a consensus between the two. The rules framed by the Chief Justice of India should normally be accepted by the Government and the question of exchange of thoughts and views will arise only when the Government is not in a position to accept the rules relating to B 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 Fo,•rth Pay Commission pursuant to the recommendation in that 'regard by the Five-Judge Committee and as directed such referenoe was made. The C y report of the Fourth Pay Commission was not sent directly to the Chief Justice of India, but it came thn;mgh the Ministry of Finance, Depart- ment 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 revision of the pay-scales of the employees of the D 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 dther 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 E 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 F Justice of India to frame rules. What should go to the Presid~nt of India for his approval under the proviso to Article 146 is not the report or the recomm.,ndation 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 G 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 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 H

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p. 524

his letter dated July 22; 1987; addressed to the Secretary, Government A of India, Ministry of Finance, Departmeut of Expenditure; did 1not agree with some of the recommendations of the Fourth Pay Com· mission relating to the revision of pay-scales including the re•isic»'. 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 B views between the. Government Department· and the· Registry of the Supreme Court. The Government has not produced· before us any material showing that there was exchange of thoughts and views. But· whether that was done or not, is. not· the·question• at the present· moment. The most significant fact is that no rules were framed by the Chief Justice of• India in accordance with the provision of Article 146(2) of the Constitution. Instead, what was done. was that the C Regisirar, General •made· certain· proposals to ·the· Government· and· thos~. proposals were. turned down as. not acceptable. to the. Govern· menL 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 D instructiorts.of,the·Chief1Justice of India. The provision of Article 146(2) 1requires 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 questfon of granting approval, as required ·E 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. theJorm· of, a Jetter. dated. November 23,' 1987 was· , p. made.by,tf)e,Joint.Secretary,to.the.Govemment of India, Ministry of '· ., Finance, Department of Expenditure, addressed to the Registrar Generalc By.that. letter, the Registrar General.was informed of the• sanction of the President, of India to the revised scales as shown· in . column A of. the annexure to the said Jetter in respect of certain posts: The revised . scales· of, pay; stated to have: been sanctioned by• the · G President of· India, were at par-with the crecommendations of the Fourth: Pay Commission. The sanction· of· the President of India,- as communic.ated.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,containedjn,paragraph 15 of: the said-Ietterr ---< I

which is extracted below;."

_J

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.I. [DUTT,J.I S25

"5. Tjle revision of pay scales, for the remaining posts in A the Supreme Court Registry, mentioned in Part III of the Report of the Fourth Central Pay Commission, is separa- tely under consideration.of the Government." · ,,. The remaming posts referred to in paragraph 5 includes the posts held by Junior Clerks and Class IV employees. Even assuming that the B 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 pay- scales of the remaining posts including the posts held by the Junior ·Clerks and Class IV employees; is still under consideration of the Government. It is curious that although t_he question as to the revision c of pay-scales of the remaining posts is siill under consideration of the Governnient, 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 pay- D scales, 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 prci"vision of Article 146(2) has not been complied with. No rules have been framed by the Chief Justice of E India as per the provision of Article -146(2) and, accordingly, the question of granting approval to the rules by the President of India under Article 146(2) does not at all arise because that stage has not yet reached. We are, therefore, of the view that the Chief Justice of India should frame rules under 'Article 146(2) after taking into consideration · all relevant factors including the recommendations of the Fourth Pay F Commission and submit the same to the President of India for· his approval:· . :.r' -It has been strenuously urged by Mr. Thakur that the staff and the servants of the Supreme Court of India constitute a class by themselves totally disiinct in the_ dvil services under the Union and the G 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, H

p. 526