Welfare Association Of ... vs The Union Of India & Ors.
2013 Latest Caselaw 2722 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         W.P.(C) No. 705/1998
%                                                              2nd July, 2013

WELFARE ASSOCIATION OF ELECTRONIC
TRADE & TECHNOLOGY DEVELOPMENT
CORPORATION OFFICERS                                        ..... Petitioner
                 Through: None

                          versus

THE UNION OF INDIA & ORS.                            ..... Respondents

                   Through:              None

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. No one is present on behalf of the parties although it is 3.15 P.M. This

matter is effective Item No. 5 on the Regular Board of this Court. I have

therefore perused the record and am proceeding to decide the matter.

2. By this writ petition, the petitioner, which is an association of

employees of the respondent No. 3/employer, seeks fixation of particular

pay scales. The relief clauses of the writ petition read as under:

"A. Quashing the circular or direction of the first respondent expressed in letter annexed at Annexure P-4, and direct the Union of India to implement the new pay scales to all

public Sector Enterprises uniformly, and in particular, to the respondent no. 3.

B. Directing the respondents no. 1 and 2 to treat the respondent no. 3 in parity with all other Public Sector Enterprises, and to give a rational and upgraded pay scales to the employees of the respondent no. 3, in accordance with the prevailing pay scales in other Public Sector Enterprises.

C. Directing respondents 1 and 2 to grant the new pay scales to the petitioner's members with effect from 1 January, 1992.

D. Any other order that may be deemed fit in the circumstances may also be passed."

3. In the counter affidavits filed by the respondents, it is stated that

respondent No. 3 does not have the necessary financial resources to grant the

higher scales of pay. In the counter affidavits, it is averred that the

respondent No. 3 has been making losses and cannot generate the funds for

higher scales of pay.

4. The Supreme Court in its recent judgment in the case of Indian Drugs

& Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals

Ltd., (2007) 1 SC 408 held that courts cannot step in and fix salaries of

employees of an organisation because the employer knows best its financial

conditions and other circumstances for deciding about what should be the

payments made to its employees. The Supreme Court has cautioned against

taking over of executive functions because courts are ill-equipped to do so.

The Supreme Court further observed that certain decisions are best left with

the executive and the administration. The relevant observations of the

Supreme Court are contained in paragraphs 16, 18, 37 and 40 and which

read as under:

"16. We are afraid that the Labour Court and the High Court have passed their orders on the basis of emotions and sympathies, but cases in court have to be decided on legal principles and not on the basis of emotions and sympathies.

18. In State of M.P. v. Yogesh Chandra Dubey this Court held that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post he is not entitled to any scale of pay. In our opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case also.

37. Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, to, must know its limits.

40. The Courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment or these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improver for Judges to step into this sphere, except in

a rare and exceptional cases. The relevant case-law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam v. Dy. Supdt. Of Police and we fully agree with the views expressed therein."

5. Accordingly, the prayers asked for in the writ petition cannot be

granted as it would violate the categorical ratio laid down by the Supreme

Court in the case of Indian Drugs & Pharmaceuticals Ltd. (supra).

6. The writ petition is accordingly dismissed, leaving the parties to bear

their own costs.

VALMIKI J. MEHTA, J JULY 02, 2013 godara