Delhi High Court
Shri D.R.Arya vs Lt. Governor Of Delhi & Ors. on 8 October, 2013
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No. 1207/1999
% 8th October , 2013
SHRI D.R.ARYA ......Petitioner
Through: None.
VERSUS
LT. GOVERNOR OF DELHI & ORS. .... Respondents
Through: Mr. Anand Yadav, Advocate for R-3.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. No one has appeared for the petitioner on the last three dates of
hearing being 11.5.2009, 15.5.2009 and 22.5.2009. No one appears for the
petitioner even today although it is 12.40 PM. I have therefore heard the
counsel for respondent and after perusing the record am proceeding to
decide the case.
2. By this writ petition, petitioner has sought relief from the respondent
no.3 being the Delhi State Co-operative Bank Ltd. for increasing the age
limit from 58 to 60 years.
WPC 1207/1999 Page 1 of 4
3. A writ petition will only lie if respondent no.3 is an instrumentality of
State or is doing a public function/public duty. Respondent no.3 has been
held not to be a State by various judgments of this Court, and I have held so
in one such order in the case titled as Prem Singh Verma Vs. Delhi State
Co-Operative Bank Ltd. in W.P.(C) 3377/2003 decided on 10.1.2013. This
order reads as under:-
"1. This writ petition is filed by the petitioner-Sh. Prem
Singh Verma against the respondent-Delhi State Co-operative
Bank Ltd, and of which respondent bank the petitioner was an
employee. The petitioner was charge-sheeted and there was an
enquiry report against the petitioner, however, the petitioner
superannuated during the pendency of the enquiry proceedings and
the respondent took action against the petitioner on the basis of
the enquiry report to the extent that the service benefits post the
suspension order have been denied to the petitioner.
2. Learned counsel for the respondent relies upon the
judgment of learned Single Judge of this Court in the case of
Anand Prakash Vs. The Delhi State Co-operative Bank Ltd. &
Anr. in W.P.(C) No.105/2010 decided on 20.4.2011 which holds
that present respondent is not a State and therefore no writ petition
lies against the respondent. I have seen the aforesaid judgment and
copy of which has also been given to the counsel for the petitioner.
The decision of learned Single Judge holding that the respondent-
Delhi State Co-operative Bank Ltd is not a State, and therefore no
writ lies, is binding on me. Counsel for the respondent states that
this judgment has become final and to his knowledge there is no
other contrary view of either a Single Judge or of a Division Bench
of this Court.
3. In view of the above, the writ petition is dismissed as
not maintainable, however, the petitioner is given liberty to seek
such reliefs in appropriate independent proceedings which the
WPC 1207/1999 Page 2 of 4
petitioner may want to initiate. In case, the petitioner initiates such
independent proceedings, the petitioner, in accordance with law,
will be entitled to the benefit of Section 14(1) of the Limitation
Act, 1963 and which application if filed in the concerned Court in
which the appropriate independent proceedings are filed will hear
and dispose of the application in accordance with law.
4. Writ petition is dismissed as not maintainable in
terms of aforesaid observations."
4. I may also state that Courts cannot impose its own terms and
conditions of employment to the terms and conditions of employment
decided by the employer and this is held by the Supreme Court in the
judgment in the case of Indian Drugs and Pharmaceuticals Ltd. vs.
Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408.
The relevant paragraphs of this judgment are 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.
WPC 1207/1999 Page 3 of 4
40. The Courts must, therefore, exercise judicial restraint, and not encroach
into the executive or legislative domain. Orders for creation of posts, appointment
on 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." (underlining added)
5. The aforesaid paras of the judgment in the case of Indian Drugs and
Pharmaceuticals Ltd.(supra) shows that Courts cannot create sanctioned
posts, Courts cannot decide pay-scales, Courts cannot decide what is the
correct monetary emoluments etc etc because employer knows its financial
conditions and its circumstances to decide these particular aspects. Courts
therefore also cannot decide to increase the retirement age.
6. Therefore, the writ petition does not have merit, and the same is
accordingly dismissed, leaving the parties to bear their own costs.
OCTOBER 08, 2013 VALMIKI J. MEHTA, J.
ib
