Holding

The power to fix and revise the pay scales of High Court officers rests exclusively with the Chief Justice, subject to the requisite approval of the President/Governor, and the High Court should not ordinarily issue a mandamus directing the Union to grant a particular scale.

Summary

The respondents, Assistant Registrars of the Delhi High Court, claimed that their pay scale should be revised upward as recommended by the Chief Justice of the High Court. The Union of India refused to implement the recommendation, arguing that such fixation of pay requires the President’s (or Governor’s) approval under Article 229(2) and that financial implications justified the refusal. The High Court issued a writ of mandamus directing the Union to grant the higher scale, which was appealed to the Supreme Court. The Supreme Court held that the power to fix and revise pay scales of High Court officers lies exclusively with the Chief Justice, subject to the constitutional requirement of approval, and that the High Court should not ordinarily issue a mandamus in such matters. Consequently, the appeal was dismissed, affirming that the government’s refusal must be based on strong, cogent reasons and that the High Court’s jurisdiction under Article 226 is limited in this context.

Issues considered

The validity of a writ of mandamus directing the Union of India to fix a specific pay scale for Assistant Registrars of a High Court.
Whether the Chief Justice of a High Court can unilaterally fix or recommend pay scales without prior approval of the President/Governor under Article 229(2).
Whether the post of Assistant Registrar is a promotional post and whether it can be merged with Court Masters.
The extent of judicial review and the High Court's discretion under Article 226 in service‑law matters.
Whether financial implications for the State can be a legitimate ground to refuse approval of the Chief Justice's recommendation.

Legislation cited

Constitution of Indias. Article 133, s. Article 14, s. Article 226, s. Article 229

Subjects

service lawpay fixationArticle 229mandamusjudicial reviewhigh court administrationpromotional postconstitutional law

Judgment

A UNION OF INDIA AND ANR.
v.
S.B. VOHRA AND ORS.

JANUARY 5, 2004

B [V.N. KHARE, CJ, S.B. SINHA AND DR. AR. LAKSHMANAN, JJ.)

Service law:

Constitution of India, 1950:
c
Arlicle 229-0jjicers of High Cozm-Promolion-Power and jurisdiction
of Chief Justice of High Court-Held: Chief Justice of High Court no/ bound
lo accepl the plea of Cenlral Govt. 1hat the posts of Asst. Registrar and Court
Maslers should be merged-The question as regards merger of these posls
D was wilhin Jhe exclusive domain ofthe CJ-Whether the Post ofAss/. Regislrar
was a promolional post or not. thus, could not fall for lhe decision of /he
. Central Govt.

Article 229-0jjicers of High Courl-Fixation!revision of pay scales--
Power and Jurisdiclion ofChiefJustice of High Court-Held; Recommendation
E of Chief Justice of High Cour/ regardingfixalionlrevision ofpay scales should
ordinarily he approved by /he S1a1e-Refi1sal thereof must be for strong and
adequate reasons-It would not be always helpful to raise the question of
financial implication in this regard.

Article 229-0fjicers of High Court-Fixation/revision of pay scales-
F Modalities of-Held: An expert body like /he Pay Commission should examine
lhis maller--But in 1he absence of such expert body, the High Court itself
should undertake the /ask keeping in view 1he special Constitutional provisions
existing in this behalf in terms of Article 229. -;.

Article 226-Mandamus-Writ-lssuance of-To Central Govt. to grant
G a par/icular scale of pay lo Officers of High Court-Correctness of-Held:
Nol proper-Exercise of discretion by High Court depends upon the law which
governs the field-High Court should allow statutory aulhorities to pe1form
statuto1J' duties at the first instance-Administrative law.

Articles 226 and 229~0jjicers of High Court-Fixation/revision ofpay
H
36
U.0.1. v. S.B. VOHRA 37
"1'- scales-Power of High Court-Held: Only in exceptional cases, the High A
Court may interfere on the judicial side-But ordinarily it should not do so-
Even if interference is necessa1y, the High Court should exercise its jurisdiction
with care and circumspection.

Article 133-0fficers of High Court-Fixation/revision 'of pay scales-
/n respect of Private Secretaries to Judges -Appeal against -Held: As the B
matter was pending for a long time and pay scale already given, Supreme
Court declined to exercise its discretionary jurisdiction.

The respondents were Assistant Registrars in the High Court. The
post of Assistant Registrar was a promotional post for the Superintendents,
Court Masters and Private Secretaries. The Chief Justice of the High C
Court recommended that the scales of pay of the respondents be revived.
As the appellant paid no heed to this recommendation, the respondents
filed a writ petition before the High Court.

The High CQurt allowed the writ petition by issuing a writ of
mandamus directing the appellant to grant the recommended pay scale D
to the respondents. Hence the appeal.

\ On behalf of the appellant, it was contended that the High Court
could not issue a writ of mandamus directing the appellant to grant the
recommended pay scale to the respondents; that fixation of pay scale by
the Chief Justice of the High Court required the approval of the President E
of India in terms of Article 229(2) of the Constitution; that the Fourth
Pay Commission had recommended the same pay scales for
Superintendents, Court Masters and Private Secretaries as also the
Assistant Registrars and, therefore, both these categories of posts were
treated as equal or merged; and that granting of a higher scale of pay F
would have adverse effect on other employees of the State.

Dismissing the appeal, the Court

HELD: I.I. The Chief Justice of the High Court in this case was not
bound to accept that the posts of Assistant Registrar and Court Masters G
should be merged. The question as regard merger of the two posts was
within the exclusive domain of the Chief Justice. Whether. the post of
Assistant Registrar should be a promotional post or not, thus, could not
fall for decision of the Central Government. [56-C-DI

Tarsem Singh v. State of Punjab, [19941 5 SCC 392, referred to. H
38 SUPREME COURT REPORTS (2004) I S.C.R.

A 1.2. If the nature of duties performed by the Assistant Registrars
had been more onerous than the Court Master, a higher scale of pay was
required to be fixed. Furthermore, merger of the cadres must be made in
terms of the statutory rules. For the said purpose, an order is required to
be passed~ Conjectures or surmises in such a situation had no role to play.
(56-H; 57-AI
B
1.3. The Chief Justice was entitled to hold the opinion that hierarchy
of the posts was required to be maintained in respect whereof the necessary
scales of pay could be directed to be revised. (57-BI

C State ofU.P. v. C.M Agarwal, (1997( 5 SCC 1, High Court ofJudicature
for Rajasthan v. Ramesh Chand Paliwal, (1998( 3 SCC 72, State of
Maharashtra v. Association of Court Stenos, PA, PS (2002( 2 SCC 141 and
High Court Employees Welfare Association, Ca/cul/av. State of West Bengal,
(2003) AIR SCW 6338, relied on.

D 2. J. In a matter of this nature the appellant, with a view to showing
that its action is reasonable, was bound to perform its duties within a
reasonable time. Resaonableness being the core of Article 14 of the
Constitution of India would imply that the constitutional duties be
performed within a reasonable time so as to satisfy the test of
reasonableness adumbrated under Article 14 of the Constitution oflndia.
E (60-B)

2.2. It is not always helpful to raise the question of financial
implications vis-a-vis the effect of grant of a particular scale of pay to the
officers of the High Court on the ground that the same would have adverse
effect on the other employees of the State. Scale of pay is fixed on certain
F norms; one of them being the quantum of work undertaken by the officers
concerned as well as the extent of efficiency, integrity, etc. required to be
maintained by the holder of such office. (60-C-D(

All India Judges Association v. Union of India, (1992( l SCC 119, relied
on.
G
3.1. The matter as regards the fixation of scale of pay of the officers
working in the different High Courts must either be examined by an expert
body like the Pay Commission or any other body but in the absence of
constitution of any such expert body the High Court itself is to undertake
the task keeping in view the special Constitutional provisions existing in
H this behalf in terms of Article 229 of the Constitution of India. (60-E-F( ,..
U.0.1. v. S.B. VOHRA 39
3.2. There cannot be any doubt whatsoever that the A
recommendations of the Chief Justice should ordinarily be approved by
the State and refusal thereof must be for strong and adequate reasons. In
this case the appellants even addressed itself on the recommendations
made by the High Court. They could not·have treated the matttr lightly.
It is unfortunate that the recommendations made by a high functionary
like the Chief Justice were not promptly attended to and the private B
respondents had to file a writ petition. The question as regards fixation
of a revision of the scale of pay of the Officers of the High Court being
within the exclusive domain of the Chief Justice of the High Court, subject
to the approval, the State is expected to accept the same recommendations
save and except for good and cogent reasons. (60-H; 61-A-B] C
S.8. Mathur v. Hon 'ble the Chief Justice of Delhi High Court, AIR
(1988) SC 2073; Comptroller and Auditor General v. K.S. Jaganathan, (1986]
SCC 679; Ajit Singh v. State of Punjab, (1999] 7 SCC 209; Superintending
Engineer, Public .Health, U.T. Chandigarh v. Ku/deep Singh, (1997] 9 SCC
199; State of A.P. v. T.Gopalakrishna Murthi, (1976] 1 SCR 1008 and D
Supreme Court Employees Welfare Association v. Union of India, (1989] 4
sec 187, relied on.
P.N. Chopra v. Union of India, ILR (1981) II Del, 102, approved.

4.1. No standard can be laid down exhaustively as to in what situation E
a writ of mandamus will issue and in what situation it will not. In other
words, exercise of its discretion by the Court will also depend upon the
law, which governs the field, namely, whether it is a fundamental law or
an ordinary law. (55-EI

4.2. The High Court, however, should not ordinarily issue a writ of F
or in the nature of mandamus and ought to refer the matter back to the
Central/State Government with suitable directions pointing out the
irrelevant factors which are required to be excluded in taking the decision
and the relevant factors which are required to be considered therefor. The
statutory duties should be allowed to be performed by the statutory
authorities at the first instance. In the event, however, the chief Justice of G
the High Court and the State are not ad idem, the matter should be
discussed and an effort should be made to arrive at a consenus. (61-C-D]

Sterling Computers Ltd v. Mis. M&N Publications Ltd:, (1993] l SCC
445; Kumari Shri/ekha Vidyarthi v. State of U.P., (1991] 1 SCC 212; Life
Insurance Corporation v. Escorts, AIR (1986) SC 1370; F.C./. v. Jagannath H
\
A-

40 SUPREME COURT REPORTS [2004] I S.C.R.

A Dutta, AIR (1993) SC 1494; State of Gujarat v. Meghraj Peth Raj Shah _,,
Charitable T!;,ust, 1199413 SCC 552; Assistant Excise Commissioner v. Issac: ..
Peter, 1199414 SCC 104; National Highway Authority of India v. Mis. Ganga
Enterprises,, (2003) 7 Scale 171; Tata Cellular v. Union of India, 119941 6
SCC 651; Monarch Infrastructure (P) Ltd. v. Commissioner, Ulhasanagar
Municipal Corporation, 120001 5 SCC 287; WB. State Electricity Board v..
B Patel Engi1:1eering Co. Ltd., 1200112 SCC 451; l.l.C. v. Consumer Education
a1,1d Research Cenlre, A IR ( 1995) SC 1811; Comptroller and Auditor General
of India v. K.S. Jagannathan, 1198612 SCC 679; Dwarkanath v. ITO, 119651
3 SCR 536; Hochtief Gammon v. State of Orissa, 1197611 SCR 667;
Mansukhlal Vithaldas Chauhan v. State of Gujarat, 119971 7 SCC 622 and
c State of West Bengal v. Nuruddin Mallie, 1199818 SCC 143, referred to.

Mayor of Rochester v. Regina, (1858) EB & E 1024; The King '"
Revising Barrister for the Borough of Hanley, (1912) 3 KB 518; Padfield v.
Minister ofAgriculture, Fisheries and Food, (1968) AC 997; Council of Civil
Service Unions v. Minister for the Civil Services, (1985) AC 374, R. V. North
D and East Devon Heallh Authority (2000) 2 WLR 622 and R. v. Secretmy of
State for the Home Department, (1995) 2 WLR I, referred to.
~

Wade: Administrative Law, 6th Edn. p. 401, 8th Edn. p. 609 Grahame i
Aldous and John Alder; Application for Judicial Review, Law and
Practice"
E
Halsbury's laws of England, 4th Edn. Volume I, para 80; Dawn
Oliver: Constitutional Reforms in the U.K. p. 105, referred to.

5. Only in exceptional cases, the High Court may interfere on the
judicial side, but ordinarily it would not do so. Even if an occasion arises
F for the High Court to interfere on its judicial side, the jurisdiction of the
High Court should be exercised with care and circumspection. 161-EI

6. As the matter has been pending for a long time and keeping in +
view the fact and the situation obtaining herein, namely, the. officers
holding the post of Private Secretaries to the Judges have been given a
G
particular scale of pay, this is not a fit case wherein this Court should
exercise its discretionary jurisdiction. 161-FI

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2887 of2001.

H From the Judgment and Order dated 21.7.2000 of the Delhi High Court
U.0.l. v. S.B. VOHRA [SINHA, J.] 41
in W.P. No. 1131 of 1993. A
L.N. Rao, Additional Solicitor General, Hemant Sharma, Rajeev Sharma,
B.K. Prasad and P. Parmeswaran for the Appellants.

S.R. Bhat, Ashok K. Gupta and Farrukh Rasheed for the Respondents.
B
The Judgment of the Court was delivered by

... S.B. SINHA, J. INTRODUCTION:

How far and to what extent a writ of or in the nature of mandamus
should issue directing the Union of India to pay salary to the Officers of the
High Court in a particular scale of pay is the question involved in this appeal
c
which arises out of a judgment and order dated 21.07.2000 passed by the
High Court of Delhi in Writ Petition No. 1131 of 1993.

BACKGROUND FACTS:
D
The respondents are Assistant Registrars of the Delhi High Court. Their
scale of pay was fixed at Rs. 3000-4500 and recommendations therefor were
made by the Chief Justice of the High Court of Delhi in terms of his letter
dated 15. 10.1991 to the effect that the scales of pay be revised with effect
from 1.1.1986. Before making the said recommendations, the Chief Justice
of the High Court constituted a committee which had gone into the said E
matter. The Committee submitted a report which was accepted by the Chief
Justice. While fixing the scales of pay of the Assistant Registrars, it was
noticed that the post of Assistant Registrar is a promotional post for the
Superintendents, Court Masters and Private Secretaries who had been placed
in the Scale of pay of Rs. 2000-3500. As despite such recommendations no
F
heed was paid thereto by the appellant, the writ petition was filed.

The appellants herein inter a/ia contended before the High Court that
the Assistant Registrars should not have been placed in a higher scale of pay
of Rs. 3000-4500 as the Fourth Pay Commission, had recommended the scale
of pay of Superintendent,. Court Master and Private Secretary as also the G
Assistant Registrar at Rs. 2000-3500 and thus it must have given a go-bye to
the old relativities and treated both categories of the post as equal or merged.
I
The appellant also highlighted the repercussions thereof on the officers of the

" equivalent rank of Central Government who might also agitate for higher
scale of pay.
H
42 SUPREME COURT REPORTS [2004] I S.C.R.

A JUDGMENT OF THE HIGH COURT: .,
The High Court having regard to the decisions of this Cou11 in S.B.
Mathur and Ors. v. Hon 'ble the Chief Justice of Delhi High Court and Ors.,
AIR (1988) SC 2073 wherein Kania, J. held that the three categories of posts,
namely, Private Secretary, Court Master and Superintendent are of equal
B status and they are interchangeable and further having regard to the fact that
the post of Assistant Registrar was still a promotional post rejected the
contention of the appellant that such posts must be held to have merged. It
was observed:

"Another stand taken by respondents Nos. I and 2 in their reply
c affidavit that in case same scales of pay have been prescribed by Pay
Commission for two posts, one promotional to another, the old
relativities are no more valid and new relativities have been established
by the Commission and the two posts are treated equal/merged. In
other words after 1.1.1986, no promotion can be made from the feeder
D cadre to the promotion cadre since the post of Private Secretary,
Court Master, Superintendent and those of Assistant Registrar will be
deemed to have merged. This contention is also not tenable since as
per the rules, promotion is made and 'is being made to the post of
Assistant Registrar from only three feeder cadres of Superintendent,
Court Master and Private Secretary and from no other source. These
E posts cannot be said to have deemed merged as alleged."

The High Court opined:

"The Committee submitted its report recommending higher pay scales.
Hon'ble the Chief Justice agreed with the recommendations made by
F the Committee. The reasons which prevailed with the Chief Justice in
agreeing with the recommendations of the Committee may be stated
as follows:-"

(i) FR 22-C lays down that an officer performing diuties and functions
involving higher responsibility should draw higher pay. Admittedly1
G the post of Assistant Registrar carries duties and functions of a higher
responsibility than those attached to the posts of Private Secretaries,
Couti Masters and Superintendents.

(ii) The Delhi High Cou11 Establishment (Appointment and Conditions
of Service) Rules, 1972 lay down the mode of appointment to the
H
U.0.1. v. S.B. VOHRA [SINHA, J.] 43
• r post of Deputy Registrar and Joint Registrar. These posts carry the A
pay scales of Rs. 3700-5000 respectively. These officers besides
administrative work, also hold Court in accordance with the powers
delegated to them under the High Court Rules and Orders, as also
under Delhi High Court (Original Side) Rules. The responsibilities
attached to these posts are higher than those of the Assistant Registrar.
B
(iii) The Registrar who is a senior Officer of Higher Judicial Service
is the Head of the Office of this Court. Apart from administrative
functions, the incumbent to the post of Registrar has also to discharge
judicial functions and hold Court in exercise of powers under the
High Court Rules and Orders and Original Side Rules of this Court.
The present pay scale of the post of Registrar is Rs. 5900-6700.
c
(iv) If the imbalance as stated above, is allowed to continue, it will,
besides causing hardship, lead to frustration and heart-burning amongst
the officers of this Court which would be detrimental to the smooth
and efficient functioning of the Registry. Thus, in public interest, it
D
is essential that the imbalance created in the pay structure of the
officers of this Court be removed without undue delay."
\
It was further observed that the repercussion of a higher scale of pay
upon the officers of the equivalent rank of the Central Government cannot be
a ground to deny the legitimate scale of pay to the Assistant Registrar stating: E

"The respondents have not refoted and cannot legitimately refute the
fact that the post of Assistant Registrar is a higher status post attaching
to it higher responsibility and moreover it is a promotional post from
the post of Superintendent, Court Master and Private Secretary. Similar
is the position with respect to the post of Deputy Registrar and Joint F
Registrar vis-a-vis the post of Assistant Registrar."

-• SUBMISSIONS:

Mr. L. Nageshwar Rao, learned Additional Solicitor General, appearing
for the Union of India, inter alia, submitted that the Division Bench of the G
High Court committed a manifest error in passing the impugned judgment
insofar as it failed to take into consideration that no writ of or in the nature
of mandamus directing the Central Government and the Respondents herein
.,; to grant the pay scale of Rs. 2000-3500 w.e.f. 1.1.1986 in favour of the
respondents can be issued. The learned counsel would urge that having regard
to the provisions contained in Clause 2 of Article 229 of the Constitution of H
44 SUPREME COURT REPORTS [2004] I S.C.R.

A India, the Chi1!f 'Justice of the High Court may in his wisdom fix the pay
scale but therefor approval of the President of India was required to be
obtained.

Mr. Bhat, learned counsel, appearing on behalf of the private
respondents, on the other hand, supported the order of the High Court.
B
Mr. Bhat would submit that the need for pay revision arose in the
following factual background :

(i) Superintendents, Court Masters and Private Secretaries constitute
feeder channel for promotion to the post of Assistant Registrar.
c These three posts are interchangeable. It was held so specifically
by this Hon 'ble Court in a decision in SB Mathur v. Hon 'ble the
Chief Justice of Delhi High Court and Ors., AIR (1988) SC
2073.
(ii) After the implementation of the lllrd Pay Commission
D recommendations, Private Secretaries and Court Masters of the
High Court of Delhi filed Writ Petition seeking parity of pay
with that of Private Secretary to the Chief Secretary, Delhi
Administration. The same was allowed by the High Court of i
Delhi in a judgment in P.N. Chopra v. Union of India, [ILR
(1981) II Delhi 102].
E
(iii) Sangram Singh, representing the Superintendents also filed a
writ petition before the High Court claiming parity of pay scales
with Private Secretaries and Court Master on the strength of pre-
existing parity of status with the said two categories of posts.
The writ petition was allowed. The Union of India challenged
F the decision by way of SLP (C) No.8934 of 1982, which was
however dismissed by this Hon'ble Court on 3.1.1982.
(iv) A writ petition being CWP No.290 I of 1984 (Tri. Narayanan
and Ors. v. Union of India and Ors.) came to be filed by Assistant
Registrars, Deputy Registrars and Joint Registrars of the High
G Court of Delhi seeking enhancement of pay scales. A Division
Bench of the High Court on 18.12.1985 allowed the same.
(v) After the Fourth Pay Commission Private Secretaries, Court
Masters and Superintendents were drawing pay in the scale of
Rs.2000-3500.
H
U.0.1. v. S.B. VOHRA [SINHA, J.] 45
(vi) Shri A.K. Gulati, a Private Secretary filed writ petition before A
the High .Court of Delhi (CWP No.289 of 1991) contending inter
a/ia that Private Secretaries to Secretaries, Government of India
were drawing pay in the scale of Rs. 3000-4500 whereas the
pay-scale· of Private Secretaries in the High Court was kept at
Rs. 2000-3500. The claim was that the pre-existing and unbroken B
parity, crystallized by judgment that had become final, was
broken. The writ petition was allowed on 7.5.1991 granting the
·+ pay scales at par with the Private Secretaries in the Government
of India. The special leave petition filed by the Union of India
(SLP (C) No.13229/1991 was dismissed by this Hon'ble Court
on 26.8.1991. The matter, thus, attained finality and pay scales C
of Private Secretaries in the High Court and Private Secretaries
in the Government of India were brought on par.
(vii) In the wake of Gulati's judgment, Court Masters and
Superintendents also approached the High Court of Delhi. by
way of a writ petition (CWP No. 2756. of 1991; Hari Sharma D
and Ors. v. Union of India) which was allowed on 14.11.1991,.
following the reasoning in Mathur "s case (supra). Accordingly,
\ their pay fixation and payment of arrears were directed by this
Hon'ble Court. The judgment was implemented. Here too, the
matter attained finality, and the Government of India did not
raise any objection. E
(viii) As a result of the implementation of the said judgment, Court
Master, Superintendents and Private Secretaries in the High Court
of Delhi started drawing pay on the same scale of pay as
prescribed for Assistant Registrars (Rs. 3000-4500). As already
stated the post of Assistant Registrar is a promotional post for F
the three feeder cadres mentioned.

Only thereafter representations were made by the Assistant Registrar,
pursuant whereto a Committee of three Judges, as noticed hereinbefore, was
constituted.
G
ARTICLE 229 OF THE CONSTITUTION:

Clause 2 of Article 229 of the Constitution of India empowers the
Chief Justice of the High Court to prescribe by rules the conditions of service
of Officers and servants of the High Court. Such Rule shall, however, be
H
46 SUPREME COURT REPORTS [2004) I S.C.R.

A subject to : (I) the provision of any law made by the legislature of the State; -("
(2) the approval of the President/Governor of the State so far as it relates to
salary, allowances, leave or pensions. r-

Independence of the High Court is an essential feature for working of
the democratic form of the Government in the country. An absolute control,
B therefore, have been vested in the High Court over its staff which would be
free from interference from the Government subject of course to the limitations
imposed by the said provision. There cannot be, however, any doubt +
whatsoever that while exercising such a power the Chief Justice of the High
Court would only be bound by the limitation contained in Clause 2 of the
c Article 229 of the Constitution of India and the proviso appended thereto.
Approval of the President/Governor of the State is, thus, required to be obtained 'r"'

in relation to the Rules containing provisions as regard, salary, allowances,
jii
leave or promotion. It is trite that such approval should ordinarily be granted
loo
as a matter of course.

D MANDAMUS VIS-A-VIS ARTICLE 229(2) OF THE CONSTITUTION:
Mandamus literally means a command. The essence of mandamus in
· England was that it was a royal command issued by the King's Bench (now
Queen's Bench) directing performance of a public legal duty. t-

E A writ of mandamus is issued in favour of a person who establishes a
legal right in himself. A writ of mandamus is issued against a person who has
a legal duty to perform but has failed and/or neglected to do so. Such a legal
duty emanates from either in discharge of a public duty or by operation of
law. The writ of mandamus is a most extensive remedial nature. The object
of mandamus is to prevent disorder from a failure of justice and is required
F to be granted in all cases where law has established no specific remedy and
whether justice despite demanded has not been granted.
~

·In Comptroller and Auditor General v. K.S. Jaganathan, [I 986] 2 SCC J~

679 it w3s hel.d that, "Article 226 is designedly couched in wide language in
order not to confine the power conferred by it on the High Courts only to the
G
power to issue prerogative writs as understood in England. The High Courts
exercising jurisdiction under Article 226 can issue directions, orders or writs
so as to enable the High C<;>urts to reach injustice wherever it is found and +·
to mould the reliefs to meet the particular and complicated needs of this
country.
H
.i.

U.OJ. v. S.B. VOHRA (SINHA, J.] 47
It was, however, held in Ajit Singh and Ors. (II) v. State of Punjab and A
Ors., ( 1999] 7 SCC 209 in a different context that the view taken in the
above decision and in Superintending Engineer, Public Health, U. T.
Chandigarh and Ors. v. Ku/deep Singh and Ors., ( 1997] 9 SCC 199 cannot
be said to be correct as Article 16(4) confers a discretion and does not confer
any constitutional duty or obligation and therefore the view taken in the B
aforementioned cases that a writ of mandamus can be issued in such cases,
cannot be said to be correct.

In Stale of A.P. and Anr. v. T. Gopalakrishna Murthi and Ors., [1976]
I SCR 1008, a three Judge Bench of this Court observed :

"One should expect in the fitness of things and in view of the spirit
c
of Article 229 that ordinarily and generally the approval should be
accorded. But surely it is wrong to say that the approval is a mere
formality and in no case it is open to the Government to refuse to
accord their approval. On the facts and in the circumstances of this
case and in the background of the conditions which are prevalent in D
other States Government could have been well-advised to accord
approval to the suggestion of the Chief Justice, as the suggestion was
nothing more than to equate the pay scales of the High Court staff
with those of the equivalent pqsts in the Secretariat. That merely
because the Government is not right in accepting the Chief Justice's E
view and refusing to accord the approval is no ground for holding
that by a writ of mandamus the Government may be directed to
accord the approval."

Despite the said finding, it was observed :
, F
"We, however, trust and hope that the Government will give their
second thought to the matter and see whether it is possible in the
State of Andhra Pradesh to obliterate the distinction in the matter of
pay scales etc. between the High Court and the Secretariat Staff.
There does not seem to be any good and justifiable reason for
maintaining the distinction." G
In Supreme Court Employees Welfare Association v. Union of India
and Anr., [1989] 4 SCC 187 this Court, while considering the provisions of
Article 146(2) of the Constitution of India which is in pari materia with
Article 229 of the Constitution of India, held :
H
48 SUPREME COURT REPORTS [2004) I S.C.R.
r
A "The legislative function of Parliament has been delegated to the
Chief Justice of India by Article 146(2). It is not disputed that the
function of the Chief Justice of India or the Judge or the officers of
the Court authorised by him in framing rules laying down the
conditions of service, is legislative in nature. The conditions of service
that may be prescribed by the rules framed by the Chief Justice of
B India under Article 146(2) will also necessarily include salary,
allowances, 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 Article 146(2) shall, so far as they relate to salaries,
c 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 will be final and conclusive,
except that with regard to salaries, allowances, leave or pensions the
approval of the President of India is required. In other words, if the
D 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 I
or pensions is the involvement of the financial liability of the
government."
E It was further observed :

"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 rules have been framed by a very high dignitary of the
F
State, it should be looked upon with respect and unless there is very
good reason not to grant approval, the approval shou Id always be
granted. If the President 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
G President of India and the Chief Justice of India."

JUDICIAL REVIEW:

The scope of judicial review in the context of grant of contract has
been the subject matter of a decision of this Court in Sterling Computers
H limited v. Mis. M&N Publications limited and Ors., (1993] I SCC 445
U.0.1. v. S.B. VOHRA [SINHA, J.) 49

1 wherein this Court noticed the commentary of Prof. Wade in his \Vell-known A
treatise .'Administrative Law' in the following terms:

"It is true that by way of judicial review the Court is not expected to
act as a. court of appeal while examining an administrative decision
and to record a finding whether such decision could have been taken
otherwise in the facts and circumstances of the case. In the book B.
Administrative Law, Prof. Wade has said:

"The doctrine that powers must be exercised reasonably has to be
reconciled with the no less important doctrine that the court must not
usurp the discretion of the public authority which Parliament appointed
to take the decision. Within the bounds of legal reasonableness is the c
area in which the deciding authority has genuinely free discretion. If
it passes those bounds, it acts ultra vires. The court must therefore
resist the temptation to draw the bounds too tightly, merely according
to its own opinion. It must strive to apply an objective standard
which leaves to the deciding authority the full range of choices which
D
legislature is presumed to have intended. The decisions which are
extravagant or capricious cannot be legitimate. But if the decision is
\ within the confines of reasonableness, it is no part of the court's
function to look further into its merits. With the question whether a
particular policy is ~ise or foolish the court is not concerned it can
only interfere if to pursue it is beyond the powers of the authority." E

But in the same book Prof. Wade has also said:

"The powers of public authorities are therefore essentially different
from those of private persons. A man making his will may, subject
to any rights of his dependents, dispose of his prope11y just as he may F
• ' wish. He may act out of malice or a spirit of revenge, but in law this
does not affect his exercise of his power. In the same way a private
~
person has an absolute power to allow whom he likes to use his land,
to release a debtor, or, where the law permits, to evict a tenant,
regardless of his motives. This is unfettered discretion. But a public
authority may do none of these things unless it acts reasonably and G
in good faith and upon lawful and 'relevant grounds of public interest.

There are many cases in which a public authority has been held to
+ have acted from improper motives or upon irrelevant considerations,
or to have failed to take account of relevant considerations, so that its
H
50 SUPREME COURT REPORTS [2004] I S.C.R.

A action is ultra vires and void."

The Court further noticed:

"While exercising the power of judicial review, in respect of contracts
entered into on behalf of the State, the Court is concerned primarily
B as to whether there has been any infirmity in the "decision making
process". In this connection reference may be made to the case of
Chief Constable of the North Wales Police v. Evans where it was said
that: (p. 144 a)

"The purpose of judicial review is to ensure that the individual receives
C fair treatment, and not to ensure that the authority, after according
fair treatment, reaches on a matter which it is authorised or enjoined
by law to decide for itself a conclusion which is correct in the eyes
of the comt."

In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors.
D [ 1991] I sec 212, however, the Court sought to draw a distinction between
the powers of public authorities vis-a-vis the private authorities referring to
Wade's Administrative Law, 6th Edition, page 401 to the following effect
and stating:
I
"For the same reasons there should in principle be no such thing as
E unreviewable administrative discretion, which should be just as much
a contradiction in terms as unfettered discretion. The question which
has to be asked is what is the scope of judicial review, and in a few
special cases the scope for the review of discretionary decisions may ...
be minimal. It remains axiomatic that all discretion is capable of
abuse, and that legal limits to every power are to be found somewhere."
F
The power of judicial review of High Court as also this Court is now
well-defined in a series of decisions of th is Court. It is trite that the court will •
not exercise its jurisdiction to entertain a writ application wherein public law
element is not involved. (See life Insurance Corporation v. Escorts, AIR
G (1986) SC 1370, F.C.I. v. Jagannath Duaa, AIR (1993) SC 1494, Stale of
Gujarat v. Meghraj Peth Raj Shah Charitable Trust, (1994] 3 SCC 552,
Assistant Excise Commissioner v. Issac Pel er, [I 994] 4 SCC 104, National
Highway Aulhority of India v. Mis. Ganga En/erprises and Anr., (2003] 7
SCALE 171)

H In any event, the modern trend also points to judicial restraint in
U.0.1. v. S.B. VOHRA [SINHA, J.] 51
.. • administration a_ction as has been held in Tata Cellular v. Union of India,
(1994] 6 sec 651, Monarch Infrastructure (P) ltd. V. Commissioner,
A
Ulhasnagar Municipal Corporation and Ors .. (2000] 5 SCC 28·7, W.B. State
Electricity Board v. Patel Engineering Co. ltd. and Ors., (200 I] 2 SCC 451
and l.f.C. v. Consumer Education and Research Centre, AIR (1995) SC
1811.
B
The legal right of an individual may be founded upon a contract or a
statute or an instrument having the force of law. For a public law remedy
enforceable under Article 226 of the Constitution, the actions of the authority
need to fall in the realm of public law-be it a legislative act of the State,
an executive act of the State or an instrumentality or a person or authority
imbued with public law element. The question is required to be determined
c
in each case having the aforementioned principle in mind. However, it may
not be possible to generalize the nature of the action which would come
either under public law remedy or private law field nor is it desirable to give
exhaustive list of such actions.
D
The question as to whether this Court, would permit judicial review
and, if any, to what extent will vary from case to case and no broad principles
can be laid down therefor.
\
We may usefully notice that Grahame Aldous and John Alder in
"Applications for Judicial Review, Law and Practice" stated the law thus: E
"There is a general presumption against ousting the jurisdiction of the
courts, so that statutory provisions which purport to exclude judicial
review are construed restrictively. There are, however, certain areas
of governmental activity, national security being the paradigm, which
the courts regard themselves as incompetent to investigate, beyond an F
.1 initial decision as to whether the government's claim is bona fide. In
this kind of non-justiciable area judicial review is not entirely excluded,
~
but very limited. It has also been said that powers conferred by the
royal prerogative are inherently unreviewable but since the speeche~
of the House of Lords in Council o/Civil Sen>ice Unions v. Minister G
for the Civil Service this is doubtful. Lords Diplock, Scaman and
Roskili appeared to agree that there is no general distinction between
powers, based upon whether their source is statutory or prerogative
./.. but that judicial review can be limited by the subject matter of a
particular power, in that case national security. Many prerogative
powers are in fact concerned with sensitive, non-justiciable areas, for H
52 SUPREME COURT REPORTS [200~] I S.C.R.

A example, foreign affairs, but some are reviewable in princi'ple,
including where national security is not involved. Another non-
justiciable power is the Attorney General's preprogative to decide
whether to institute legal proceedings on behalf of the public interest."

However, we may notice that in the Comptroller and Auditor General
B of India and Anr. v. K.S. Jagannathan and Anr., (1986] 2 sec 679 : 1987
SC 537 this Court upon considering a large number of decisions including
Dwarkanath v. Income-Tax Officer, Special Circle, Kanpur., (1965] 3 SCR
536, Hochtief Gammon v. State of Orissa, [ 1976] I SCR 667, Mayor of
Rochester v. Regina, (1858) EB & E 1024, The King v. Revising Barrister
C for the Borough of Hanley (1912) 3 KB 518, Padfield v. Minister of
Agriculture, Fisheries and Food, (1968) AC 997 and Halsbury's Laws of
England, Fourth Edition, Volume I, paragraph 89 observed:

"There is thus no doubt that the High Courts in India exercising their
jurisdiction under Article 226 have the power to issue a writ of
D mandamus or a writ in the nature of mandamus or to pass orders and
give necessary directions where the government or a public authority
has failed to exercise or has wrongly exercised the discretion confeil'ed
upon it by a statute or a rule or a policy decision of the government
or has exercised such discretion ma/a fide or on irrelevant
considerations or by ignoring the relevant considerations and materials
E or in such a manner as to frustrate the object of conferring such
discrdion or the policy for implementing which such discretion has
been conferred. In all such cases and in any other fit and proper case
a High Court can, in the exercise of its jurisdiction under Article 226,
issue a writ of mandamus or a writ in the nature of mandamus or
..
pass orders and give directions to compel the pe1formance i11 a proper
F
and la11ful manner of the discretion co11ferred upon the government
or a public authority, and in a proper case, in order to prevent '
inj11stice resulting lo the concerned parties, the court may itself pass
a11 order or give directions which the government or the public
a11thority should have passed or given had it properly and lawfiil~v
G exercised its discretion." [Emphasis supplied]

In Mans11khlal Vithaldas Chauhan v. State of Gujarat, [1997] 7 SCC
622] this Court held:

"Mandamus which is a discretionary remedy under A11icle 226 of the
H Constitution is requ~sted to be issued, inter alia, to compel performance
U.0.1. v. S.B. VOHRA [SINHA, J.] 53
of public duties which rnay be administrative. ministerial or statutory A
in nature. Statutory duty may be either directory or mandatory.
Statutory duties, if they are intended to be mandatory in character,
are indicated by the use of the words "shall" or "must". But this is
not conclusive as "shall" and "must" have, sometimes, been interpreted
as "may". What is determinative of the nature of duty, whether it is B
obligatory, mandatory or directory, is the scheme of the statute in
which the "duty" has been set out. Even if the "duty" is not set out
clearly and specifically in the statute, it may be implied as correlative
to a "right".

In the performance of this duty, ifthe authority in whom the discretion C
is vested under the statute, does not act independently and passes an
order under the instructions and orders of another authority, the Court
would intervene in the matter, quash the order and issue a mandamus
to that authority to exercise its own discretion."

Prof. Wade, also, in his well-known treatise 'Administrative Law', 8th D
Edition, at page 609 makes a distinction between a discretionary power and
obligatory duties in the following terms:

"Obligatory duties must be distinguished from discretionary powers.
With the latter mandamus has nothing to do: it will not, for example,
issue to compel a minister to promote legislation. Statutory duties are E
by no means always imposed by mandatory language with words
such as 'shall' or 'must'. Sometimes they will be the implied
counterparts of rights, as where a person 'may appeal' to a tribunal
and the tribunal has a correlative duty to hear and determine the
appeal. Sometimes also language which is apparently merely p
permissive is construed as imposing a duty, as where 'may' is
interpreted to mean 'shall'. Even though no compulsory words are
used, the scheme of the Act may imply a duty.

Having developed from a piece of purely administrative machinery,
mandamus was never subject to the misguided notion which at one G
time afflicted its less fortunate relative certiorari, that it could apply
only to 'judicial' functions. Administrative or ministerial duties of
every description could be enforced by mandamus. It was, indeed,
sometimes said that this remedy did not apply to judicial functions,
meaning that where a public authority was given power to determine
some matters, mandamus would not lie to compel it to reach some H
54 SUPREME COURT REPORTS [2004] I S.C.R.

A particular decision. The law as to this is explained below under 'Duty
to exercise jurisdiction'.

The fact that the statutory duty is directory as opposed to
mandatory, so that default will not invalidate some other actipn or
decision, is no reason for not enforcing it by mandamus."
B
The broad principles of judicial review as has been stated in the speech
of lord Diplock in Council of Civil Service Unions v. Minister for the Civil
Service, ( 1985) A.C 374 i.e., illegality, irrationality and procedural impropriety,
have greatly been overtaken by other developments as for example, generally
not only in relation to proportionality and human rights but also in the direction
C of principles of legal certainty, notably legitimate expectations.

In R. v. North and East Devon Health Authority, ex parte Coughlan,
[2000] 2 WLR 622, CA the Court of Appeals held that a health authority
which promised a small number of residents in a care home for the severely
D disabled that it would be their home for life was not entitled to frustrate the
legitimate expectation they had generated by closing the home as this would
be an abuse of power.

Judicial 1eview is a highly complex and developing subject. It has its f
roots long back and its scope and extent varies from case to case. It is
E considered to be the basic feature of the Constitution. The Court in exercise
of its power of judicial review would jealously guard the human rights,
fundamental rights and the citizens' right of I ife and liberty as also many
non-statutory powers of governmental bodies as regards their control over
property and assets of various kinds which could be expended on building
F hospitals, roads and the like, or overseas aid, or compensating victims of
crime (See for example, R. v. Secretmy of State for the Home Department,
ex parte Fire Brigades Union, [ 1995] 2 WLR I.

The Court, however, exercises its power of restraint in relation to
interference of policy. In his recent book 'Constitutional Refonn in the UK'
G at page I05, Dawn Oliver commented thus:
"However, this concept of democracy as rights-based with limited
governmental power, and in particular of the role of the courts in a
democracy, carries high risks for the judges and for the public. Courts
may interfere inadvisedly in public administration. The case of Bromley
H London Borough Council v. Greater London Council, (1983) I AC
f

.J-,

U.0.1. v. S.B. VOHRA [SINHA. J.] 55

. 768,' HL is a classic example. The House of Lords quashed the GLC A
cheap fares policy as being based on a misreading of the statutory
provisions, but were accused of themselves misunderstanding transport
policy in so doing. The courts are not experts in policy and public
administration-hence Jowell's point that the com1s should not step
beyond their institutional capacity (Jowell, 2000). Acceptance of this
approach is reflected in the judgments of Laws LJ in International B
Transport Roth GmbH v. Secretary ofState for the Home Department,
(2002) EWCA Civ 158, (2002) 3 WLR 344 and of Lord Nimmo
Smith in Adams v. Lord Advocate (Court of Session, Times, 8 August
2002) in which a distinction was drawn between areas where the
subject matter lies within the expertise of the courts (for instance, c
criminal justice, including sentencing and detention of individuals)
and those which were more appropriate for decision by democratically
elected a.nd accountable bodies. If the courts step outside the area of
their institutional competence, government may react by getting
Parliament to legislate to oust the jurisdiction of the courts altogether.
Such a step would undermine the rule of law. Government and public D
opinion may come to question the legitimacy of the judges exercising

- 'i
judicial review against Ministers and thus undermine the authority of
the courts and the rule of law."

It is not possible to lay down the standard exhaustively as to in what
situation a writ of mandamus will issue and in what situation it will not. In
E
other words, exercise of its discretion by the Com1 will also depend upon the
law which governs the field, namely, whether it is a fundamental law or an
ordinary law.
'·
It is. however, trite that ordinarily the Court will not exercise the power F
of the statutory authorities. It will at the first instance allow the statutory
authorities to perform their own functions and would not usher the said
jurisdiction itself.

In State of West Bengal and Ors. v. Nuruddin Mallie and Ors .. (1998]
8 SCC 143 this Court declined a suggestion that the Coult itself examined G
and decided the question in issue stating:

"28 .... lnstead of sending any reply, the management filed the writ
petition in the High Court, leading to passing of the impugned orders.
).
Thus, till this date the appellant-authorities have not yet exercised
their discretion. Submission for the respondents was that this Court H
n
56 SUPREME COURT REPORTS [2004] I S.C.R.

A itself should examine and decide the question in issue based on the
material on record to set at rest the long-standing issue. We have no
hesitation to decline such a suggestion. The cou1ts can either direct
the statutory authorities, where it is not exercising its discretion, by
mandamus to exercise its discretion, or when· exercised, to sec whether
it has been validly exercised. It would be inappropriate for the Court
B to substitute itself for the statutory authorities to decide the matter."

It was further observed :

"30 .... As we have held above, without the statutory authority applying
its mind for their approval and the impugned order not adjudicating
c the issue in question how could the impugned orders be sustained"

JURISDICTION OF THE CHIEF JUSTICE

The Chief Justice of the High Court in this case was not bound to
accept that the posts of Assistant Registrar and Court Masters should be
D merged. The question as regard merger of the two posts was within the
exclusive domain of the Chief Justice. Whether the post of Assistant Registrar
should be a promotional post or not, thus, could not fall for decision of the
Central Government. t

E In Tarsem Singh and Anr. v. State of Punjab and Ors., [1994] 5 SCC
392, this Co1111 held :

"Promotion as understood under the service law jurisprudence means
advancement in rank, grade or both. Promotion is always a step towards
advancement to a higher possession, grade or honour. Opting to come
to a lower pay scale or lower post cannot be considered a promotion,
F
it is rather a demotion. A Superintendent in the Labour Department
who is holding a higher pay scale and higher status cannot seek
promotion to the post of Labour Inspector which post is lower in
grade and status. Since a ministerial employee-under rule 8(1 )(a)(i)-
can be appointed as Labour Inspector only by the process of promotion,
G a Superintendent who is in a higher pay scale, cannot seek promotion
to the post of Labour Inspector and as such is not eligible for the
same under rule 8( I)(a)(i). Even otherwise it is difficult to comprehend
why a person drawing a higher pay scale and enjoying a better status
as a civil servant should hanker for a post which is carrying lesser
pay and is comparatively of lower status."
H
U.O.l. v. S.B. VOHRA [SINHA, J.] 57
"t If the nature of duties performed by the Assistant Registrars had been A
more onerous than the Court Masters, a higher scale of pay was required to
be fixed. The Appellant, therefore, took a stand before the High Court which
was patently unsustainable.

Furthermore, merger of the cadres must be made in terms of the statutory
rules. For the said purpose, an order is required to be passed. Conjectures or B
sunnises in such a situation had no role to play.

In view of the aforementioned decision, the Chief Justice was entitled
to hold the opinion that hierarchy of the posts was required to be maintained
in respect whereof the necessary scales of pay could be directed to be revised. C

In State of UP. v. CM Agarwal, (1997] 5 SCC I, a Constitution
Bench of this Court categorically held that the Chief Justice of a High Court
has the power to create posts.

In High Court of Judicature for Rajasthan v. Ramesh Chand Paliwal
and Anr., [1998] 3 sec 72, a Division bench of this Court inter alia held that D
the Chief Justice has the requisite power to revise the scales of pay subject
~ of course to the approval granted in this behalf by the Governor. This Court
in no certain terms observed :

"We again reiterate the hope and feel that once the Chief Justice, in E
the interest of High Court administration, has taken a progressive step
specially to ameliorate the service conditions of the officers and staff
working under him, the State government would hardly raise any
objection to the sanction of creation of posts or fixation of salary
payable for that post or the recommendation for revision of scale of
pay if the scale of pay of the ~quivalent post in the Government has F
been revised." ·

In State of Maharashtra v. Associa1io11 of Court Stenos. PA, PS and
Anr., [2002] 2 SCC 141, this Coun interpreted the provisions Article 229 and
proviso appended thereto in the following terms :
G
"On a plain reading of Article 229(2), it is apparent that the Chief
Justice is the sole authority for fixing the salaries etc. of the employees
of the High Court, subject to the Rules made under the said article.
Needless to mention rules made by the Chief Justice will be subject
to the provisions of any law made by the legislature of the State. In
view of proviso to sub-article (2) of Article 229, any rule relating to H
58 SUPREME COURT REPORTS [2004] I S.C.R.

A the salaries, allowances, leave or pension of the employees of the
High Court would require the approval of the governor, before the
same can be enforced. The approval of the governor, therefore, is a
condition precedent to the validity of the rules made by the Chief
Justice and the so-called ·approval of the Governor is not on his
discretion, but being advised by the Government. It would, therefore,
B be logical to hold that apart from any power conferred by the rules
framed under Article 229, the Government cannot fix the salary or
authorise any particular pay scale of an employee of the High Court.
It is not the case of the employees that the Chief Justice made any
rules, providing a particular pay scale for the employees of the Court,
c in accordance with the constitutional provisions and that has not been
accepted by the governor. In the aforesaid premises, it requires
consideration as to whether the High Court in its discretionary
jurisdiction under Article 226 of the Constitution, can itself examine
the nature of work discharged by its employees and issue a mandamus,
directing a particular pay scale to be given to such employees. In the
D judgment under challenge, the Court appears to have applied the
principle of "equal pay for equal work" and on an evaluation of the
nature of duties discharged by the Court Stenographers, Personal
I
Assistants and Personal Secretaries, has issued the impugned directions.
In Supreme Court Employees' Welfare Asson. v. Union of India this
E Court has considered the powers of the Chief Justice of India in
relation to the employees of the Supreme Court in the matter of
laying down the service conditions of the employees of the Court,
includini~ the grant of pay scale and observed that the Chief Justice
of India should frame rules after taking into consideration all relevant
factors including the recommendations of the Pay Commission and
F submit the same to the President of India for his approval. What has
been stated in the aforesaid judgment in relation to the Chief Justice
of India vis-a-vis the employees of the Supreme Court, should equally
apply to the Chief Justice of the High Comt vis-a-vis the employees
of the High Court. Needless to mention, notwilhstanding the
constitutional provision that the rules fi'amed by the Chief Justice of
G
a High Court, so far as they relate to salaries and other emolumellls
are concerned, require the prior approml of the Governor. It is always
expected that when the Chief Justice of a High Court makes a rule,
providing a particular pay scale for its employees, the same should
be ordinarily approved by the Governor, unless there is anyjustifiable
H reason, not to approve the same. The aforesaid assumption is on the
U.0.1. '" S.13. VOHRA [SINHA, J.] 59
basis that a high functionary like the Chief Justice, before framing A
any rules in relation to the service conditions of the employees of the
Court and granting any pay scale for them is expected to consider all
relevant factors and fixation is made, not on any arbitrary basis."

[Emphasis supplied]
B
In High Court Employees Welfare Association, Calcutta and Ors. v.
State of West Bengal and Ors., (2003) AIR SCW 6338 a Bench of this Court
observed:

"The Government will have to bear in mind the special nature of the
work done in the High Court of which the Chief Justice and his C
colleagues alone could really appreciate. If the Government does not
desire to meet the needs of the High Court, the administration of the
High Court will face severe crisis."

THE APPELLANT'S DUTY:
D
In this case, the appellants admittedly have failed and/or neglected to
perform a constitutional duty.
' In P.N. Chopra (Supra) Rajindar Sachar, J. (as the learned Chief Justice
then was) held:
E
"As a result we are quite satisfied that the refusal to equate the Private
Secretaries and Readers of this Court with the Private Secretary to the
Chief Secretary in the matter of pay scale is so arbitrary as to amount
to an act of discrimination. We would, therefore, in the circumstances
quash Anncxures 'G' and · H' and the latest decision communicated
on 7.8.1979 (R-2 filed in reply by the Delhi Administration). A F
mandamus will, therefore, issue directing the respondents I & 4 to
equate the posts of Private Secretaries and the Readers of Judges of
this court to that of a Private Secretary to the Chief Secretary, Delhi
Administration. This will take effect from 1.1.1973 in terms of the
decision already taken by the Government of India, as mentioned in G
their memoranda of 8.8. I 975 and 22.8.1975 (Annexures 'G' & 'H'-
to the petition."
j
Decisions of this Court, as discussed hereinbefore, in no unmistakable
terms suggest that it is the primary duty of the Union of India or the concerned
State normally to accept the suggestion made by a holder of a high office like H
)._

60 SUPREME COURT REPORTS (2004] I S.C.R.

A aChief Justice of a High Court and differ with his recommendatiOns only in
exceptional cases. The reason for differing with the opinion of the holder of
such high office must be cogent and sufficient. Even in case of such difference
of opinion, the authorities must discuss amongst themselves and try to iron
out the differences. The appellant unfortunately did not perform its own
duties.
B
In a matter of this nature the Appellant, with a view to show that its
action is reasonable, was bound to perform its duties within a reasonable
time. Reasonableness being the core of Article 14 of the Constitution of India
would imply that the constitutional duties be performed within a reasonable
C time so as to satisfy the test of reasonableness adumbrated under Article 14
of the Constitution of India.

It has to be further borne in mind that it is not always helpful to raise
the question of financial implications vis-a-vis the effect of grant ofa particular
scale of pay to the officers of the High Court on the ground that the same
D would have adverse effect on the other employees of the State. Scale of pay
is fixed on certain norms; one of them being the quantum of work undertaken
by the officers concerned as well as the extent of efficiency, integrity, etc.
required to be maintained by the holder of such office. This aspect of the
matter has been highlighted by this Court in the case of the judicial officers
in All India Judges' Association v. Union of India and Ors., [ 1992) I SCC
E 119 and [2002] 4 sec 247 as well as the report of the Shelly Commission.

CONCLUSION

The matter as regard fixation of scale of pay of the officers working in
the different High Courts must either be examined by an expert body like Pay
F Commission or any other body but in absence of constitution of any such
expe11 body the High Court itself is to undertake the task keeping in view the
special constitutional provisions existing in this behalf in terms of Article
229 of the Constitution of India.

G We agree with the submission of the Learned Addi. Solicitor General
to the effect that the decision of the High Court had been rendered having its
origin in A.K. Gulati (CW.289/91) which had a spiraling effect particularly
in the case of Assistant Registrars. That was more a reason why a competent
authority of the appellant should have taken immediate steps in holding a
meeting with the Chief Justice or an authorized officer of the High Court.
H
J

U.0.1. v. S.B. VOHRA (SINHA, J.) 61
Having regard to the aforementioned authoritative pronouncements of A
this Court there cannot be any doubt whatsoever that the recommendations
of the Chief Justice should ordinarily be approved by the State and refusal
thereof must be for strong and adequate reasons. In this case the appellants
even addressed itself on the recommendations made by the High Court. They
could not have treated the matter lightly. It is unfortunate that the B
recommendations made by a high functionary like the Chief Justice were not
promptly attended to and the private respondents had to file a writ petition.
The question as regard fixation of a revision of the scale of pay of the High
Court being within exclusive domain of the Chief Justice of the High Court,
subject to the approval, the State is expected to accept the same
recommendations save and except for good and cogent reasons. c
The High Court, however, should not ordinarily issue a writ of or in the
nature of mandamus and ought to refer the matter back to the Central/ State
Government with suitable directions pointing out the irrelevant factors which
are required to be excluded in taking the decision and the relevant factors
which are required to be considered therefor. The statutory duties should be D
allowed to be performed by the statutory authorities at the first instance. In
the event, however, the Chief Justice of the High Court and the State are not
ad idem, the matter should be discussed and an effort should be made to
arrive at a consensus.

We are further of the opinion that only in exceptional cases the High E
Court may interfere on the judicial side, but ordinarily it would not do so.
Even if an occasion arises for the High Court to interfere on its judicial side,
the jurisdiction of the High Court should be exercised with care and
circumspection.
F
As the matter has been pending for a long time and keeping in view the
fact and the situation obtaining herein, namely, the officers holding the post
of Private Secretaries to the Judges have been given a particular scale of pay,
we are of the opinion that it is not a fit case wherein this Court should
exercise its discretionary jurisdiction.
G
This appeal is accordingly dismissed. In the facts and circumstances of
the case, there shall be no order as to costs.
J..
V.S.S. Appeal dismissed.