Holding

The Supreme Court held that the conditions of service of Supreme Court employees must be prescribed by rules framed by the Chief Justice of India under Article 146(2) and approved by the President; since such rules have not yet been made, the pending interim orders remain in force and the petitions are disposed of without deciding the substantive pay‑parity claim.

Summary

The Supreme Court Employees Welfare Association filed writ petitions seeking parity in pay with Delhi High Court staff, invoking the principle of equal pay for equal work. The Court examined whether the Delhi High Court judgments were res judicata, held that a dismissed Special Leave Petition does not create a binding declaration of law under Article 141, and clarified that the doctrine of res judicata applies only to decisions on matters of fact and law intertwined with the cause of action. The Court explained that under Article 146(2) the Chief Justice of India alone may frame rules on the conditions of service of Supreme Court officers, which must then be approved by the President; since such rules have not yet been framed, the process is incomplete. Consequently, the interim orders granting interim pay parity remain in force, and the petitioners' claims cannot be finally decided until the Chief Justice frames the appropriate rules and the President gives approval. The petitions were disposed of with a direction to maintain the status quo.

Issues considered

Whether the dismissal of Special Leave Petitions amounts to a declaration of law under Article 141 and creates res judicata.
Whether the Delhi High Court judgments on pay scales are final and binding (res judicata) on the parties.
Whether the doctrine of equal pay for equal work under Article 39(d) is enforceable in this context.
Whether the conditions of service of Supreme Court employees can be determined by the Chief Justice of India under Article 146(2) and require Presidential approval.
Whether the existing Supreme Court Officers and Servants Rules are invalid or require amendment.
Whether the Court can compel the President to approve the rules framed by the Chief Justice.

Legislation cited

Constitution of Indias. 111, s. 136, s. 14, s. 141, s. 146, s. 16, s. 229, s. 32, s. 74

Subjects

Article 146(2)Supreme Court employeesPay scalesEqual pay for equal workRes judicataArticle 141Special Leave PetitionConstitutional lawSubordinate legislationJudicial reviewArticle 14Article 16Article 32President's approval

Judgment

l\

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

JULY 24, 1989
B
[M.M. DUTT AND T.K. THOMMEN, JJ.]

Constitution of India-Articles I4, 16, 32, I36, 141 and 146-
Special Leave Petition dismissed simpliciter-No declaration of law- ~. -
When does a decision of Court operate as res judicata-Conditions of.
C Service of Officers· and servants of Supreme Court-Primarily the
responsibility of Parliaments-But if Parliament does not lay down the ""(
conditions of service-Chief Justice or any other person authorised by
him can do so--Service Rules are liable to be struck down, it unjust,
oppressive, outrageous or directed to an unauthorised end.

D Article 226-Writ-Dismissal of-In limine or on ground of
/aches or availability of alternative remedy-Dismissal-Would not
operate as res-judicata.

Supreme Court Officers' and Servants (Conditions of Service and l_
Conduct) Rules-1961-Rules amended upto December 1985-Rules
E do not reflect the enhanced pay Scales adopted on the basis of interim
Orders of the Supreme Court or pay scales recommended by Pay Com-
mission Supreme Court employees-Revision of pay scales-Reference
to Pay Commission whether valid or incompetent.

F
These writ Petitions have been filed by the employees of the
Supreme Court through their Welfare Associations praying, in sub-
J
stance, for enha1.1cement of their present pay scales. Writ Petition No.
80 I of 1986 has been filed by the Welfare Association representing class II
and class III employees whereas Writ Petition No. 1201/86 has been
filed by Welfare Association representing class IV employees and the
third Writ Petition has heen filed hy retired employees.
G
In order to deal with and make recommendations in regard to
various representations highlighting grievances regarding service con-
ditions made by the staff, of the Supreme Court, the Chief Justice of
India constituted a committee consisting of five Judges of the Supreme
Court. The committee was also asked to make recommendations
H whether the pay scales of different categories of the staff warranted
488
~.
-,~
SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. 469

upward revision. The Committee after consideration of the issues raised,
A
_...., made several recommendations but as regards the pay scale revision, it
recommended that the matter be referred to the Third Pay Commis-
sion, then sitting. However in the meanwhile, the High Court of Delhi,
allowed various Writ Petitions filed before it by the members of the staff
of Delhi High Court belonging to different categories. The result of the
Orders passed by the Delhi High Court was, that the staff of that Higil B
Court started drawing mm:e pay in some categories of class IV, class II
& III employees, than the employees of the Supreme Court similarly
placed.

i Taking cue from the orders of the D~lhi High Court, the peti-
f tioners have filed these petitions invoking in aid the principle of "Equal
pay for equal work". It is urged by the petitioners that the duties
c
performed by the staff of the Supreme Court are similar rather more
.,.,. responsible, arduous and onerous to those performed by the members
of the staff of Delhi High Court, hence they are entitled to pay like
similar if not enhanced pay scales. It is urged that Special Leave Peti-
tion filed by the Government before this Court against the orders of the D
Delhi High Court having been dismissed by this Court, the order of
Delhi High Court has became final.

In Writ Petition No. 801 of 1986, by an interim order dated
25. 7.86 this Court directed that the officers and members of the staff of
). the registry should get the same pay and allowances which were then E
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 has been allowed to the officers and the
members of the staff of the Delhi High Court. The Court also by the
same order directed Respondent Nos. l and 2 to take necessary steps to
refer the question of revision of pay scales to the Fourth Pay Commis- F
-~ sion as suggested by the five Judges Committee.

Some other interim orders were also passed giving higher pay to
certain cetegories of employees, as was done by Delhi High Court.

The Fourth Pay Commission to which the question of revision of G
pay scales of the staff of Supreme Court was referred did not grant any
enhancement. It did not even grant the benefit of higher pay given
under the interim orders of this Court. After the report of Fourth Pay
Commission, the petitions have been listed for final hearing.

Disposing of the Writ Petitions, this Court H
490 SUPREME COURT REPORTS [1989] 3 S.C.R.

HELD: Per M.M. Dutt, J.
A
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. [SOSB]

B Indian Oil Corporation Ltd. v. State of Bihar, [1986[ 4 SCC 146;
Union of India v. All India Services Pensioner Association, AIR 1988
SCSOJ. ).-

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
C 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. [506G-H; 507A-B]

D Mathura, Prasad Rajoo Jaiswal v. Dossibai N.B. Jeejeebhoy,
[!970] 3 SCR 830 and Thakore Sobhag Singh v. Thakur Jai Singh,
[1968[ 2 SCR 848.

The doctrine of res-judicata is a universal doctrine laying down
the finality of litigation between the parties. When a particular decision
E has become final and binding between the parties, it cannot be set at
naught on the ground that such a decision is violative of Article 14
of the Constitution. So far as the parties are concerned, they will always
be bound by the said decision. In other words, either of the parties will
not be permitted to reopen the issue decided by such decision on the
ground that such decision violates the equality clause under the
F Constitution. [SOSH; 509A-BJ

From A;ticle 146(2) it is apparent that it is primarily the responsi-
bility 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
G other Judge or officer of the Court authorised by the Chief Justice of
India is empowered to make rules for the purpose. [Sl6B-Cj

The conditions of service that may be prescribed by the rules
framed by the Chief Justice of India under Article 146(2) will also
necessarily include salary. allowances, leave and pensions of the officers
H and servants of the Supreme Court. [Si6D]
SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. 491

The proviso to Article 146(2) puts a restriction on the power of the
A
Chief Justice of India by providing that the rules made under.Article
146(2) shall, so far as they.relate to salaries, allowances, leave or pen-
sions, require the approval of the President of India. [516EJ

The rules framed by the Chief Justice of India though it is a piece
of subordinate legislation, it is not a full-fledged legislative act requiring B
~- assent of the President of India. [517C]

Going strictly by Article 146(2) of the Constitution, the question
of aily reference to the Pay Commission does not arise. The Chief

~ Justice of India has to frame rules with the aid and assistance of his
own officers and other Judges. The Chief Justice of India may appoint
a Committee of Judges or a Committee of experts for the purpose c
y of assisting him in framing the rules relating to the conditions of
service of the employees of the Supreme Court. Although there is no
such provision in Article 146(2), but that is implied and it may be
said that the reference to the Fourth Pay Commission was made so
that the report or the recommendations of the Fourth Pay Commission D
relating to th_e revision of the pay-scales of the Supreme Court
employees will be of some assistance to the Chief Justice of India to
frame rules. [5230-F]

What should go to the President of India for his approval under
the proviso to Article 146(2) is not the report or the recommendation of E
the Fourth Pay Commission, but the rules framed by the Chief Justice
of India. In considering the rules framed by the Chief Justice of India
relating to salaries, allowances, leave and pension, it will not be the
concern of the President of India how and in what manner the Chief
Justice of India has laid down the rules. [523F-G]

1 All this can be done by the Chief Justice of India or by some other
F

Judge or officer of this Court authorised by the Chief Justice of India.
The Chief Justice of India may appoint a Committee of Judges to
submit a report relating to all relevant matters and, thereafter, the Chief
Justice of India may frame rules after taking into consideration the
report of the Committee. It will be absolutely in the discretion of the G
Chief Justice of India or his nominee as to how and in what manner the
rules will be framed. [5290-E]
i
Per Thommen, J.

The regulation of the conditions of service of the Supreme Court H

!
492 SUPREME COURT REPORTS [1989] 3 S.C.R.

A employees is the constitutional responsibility and power of the Chief
Justice of India, subject. of course, to the two conditions postulated in
clause (2) of Article 146. [538E]

Rules were made in this regard by the Chief Justice of India with
the approval of the President of India and they are contained in Part II
B of the Supreme Court Officers and Servants' (Conditions of Service
and Conduct) Rules, 1961 as amended upto 16th December, 1985.
No amendment of these Rules has been made subsequent to 1985 and
consequently the Rules do not reflect the enhanced pay scales adopted
on the basis of the interim Orders of this Court or the pay scales recom-
"mended by the Pay Commission. [538C-D] • •
c Rules are liable to be declared invalid if they are manifestly unjust
or oppressive or outrageous or directed to an unauthorised end/or vio-
lative of the general principles of the law of the land or so vague that it
cannot be predicated with certainty as to what is prohibited by them or
so unreasonable that they cannot be attributed to the power delegated
D or otherwise disclose bad faith. [542F]

Union of India & Anr. v. Cynamide India Ltd. & Anr., [!987) 2
SCC 720, 734; S.I. Syndicate Ltd. v. Union of India, AIR (1975) SC
460; P.C.S. Mills v. Union of India, AIR (1973) SC 537; Shree
Meenakshi Mills v. Union of India, AIR (1974) SC 366; E.P. Royappa
E v. State of Tamil Nadu, AIR (1974) SC 555; Maneka Gandhi v. Union
of India, AIR (1978) SC 597; Ajay Hasia v. Khalid Mujib, AIR (1981)
SC 485; D.S. Nakara v. Union of India, AIR (1983) SC 126; Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation, [!947) 2
All. E.R. 680; Westminster Corporation v. London and North Western
Railway, [ 1905] AC 426, 430; Barium Chemicals Ltd. v. Company Law
F Board, AIR (1967) SC 295, referred to.

Until the rules are made by the Chief Justice (or by a Judge or
Officer of the Court authorised by him), the question of approval or
disapproval by the President does not arise. In making the rules, the
Chief Justice would no doubt take into account the recommendations of
G the Pay Commission or of any other body of experts he may have
consulted. He will also take into account the objections rai<ied by
the Government to the suggestions made by the Registrar General who,
of course, acted as an agent of the Chief Justice. But the refusal of
the GovenmMmt to accede to the proposals of the Registrar General
is not a refusal of the President under Article 146(2), for such refusal
H or approval can arise only upon submission to him t9 duty framed
rules. [546G-H; 547A-B]
SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. 493

The approval of the President is not a matter of mere formality. It
would, of course, be wrong to say that in no case can the President.
A
which means the Government, refuse to accord approval. However,
once the rules are duly framed by so high a constitutional dignitary as
the Chief Justice of India, it will only be in the truly exceptional cases
that the President would withhold assent. [547D-E]
B
Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat, [1981] 2
SCR 718; State of Orissa v. Durga Charan Das, [1966,] 2 SCR 907:
G. V. Ramanaiah v. The Superintendent of Central Jail, Rajahmundry,
[1974] l SCR 852; Chandra Bansi Singh v. State of Bihar, [1985] I SCR
579; Waman Rao v. Union of India, [1981] 2 SCR I; Minor !'.
Rajendran v. State of Madras, [1968] 2 SCR 786; State of M.P. v. Ram
Raghubir Prasad Agarwal, [1979] 3 SCR 41; Roshanlal Kuthiala v. c
R.B. Mohan Singh Oberai, [1975] 2 SCR 491; Tamil Nadu Education
Department Ministerial & General Subordinate Service Association v.
State of Tamil Nadu, [1980] l SCR 1026; Kishori Mohan/al Bakshi v.
Union of India, AIR 1962 SC IJ39; State of Punjab v. Joginder Singh,
[1963] Supp. 2 SCR 169; Randhir Singh v. Union of India, [1982] 1 D
SCC 618; Dhirendra Chamoli v. State of U.P., [1986] I SCC 687; State
of Andhra Pradesh v. G. Sreenivasa Rao, [1989] 1 .IT 615; V.
Markendeya v. State of Andhra Pradesh, [1989] 2 JT 108; State of lj.P.
) v. J.P. Chaurasia, AIR 1989 SC 19; Umesh Chandra Gupta v. Oil &
Natural Gas Commission, AIR 1989 SC 29; -Tarsem Lal Gautam v.
State Bank of Patiala, AIR 1989 SC 30; Narinder Chand Hem Raj v. Lt. E
Governor, Administrator, Union Territory, Himachal Pradesh, [1972]
• 1 SCR 940; State of Andhra Pradesh v. T. Gopalakrishnan Murthi, AIR
1976 SC 123; A.K. Roy v. Union of India,. [1982] 2 SCR 272:
Gurumoorthy v. Accountant General Assam & Nagaland, [1971]
Suppl. SCR 420; K. Nagaraj & Ors. v. State of A.P. & Anr., [1985] 1
SCC 523, 548; R.K. Garg v. Union of India, [1981] 4 SCC 675, 687; F
Aeltemesh Rein, Advocate Supreme Court of India v. Union of India &
Ors., [1988] 4 SCC 54; State of U. P. & Ors. v. Renusagar Power Co. &
Ors., [1988] 4 SCC 59, 104; Kruse v. Johnson, [1989] 2 Q.B. 91; As-
sociated Provincial Picture Houses Ltd. v. Wednesbury Corporation,
[1948] I K.B. 223; Mixnam Properties Ltd. v. Chertsey U.D.C., [1965]
AC 735; Commissioners of Customs & Excise v. Cure & Deeley Ltd., G
[1962] I Q.B. 340; Mceldowney v. Forde, [1971] AC 632; Carltona
Ltd., v. Commisoioners of Works & Ors., [1943] 2 All E.R. 560, 564;
Point of Ayr. Collieries Ltd. v. Lloyd GeorJ<e, [1943] 2 All E.R. 546;
Scott v. Glasgow Corporation, [1899] AC 47, 492; Robert Baird L.D. &
Ors. v. City of Glasgow, [1936] AC 32, 42; Manhattan General Equip-
ment Co. v. Commissioner, [1935] 297 US 129, 134; Yates (Arthur) & H
-------------------.

494 SUPREME COURT REPORTS (1989] 3 S.C.R.

A Co. Pty Ltd., v. Vegetable Seed• Committee, [1945] 46-72 CLR 37;
/3_/tiley v. Conole, [1931] 34 W.A.L.R. 18; Boyd Builders Ltd. v. City of -,.--
Otta.wa, [1964] 45 D.L.R. (2nd) 211; Re Burns & Township of
Ht>ldfmand, [1966] 52 DLR (2d) 101 and Lynch v. Tilden Produce Co.,
"JbS U.S. 315, 320-322, referred to.

B ORIGINAL JURISDICTION: Writ Petition No. 801of1986 &
Etc. Etc. '

- (Under Article 32 of the Constitution oflndia)

- - K. Parasaran, Attorney General, B. Dutta, Additional Solicitor
General, D.D. Thakur, G.L. Sanghi (N.P.) M.S. Gujral, Anil Dev
c Singh, E.C. Agrawala, V.K. Pandian, Atul Sharma, A.K. Sanghi,
N.D; Garg, Pankaj Kalra, H.K. Puri, S.K. Bisaria, R.P. Gupta, Ms.
A. Subhashini, R. Venkataramani, S.K. Sinha, A.D. Malhotra, P.P.
Rao and Sushi! Kumar Jain for the appearing parties.
',, ..
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
.. ···'I!
•1i

..
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

"
496 SUPREME COURT REPORTS [1989] 3 S.C.R.

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:

~
.
c SI. Date of
No. Judgment No. ofW.P. Post
Revised scale
of pay
'f
Rs.
I. 3.2.86& W.P.No.1376/84 Restorer 400-600
23.5.86
D 2. 11.11.86 W.P. No. 1865/86 400-600
LO.Cs.
3. 4.12.86 W.P. No. 2236/86 Class IV
Sweepers
Ushers etc. 300-430
4. 8.1.87 W.P. No. 2318/86 Gestetner
E Operator 400-600
5. 6.2.87 W.P. 2402/87 Staff Car
•
Drivers 400-600
6. 20.8.87 W.P. No. 1656/87 Despatch
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
498 SUPREME COURT REPORTS [1989] 3 S.C.R.

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
,, ,,

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

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,
H 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
A
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 B
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
502 SUPREME COURT REPORTS [1989) 3 S.C.R.

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
D 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
E 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
\I

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

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
i •• ~<

:-i<

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 D
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 E
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 F
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 G
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
506 SUPREME COURT REPORTS [1989] 3 S.C.R.

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
F 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
G 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
H not decide any abstract question of law and there is also no question of
•

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

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

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
D 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 E
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

_-,,

•
512 SUPREME COURT REPORTS [1989] 3 S.C.R.

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 D
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 E
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
516 SUPREME COURT REPORTS [1989] 3 S.C.R.

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

of the document made under delegated powers are not legislative. the
A
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
B 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
F 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
G 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
520 SUPREME COURT REPORTS [1989] 3 S.C.R.

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
F 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
G 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
H 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
-- ------.. --~~-·. --.-·-·-·--- .
524 SUPREME COURT REPORTS [1989] 3 S.C.R.

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

A
apart from the other services under the Union and the States by pro- ,__
viding that unlike other services the Chief Justice of India and not the
President of India or the Governor will prescribe their service condi-
tions. We have been pressed to hold that the staff and servants of the
Supreme Court constitute a class by themselves having a totally dis-
tin ct personality. It is submitted that the pay-scales of the employees
j
B of the Supreme Court shall be fixed on tlie basis of their distinct
personality, qualifications and the arduous nature of work performed )-·
by them and not by a mere comparison with the designations of
Government employees. In this connection, our attention has been
drawn to the observation of the Five-Judge Committee. According to
the Committee, the borrowed designations without any attempt at
I
giving distinct and independent identity to the staff in the Registry of
c the Supreme Court have led to invidious comparison. The Committee
took the view that no attempt was made to really ascertain the nature "(
of the work of the employees in each category of staff and to determine
the pay-structure and then after framing proper rules invite the Presi- ~
dent of India to approve the rules under Article 146 of the Consti-
D tution. It also appears from paragraph 4.6 of Chapter IV pf Part III of
the report of the Fourth Central Pay Commission that the Commission
could not undertake a detailed study of the job contents and different
functions in the Supreme Court.

On the other hand, it is the contention of the learned Attorney -l_
E General that the fact that this Court is the apex Court where the
Judges lay down the law for the country and whose independence has
been ensured by the Constitution cannot, in any manner, lead to the
conclusion that the Supreme Court employees should be treated as a •
separate class having a distinct and separate identity and that should
be done by giving them higher pay-scales than the rest of the
F employees of the Government and that to provide them with different
pay-scales on the basis of the alleged separate identity of the insti- 4 r
tution would be contrary to the basic tenets of equality enshrined in
the Constitution. The learned Attorney General has drawn our atten-
tion to the C-:mstituent Assembly debates on the draft Article 122
which is the same as Article 146 of the Constitution. In particular, the
G learned Attorney General has drawn our attention to the statements of
Shri T.T. Krishnamachari and Dr. B.R. Ambedkar made in course of
the debate. Shri T.T. Krishnamachari stated before the Constituent
Assembly as follows:

"At the same time, i'!ir, I think it should be made clear that
H it is not the imemion of this House or of the framers of this
SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. [DUTI,J.) 527

Constitution that they want to create specially favoured
A
bodies which m themselves become an Imperium in
Imperio, completely independent of the Executive and the
legislature and operating as a sort of superior body to the
general body politic. If that were so, I think we should-
rather chary of introducing a provision of this nature, not
merely in regard to the Supreme Court but also in regard to B
· the Auditor-General, in regard to the Union Public Service
Commission, in regard to the Speaker and the President of
the two Houses of Parliament and so on, as we will thereby
be creating a number of bodies which are placed in such a
position that they are bound to come into conflict with the
Executive in every attempt they make to superiority. In
actual practice, it is better for all these bodies to more or
c
less fall in line with the regulations that obtain in matters of
recruitment to the public services, conditions of promotion
and salaries paid to their staff."

The submission of Dr. B.R. Ambedkar is also extracted below: D

"But it seems to me that there is another consideration
which goes to support the proposition that we should retain
the phrase "with the approval of the President" and it is
this. It is undoubtedly a desirable thing that salaries,
allowances and pensions payable to servants of the State E
should be uniform, and there ought not to be material vari-
ations in these matters with regard to the civil service. It is
likely to create a great deal of heart-burning and might
impose upon the treasury an unnecessary burden. Now, if
you leave the matter to the Chief Justice 1to decide, it is
quite conceivable-I do not say that it will happen-but it F
is quite conceivable that t.1e Chief Justice might fix scales
of allowances, pensions and salaries very different from
those fixed for civil servants, who are working in other
departments besides the judiciary, and I do not think that
such a state of things is desirable thing."
G
Another contention of the learned Attorney General is that if
the Junior Clerks and the class
IV employees are given the Punjab
scales of pay and the Central D.k, there would be a heavy financial
liability.of the Central Government. The Junior Clerks and Class IV
employees of the Supreme Court have already been given the Punjab
scales and the Central D .A. with effect from January 1, 1978 and this H
528 SUPREME COURT REPORTS [19&9] 3 S.C.R.

has cost the exchequer Rs.2 crores. It is submitted that other emp-
A
loyees of the Supreme Court who have not been given this benefit as
well as all other Central Government employees including armed
forces personnel numbering about 50 lakhs may also demand similar
benefit and if they are to be given the same benefit with ·effect from
1.1.1978 to 21.12.1985, it would involve an expenditure of Rs.8,640
B crores. Further, this D.A. would get merged in the pay-scale from
l.1.1986 and would also qualify for D.A. after 1.1.1986 leading to a
huge additio.nal expenditure.

At this stage, it may be stated that.in the course of the hearing,
we enquired from Mr. P.P. Rao, learned Counsel appearing on beh:!)f
of the Registrar of the Supreme Court, as to whether the Chief Justice
c of India was agreeable to prescribe ti)e rules re)ating to the salaries,
allowances, etc. of the Supreme Court employees. We are glad ~o
record that Mr. Rao has informed us that the Chief Justice of lpdia hJis
agreed to make necessary amendments to the existing rules relating to
the salaries and allowances of the Supreme Court employees in iu:cord-
p ance with Article 146 of the Constitutjon after considering the
recommendations of the Fourth Pay Commission and all other rele-
vant materials, and that the said amendments will be forwarded to the
President of India for approval. Mr. Rao has filed a statement jp
writing signed by the Registrar General, which is e1<tracted below:

E "After obtaining instructions froip the Hon'ble the ,Chief
Justice, I hereby state that necessary amendments to tl)e
existing rules relating to the salaries and allowances of the
Supreme Court employees will be made in accordance with
Article 146 of the Constitution after considering the recom-
mendations of the Fourth Pay Commission in respect of the
F Supreme Court employees and all other relevant materials
and that the said amendments to the Rules will be
forwarded to the President of India for approval and after
obtaining the approval of the President, in terms of the
proviso to Clause (2) of Article 146 of the Constitution, the
same will be implemented."
G
In view of the said statement, our task has become easy. It
appears from the said statement that the Chief Justice of India bas )-
agreed to prescribe the rules relating to salaries and allowances in .
accordance with Article 146(2) of the Constitution and has further
agreed to forward the same to the President of India for approval and
H to implement t!te same after obt'!ining the approval of the President of
..··
'
- f,':

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.J. (DUTT, J.] 529

India in terms of the proviso to Article 146(2).
-1 A
In our opinion, the Chief Justice of India is the proper authority
to consider the question as.to the distinctive nature and personality i:Jf
the employees of the Supreme Court, keeping in view the statements
made by Shri T.T. Krishnamachari and Dr. B.R. Ambedkar in course
of the debates in the Constituent Assembly on the draft Article 122 B
~ which is the same as Article 146 of the Constitution. Further, before
laying down the pay-structure of the employees of the Supreme Court,
it may be necessary to ascertain the job contents of various categories
.
, of employees and the nature of duties which are performed by them.
I There can be no doubt that at the time of preparing the rules for
prescribing the conditions of service including fixing of the pay-scales,
the Chief Justice of India will consider the representations and sugges- c
y lions of the different categories of employees of the Supreme Court
also keeping in view the financial liability of the Government as
pointed out by the learned Attorney General. All this can be done by
the Chief Justice of India or by some other Judge or officer of this
Court authorised by the Chief Justice of India. The Chief Justice of D
India may appoint a Committee of Judges to submit a report relating
ro all relevant matters and, thereafter, the Chief Justice of India may
frame rules after taking into consideration the report of the Commit-
tee. It will be absolutely in the discretion of the Chief Justice of India
J or his nominee as to how and in what manner the rules will be framed.
E
Before we conclude, it may be recorded that Mr. Kalra, Mr.
Gujral, Mr. Ravi Prakash Gupta, Mr. A.K. Sanghi and Mr. A.O.
• Malhotra have, besides adopting the arguments of Mr. Thakur, made
their own submissions. Mr. Kalra and Mr. Aggarwal have, in parti-
cular, drawn our attention to different pay-scales sanctioned to the
)- employees of the Central Secretariat, Lok Sabha and Rajya Sabha and F
submit that the Supreme Court employees have been discriminated,
although their nature of work is more .arc)uous and they are better
qualified. In view of our decision that the rules have·nofbeen framed
as per Article 146(2) of the Constitution, we do not think we are called
upon to decide the question raised by the learned Counsel.
G
In the circumstances, as agreed to by the Chief Justice of India
he may, after considering the recommendations of the Fourth Pay
1 Commission and other materials that would be available to him and
the representations of the employees of the Supreme Court and other
matters, as stated hereinbefore, frame rules b'y making necessary
amen-dments to the existing rules relating to salaries and allowances of H
530 SUPREME COURT REPORTS [1989] 3 S.C.R.

A the Supreme Court employees and forward the same to the President
of India for his approval.

The parties are directed to maintain status quo as regards the
scales of pay, allowances and interim relief, as on this day, till the
framing of the rules by the Chief Justice of India and the consideration
B by the President of India as to the grant of approval of such rules
relating to salaries, allowances, leave or pensions, and the interim
orders passed by this Court will also continue till such consideration by
the President of India. All the Writ Petitions and the Civil Miscel-
laneous Petitions are disposed of as above. There will, however, be no
order as to costs in any of them. \
c TH OMMEN, J. I agree with the judgment of my learned
brother, M.M. Dutt, J. I add the following observations with parii-
cular reference to the scope and ambit of clause (2) of Article 146 of
the Constitution of India.

D This Court has, by order dated 25.7.1986, directed, in the pre-
sent proceedings, that the officers and servants of the Supreme Court
should be placed on the same scales of pay as in the case of the staff of
the Delhi High Court. To the employees of this Court .not falling
within any of the categories of employees corresponding to those of
the Delhi High Court, this Court directed payment of a sum equal to
E 10 per cent of their basic pay subject to a minimum of Rs.50 per
month.

Counsel appearing for the petitioners in these cases submit that
the interim orders of this Court which were made with a view to
introducing parity between the employees of this Court and those of ).
F the Delhi High Court in regard to pay scales must be made absolute, ~
without prejudice to the claim of the employees of this Court to be
placed on a higher scale of pay than the employees of the Delhi High
Court by reason of their more arduous duties ana responsibilities and
functional and locational distinctions. The Fourth Central Pay Com-
missio·n (the "Pay Commission"'), counsel point out, had ignored the
G legitimate claims of the officers and servants of the Supreme Court.

It is contended on behalf of the Government that it has issued ~
sanction to implement the recommendations of the Pay Commission,
and all categories of employees of this Court have benefited by the
recommendations except those belonging to Classes III and IV.
H Employees of those two Classes, constituting about 60 per cent of the
SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. [TI!OMMEN,J.] 531

total strength of the Supreme Court Staff, claim pay scales in parity A
with their counterparts in the Delhi High Court who are paid, by vfrtue
of various judgments of that Court, salary and allowances on the basis
of the Punjab pay scales coupled with the Central dearness allowance.
The Class III and Class IV employees of this Court also receive the
Punjab pay scales and the Central dearness allowance, notwithstimd-
ing the revised pay scales recommended by the Pay Commission, B
because of the interim orders of this Court in the present proceedings.
The Attorney General contends that the Punjab pay scales of Rs.409'
600 in the case of Class III employees and Rs.300-430 in the case of
Class IV employees are higher than the corresponding Central pay
scales because the Punjab pay scales are linked to the higher price
index of 320 as on 1.1.1978 while the Central pay scales are linked to C
the price index of 200 as on 1.1.1973. The higl,~r Punjab scales have
already absorbed all the D.A. i~talments sanctioned upto 1.1.1978.
The Punjab D.A. formula is, therefore, correspondingly lower. There
is no justification in linking the Punjab pay scales with the Central
D. A. The decision of the Delhi High Court, although final being res
judicata between the parties, is based on wrong reasoning and cannot, D
therefore, form a legitimate basis for paying the Class III and Class IV
employees of this Court the Punjab pay scales and the Central D.A.
Their legitimate entitlement is to the Central Pay scales with the
\
Central D.A. This has been recommended by the Pay Commission.
j
Referring to the Delhi High Court employees, the Attorney E
General, in his written submissions, points out:

• "His counterpart in the Punjab High Court enjoyed higher
scale of pay but lesser allowances than he, because the
D.A. upto 1978 had been merged with pay scales of
employees of the Punjab High Court by taking into account F
the higher price index of 320 as on 1. 1.1978 whereas the
Delhi High Court employees' pay scales had .been fixed as
on 1. 1. 1973 by linking to price index of 200 but giving him
D .A. for the higher price index of the difference between
200 annd 320."
G
This contention of the Attorney General is sought to be met by
counsel appearing for the Class IV Employees' Association in his writ-
ten submissions in the following words:

"The Delhi High Court in Kamalanand's case has decided
that the Class IV employees of that court will get Punj"b H
---------- -

532. SUPREME COURT REPORTS (1989] 3 S.C.R.

pay scales and. Central D.A. It is submitted that D.A. has
A
relationship with the place and not with the scale. As. the
Delhi High Court happens to be located in Delhi it is the
Delhi D.A. which is Central D.A. which will apply and the
same will be the position of the Supreme Court employees
who are also in Delhi."·
s·
The Attorney General refutes the petitioners' contention. that
the Supreme Court employees, by virtue of the special nature of their
work or.locatfonal or institutional distinction, can legitimately claim
higher scales of pay than those applicable to corresponding categories
of employees in other sectors of public life. Any such.contention, the
C Attorney General points out, is contrary to the intent of the Constitu·
· tion makers. The fact that the Delhi High Court has, on a mistaken
assumption of law and fact, directed payment to fts employees on the
basis of Punjab scales of pay with Central D .A. does not justify repeti·
.. tion of. the same mistake in respect of other employees, for .two
wrongs never make a right. To perpetuate any such error, he contends,
D is not in conformity with Article 14 of the Constitution. In any view of
the ·matter, the Attorney General submits, the exercise of power by
the Consiitutional authorities under Article 146 of the Constitution is
beyond judicial scrutiny on grounds other than those relevant to jndi·
cial review of legislation. The President's approval or disapproval of
rules made by the Chief Justice of India is an exercise of legislative
E power and no direction can be issued to the President as regards the
exercise of that power. · 1.

The genesis of the recommendations of the Pay .Commission
regarding the employees of the Supreme Court lies in the suggestions
of the Committee of Judges of the Supreme Court in may, 198.5 to the
.F effect:

"The Chief Justice of India may

. (a) appoint a Committee of.Judges and experts to devise a
fair pay structure for the staff of the Supreme Court of
G India keeping in view the principles of pay determination;
or

(b) refer the matter to the 4th Pay C~mmission which is at
present considering the question of revision of pay-scales of
the Central Government employees and ask it to examine
the question of independent pay structure for the staff of
SUPREMECOURTEMPWYEESWELFAREASSN. >. U.0.1. [TIIOMMEN,J.] 533

the Supreme Court Registry and submit a separate report
.in this respect to the Chief Justice of India." A

Pursuant to the above suggestions and the decision taker!
the1eon, the Government amended the terms of reference of the Pay
Commission to include officers and employees of the Supreme Court
of India. A copy of the Report of the Committee of Judges was made B
available to the Pay Commission. The. Committee of Judges had
pointed out the functional differences between the Central Secretariat
Services and the Service in the Registry of the Supreme Court. The
Pay .Commission visited the Registry of the. Supteme Court to
familiarise themselves with the nature of the work in the Court. They
say:
c
"The Judges' Committee had observed that the pay
. structure for the Supreme Court employees should be
devised keeping in view the independent identity of the
Registry of the Supreme Court, in evolving the pay
/structure, the workload, skill, educational qualifications, l)
responsibilities and duties of various categories of posts in
the Registry need to be taken into account. We considered
it necessary to collect information about these matters by a
small team comprising officers from the Secretariat of the
Commission and the Registry of the Supreme Court. The
team spent a number of days visiting various sections in the g
Registry for a proper understanding of the work of diffe•
rent functionaries. They had discussions with the con•
cemed staff and the officers in charge of the sections and
also observed 'n detail the work being performed by diffe-
rent task holders. The work done by the team of officers
. within the short time available and our own visit proved p
very useful in acquainting ourselves with the role and func-
tions of the, personnel in the Supreme Court Regis tty.
While it has not been possible for us to undertake a detailed
study, of the job contents of different functionaries in the
Supreme Court, we have examined the· duties and res•
ponsibilities of various categories of posts with the help and G
. assistanec of senior officials of the Supreme Court."
· · (emp!iasis supplied)

This observation of the Pay Commission shows that while an
earnest attempt had been made by them to study the distinctive
characteristics of the job contents of the Supreme Court employees at fi
534 SUPREME COURT REPORTS [1989] 3 S.C.R.

various levels, and they had borne in mind the observations of Judges'
A
Committee as regards the independent identity of the Registry of the
Supreme court, no detailed study of the various aspects of the problem
could be undertaken by the Pay Commission within the short time
available to them. The Report of the Pay Commission is apparently
not based on any thorough study of the job contents of the different
B functionaries of the Supreme Court Registry.

The main thrust of the contentions of the employees of the Supreme
Court is not that they should be paid the Pun jab scales of pay and the
Central D .A. as such, as in the case of the Delhi High Court
employees, but that they should be paid at least as much as, if not
better than, the employees of the Delhi High Court. The Supreme
c Court employees, they say, have to be paid a higher scale of pay than
what is paid to the corresponding categories of employees in the
Central Government Secretariat or the Secretariat of the Central
Legislature because of the functional and institutional distinction of
the Supreme Court. Although the employees of the Central Govern-
D ment Secretariat and those of the Supreme Court Registry at various
levels are designated alike, there is no functional similarity between
them, the nature and quality of their work being dissimilar. If a proper
comparison is possible, they say, the Supreme Court employees must
be compared with the employees of the Delhi High Court. It would be
an anomaly, and a source of discontent, if the Supreme Court
E employees are not paid at least as much as, if not better than, what the
employees of the Delhi High Court are paid. The fact that the judg-
ment of the Delhi High Court, pursuant to which the employees of that
court are placed on a higher scale of pay, may be regarded as wrong in
law and fact does not make any difference because those judgments
have become final and binding, and consequently the employees of the
F Delhi High Court, in the absence of any law made by the legislature to ~
the contrary, are entitled to be paid according to the Punjab scales of
pay and the Central D.A. It is neither just nor fair, they say, to deny
the Supreme Court employees at least the same salary scale as is now
current in respect of the Delhi High Court employees.

G In the written submissions on behalf of the Assistant Registrars
and Deputy Registrars, it is pointed out that the recommendations of
the Pay Commission have resulted in their being subjected to invidious }-
discrimination vis-a-vis the Section Officers. It is further contended
that there is no justification to place these two categories of Officers
on a lower scale of pay than what is applicable to the Under Secretaries
H and Deputy Secretaries in the Secretariat of the Lok Sabha or the
SUPREMECOURTEMPLOYEESWElFAREASSN. v. U.0.1. jTHOMMEN,J.]. 535

Ra jya Sabha. They contend that the Pay Commision, in view of the
A
admitted constraint of time, did not make an exhaustive and proper
study of the nature of the functions performed by different categories
of employees of the Supreme Court Registry in comparison to those
working in the Central Government Secretariat and that of the Lok
Sabha and the Rajya Sabha.
B
These are weighty arguments and they require thorough investi-
gation. In this connection, reference may be made to Part II, Chapter
I, of the Report of the Committee of Jupges stating that despite the
functional distinctions, no attempt had been made to provide a sepa-
( rate and distinct identity to the ministerial staff of the Supreme Court
Registry. The Committee pointed out that even the designations of
various posts had been borrowed from the Central Secretariat Service c
with marginal modifications. So stating the Committee observed:

"These borrowed designations without any attempt at giv-
ing a :distinct and independent indentity to the ministerial
staff in the Registry of the Supreme Court led to invidious D
comparison and as a sequel to an unacceptable outcome.
History with regard to the salary scale applicable to various
categories of staff in the Registry would show that _fl least
since the Second Pay Commission appointed by the Central
Government for Central Government servants, the pay-
scales devised by the Pay C$mniission were practically E
bodily adopted by the Chief Justice of India for comparable
categories in the Supreme Court. This was repeated after
• the recommendations of the Third Pay Commission were
published and accepted by the Central Government. Appa-
rently with a view to avoiding the arduous task of devising a
fair pay structure for various categories of staff in the F
Registry, this easy course both facile and superficial was
adopted which led to the inevitable result of linking the pay
structure for the various categories· of staff in the Registry
with the pay structure in the Central Services for compar-
able posts. And the comparison was not functional but
according to the designations. No attempt was made to G
really ascertain the nature of work of an employee in each
category of staff and determine the pay structure and then
after framing proper rules invite the President to approve
the rules under Art. 146 of the Constitutiion."

The Committee further pointed out: H
536 SUPREME COURT REPORTS [1989] 3 S.C.R.

"Equal pay for equal work postulates scientific determina-
A
tion ofprinciples offair comparison and primarily it must be
. functional and not by designation because a comparison by
designation is mote often misleading .. , .. not the slightest
attempt has been made to compare the workload,. skill,
· educational qualifications, responsibilities and duties of
various categories of posts in the Registry."
'
The Committee concluded:

"Art. 146(2) casts a duty on the Chief Justice of India to
frame rules for determining the conditions of service of
officers and setVants of the Supreme Court. This is un-
c doubtedly subject to the provisions of any law that may be
made by Parliament but so far none has been made. This
power conferred on the Chief Justice of India precludes
and prohibits the Central Goverrunent from undertaking ·"'(·
any exercise unless the Parliament enacts a law on the sub-
ject to determine conditions of service of officers and staff
'of the Supreme Court. Whenever therefore the Central
Government decides to ~et up a Pay Panel for revising the
pay structure of the Central Government staff, the terms of
reference do not include the officers and servants of the
Supreme Court. As a necessary .corollary they cannot
appear befote the Pay Panel because. their case is not
covered by the tetms of reference of the Pay Panel. How-
ever, when the Pay Panel completes its task and submits its
recommendations and the Govt. after accepting the recom-
mendations devises a revised pay structure, the same is
bodily applied to the staff of the Supreme Court of India by
comparison by designation. Consequently the staff of the
Supreme Court of India without any opportunity to influ-
ence the thinking of the Pay Panel by its representations
and submissions has the unenviable misfortune of being
bound by the recommendations of the Pay Panel."
(emphasis supplied} ('·
G
For these reasons the Committee of Judges re<:Qmmended that in
order to assist the Chief Justice in making the rules u!i.der Article 146,
-·either a Committee of Judges and experts should be appointed to
devfse a fair pay structure for the staff of the Supreme Court or refer
the whole question to the Pay Comniission for their recommendations.
H It is pursuant to the recommendations of the Committee of Judges that
I
SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. (TIIOMMEN, J.) 537

. the matter was, as stated earlier, referred to the l'ay. Commission.
The l'ay Commissioo's report was forwarded by the Government to A
the Registrar of the Supreme Court for his comments on the pay
structure of the Supreme Court employees as recommended by 'the
l'ay Commission. The Registrar General of this Court wrote to the
concerned Secretary of the Central Government a detailed letter
pointing out various anomalies and difficulties if the recommendations B
of the Pay Commission were implemented. He pointed out that
implementation of such recommendations would have the unfortunate
effect of reducing the pay scales of certain categories of employees of
the Supreme Court whose pay has already been enhariced by reason of
various orders of this Court. This anomaly, he pointed out,. was
glaringly striking in respect of Class IV and Class III employees and
certain "other categories. The various suggestions of the Registrar C
General were rejected by the Government except his suggestion for
the enhancement of .the· salaries of the Private Secretaries 10 the
Judges of this Courl, This is what is stated on the point by Shri S,
Ghosh,' Additional Registrar, in his affidavit sworn on 3rd March,
1989:
,I -- D
"That except the enhancement of the salaries of the Private
Secretaries of the Judges of the Supreme Court of India,
the rest of the anomalies and infirmities as pointed out py
the Registrar General; on behalf of the Chief Justice of
Indi<1 were not appreciatecl by the Ministry of fin:mce and E
the pay scales recomrnendecl PY the Registrar General in
respect of various cadres on behalf of the Chief Justice of
India were not approved as those recommended by the l'ay
Commission were sanctionecl."

In the light of these facts, which my learned brother, Dutt, J. has F
discussed more elaborately, I must now· examine the scope and ambit
of-Article 146 of the Constitution of India so far as it concerns the
salaries; allowances, leave or pensions of the officers and servants of -
this Court. The relevant portion Ot this Article is clause (2) which
reads: - t'
G
"Subject to the provisions of any law made by Parliament,
the conditions' of service of officers and servants of the
Supreme Court shall be such as may be prescribed by rules
made by the Chief Justice of India or by some other Judge
or officer of the Court authorised by the Chief Justice of
India to make rules for the purpose: H
538 SUPREME COURT REPORTS [1989] 3 S.C.R.

Provided that the rules made under this clause shall, so far
A
as they relate to salaries, allowances, leave or pensions,
require the approval of the President."

It is clear from clause (2) that, subject to the provisions of any law
made by Parliament, the conditions of service of officers and servants
B of the Supreme Court are governed by rules made by the Chief Justice
of India or by some other Judge or officer of the Court duly authorised
by him. However, these rules, to the extent that they relate to the
salaries, allowances, leave or pensions, require the approval of the
President of India. These provisions, albeit subject to the abovesaid
conditions, are intended to protect the .special position of the Court.
Rules were made in this regard by tlie Chief Justice of India with the
C approval of the President-of 1ndfa and they are contained in Part II of
the Supreme Court Officers' and Servants' (Conditions of Service and
Conduct) Rules, 1961 as amended upto 16th December, 1985. No
amendment of these Rules has been made subsequent to 1985 and
consequently the Rules do not reflect the enhanced pay scales adopted
D on the basis of the intedm orders of this Court or the pay scales
recommended by the Pay Commission.

The regulation of the conditions of service of the Supreme Court
employees is thus the constitutional responsibility and power of the
Chief Justice of India, subject, of course, to the two conditions post-
E ulated in clause (2) of Article 146. The Pay Commission was in the past
not concerned with this category of employees because of the special
position of the latter under the Constitution. These employees, how-
ever, came to be included within the purview of the Pay Commission
on account of the recommendations of the Committee of Judges. The
Judges had intended the Pay Commission to study all aspects of the
F matter in depth and make their recommendations to the Chief Justice
of India to aid him in the discharge of his constitutional function under
clause (2) of Article 146. In this respect the Chief Justice must neces-
sarily act on the basis of data made avilable to him by persons he might
in that regard appoint, or, as has been done in the present case, by the
Pay Commission themselves to whom a reference was made by the
G Government pursuant to the recommendations of the Judges'
Committee. The cardinal function of the Pay Commission, while duly
acting in connection with the employees of the Supreme Court, is to
1 ender effective assistance to the Chief Justice of India to discharge his
responsibility of formulating rules under Article 146(2). This is the
first step towards the final adoption of the rules governing the condi-
H tions of service in relation to salaries, allowances, etc. It is only by
SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. [THOMMEN, J.] 539

formulating specific rules in that respect can the President (that means
A
the Government of India) exercise the mind over the question and
approve or disapprove the rules. The approval of the President follows
the making of the rules, and unless and until rules are made by the
Chief Justice of India specifically in regard to salaries, allowances,
etc., the President, acting as a constitutional authority, does not and
cannot exercise the power of granting or refusing approval. Similar B
~ provisions are contained in the Constitution in relation to the High
Court (see Article 229). These constitutional requirements are not an
empty formality, but are prescriptions required to be strictly complied
with to insulate the judiciary from undue executive interference with a
' view to according it, subject to any law made by the competent legisla-

'y ture, a special position of comparative independence in accordance
with the fundamental constitutional scheme of maintaining a harmoni-
ous balance between the three organs of State. [See M. Gurumoorthy
c
v. Accountant General Assam & Nagaland & Ors., [1971] Suppl. SCR
420, 429].

In the present case, as stated earlier, no rules have been so far D
made with reference to the recommendations of the Pay Commission
or with reference to the pay scales of the Delhi High Court employees,
which have been extended to the Class III and Class IV employees of
this Court, pursuant to the interim orders of this Court, and conse-
q uently the disapproval of the Registrar General's proposals was not
an exercise of power by the constitutional authority in terms of clause E
(2) of Article 146. That this is the correct position is not seriously
disputed by any party to the present proceedings. The Attorney
' Gene4:al does not dispute that rules have r.Jt been so far made by the
Chief Justice of India, although certain suggestions had been received
from the Registrar General by the concerned Ministry. A statement
i
dated 5.5.1989 has been filed by the Registrar General of this Court F
~
reading as follows:

"After obtaining instructions from the Hon'ble the Chief
Justice, I hereby state that necessary amendments to fhe
existing rules relating to the salaries _and allowances of the
Supreme Court employees will be made in accordance with G
Article 146 of the Constitution after considering the recom-
mendations of the Fourth Pay Commission in respect of the
1 Supreme Court employees and all other relevant materials
and that the said amendments to the Rules will be forwar-
ded to the President of India for approval and after obtain-
ing the approval of the President, in terms of the proviso to H
540 · SUPREME COURT REPORTS [1989] 3 S.C.R.

clause (2) of Article 146 of the Constitution, the same will
A be implemented."
r
· It is not and cannot be disputed that the Chief Justice oflndia, by
yirtue of the constitutional grant, exercises legislative power when he
makes rules under Article 146(2). Those rules are in· the. nature of
B subordinate legislation having the force of law to the extent, and sub·
ject to the conditions, prescribed by the Constitution. Like all statu-
tory instruments, they are •ubordinate to the parent .law. The power of
the President under the proviso to clause (2) of Article 146 to approve
or disapprove the rules made by the Chief Justice of India (relating to
salaries, allowances etc.) is likewise legislative in character. It is the
approval of the President that stamps such rules, so far as they relate
C . to salaries, allowances, etc., with the authority' of subordinate legisla-
tion. The making of the rules by the Chief Justice of India in that
. respect is a ste~indeed a vital step-in the process of law making,
but they assume the character of subordinate legislation only on their ''('·
b(
p appr~val tlie President ..
;me Attorney General strenuously contended that the power of.
the President under the proviso to clause (2) of Article 146 to grant or
refuse approval tantamounu to a legislative function comparable in its
nature, ambit and quality to the President's power under Article 111 to
assent to, or withhold assent from, a Bill passed by the Houses of
E Parliament, and consequently his actions in that regard are beyond
ju<licial review. No court can, he says, sit in judgment over the validity
or correctness or reasonableness of the President's act of approval or
disapproval of the rules, This comparison of the President's power
under Article 146 with his power under Article 111 is, with great
" respect to the Attorney General, misplaced.
p···., '
· ·""·The power of the President under Article P 1 is primary and
· plenary and not delegated and subordinate. He exercises· legislative
power under Article 111 in his capacity as a part of the legislature (see
· Article 79} and not as a delegate. On the other hand, he acts as a
to
delegate when he acts under tlie proviso Article 146(2). This power
G . is no doubt legislative in character, but subordinate in quality and
efficacy. The Constitution envisages that the President is not 9nly a part
of the legislature, but he is also the ultimate repository of the executive
power of the Union (see Article 53( l). It is in the latter capacity that
the President acts as a delegate. ln the exercise of this function, he does
not assume the mantle of the legislature, but functions as the head of
H the executive to whom the Constitution has delegated specific legisla-

J
SUPREMECOURTEMPLOYEESWELFAREASSN, v. U.O.I: (TI!O~IEN,J.I 541

tive ·power to· make subordinate legislation: This power· is limited by
the terms, and subordinate to the objects, of delegation. On the advice
A·
of his Councirof Ministers, the President'grants or refoses approval of
the rules made by· the ChiefJustice of fodia. Ii is indeed this power of
approval; which the Constitution has under the proviso to clause (2) of
Article 146 delegated to the Piesidennhat·can vitalise and 'activate the
rules, 'so far·as they relate to ·salaries; allowances etc., as subordinate B'
legislation. In the making of such instruments, both the Chief Justice
and: the.· President' act· as delegates· by. virtue of the- constitutional
conferment ·of'power: They must in· this regard ·necessarily act in good
faith; reasonably, imra vires the power·granted; and on relevant.con·
sideration of material facts:
c
The.fact that the· power·exercised oy the· Chief J iistice of Iirdi'a or•
the: President under• Article 146(2) is· derived directly' from· the- Con"
stitution, and not from a statute; makes no difference to the power of
judicial 'review,by•a competent court! Any' action' taken' (or refusal to
act) on the s.trength of power derived directly by constitutional delega-
tion is as much justiciable or reviewable upon the same grounds and to I)'
the same extent ·as in the case of any statutory instrument: The funda-'
mental q1,1estioff in ·determining whether the exercise of power by an·
authority is subject' to judicial review is not whether the source of his·
power is the constitution or a statute, but whether the subjecl'inatter.
under· challenge is· susceptible to ju.dicial review. Pure questions·
of .facts ·or· questions which' cannot'be. decided 'without recourse to· E':
elaborate· evidence or matters ·which·are· generally' regarded as· nor
justiciable....:.such as,. for example, those relating to the conduct ofttie·
external. 'affairs· or the :defence of the :nation-are not"amenable · t<I
judicial ·review> Seedn"this connection the principle e.nunciated"in•
G.C.S:U. &·Ors: v: Ministerfor the·Civil Service; (1984} 3 'All'E.. R':'
935;948;950.> F'

Rules made under Article 146 being subordinate legislation do
not partake of the character of ordinances which are legiSlation·in the·
true sense forthe limited period of their operation, K; Nagamj &Ors.
v; Stateof'.AcP: &Anr., (1985]1 SCC523;'548;A.K: Royv: Union of'
India; [1982}'1SCC271,291andR.K:-.Gargv. Union of India, [1981}4 G
· SCC 675,'687 .. While ordinances·cannoqierhaps be questioned on any.
ground-which is· not.relevant to the validity of legislation; it is'no!So irl"

1.:r the .case of rules· made by.virtue of power granted under the Constitu-
• tionc.which'are;' as· stated above,- liable to• be' declared void for· any of
the reasondor whichinstrum~ts'made by virtue of dele'gation by Acts'·
of. Parliament• can• bi:-·dedared. void.'. Rules; whether· made under tlie": H'
542 SUPREME COURT REPORTS [1989] 3 S.C.R.

A Constitution or a statute, must be intra vires the parent law. under
which pov.:er has been delegated. They must also be in harmony with ).-
the provISions of the Constitution and other laws. If they do not tend
in some degree to the accomplishment of the objects for which power
has been delegated to the.authority, courts will declare them to be
unreasonable and, thereforeJ void.
B
There is indeed a higher degree of presumption of constitutiona- ~
lity in favour of subordinate legislation than in respect vf administra-
tive orders. This.is especially the case where rules are made by virtue
of constitutional conferment of power. Rules made directly under the
Constitution may .have in a certain sense greater legislative efficacy (
than rules made under a Statute; within the field demarcated by the ~
C Constitution, the former can, if so provided, operate retrospectively.
These rules are, of course, as in the case of all statutory instruments, ....,.
controlled by the Constitution and the 1aws: see K. Nagaraj v. State of
A.P., (supra); Raj Kumar v. Union of India, [1975) 4 SCC 13, 14 and
B.S. Vaderav. Union of India, [1968)3SCR574.
D
Where the validity of a subordinate legislation (whether made
directly under the Constitution or a statute) is in question, the Court
has to consider the nature, objects and scheme of the instrument.as a
whole, and, on the basis of that examination, it has to consiaer what
exactly was the area over which, and the purpose for which, power has J.... •
E been delegated by the governing law.

Rules are liable to be declared invalid if they are manifestly
unjust or oppressive or outrageous or directed to an unauthorised end
or violative of the general principles of the law of the land or so vague
that it cannot be predicated with certainty as to what is prohibited by
F them or so unreasonable that they cannot be attributed to the power --+
delegated or otherwise disclose bad faith. In the words of Lord Russel
of Kilowen, C.J. in Kruse v. Johnson, [1898] 2 Q.B. 91, 99:

"If, for instance, they were found to be partial or unequal
in their operation as between different classes; if they were
G manifestly unjust; if they disclosed bad faith; if they in-
volved such oppressiVe or gratuitous interference with the
rights of those subject to them as could find no justification ')'
in the minds of reasonable men, the Court might well say, ·
'Parliament never intended to give authority to make such
rules; they are unreasonable and ultra vires.' "
H
SUPREME COURT EMPLOYEES WELFAREASSN-:v. U.0.1. [THOMMEN,J.) 543

In Union of India & Anr. v. Cynamide1ndia Ltd. & Anr., [1987]
A
2 SCC 720, 734 Chinnappa Reddy, J. observed that price fixation
being a legislative activity, it was:

"neither the function nor the forte of the court. We con-
cern ourselves neither with the policy nor with the rates.
But we do not totally deny ourselves the jurisdiction to B
enquire into the question, in appropriate proceedings,
whether relevant considerations have gone in and irrelevant
considerations kept out of the determination of the price."
(emphasis supplied)

t In S.I. Syndicate Ltd. v. Union of India, AIR (1975) SC 460 this
Court stated: c
"Reasonableness, for purposes of judging whether there
was an 'excess of power' or an 'arbitrary' exercise of it, is
really the demonstration of a reasonable nexus between the
matters which are taken into account in exercising a power D
and the purposes of exercise of that power."

In P.C.S. Mills v. Union of India, AIR (1973) SC--537, this Court,
referring to statutory fixation of fair price, stated:

·• ... But this does not mean that Government can fix any E
arbitrary"price or a price ftxed on extraneous considerations
or such that it does not secure a reasonable return on the
capital employed in the industry. Such a fixation would at
once evoke a challenge, both on the ground of its being
inconsi;tent with the guidelines build in the sub-section and
its being in contravention of Arts. 19( l)(f) and (g)." F
(emphasis supplied)

See also observation to the same effect in Shree Meenakshi Mills v.
Union of India, AIR 1974 SC 366.

Any arbitrary exercise of power by a public authority, whether G
or not it is in the nature of subordinate legislation, is liable to be
condemned as violative of Article 14. As stated in E.P. Royappa v. State
of Tamil Nadu, AIR 1974 SC 555:

" .. ·.·. equality and arbitrarinesS are sworn enemies; one
belongs to the rule of law in a republic while the other, to H
544 'SUPREME COURT REPORTS [1989] 3 S.C.R.

the whim and caprice of an absolute monarch ... "
A
See also Maneka Gandhi v. Union of India, AIR 1978 SC 597 Ajay
Hasia v. Khalid Mujtb, AIR (1981) SC 485 and D.S. Nakara v. Union
of India, AiR 1983 SC.126.

'B An act is ultra vires either because the authority has acted in
excess of its rower in the narrow sense, or because it has abused its )>·
power by acting in bad faith or for an inadmissible purpose or on
irrelevant grounds or without regard to relevant considerations or with
gross unreasonableness: see the principle stated by Lord Greene M.R.
in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpora-
tion, [1947] 2 All. E. R. 880, 885. Power is exercised in bad faith where
'c its r~pository is motivated by personal animosity towards those· who
are directly affected by its exercise. Power is no less abused even when
it is exercised in good faith, but for an unauthorised purpose or on
• irrelevant grounds, etc. As stated by Lord Magnaghten in Westminster
Corporation v. London and North Western Railway, [1905] AC 426,
·o 430:
" It is well settled that a public body invested with
statutory powers such as those conferred upon the Corpo-
ration must.take care not to exceed or abuse its powers. It
must keep within the limits of the authority committed to
'E it. It· must act in good faith. And it must act reasonably.
The last proposition is involved in the second, if not in the
first .... "

This principle was restated by this Court in Barium Chemicals Ltd. v.
Company Law Board, AIR 1967 SC 295;
'F
" .... Even if (the statutory order) is passed in good faith
and with the best of intention to further the·purpose of the
legislation which confers the powers, since the Authority
has to act in accordance with and within the limits of that
legislation, its order can also be challenged if it is beyond
G those limits or is passed on grounds extraneous to the legis-
lation or if there are no grounds at all for passing it or if the
grounds are such that no one can reasonably arrive at the
·opinion or satisfaction requisite under the legislation. In
·any one of these 'situations it can well be said that the
'authority did nothonestly form its opinion or that in form-
H ing it, it did not apply its mind to the relevant facts.
SUPREMECOURTEMPLOYEES%LFAREASSN, v. U.0.1. [TIJOM~N,J,] 545.

The true position thus appears to be that, just as in the cas~ of, an. A
administrative action, so also in the case of subordinate legislation '
(whether made directly under the Constitution or a Statute), its vali:
dity is open to question if it is ultra vires the Constitution or the
governing Act or repugnant to the general principles of the laws of the
land or it is so arbitrary or unreasonable that no fair minded authority
could ever have made it. See the test adopted by Lord Russel in Kruse B_,
v. Johnson, [1898] 2 Q.B. 91 and by Lord Greene M.R. in Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1
K.B. 223. See also Mixnam Properties Ltd. v. Chertsey U.D.C., [1965]
AC 735; Commissioners of Customs and Excise v. Cure and Deeley
Ltd., [1962] 1 Q.B. 340; Meeldowney v. Forde, [1971] AC 632; Car/-
Iona Ltd. v. Commission~rs of Works and others, [1943] 2 All E.R.
560, 564; Point of Ayr. ,Collieries Ltd. v. Lloyd George, [1943] 2 All
c
E.R. 546; Scott v. Glasgow Corporation, [1899] AC 470, 492; Robert
Baird L.D. and others v. City of Glasgow, [1936] AC 32, 42; Manhat-
tan General Equipment Co. v. Commissioner, [1935] 297 US ·129·, 134;
Yates (Arthur) & Co. Pty. Ltd. v. Vegetable Seeds Committee, [1945:46]
72 CLR 37; Bailey v. Conole, [1931] 34 W.A . L.R. 18; Boyd Builders D.
Ltd. v. City of Ottawa, [1964] 45 D.L.R. (2d) 211; Re Burns and
Township of Haldimand, [1966] 52 DLR (2d) 101 and Lynch v. Tilden
Produce Co., 265 U.S. 315, 320-322.

Even if it were to be assumed that rules made by virtue of power
granted by a provision of the Constitution are of su~h legislati~e efficacy. E
and amplitl,lde that they cannot be questioned on grounds ordinarily
sufficient to invalidate the generality of statutory inst~uments, they are
nevertheless liable to be struck down if found to be intr.insically arbi-
trary or based on an irrational classification or otherwise repugnant to
constitutional principles. As stated by this Court in E.P. Royappa v.
State of Tamil Nadu, (Supra): F

"Where an act is arbitrary, it is implicit in it, that it is un
equal both according to political logic and constitutional
law and is therefore violative of Article 14 and if it affects
any matter relating to public employment, it is also viola-
tive of Article 16. Articles 14 and 16 strike at arbitrariness CJ;
in State action and ensure fairness and equality of treat-
ment. They require that State action must be based o.n vali,~.
relevant principles applicable alike to all similarly situate
and it must not be guided by any extraneous or irrelevan,t
considerations. because th.a\ wouw_ ~.~ d.enial 'i'f eqt_1al.i,t,Y,.
Whi;re th.<; operative reason. fo,i; S,tat~ ac\i.w.i, a.s. <!i~\i.t;\: 1-1.
546 SUPREME COURT REPORTS [1989! 3 S.C.R.

A guished from motive inducing from the antechamber of the
mind, is not legitimate and relevant but is extraneous and
outside the area of permissible considerations, it would
amount to ma/a fide exercise of power and that is hit by
Articles 14 and 16. Mala fide exercise of power and
arbitrariness are different lethal radiations emanating from
II the· same vice; in fact the latter comprehends the former.
/
Both are inhibited by Articles 14 and 16."

These are some of the general principles which must guide the
repository of power in all his actions. They apply with equal force to
the exer.cise of power contemplated under Article 146(2), including its
proviso. These principles must, therefore, necessarily weigh with the
c court 'whenever the action of a constitutional or statutory authority is
under challenge. These principles are, however, subject, as stated
earlier, to the overriding consideration as to the amenability of the
inpugried subject matter to judicial review. That of course is a question
which must in each case, when challenged, be decided by the court
D with reference to the facts in issue.

As stated earlier, the constitutional process envisaged under
Article_ 146(2) has not been completed. Initial steps had indeed been
taken in that regard and to that end. Constituting the Committee of
Judges and their suggestion to refer the question to the Pay Commis-
E sion, the dedsion to refer the matter to the Pay Commission, the
recommendations of the Pay Commission, and, consideration of the
same by the Registrar General and his letter to the Government con-
taining certain suggestions, form the components of a_link in the chain
leading to the ultimate end;..but they are not themselves the ultimate
end, which means the making of the rules by· the Chief Justice and
F submitting the same to the President. for· approval, and the final deci-
sion of th<'; President in that behalf. The Registrar General's letter and
the Government's reaction to that letter were at best only the process
of consultation preceding the rule making act.

The ultimate authority in this regard being the Chief Justice of
G India, he alone is competent to make, or aut&onse the making of the
rules. Until the rules are made by him (or by a Judge or_officer of the
court authorised by him), the question of approval or dissapproval by
the President does not arise. in' n:iaklng the rules, the Chief Justice
would no doubt take into account the recommendations of the Pay
Commission,pr of any other body or experts he may have consulted.
H He will also take 'into account the objections raised by the Government
SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.I. [IBOMMEN,J.) 547

to the suggestions made by the Registrar General who, of course,
A
acted as an agent of the Chief Justice. But the refusal of the Govern-
ment to accede to the proposals of the Registrar General is not a refusal
of the President under Article 146(2), for such refusal or approval can
arise only upon submission to him of duly framed rules.

It is of course true that no court will direct the President to grant B
approval, for a writ of mandamus will not lie to compel a person to
exercise.a legislative function in a particular fashion (See A.K. Roy
etc. v. Union of India and Anr., (supra) Narinder Chand Hem Raj &
Ors. v. Lt. Governor, Administrator, Union Territory, Himachal
Pradesh.& Ors., [1972] l SCR 940, 945. But the President must, upon
submission to him bf the Rules made by the Chief Justice of India
under Article 146(2), exercise his mind as to whether or n()t he would
c
grant approval, and, without undue delay, come to a decision on the
point: See Aeltemesh Rein, Advocate Supreme Court of India v. Union
of India and Others, [1988] 4 SCC 54. In the present case, the time for
.decision by the President has of course not come.
D
The approval of the President is not a matter of mere formality.
It would, of course, be wrong to say that in no case can the President,
which means the Government, refuse to accord approval. However,
\ once the rules are duly framed by so high a constitutional dignitary as
.J. the Chief Justice of India, it will only be in the truly exceptional cases
that the President would withhold assent. It is but proper and E
appropiate that, in view of the spirit of the constitutional provision,
approval would be accorded in all but the exceptional cases: see the
observations of this Court in State of Andh-ra Pradesh & Anr. v. T.
Gopalakrishna Murthi & Ors., [ 1976] 1 SCR 1008. In this connection
the observation of Mukharji, J. in State of U.P. & Ors. v. Renusagar
j..- Power Co. & Ors., [1988] 4 SCC 59, 104 is apposite: F
,
''The exercise of power whether legislative or administra-
tive will be set aside if there is manifest error in the exercise
of such power or the exercise of the power is manifestly
arbitrary. Similarly, if the power has been exercised on a
non-consideration or non-application of mind to relevant G
factors the exercise of power will be regarded as manifestly
erroneous. If a power (whether legislative or administra-
tive) is exercised on the basis of facts which do not exist and
which are patently erroneous, such exercise of power will
stand vitiated."
H
548 SUPREME COURT REPORTS [1989] 3 S.C.R.

A We place.on record the statementmade by the Registrar Ge;:c ·al
that necessary amendments to the existing rules relating to the sai·.: :; ·
and allowances of the Supreme Court employees will be made in
accordance ,with Article 146 of the Constitution ,after considering the
recommendations of .the Pay .Commission in respect of .the 'Supreme
Court .employees and all other relevant materials, and .that the said
B amendments to the Rules will be forwarded to the President of India
for approval, .and, after .obtaining 1he approval of the President in
terms of the proviso to clause (2) of Article 146 of .the Constitution,
the same will be implemented.

In .the circumstances, no further order is required in the present
proceedings, apart from directing that, until rules are proP'~rly made
,c by way of amendments to the existing rules in accordance with Article
146 of ·1he Constitution, the interim orders of this Court dated
75,7,1986, 14.8.1986 and 15.1.1987 shall remain in full force and the
status quo as on this day as regards ~ay and allowances shall .be
maintained., Aecordingly, J agree that there shall be a direction as
D stated by my learned brother in the final paragraph of his judgment.

Y. Lal. - Petitions Disposed of.

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