Holding

A court cannot direct the creation of a post; such direction is beyond its jurisdiction and the suit for regularisation as tractor driver must be dismissed.

Summary

The respondents, originally appointed as Mali (gardener) on daily wages, were later required to work as tractor drivers though no such post existed in the Aravali Golf Club. After being paid tractor‑driver wages, they were regularised only as Mali and filed a suit seeking regularisation as tractor drivers. The trial court dismissed the suit on the ground that no sanctioned post of tractor driver existed. The First Appellate Court and the High Court reversed that decision, directing the creation of a tractor‑driver post and the respondents' regularisation therein. The Supreme Court held that courts cannot direct the creation of posts, as such power belongs exclusively to the executive or legislature, and therefore the directions of the lower courts were beyond jurisdiction. Consequently, the Supreme Court set aside the orders of the High Court and First Appellate Court, upheld the trial court judgment, and dismissed the suit.

Issues considered

Whether a court can direct the creation of a new post in an organization for the purpose of regularising service.
Whether the respondents can be regularised as tractor drivers when no sanctioned post of that nature exists.
Whether the High Court and First Appellate Court exceeded their jurisdiction by ordering the creation of a post.
The scope of judicial power vis‑à‑vis the executive and legislative functions in service matters.

Subjects

service regularisationjudicial restraintseparation of powerscreation of postsjurisdictioncivil appealemployment law

Judgment

A DIVISIONAL MANAGER, ARAVALI GOLF CLUB & ANR.
v.
CHANDER HASS & ANR.

DECEMBER 6, 2007
B
[A.K. MATHUR AND MARKANDEY KATJU, JJ.]

Service Law:
C Regularization-Malis engaged on daily wage basis-Later
started working as tractor drivers-Regularized as Mali-Suit for
regularization as tractor drivers-Dismissed by trial court with a
finding offact that there was no sanctioned post of tractor driver-
First appellate court directing to create posts of tractor drivers and
D to regularize the plaintiffs as tractor drivers-Decree affirmed by High
Court-HELD: Since there was no sanctioned post oftractor driver
against which respondents could be regularized, directions offirst
appellate court and single Judge of High Court to create posts of
tractor drivers and to regularize the plaintiffs against such posts was
completely beyond their jurisdiction-Court cannot direct creation of
E posts-Creation and sanction ofposts is the prerogative ofexecutive
or legislative authorities and Court cannot arrogate to itselfthis purely
executive or legislative function, and direct creation ofposts in any
organization-Both the High Court and first appellate court acted
beyond their jurisdiction in directing creation ofposts oftractor drivers
F to accommodate the plaintiffs-Judiciary-Powers and limits of
[Para 14, 15 and 41) (1089-G, H; 1090-B, C; 1099-F)
Constitutionalism-Under the Constitution ofIndia, Legislature,
Executive and Judiciary all have their own broad sphere ofoperation-
G Ordinarily, it is not proper for any of these three organs of State to
encroach upon the domain ofanother, otherwise delicate balance of
Constitution will be upset and there will be a reaction-If there is a
law, Judges can certainly enforce it, but Judges cannot create a law
and seek to enforce it-Constitution of India, 1950-Theory of
H 1084
DIVISIONAL MANAGER, ARAVALI GOLF CLUB v. 1085
.
' --J
CHANDER HASS
separation ofpowers. [Para 19 and 26] [1090-G; 1091-A; 1095-D] A
Tata Cellular v. Union ofIndia, AIR (1996) SC 11 ; RamJawaya
v. State ofPunjab, AIR (1955) SC 549; AsifHameedv. State ofJammu
and Kashmir, AIR (1989) SC 1899; Union ofIndia v. Deoki Nandan
Agarwal, AIR (1992) SC 96; V.K. Reddyv. State ofAndhra Pradesh,
~
, 1.
J.T. (2006) 2 SC 361; Suresh Seth v. Commissioner, Indore Municipal B
f Corporation & Ors., AIR (2006) SC 767; and Bal Ram Bali v. Union
ofIndia, JT (2007) 10 SC 509, relied on.
Rajindera Singh v. Prem Mai & Ors., (Civil Appeal No. 13071
2001) decided on 23 August, 2007, referred to. c
Judiciary-Powers and limits of-Of the three organs of State,
Legislature, Executive and Judiciary, only the Judiciary has power to
declare limits ofjurisdiction ofall three organs-This is a great power
and hence must never by abused or misused, but should be exercised
by Judiciary with utmost humility and self-restraint-Judicial restraint D
is consistent with and complementary to balance ofpower among the
three independent branches of State-It accomplishes this in two
ways-First judicial restraint not only recognizes the equality ofother
two branches with Judiciary, it also fosters that equality by minimizing
inter-branch interference by Judiciary-Second, judicial restraint tends E
to protect independence o.fjudiciary-The constitutional trade-offfor
independence is that judges must restrain themselves from areas
reserved to other separate branches-Thus, judicial restraint
complements the twin, overarching values of the independence of
Judiciary and the separation ofpowers-Judicial restraint. F
[Para 32, 33, 34 and 35] (1097-B, C, D, E, G; 1098-A]
Dennis v. United States, (United States Supreme Court Reports
95 Law Ed. Oct.1950 Term U.S. 340-341), referred to.
Judicial Activism-In the name ofjudicial activism, Judges G
cannot cross their limits and try to take over functions which belong
to another organ of State-If they do so, it would be clearly
unconstitutional-Judges must exercise judicial restraint and must not
encroach into executive or legislative domain-It is not that judges
should never be 'activist '-Sometimes judicial activism is a useful H
•
f

1086 SUPREME COURT REPORTS [2007] 12 S.C.R.

"
)

A adjunct to democracy, Supreme Court expanded the scope ofArticles r
14 and 21 of the Constitution-This, however, should be resorted to
only in exceptional circumstances when the situation forcefully
demands it in the interests of the nation or the poorer and weaker
sections ofsociety but always keeping in mind that ordinarily the task
B oflegislation or administrative decisions is for the legislature and the
executive and not for the judiciary-Judicial restraint- 111'1
• \
Constitutionalism.
[Para 17, 18 and 39] [1090-E, F; 1099-A, B, C]
Indian Drugs & Pharmaceuticals Ltd. v. The Workman ofIndian
c Drugs & Pharmaceuticals Ltd., (2007) 1 SCC 408 and S. C. Chandra
and Ors. v. State ofJharkhand and Ors., JT (2007) 10 4 SC 272, relied
on.
Brown v. Board ofEducation, 347 U.S. 483 (1954); Miranda v.
D Arizona, 384 U.S. 436 and Roe v. Wade, 410 U.S.113, referred to.
Interim orders ofsuperior Courts-HELD: Should not upset the
delicate constitutional balance among Judiciary, Legislature and
Executive. [Para 28)

E CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5732 of
2007.
From the final Judgment and Order dated 17.2.2006 of the High
Court of Punjab and Haryana at Chandigarh in R.S.A. No. 666 of2006.

F Devinder Pratap Singh and T.V. George for the Appellants.
t
Neelam Jain and Annam and D.N. Rao for the Respondents.
The following order of the Court was delivered by
ORDER
G
I. Heard learned counsel for the parties.
2. Leave granted.
3. This appeal by special leave is directed against the judgment and
H
order dated 17th February, 2006 passed by a learned Single Judge of
-+

__;
DIVISIONAL MANAGER, ARAVALI GOLF CLUB v. 1087
CHANDER HASS
~
-../
the High Court of Punjab and Haryana in R.S.A. No.666/2006 whereby A
the learned Single Judge has affinned the judgment and decree passed
by the First Appellate Court.
4. The brieffacts which are necessary for the disposal of the present
appeal are that the plaintiffs (respondents in this appeal) were appointed
as Mali (gardener) in the service of the defendant-appellant, which is a B
golf club run by the Haryana Tourism Corporation in the year 1989 and
1988 respectively on daily wages. Subsequently in the year 1989 they
were told to perfonn the duties of Tractor Drivers, though there was no
post of tractor driver in the employer's establishment. However for a
nuinber of years they continued to be paid wages for the post of Mali. c
5. Thereafter on a recommendation made by the Head Office, the
appellants started paying them wages of tractor driver on daily wage basis,
as per rates recommended by the Deputy Commissioner. Though they
continued to work for about a decade as tractor drivers, their services D
.,.
were regularized against the post of Mali in the year 1999 and not as
tractor driver. When despite representations their grievance was not
redressed, the respondents herein filed civil suit in the month of April, 2001
claiming regularization against the posts of tractor driver. Their claim was
rejected by the Trial Com1 which observed that there was no post of E
tractor driver in the establishment, and the suit was dismissed. The Trial
Court held that plying a tractor is part and parcel of the job of Mali in a
Golf Club, since the Golf Field of the Club is vast and needs to be
maintained with mechanical gadgets.
6. Aggrieved against the said order of dismissal of the suit, the F
respondents herein preferred an appeal before the Additional District
Judge, Faridabad. Their appeal was accepted and the judgment and
decree of the Trial Com1 was set aside. The First Appellate Court
observed that the defendants were taking the work of tractor driver from
the plaintiffs since 13.8.1999, and hence it directed the defendants to get G
the post of tractor driver sanctioned, and to regularize the plaintiffs on
that post.
7. Thereafter the Divisional Manager, Aravali Golf Club filed a
second appeal before the High Court of Punjab and Haryana. The learned
H
1088 SUPREME COURT REPORTS [2007] 12 S.C.R.

A Single Judge held that the post of tractor driver should be created as there r- "'
is no hitch in not creating the posts of drivers especially when tractors
were available and there existed need to use those tractors. It was also
observed by the learned Single Judge that simply by relying upon
technicalities the State authorities cannot be allowed to suppress the
B individuals and to deny their lawful rights. The learned Single Judge also
held that no substantial question oflaw arose in the matter. Hence, the
second appeal was dismissed and the judgment of the First Appellate
Court was upheld. Aggrieved ag!linst the said judgment of the learned
Single Judge, the appellants are in appeal before us.
c 8. The plaintiff-respondents admitted in the plaint that they were
appointed as Mali. In the suit the plaintiff-respondents stated that they
were working as tractor driver at Aravali Golf Club. Initially they were
engaged on daily wages. Thereafter their services were regulariz.ed on the
post of Mali (gardener) instead of tractor driver. The respondents filed a
D representation before the concerned authorities for regularizing them on
the post of Tractor Driver, but that was not done since there was no post
of tractor driver. Therefore, the respondents filed a suit.
9. The suit was contested by the defendants-appellants. The
E appellants in their written statement submitted that the plaintiffs were
appointed as Mali on a daily wage basis on 9.10.1989. The respondent
No. I had earlier filed Writ Petition No.6216/1991 for regularizing his
services. The Hon'ble High Court disposed of the said writ petition by
passing the order directing the respondent No.1 to make a representation
F against the termination of his services and the appellants herein were
restrained from terminating the services of the respondent No. l till his ,>
representation was decided. The writ petition was accordingly disposed
of.
10. In pursuance of the said order the respondent No.1 made
G representation for regularization of his service on 2.5.1991. The plaintiff-
respondent was informed vi de order dated 14 .5 .1991 that there was no
post of tractor driver and his case for regularization would be considered
as and when sanctioned post of the tractor deriver will be available.
11. The plaintiff-respondent was paid wages of tractor deriver from
H
DIVISIONAL MANAGER, ARAVALI GOLF CLUB v. 1089
CHANDER HASS
-' -.../
August 1990 to 11.5.1999 on daily wage basis on D.C. rate as he was A
'
asked to work as a tractor driver. He was also informed that whenever
a post of tractor driver was created, his case for appointment of tractor
deriver will be considered In the meanwhile services of plaintiffNo.1 was
regularized as Mali vide order dated 11.5.1999 which was duly accepted
by him without any protest. Similar is the case of respondent No.2 herein. B
He was engaged as Mali on daily wage basis w.e.f. 1.9.1988 and his
services were also regularized as Mali vide order dated 11.5.1999.
12. In the written statement in the suit the appellants took preliminary
objection that as there is no sanctioned post of tractor driver and hence
there is no question of their being appointed on the post of tractor driver. c
It was also asserted in the written statement that as and when the post of
tractor driver will be available their cases will be considered in accordance
with law. On the basis of these pleadings, several issues were framed and
a finding was recorded by the Trial Court that as there is no sanctioned
post of tractor driver, the plaintiffs cannot be regularized in the said post. D
I
This is a finding of fact recorded by the Trial Court and it was never
disputed at any stage. Aggrieved against the said judgment the respondents
herein filed an appeal and the learned First Appellate Court without going
into the merit of the matter set aside the judgment and decree of the Trial
Court and directed creation of the post of tractor driver, and regularization E
of the respondents on the said post. Against the said order of the First
Appellate Court, the appellants herein preferred a second appeal before
the High Court of Punjab and Haryana. The learned Single Judge has
affmned the judgment and order of the First Appellate Court.
~ F
13. Learned counsel for the appellants submitted that there is no post
of tractor driver, and therefore, there is no question ofregularizing the
respondents in the said post. It is not disputed that there is no sanctioned
post of tractor driver in the appellant's establishment. Learned counsel
for the respondents has also not been able to show that there are any
sanctioned posts of tractor driver. G

14. Since there is no sanctioned post of tractor driver against which
the respondents could be regularized as tractor driver, the direction of
the First Appellate Court and the learned Single Judge to create the post
of tractor driver and regularizing the services of the resp6iidents against H
1090 SUPREME COURT REPORTS [2007] 12 S.C.R.

A the said newly created p6sts was in our opinion completely beyond their r- -
jurisdiction.
15. The Court cannot direct the creation of posts. Creation and
sanction of posts is a prerogative of the executive or legislative authorities
and the Court cannot arrogate to itself this purely executive or legislative
B function, and direct creation of posts in any organization. This Court has
time and again pointed out that the creation of a post is an executive or
legislative function and it involves economic factors. Hence the Courts
cannot take upon themselves the power of creation of a post. Therefore,
the directions given by the High Court and First Appellate Court to create
C the posts of tractor driver and regularize the services of the respondents
against the said posts cannot be sustained and are hereby set aside.
16. Consequently, this appeal is allowed and the judgment and order
of the High Court as well as that of the First Appellate Court are set aside
D and the judgment of the Trial Court is upheld. The suit is dismissed. No
costs. '
17. Before parting with this case we would like to make some
obse1vations about the limits of the powers of the judiciary. We are
compelled to make these observations because we are repeatedly coming
E across cases where Judges are unjustifiably trying to perfonn executive
or legislative functions. In our opinion this is clearly unconstitutional. In
the name of judicial activism Judges cannot cross their limits and try to
take over functions which belong to another organ of the State.
F 18. Judges must exercise judicial restraint and must not encroach
into the executive or legislative domain vide Indian Drugs &
Pharmaceuticals Ltd. v. The Workman of Indian Drugs &
Pharmaceuticals Ltd, [2007] 1 SCC 408 and S.C. Chandra and Ors.
v. State ofJharkhand and Ors., JT (2007) 10 4SC 272 (See concurring
G judgment ofM. Katju, J.).
19. Under our Constitution, the Legislature, Executive and Judiciary I
all have their own broad spheres of operatioI)., Ordinarily it is not proper •
for any of these three organs of the State t~-encroach upon the domain
of another, otherwise the delicate balance in the Constitution will be upset,
H
DIVISIONAL MANAGER, ARAVALI GOLF CLUB v. 1091
CHANDER HASS
and there will be a reaction. A
20. Judges must know their limits and must not try to run the
Government. They must have modesty and humility, and not behave like
Emperors. There is broad separation of powers under the Constitution
and each organ of the State - the legislature, the executive and the judiciary
- must have respect for the others and must not encroach into each others B
--\
domains.
21. The theory of separation of powers first propounded by the
French thinker Montesquieu (in his book 'The Spirit of Laws') broadly
holds the field in India too. In chapter XI of his book 'The Spirit of Laws' c
Montesquieu writes :
"When the legislative and executive powers are united in the
same person, or in the same body of magistrates, there can be no
liberty; because apprehensions may arise, lest the same monarch
or senate should enact tyrannical laws, to execute them in a D
tyrannical manner.
Again, there is no liberty, if the judicial power be not
separated from the legislative and executive. Were it joined
with the legislative, the life and liberty of the subject would E
be exposed to arbitrary control; for the judge would be then
the legislator. Were .it joined to the executive power, the judge
might behave with violence and oppression.

There would be an end of everything, were the same man or
the same body, whether of the nobles or of the people, to exercise F
those three powers, that of enacting laws, that of executing the
public resolutions, and of trying the causes of individuals."
(emphasis supplied)
We fully agree with the view expressed above. Montesquieu's G
warning in the passage above quoted is particularly apt and timely for the
Indian Judiciary today, since very often it is rightly criticized for 'over-
reach' and encroachment into the domain of the other two organs.
22. In Tata Cellular v. Union ofIndia, AIR (1996) SC 11 (vide
H
1092 SUPREME COURT REPORTS [2007) 12 S.C.R.

A paragraph 113) this Court observed that the modem trend points to judicial
restraint in administrative action. The same view has been taken in a large
number of other decisions also, but it is unfortunate that many courts are
not following these decisions and are trying to perform legislative or
executive functions. In our opinion adjudication must be done within the
B system of historically validated restraints and conscious minimization of
the Judges' preferences. The Court must not embarrass the administrative
authorities and must realize that administrative authorities have expertise
in the field of administration while the Court does not. In the word of Chief
Justice Neely:
c "I have very few illusions about my own limitations as a judge.
I am not an accountant, electrical engineer, financier, banker,
stockbroker or system management analyst. It is the height of folly
to expect Judges intelligently to review a 5000 page record
addressing the intricacies of a public utility operation. It is not the
D function of a Judge to act as a super board, or with the zeal of a
pedantic school master substituting its judgment for that of the
administrator."
23. In Ram Jawaya v. State ofPunjab, AIR (1955) SC 549 (vide
E paragraph 12), a Constitution Bench of this Court observed:
"The Indian Constitution has not indeed recognized the doctrine
of separation of powers in its absoiute rigidity but the fanctions
of the different parts or branches of the Government have
been sufficiently differentiated and consequently it can very
F well be said that our Constitution does not contemplate
assumption by one organ or part ofthe State, offanctions that
essentially belong to another"
(emphasis supplied)
G 24. Similarly, in Asif Hameed v. State ofJammu and Kashmir,
AIR (1989) SC 1899 a three Judge bench of this Court observed (vide \
paragraphs 17 to 19):
"17. Before adverting to the controversy directly involved in these
appeals we may have a fresh look on the inter se functioning of
H
~
I

DIVISIONAL MANAGER, ARAVALI GOLF CLUB v. 1093
CHANDER HASS
. _, _
the three organs of democracy under our Constitution. Although A
the doctrine of separation of powers has not been recognized under
the Constitution in its absolute rigidity but the constitution makers
have meticulously defined the functions of various organs of the
State. Legislature, executive and judiciary have to function within
their own spheres demarcated under the Constitution. No organ B
-~ can usurp the functions assigned to another. The Constitution
'
trusts to the judgment of these organs to function and exercise their
discretion by strictly following the procedure prescribed therein.
The functioning of democracy depends upon the strength and
independence of each of its organs. Legislature and executive, the c
two facets of people's will, they have all the powers including that
of finance. Judiciary has no power over sword or the purse
nonetheless it has power to ensure that the aforesaid two main
organs of State function within the constitutional limits. It is the
sentinel of democracy. Judicial review is a powerful weapon to
D
- I restrain unconstitutional exercise of power by the legislature and
executive. The expanding horizon ofjudicial review has taken in
its fold the concept of social and economic justice. While exercise
of powers by the legislature and executive is subject to judicial
restraint, the only check on our own exercise of power is the self
imposed discipline ofjudicial restraint. E

18. Frankfurter, J. of the U.S. Supreme Court dissenting in the
controversial expatriation case of Trap v. Dulles, (1958) 356 US
86 observed as under :
'
-<
"All power is, in Madison's phrase, "of an encroaching F
nature". Judicial powers is not immune against-this human
weakness. It also must be on guard against encroaching
beyond its proper bounds, and not the less so since the only
restraint upon it is self restraint. ...............
G
Rigorous observance of the difference between limits of power
and wise exercise of power-between questions of authority
and questions of prudence-requires the most alert appreciation
of this decisive but subtle relationship of two concepts that too
easily coalesce. No less does it require a disciplined will to
H
1094 SUPREME COURT REPORTS [2007] 12 S.C.R.

A adhere to the difference. It is not easy to stand aloof and allow r
..
want of wisdom to prevail to disregard one's own strongly held
!view of what is wise in the conduct of affairs. But it is not the
business of this Court to pronounce policy. It must observe a
fastidious regard for limitations on its own power, and this
B precludes the Court's giving effect to its own notions of what
is wise or politic. That self-restraint is of the essence in the
observance of the judicial oath, for the Constitution has not
authorized the judges to sit in judgment on the wisdom of what
Congress and the Executive Branch do."
c 19. When a State action is challenged, the function of the court is
to examine the action in accordance with law and to determine
whether the legislature or the executive has acted within the powers
and functions assigned under the constitution and if not, the court
must strike down the action. While doing so the court must remain
D within its self-imposed limits. The court sits in judgment on the action
of a coordinate branch of the Government While exercising power '
of judicial review of administrative action, the court is not an
appellate authority. The constitution does not permit the court to
direct or advise the executive in matters of policy or to sermonize
E qua any matter which under the constitution lies within the sphere
of legislature or executive, provided these authorities do not
transgress their constitutional limits or statutory powers."
25. Unfortunately, despite these observations in the above mentioned
F decisions of this Court, some courts are still violating the high constitutional
)-
principle of separation of powers as laid down by Montesquieu. As
pointed out by Hon'ble Mr. Justice J. S. Verma, the former CJI, in his
Dr. K.L. Dubey Lecture:
"... .Judiciary has intervened to question a 'mysterious car' racing
G down the Tughlaq Road in Delhi, allotment of a particular bungalow
to a Judge, specific bungalows for the Judges' pool, monkeys
capering in colonies, stray cattle on the streets, clearing public
conveniences, levying congestion charges at peak hours at airports
with heavy traffic, etc. under the threat of use of contempt power
H to enforce compliance of its orders. Misuse of the contempt power
~

DIVISIONAL MANAGER, ARAVALI GOLF CLUB v. 1095
CHANDER HASS
to force railway authorities to give reservation in a train is an A
extreme instance".

26. Recently, the Courts have apparently, if not clearly, strayed into
the executive domain or in matters of policy. For instance, the orders
passed by the High Court of Delhi in recent times dealt with subjects
ranging from age and other criteria for nursery admissions, unauthorized B
schools, criteria for free seats in schools, supply of drinking water in
schools, number of free beds in hospitals on public land, use and misuse
of ambulances, requirements for establishing a world class burns ward in
the hospital, the kind of air Delhities breathe, begging in public, the use
of sub-ways, the nature of buses we board, the legality of constructions c
in Delhi, identifying the buildings to be demolished, the size of speed-
breakers on Delhi roads, auto-rickshaw over-charging, growing frequency
of road accidents and enhancing of road fines etc. In our opinion these
were matters pertaining exclusively to the executive or legislative domain.
If there is a law, Judges can certainly enforce it, but Judges cannot create D
a law and seek to enforce it.
27. For instance, the Delhi High Court directed that there can be
no interview of children for admissions in nursery schools. There is no
statute or statutory rule which prohibits such interviews. Hence the Delhi
E
High Court has by a judicial order first created a law (which was wholly
beyond its jurisdiction) and has then sought to enforce it. This is clearly
illegal, for Judges cannot legislate vide Union ofIndia v. Deoki Nandan
Agarwal, AIR (1992) SC 96. In VK. Reddy v. State of Andhra
Pradesh, J.T. (2006) 2 SC 361 (vide para 17) this Court observed "The
F
Judges should not proclaim that they are playing the role oflaw maker
merely for an exhibition ofjudicial valour". Similarly, the Court cannot
direct the legislature to make a particular law vide Suresh Seth v.
Commissioner, Indore Municipal Corporation & Ors., AIR (2006) SC
767, Bal Ram Bali v. Union of India, JT (2007) 10 SC 509, but this
settled principle is also often breached by Courts . G
.J
28. The Jagadambika Pal's case of 1998, involving the U.P.
Legislative Assembly, and the Jharkhand Assembly case of2005, are two
glaring examples of deviations from the clearly provided constitutional
scheme of separation of powers. The interim orders of this Court, as is H
1096 SUPREME COURT REPORTS [2007] 12 S.C.R.

A widely accepted, upset the delicate constitutional balance among the
Judiciary, Legislature and the Executive, and was described Hon. Mr. J.S.
Verma, the former CJI, as judicial aberrations, which he hoped that the
Supreme Court will soon correct.
29. Hon'ble Justice A.S. Anand. former Chief Justice oflndia has
B recently observed : "Courts have to function within the established
parameters and constitutional bounds. Decisions should have a
jurisprudential base with clearly discernible principles. Courts have to be
careful to see that they do not overstep their limits because to them is
assigned the sacred duty of guarding the Constitution. Policy matters, fiscal,
C educational or otherwise, are thus best left to the judgment of the
executive. The danger of the judiciary creating a multiplicity of rights
without the possibility of adequate enforcement will, in the ultimate analysis,
be counter productive and undermine the credibility of the institution.
Courts cannot "create rights" where none exists nor can they go on
D making orders which are incapable of enforcement or violative of
other laws or settled legal principles. With a view to see that judicial
activism does not become "judicial adventurism", the courts must
act with caution and proper restraint. They must remember that judicial
activism is not an unguided missile - failure to bear this in mind would
E lead to chaos. Public adulation must not sway the judges and personal
aggrandizement must be eschewed. It is imperative to preserve the sanctity
and credibility of judicial process. It needs to be remembered that courts
cannot run the government. The judiciary should act only as an alarm
bell; it should ensure that the executive has become alive to perform its
F duties".
30. The justification often given for judicial encroachment into the
domain of the executive or legislature is that the other two organs are not
doing their jobs properly. Even assuming this is so, the same allegation
can then be made against the judiciary too because there are cases pending
G in Courts for half-a-century as pointed out by this Court in Rajindera
Singh v. Prem Mai & Ors., (Civil Appeal No. 1307/2001) decided on
23 August, 2007.
31. If the legislature or the executive are not functioning properly it
H is for the people to correct the defects by exercising their franchise
DIVISIONALMANAGER,ARAVALIGOLFCLUBv. 1097
CHANDER HASS
--i
properly in the next elections and voting for candidates who will fulfill their A
expectations, or by other lawful methods e.g. peaceful demonstrations.
The remedy is not in the judiciary taking over the legislative or executive
functions, because that will not only violate the delicate balance of power
enshrined in the Constitution, but also the judiciary has neither the expertise
nor the resources to perform these functions. B
32. Of the three organs of the State, the legislature, the executive,
and the judiciary, only the judiciary has the power to declare the limits of
jurisdiction of all the three organs. This is a great power and hence must
never be abused or misused, but should be exercised by the judiciary with
the utmost humility and self-restraint. c
33. Judicial restraint is consistent with and complementary to the
balance of power among the three independent branches of the State. It
accomplishes this in two ways. First, judicial restraint not only recognizes
the equality of the other two branches with the judiciary, it also fosters D
--f
that equality by minimizing inter-branch interference by the judiciary. In
this analysis, judicial restraint may also be called judicial respect, that is,
respect by the judiciary for the other coequal branches. In contrast, judicial
activism's unpredictable results make the judiciary a moving target and
thus decreases the ability to maintain equality with the co-branches.
E
Restraint stabilizes the judiciary so that it may better function in a system
of inter-branch equality.
34. Second, judicial restraint tends to protect the independence of
the judiciary. When courts encroach into the legislative or administrative
...' fields almost inevitably voters, legislators, and other elected officials will F
conclude that the activities ofjudges should be closely monitored. Ifjudges
act like legislators or administrators it follows that judges should be elected
like legislators or selected and trained like administrators. This would be
counterproductive. The touchstone of an independent judiciary has been
its removal from the political or administrative process. Even ifthis removal G
has sometimes been less than complete, it is an ideal worthy of support
and one that has had valuable effects.
35. The constitutional trade-:--offfor independence is that judges
must restrain themselves from the areas reserved to the other separate
H
1098 SUPREME COURT REPORTS [2007] 12 S.C.R.

A branches. Thus, judicial restraint complements the twin, overarching values
of the independence of the judiciary and the separation of powers.
36. In Lochner v. New York 198 US 45(1905) Mr. Justice Holmes
of the U.S. Supreme Court in his dissenting judgment criticil.ed the majority
B of the Court for becoming a super legislature by inventing a 'liberty of
contract' theory, thereby enforcing its particular laissez - faire economic
philosophy. Similarly, in his dissenting judgment in Griswold v.
Cannecticut, 381 U.S. 479, Mr. Justice Hugo Black warned that
"unbounded judicial creativity would make this Court a day-to-day
Constitutional Convention". In 'The Nature of the Judicial Process' Justice
C Cardozo remarked : "The Judge is not a Knight errant, roaming at will in
pursuit of his own ideal of beauty and goodness". Justice Frankfurter has
pointed out that great judges have constantly admonished their brethren
of the need for discipline in observing their limitations (see Frankfurter's
'Some Reflections on the Reading of Statutes').
D
37. In this connection we may usefully refer to the well-known
episode in the history of the U.S. Supreme Court when it dealt with the
New Deal Legislation of President Franklin Roosevelt. When President
Roosevelt took office in January 1933 the country was passing through a
E terrible economic crisis, the Great Depression. To overcome this, President
Roosevelt initiated a series oflegislation called the New Deal, which were
mainly economic regulatory measures. When these were challenged in the
U.S. Supreme Court the Court began striking them down on the ground
that they violated the due process clause in the U.S. Constitution. As a
F reaction, President Roosevelt proposed to reconstitute the Court with six )-
more Judges to be nominated by him. This threat was enough and it was
not necessary to carry it out. The Court in 1937 suddenly changed its
approach and began upholding the laws. 'Economic due process' met
with a sudden demise.
G 38. The moral of this story is that if the judiciary does not exercise
restraint and over-stretches its limits there is bound to be a reaction from
politicians and others. The politicians will then step in and curtail the
powers, or even the independence, of the judiciary (in fact the mere threat
may do, as the above example demonstrates). The judiciary should,
H therefore, confine itself to its proper sphere, realizing that in a democracy
DIVISIONAL MANAGER, ARAVALI GOLF CLUB v. l 099
CHANDER HASS
-j many matters and controversies are best resolved in non-judicial setting. A
39. We hasten to add that it is not our opinion that judges should
never be 'activist'. Sometimes judicial activism is a useful adjunct to
democracy such as in the School Segregation and Human Rights decisions
of the U.S. Supreme Court vide Brown v. Board ofEducation, 347 U.S.
483 (1954), Miranda v. Arizona 384 U.S. 436, Roe v. Wade 410 U.S. B
\ 113, etc. or the decisions of our own Supreme Court which expanded
the scope of Articles 14 and 21 of the Constitution. This, however, should
be resorted to only in exceptional circumstances when the situation
forcefully demands it in the interest of the nation or-the poorer and weaker
sections of society but always keeping in mind that ordinarily the task of c
legislation or administrative decisions is for the legislature and the executive
and not the judiciary.
40. In Dennis v. United States, (United States Supreme Court
Reports 95 Law Ed. Oct. 1950 Term U.S. 340-341) Mr. Justice D
,.I Frankfurter observed:
"Courts are not representl!tive bodies. They are not designed to
be a good reflex of a democratic society. Their judgment is best
infonned, and therefore, most dependable, within narrow limits.
Their essential quality is detachment, founded on independence. E
History teaches that the independence of the judiciary is
jeopardized when courts become embroiled in the passions of
the day and assume primary responsibility in choosing between
competing political, economic and social pressures. "
F
41. In view of the above discussion we are clearly of the view that
both the High Court and First Appellate Court acted beyond their
jurisdiction in directing creation of posts of tractor driver to accommodate
the respondents.
RP. Appeal allowed. G
J