Kotaian & Anr Vs. Property Association of Baptist Churches(Pvt.) Ltd. [1989] INSC 207 (21 July 1989)
Shetty, K.J. (J) Shetty, K.J. (J) Oza, G.L. (J) Natrajan, S. (J)
CITATION: 1989 AIR 1753 1989 SCR (3) 472 1989 SCC (3) 424 JT 1989 (3) 140 1989 SCALE (2)36
ACT:
A.P. (T.A.) Tenancy & Agricultural Lands Act, 1950:
Sections 8, 19, 28, 32, 38(D) and 38(E)--Protected Tenant--Right to become owner--Termination of Tenancy--Dispossession of--Land holders prohibited from alienating the tenanted land to their parties--First must be given to protected tenant--Alienation in contravention is illegal.
HEAD NOTE:
The appellants were in possession of certain agricultural lands as tenants. Rev. Rutar Ford Padri and Vandru Padri were their landlords who had left the country long ago. But it was alleged that the land was purchased for the benefit of American Baptist Formation Society and the respondents claim to be the Property Association of the Baptist Churches (Pvt.) Ltd. ( "The Association"). The land stood transferred to the Association as per order made by the Madras High Court in company petition. The Association thus claimed to be the owner and also in defacto possession of the lands.
In 1975 the Association issued notice u,s 19(2) of the Act terminating the appellant's tenancy on May 31, 1975. The appellants received the said notice but did not send any reply. Thereafter the Association moved the Tehsildar u/ss 19(2) read with 28(1) of the Act for the symbolic possession of the lands from the appellants. Before the Tehsildar, appellants denied all the allegations and asserted that they were protected tenants. On Nov., 1977 Tehsildar made an order accepting the contentions of the Association holding that the appellants had no right since their tenancy stood terminated. Appellants appeal was also dismissed by the Joint Collector, Warrangal. The appellants then approached the High Court by way of revision petition u/s 91 of the Act. The High Court dismissed the revision. Thereafter appellants came up before the Supreme Court by way of Special Leave to appeal.
Accepting the appeal, this Court,
HELD: That the contentions of the Association that it is in 473 defacto possession and entitled to symbolic possession is unavailable and indeed unacceptable. Firstly, there can not be any dispute in this case about the protected tenancy rights of the appellants. The revenue documents like Pananipatrika and final record of Agricultural tenancy clearly establish that the appellants were recognised as protected tenants. Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vandru Padri first offered the land to the appellants before they transferred the same to the Association. The Court also observed that the Association cannot be permitted to take advantage of its high handedness. It is an exploitation of the exploited. It is an oppression of the oppressed. The Court cannot countenance it. [482F-G; 483B] Reversing the impugned orders the Court directed the Tehsildar to put the appellants in possession of the agricultural land in question within one month and ordered that the Association must pay the costs of the appellants quantified at Rs.20,000. [483C-D]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2098 of 1980.
From the Judgment and Order dated 20.6.1980 of the Andhra Pradesh High Court in Civil, Revision Petition No. 736 of 1980.
K. Madhava Reddy, A.D.N. Rao, and A.Subba Rao for the Appellant.
U.R. Lalit, C.P. Sarthy and A.T.M. Sampath for the Respondent.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J. This appeal with leave arising out of a judgment of the High Court of Andhra Pradesh illustrates how the "land reform" and the progressive policy of "land to the tiller" could be defeated by vested interests and lukewarm attitude of statutory authorities.
The relevant facts.
The appellants were in possession of certain agricultural lands as tenants. After coming into force of the A.P.
(T.A.) Tenancy & Agricultural Lands Act, 1950 ("The Act"), they were recognised as protected tenants. A "protected tenant" means that he is protected from 474 eviction. If he is dispossessed, the Tehsildar suo motu or on application shall put him in possession. Rev. Rutar Ford Padri and Vundru Padri were admittedly their landlords. The appellants had no problem with them. It seems that they had left the country long ago. The first respondent claims to be the Property Association of the Baptists Churches (Pvt.) Ltd. ("The Association")The Association does not dispute that the lands were originally purchased by Rev. Rutar Ford Padri and Vandru Padri but it says that they purchased for the benefit of American Baptish Formation Society. The lands stood transferred to the Association as per order made by the Madras High Court in company petition Nos. 109 and 110 of 1973. The Association thus claims to be the owner and also says that it is in defacto possession of the lands.
In 1976, the Association issued notice under sec. 19(2) of the Act terminating the appellants' tenancy. In the notice, it was alleged that the appellants were self styled tenants. They have not paid the rents for more than three decades. They were working off and on as casual labourers.
They were being paid for their services. There was no other relationship between them and the Association. It was further alleged that the appellants sub-divided the lands and alienated bit by bit to third parties and thereby denied title of the landholder. They have been, therefore, treated as trespassers.
On May 31, 1976, the appellants received the said notice but did not send any reply. Thereafter the Association moved the Tehsildar Jangaon under secs. 19(2) read with 28(1) of the Act seeking symbolic possession of the lands from the appellants. It is interesting to note some of the averments made in that application:
"Neither of the above persons had possession during the statutory period under sec. 34 of the Tenancy Act to claim protected tenancy over the said lands. The said persons by taking undue advantage of the similarity of the names appearing in the Tenancy Registers with respect to the said lands are asserting fictitious and imaginary rights of Protected Tenancy in the above lands. It is submitted that without any basis or foundation and are made without any notice to the then landlords and even if it is to assume that the said persons are the protected tenants with respect to the above lands, their so called rights have been duly and legally terminated under sec. 19 of the Tenancy Act by giving them notices for the Statutory period of six months 475 which they have received on 31.5.1976 but failed to give reply to it. The termination of the Protected Tenancy Rights is irrevocable and after the expiry of the statutory period from the said date of receipt of the notice, they are not entitled to claim any rights whatsoever much less Protected Tenancy Rights on the above lands." XX XX XX XX XX XX "In all the above lands the appellant is having his own cultivation for the benefit of the said schools and hostels. Some lands are cultivated by the students themselves under the "Cow-Boy" System. All the above lands are in physical possession of the applicant herein. But to overcome the legal implications, the applicants are claiming symbolic possession pursuant to termination notice." Before the Tehsildar, the appellants denied all the above allegations. They did not recognise the Association as their landlord. They asserted that they were protected tenants entitled to remain in possession of the lands.
On November 28, 1977, the Tehsildar made an order accepting the contentions of the Association. The Association was held to be the owner of the lands. The appellants were held to have no right since their tenancy was duly terminated.
The appellants appeared to the Joint Collector, Warrangal, who dismissed the appeal with the following observations:
"It is evident from records that the appellants are not in possession of the suit lands whereas the respondent Association is possessing and enjoying it. The suit land is covered by structures like Mission School, residential quarters, hostels for students, etc. and the rest of the land is in possession and occupation of respondent--Association and some third persons. Since the appellants are adversely out of possession, their rights also stands extinguished under sec. 27 of the Limitation Act ..... Since the facts of nonpayment of rents, assignment of interest in the land personally which constitute the grounds for respondent Association to terminate the tenancy under sec. 19 of the Act are proved before the lower court and 476 neither rebutted in this appeal nor the findings of the lower court on these points are challenged, the appeal does not merit any consideration." The appellants then approached the High Court with revision petition under sec. 91 of the Act. The High Court did not do anything better except blessing the observations made by the Collector. The High Court observed that the appellants were not cultivating the lands personally. They did not dispute non-payment of rent. Nor denied assignment of interest in the land to third parties. So Stating, the revision was dismissed.
The contentions.
Counsel for the appellants argued that Rutar Ford Padri and Vundru Padri were the landholders under whom the appellants were protected tenants. That has been so recorded in the final record of Agricultural tenancy. The appellants were not parties to the company petition Nos. 109 and 110 of 1973 in the High Court of Madras. Nor they had any notice of that proceedings. Since they were protected tenants, the landholders had no right to transfer the lands to the Association without first offering the same to them. It is a mandatory requirement under the Act. The alienation to the Association even if true, was in contravention of the statute and therefore, invalid and unenforceable. The appellants could not pay the rent to Rutar Ford Padri and Vundru Padri because their whereabouts were not known. The Association has adopted illegitimate means to dispossess the appellants by setting students against them. The action of the Association was illegal and an offence punishable under the Act.
With these and other contentions, it was urged that the possession of lands should be restored to the appellants.
Counsel for the Association on the other hand sought to justify the orders under appeal.
We heard counsel for both the parties. We have carefully perused the material on record.
The relevant statutory provisions:
Section 5 of the Act reads:
477 "5. Persons deemed to be tenants: A person lawfully cultivating any land belonging to another person shall be deemed to be a tenant if such land is not cultivated personally by the landholder and if such person is not-(a) a member of the landholder's family; or (b) a servant on wages payable in cash or kind, but not in crop share or a hired labourer cultivating the land under the personnel supervision of the landholder or any member of the landholder's family; or (c) a mortgagee in possession.
Provided that if upon an application made by the landholder within one year from the commencement of this Act to the Tehsildar within whose jurisdiction the land is situated-(a) The Tehsildar declares that such person is not a tenant and his decision is not reversed on appeal or revision, or (b) The Tehsildar refuses to make such declaration but his decision is reverted on appeal or revision such person, shall not be a tenant." Section 19 provides for termination of tenancy and so far as material it is as follows:
"19. Termination of tenancy;
19(1) xxxxxxxxxxxx 19(2) The landholder may terminate a tenancy on the grounds that the tenant-(a)(i) has failed to pay in any year, within fifteen days from the day fixed under the Andhra Pradesh (Telengana Area) Land Revenue Act 13 17 F) for the payment of the last instalment of land revenue due for the land concerned in that year, the rent of such land for the year; or 478 (ii) xxx xxx xxx xxx (iii) xxx xxx xxx xxx (b) has done any act which is destructive or permanently injurious to the land; or (c) has sub-divided the land; or (d) has sub-let the land or failed to cultivate the land;
(e) personally, or has assigned any interest therein;
or (f) has used such land for a purpose other than agriculture;
Provided that no tenancy of any land by a tenant shall be terminated on any of the grounds mentioned in this sub-section unless the landholder gives six months' notice in writing intimating his decision to terminate the tenancy and the grounds for such termination." Section 28 provides relief against termination of tenancy for nonpayment of rent.
Section 32 provides for taxing possession of tenanted lands:
"32. Procedure of taking possession:
(1) A tenant of an agricultural labourer or artisan entitled to possession of any land or dwelling house under any of the provisions of this Act may apply to the Tehsildar in writing in the prescribed form for such possession.
(2) No landholder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tehsildar, for which he shall apply in the prescribed form.
(3) On receipt of an application under sub-sec. (1) of sub-section (2), the Tehsildar shall, after holding an enquiry pass such order thereon as he deems fit.
479 (4) Any person taking possession of any land or dwelling house otherwise than in accordance with the provisions of sub-section (1) or sub-section (2) as the case may be, shall, without prejudice to his liability to the penalty provided in sec. 96, he liable to forfeiture of the crops, if any, grown on the land to the payment of such costs as may be awarded by the Tehsildar or by the Collector on appeal from the Tehsildar." It will be convenient at this stage to read four other sections, namely, sees. 34, 37, 38(D) and 38(E). They are as follows:
Sec. 34, omitting immaterial words provides:
"Protected tenants: (1) A person shall, subject to the provisions of sub-sees.
(2) and (3) be deemed to be a Protected Tenant in respect of land, if he-(a) has held such land as a tenant continuously (i) for a period of not less than six years, being a period wholly included in the Fasli years 1342 to 1352 (both years inclusive) or (ii) for a period of not less than six years immediately preceding the 1st day of January, 1948 or (iii) for a period of not less than six years commencing not earlier than the 1st day of Fasli year 1353 (6th October, 1943) and completed before the commencement of this Act, and (b) has cultivated such land personally during such period." Section 37 is in these terms:
"37. Persons not entitled under sec.
34 deemed in certain circumstances to be protected tenants:
(1) Every person who at the commencement of this Act holds as tenant any land in respect of which no person is deemed to be a protected tenant under sec. 34, shall, on 480 the expiration of one year from such commencement or, the final rejection of all claims by any other person to be deemed under sec. 34 to be a protected tenant in respect of such land, whichever is later, be deemed to be a protected tenant in respect of such land unless the landholder has before such expiration or final rejection as aforesaid made an application in the pescribed form to the Tehsildar for a declaration that such person is not a protected tenant." (Emphasis Supplied) Section 38(D) reads:
"Procedure when landholder intends to sell land to a protected tenant:
(1) If the landholder at any time intends to sell the land held by the protected tenant, he shall give a notice in writing of his intention to such protected tenant and offer to sell the land to him. In case the protected tenant intends to purchase the land, he shall intimate in writing his readiness to do so within six months, from the date of the receipt of such notice. If there is any dispute about the reasonable price payable by the protected tenant for the land, the provisions of sub-section (3) to (8) of sec. 38 shall apply mutatis mutandis.
(2) If the protected tenant does not exercise the right of purchase in response to the notice given to him by the landholder under sub-sec. (1) such protected tenant shall forfeit his right of purchase of the same and the landholder shall be entitled to sell such land to any other person. On such a purchase by any other person, the protected tenant shall forfeit all his rights in the land save those provided for in sec. 41." Section 38(E) provides:
"Ownership of lands held by protected tenants to stand transferred to them from a notified date:
(1) Notwithstanding anything in this Chapter or any law for the time being in force or any custom, usage, judgment, decree, contract or grant to the contrary, the 481 Government may, by notification in the Andhra Pradesh Gazette, declare in respect of any area and from such date as may be specified therein, that ownership of all lands held by protected tenants which they are entitled to purchase from their landholder in such area under any provision of this chapter shall, subject to the condition laid down in subsection (7) of sec. 38, stand transferred to and vest in the protected tenants holding them and from such date the protected tenants shall be deemed to be the full owners of such lands;
Provided that where in respect of any such land any proceeding under sec. 19 or sec. 32 or sec. 44 is pending on the date so notified, the transfer of ownership of such land shall take effect on the date, on which such proceeding is finally decided, and when the tenant retains possession of the land in accordance with the decision in such proceeding.
Explanation: If a protected tenant, on account of his being dispossessed otherwise than in the manner and by order of the Tehsildar as provided in sec. 32, is not in possession of the land on the date of the notification issued hereunder, then for the purpose of the sub-section, such protected tenant shall, notwithstanding any judgment, decree or order of any Court, or the order of the Board of Revenue or Tribunal or other authority, be deemed to have been holding the land on the date of the notification; and accordingly, the Tehsildar shall notwithstanding anything contained in the said section 32, either suo motu or on the application of the protected tenant hold a summary enquiry, and direct that such land in possession of the landholder or any person claiming through or under him in that area, shall be taken from the possession of the landholder or such person, as the case may be, and shall be restored to the protected tenant and the provisions of this section shall apply thereto in every respect as if the protected tenant has held the land on the date of such notification." This then is the main structure of the Act.
In sum .........
482 (i) The protected tenant has a right to become full owner of the lands in his possession. He becomes the owner when the Government issues a notification under section 38(E). We are told that the Government had issued such a notification on October 1, 1973, relating to the District where the lands in question are situated. It was about three years earlier to termination of the appellants' tenancy by the Association. If the appellants had a right to become owners of the tenanted lands, the question of terminating their tenancy would not arise.
(ii) The protected tenant cannot be dispossessed illegally by the landlord or anybody else. If so dispossessed, the Tahsildar either suo motu or on application must hold a summary inquiry, and direct that the land be restored to the protected tenant. That is the mandate of section 38(E) and the Explanation thereof.
(iii) The landholder by himself cannot dispossess the protected tenant even if the tenancy is terminated in accordance with the law. The landholder will have to take recourse to sec. 32. He must approach the Tahsildar to hold an enquiry and pass such order as he deems fit.
(iv) Section 38(D) prohibits the landholder from alienating the tenanted land to third parties. If the landholder intends to sell the land, he must give notice in writing of his intention to the protected tenant. The first offer must be given to the protected tenant. It is only when the protected tenant does not exercise the right to purchase, the landholder could sell the land to this parties. The alienation made in contravention of these provisions has no legal effect.
So return to the case. The contention of the Association that it is in defacto possession and entitled to symbolic possession is unavailable and indeed, unnacceptable. Firstly, there cannot be any dispute in this case about the protected tenancy rights of the appellants. The revenue documents like Pananipatrika and final record of agricultural tenancy clearly establish that the appellants were recognised as protected tenants. Secondly, it was not the case of the Association that Rev. Rutar Ford Padri and Vundru Padri first offered the land to the appellants before they transferred the same to the Association. Therefore, in the light of the statutory provisions to which we have called attention, the appellants title cannot be said to be legitimate.
Counsel for the Association also appeared to have anticipated this inevitable result. He made an impassioned appeal for leave to 483 withdraw the original petition filed before the Tehsildar.
He perhaps wanted to give quietus to these proceedings, leaving the appellants free to agitate their rights elsewhere.
But we cannot agree with him. We cannot also accede to his request. The Association cannot be permitted to take advantage of its high handedness. It is an exploitation of the exploited. It is an oppression of the oppressed. The Court cannot contenance it.
In the result, we allow the appeals. In reversal of the impugned orders, we direct the Tehsildar to put the appellants in possession of the agricultural lands in question within one month. The appellants however, are not interested in taking possession of their lands covered with buildings of the Association. They want to be fair in spite of their tribulation. The lands covered with the buildings may, therefore, be excluded.
The Association must pay the costs of the appellants which we quantify of Rs.20,000.
The Collector is directed to ensure that this order is faithfully complied with by the concerned.
R.N.J. Appeal allowed.
Supreme Court Employees Welfare Association Vs. Union of India & Anr [1989] INSC 208 (24 July 1989)
Dutt, M.M. (J) Dutt, M.M. (J) Thommen, T.K. (J)
CITATION: 1990 AIR 334 1989 SCR (3) 488 1989 SCC (4) 187 JT 1989 (3) 188 1989 SCALE (2)107
CITATOR INFO : R 1992 SC1546 (12)
ACT:
Constitution of India--Articles 14, 16, 32, 136, 141 and 146--Special Leave Petition dismissed simpliciter--No declaration of law-When does a decision of Court operate as res judicata--Conditions of 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.
Article 226--Writ--Dismissal of--In limine or on ground of laches or availability of alternative remedy---Dismissal--Would not operate as res-judicata.
Supreme Court Officers' and Servants (Conditions of Service and Rules--l961--Rules amended upto December 1985--Rules not reflect the enhanced pay Scales adopted on the basis of interim Orders of the Supreme Court or pay scales recommended by Pay Commission Supreme Court employees--Revision of pay scales--Reference to Pay Commission whether valid or incompetent.
HEAD NOTE:
These writ Petitions have been filed by the employees of the Supreme Court through their Welfare Associations praying, in substance, for enhancement of their present pay scales. Writ Petition No. 801 of 1986 has been filed by the Welfare Association representing class II and class 111 employees whereas Writ Petition No. 1201/86 has been filed by Welfare Association representing class IV employees and the third Writ Petition has been filed by retired employees.
In order to deal with and make recommendations in regard to various representations highlighting grievances regarding service conditions 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 whether the pay scales of different categories of the staff warranted 489 upward revision. The Committee after consideration of the issues raised, made several recommendations but as regards the pay scale revision, it recommended that the matter be referred to the Third Pay Commission, 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 High Court started drawing more pay in some categories of class IV, class Il & III employees, than the employees of the Supreme Court similarly placed.
Taking cue from the orders of the Delhi High Court, the petitioners have filed these petitions invoking in aid the principle of "Equal pay for equal work". It is urged by the petitioners that the duties 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 Petition filed by the Government before this Court against the orders of the 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 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. 1 and 2 to take necessary steps to refer the question of revision of pay scales to the Fourth Pay Commission as suggested by the five Judges Committee.
Some other interim orders were also passed giving higher pay to certain categories of employees, as was done by Delhi High Court.
The Fourth Pay Commission to which the question of revision of 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 490 HELD: Per M. M. Dutt, J.
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. [505B] Indian Oil Corporation Ltd. v. State of Bihar, [1986] 4 SCC 146; Union of India v. All India Services Pensioner Association, AIR 1988 SC 501.
A decision on an abstract question of law unrelated to facts which give rise to a right cannot operate as resjudicata. 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. [506G-H; 507A-B] Mathura.. Prasad Rajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, [1970] 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 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 Constitution. [508H; 509A-B] From Article 146(2) it is apparent 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 Court authorised by the Chief Justice of India is empowered to make rules for the purpose.
[516B-C] The conditions of service that may be prescribed by the rules framed by the Chief Justice of India under Article 146(2) will also necessarily include salary. allowances, leave and pensions of the officers and servants of the Supreme Court. [516D] 491 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, allowances, leave or pensions, require the approval of the President of India. [516E] 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. [517C] Going 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 other 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 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 payscales of the Supreme Court employees will be of some assistance to the Chief Justice of India to frame rules.
[523D-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 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] 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 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 Chief Justice of India or his nominee as to how and in what manner the rules will be framed. [529D-E] Per Thommen, J.
The regulation of the conditions of service of the Supreme Court 492 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 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 recommended by the Pay Commission. [538C-D] 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 them or so unreasonable that they cannot be attributed to the power delegated or otherwise disclose bad faith. [542F] Union of India & Ant. v. Cynamide India Ltd. & Anr., [1987] 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 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, [1947] 2 All. E.R. 680; Westminster Corporation v. London and North Western Railway, [1905] AC 426. 430; Barium Chemicals Ltd. v. Company Law 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 the Pay Commission or of any other body of experts he may have consulted. He will also take into account the objections raised 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 Government to accede to the proposals of the Registrar General is not a refusal of the President under Article 146(2), 1or such refusal or approval can arise only upon submission to him to duly framed rules. [546G-H; 547A-B] 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, 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] 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] 1 SCR 852; Chandra Bansi Singh v. State of Bihar, [1985] 1 SCR 579; Waman Rao v. Union of India, [1981] 2 SCR 1; Minor P. 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. R.B. Mohan Singh Oberai. [1975] 2 SCR 491; Tamil Nadu Education Department Ministerial & General Subordinate Service Association v. State of Tamil Nadu, [1980] 1 SCR 1026; Kishori Mohanlal Bakshi v. Union of India, AIR 1962 SC 1139; State of Punjab v. Joginder Singh. [1963] Supp. 2 SCR 169; Randhir Singh v. Union of India, [1982] 1 SCC 618; Dhirendra Chamoli v. State of U.P., [1986] 1 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 U.P. v. J.P. Chaurasia, AIR 1989 SC 19; Umesh Chandra Gupta v. Oil & Natural Gas Commission, AIR 1989 SC 29; Tarsera Lal Gautam v. State Bank of Patiala, AIR 1989 SC 30;Narinder Chand Hem Raj v. Lt. 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; 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; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, [1948] 1 K.B. 223; Mixnam Properties Ltd. v. Chertsey U.D.C., [1965] AC 735; Commissioners of Customs & Excise v. Cure & Deeley Ltd., [1962] 1 Q.B. 340; Mceldowney v. Forde, [1971] AC 632; Carltona Ltd., v. Commissioners of Works & Ors., [1943] 2 All E.R. 560, 564; Point of Ayr. Collieries Ltd. v. Lloyd George, [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 Equipment Co. v. Commissioner. [1935] 297 US 129, 134; Yates (Arthur) & 494 Co. Pty Ltd., v. Vegetable Seeds Committee, [1945] 46--72 CLR 37; Bailey v. Conole, [1931] 34 W.A.L.R. 18; Boyd Builders Ltd. v. City of Ottawa, [1964] 45 D.L.R. (2nd) 211; Re Burns &. Township of Haldimand, [1966] 52 DLR (2d) 101 and Lynch v. Tilden Produce Co., 265 U.S. 315, 320-322, referred to.
ORIGINAL JURISDICTION: Writ Petition No. 801 of 1986 & Etc. Etc.
(Under Article 32 of the Constitution of India) K. Parasaran, Attorney General, B. Dutta, Additional Solicitor General, D.D. Thakur, G.L. Sanghi (N.P.) M.S. Gujral, Anil Dev 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 Sushil Kumar Jain for the appearing parties.
The Judgment of the Court was delivered by DUTT, 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, seem to have inspired the employees of the Supreme Court to 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 consisting 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 Delhi High Court passed in writ proceedings instituted by its employees.
The Five-Judge Committee in its report stated, inter alia, that no attempt had been made to provide a separate and distinct identity to the ministerial staff belonging to the Registry of the Supreme Court. 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 categories to staff in the Registry would show that at least since the Second Pay Commission appointed by the Central Government for Central Government servants, the pay-scales devised by the Pay 495 Commission were practically 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. 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 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 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 rules 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, educational 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 clerk in the Supreme 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 add to it the functional evaluation of the post. This, according to the Committee, required a very comprehensive investigation and the Committee was ill-equipped to do it. The Committee, inter alia, recommended that the Chief Justice of India might appoint a Committee of 'experts to devise a fair paystructure for the staff of the Supreme Court keeping in view the principles of pay determination and on the recommendations 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 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 stuff of the Central Government. According to the Committee, it was an ideal situation that a former Judge of this Court was heading the Panel and he was ideally situated for examining the question of independent 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.
496 Several Writ Petitions were filed before the Delhi High Court by 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 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 Dearness Allowance, the details of which are given below:
SI. Date of Revised scale No. Judgment No. of W.P. Post of pay Rs.
1. 3.2.86 & W.P. No. 1376/84 Restorer 400-600 23.5.86
2. 11.11.86 W.P. No. 1865/86 L.D.Cs. 400-600
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 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 Van Drivers 400-600 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 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 497 claimed that they are entitled to equal pay for equal work and. therefore, 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 corresponding categories. On July 25, 1986, this Court passed an interim order which provides as follows:-"By way of an interim arrangement, pending final disposal 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 enjoyed by the 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 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 and the corresponding posts in the Delhi High Court, which is annexed to the proposal made by Respondent No. 2 will be annexed to this order also. Learned Addl. 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 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, Counsel for the petitioner, Mr. P.P. Rao for respondent No. 2, Supreme Court of India, and the learned Addl. 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 498 meanwhile, respondent Nos. 1 & 2 may take steps to refer 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." 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 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.
Another interim order dated August 14, 1986 was passed by this Court in Writ Petition No. 801 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 equal to 10% of their basic pay, subject to a minimum of Rs.50. The order will take effect from 1.1.1986.
The matter was left to us by counsel for all the parties and we have made this interim arrangement.
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." 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, subject to a minimum of Rs.50 per month, which was granted with effect from January 1, 1986, was directed to be granted with effect from January 1, 1978, in respect of Class IV staff. Some other interim orders were also passed by this Court. This Court passed interim orders 499 giving higher pay-scales to certain categories of employees holding Group B, C and D posts. The Court also ordered that certain Group C posts, that is to say, 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 payscale of Rs.300-430 from 1.1.1978 as given to Class IV employees of 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:
"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 Government employees and to suggest changes which may be desirable and feasible:
(i) Central Government employees--industrial and non industrial.
(ii) Personnel belonging to the All India Services.
(iii) Employees of the Union Territories."
Pursuant to the interim order of the Supreme Court dated July 25, 1986, the Ministry of Finance, Department of Expenditure,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(1)(iii) which is as follows:
"(iv) Officers and employees of the Supreme Court of India." It thus appears that although initially the cases of the employees of the Supreme Court were not referred to the Fourth Pay Commission, the Government, however, in obedience to the order of this Court referred their cases by the amendment of the terms of reference.
500 After the reference of the cases of the Supreme Court employees 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 proper understanding of the working of the various categories of the employees. The FoUrth Pay Commission also visited the Registry to familiarize itself with the nature of their work. The Commission requested 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 Commission had also some discussions with Hon'ble Mr. Justice Y.V. Chandrachud and Hon'ble Mr. 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.
The Fourth Pay Commission submitted its recommendations with regard 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 payscales made by the Fourth Pay Commission with regard to the employees of the Supreme Court. In a nut-shell, it may be stated that the Fourth Pay Commission reduced the existing 153 pay-scales to 36 pay-scales. The Commission, however, 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 payscales as revised by the Delhi High Court by its judgments passed in 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 India. After the receipt of the said copy of the report of the Fourth Pay Commission with regard to the Supreme Court employees, the Registrar General of this Court, by his letter dated July 22, 1987 addressed to the Secretary, Government of India, Ministry of Finance, Department of Expenditure, New Delhi, stated inter alia that if the pay-scales as proposed by the Fourth Pay Commission were accepted, and implemented, it would result in a number of anomalies and the 501 Supreme Court would encounter some difficulties in implementing the same. The Registrar General was of the opinion that the Pay Commission should not have made any such recommendation which had the effect of reducing the pay-scales than what had been given by this Court by its various interim orders dated 25.7.1986, 15.1.1987, 19.2. 1987, etc. to different categories of employees. Further, it was stated by him that the Pay Commission should not also have made recommendation which had the effect of taking away the benefit accrued to other categories of employees by the Court's order dated August 14, 1986. It is not necessary for us to refer to the anomalies as pointed out by the Registrar General in his said letter. Suffice, it to say that the Registrar General dealt with the case of each category of employees affected by the report of the Fourth Pay Commission and stressed that while accepting the pay-scales proposed by the Fourth 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.
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 the revised pay-scales in respect of posts as shown in column 4 of the annexure to the said letter. In other words, the scales 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, mentioned in Part III of the Report of the Fourth Central Pay Commission, 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 revision of pay-scales of the Junior Clerks and Class IV 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 502 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 Government, 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 and the Class IV employees of the Supreme Court is under consideration 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.
Mr. Thakur, learned Counsel appearing in Writ Petition No. 801 of 1986 on behalf of the Supreme Court Employees' Welfare Association, has made his submissions in two parts.
The first part relates to the Junior Clerks and the Class IV employees of the Supreme Court and the second part relates to the other employees of the Supreme Court, who are members of the Supreme Court Employees' Welfare Association. It may be stated here that the Class IV employees have filed a separate Writ Petition, that is, the Writ Petition No. 1201 of 1986.
We shall first of all deal with the submissions of Mr. Thakur with regard to the Junior Clerks and Class IV employees of the Supreme Court. The learned Counsel has placed much reliance upon the judgments 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 Delhi High Court was fully empowered under Article 226 of the Constitution to issue appropriate writs, if in its opinion the recommendations of the 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 discrimination and consequently violated Article 14 of the Constitution of India. Counsel submits that the Special Leave Petitions filed by the Government 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. annd Class IV employees have attained finality and operate as res judicata between the parties, namely, the employees of the Delhi High Court and the Union of India. It is submitted that this Court was fully 503 justified in passing the interim orders on the basis of the judgments of 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 payscale lower than the one prescribed by this Court by the interim 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 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 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. 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 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 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 payscales 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 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 504 CPI 200 and CPI 320 according to the Central Government D.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 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 L.D.Cs. and the Class IV employees are right or wrong. may not be 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 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