Delhi High Court
Apeda Assistant/Stenographer-I ... vs Union Of India & Ors on 20 May, 2015
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.5473/2002
% 20th May, 2015
APEDA ASSISTANT/STENOGRAPHER-I EMPLOYEES
ASSOCIATION ..... Petitioners
Through: Mr. Prem Prakash and Mr. Anshul
Narayan, Advs.
versus
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. Before me, on behalf of the petitioners it is argued that
petitioners who are Assistants and Stenographers working in the respondent
no.3/APEDA, have been granted lower pay-scales by the 4th & 5th Central
Pay Commissions although, historically they were having parity with respect
to higher posts and higher pay-scales. Relief is therefore prayed of higher
pay-scales than otherwise granted by the 4th & 5th Central Pay Commission
Reports as adapted by the employer/respondent no. 3.
2. In effect, what is argued is that the 4th & 5th Central Pay
Commissions have wrongly given lower pay-scales to the petitioners and
petitioners must be given higher pay-scales as were granted by parity with
the pay-scales of higher posts in terms of the earlier Central Pay
Commission Reports.
3. The argument urged on behalf of the petitioners is totally
misconceived because it is settled law that it is an employer which will
decide what should be the pay-scale of a person holding a particular post.
This Court is ill-equipped to decide whether a person should or should not
be granted a particular pay-scale and this job is best left to the administrative
authority/Pay Commission Recommendations, and which recommendations
are arrived at after obviously hours and hours of deliberations between
various committees etc etc. The Supreme Court in the case of Indian Drugs
& Pharmaceuticals Ltd. Vs. Workmen, Indian Drugs & Pharmaceuticals
Ltd., (2007) 1 SCC 408 has held that courts should not step into the
Executive's field and start prescribing what should be the pay-scales of
employees of an organization. The relevant paras of the judgment in the
case of Indian Drugs & Pharmaceuticals Ltd. (supra) are paras 37, 38 and
40 and the same read as under:-
" 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.
38. The respondents have not been able to point out any
statutory rule on the basis of which their claim of
continuation in service or payment of regular salary can be
granted. It is well settled that unless there exists some rule
no direction can be issued by the court for continuation in
service or payment of regular salary to a casual, ad hoc, or
daily-rated employee. Such directions are executive
functions, and it is not appropriate for the court to encroach
into the functions of another organ of the State. The courts
must exercise judicial restraint in this connection. The
tendency in some courts/tribunals to legislate or perform
executive functions cannot be appreciated. Judicial
activism in some extreme and exceptional situations can be
justified, but resorting to it readily and frequently, as has
lately been happening, is not only unconstitutional, it is
also fraught with grave peril for the judiciary.
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."
(emphasis is mine)
4. The Supreme Court has in fact in this judgment in the case of
Indian Drugs & Pharmaceuticals Ltd. (supra) cautioned the courts that
they must not over-step their jurisdiction and enter into the field of
Executive for deciding the pay-scales of employees.
5. Learned counsel for the petitioner places reliance upon an
Office Memorandum (OM) dated 31.7.1990 filed as Annexure P-3 to the
writ petition to argue that petitioners must get particular pay-scales,
however, a reading of this OM does not show that the same has in its
subject matter employees of autonomous organizations such as
APEDA/respondent no.3, and this circular only applies to Central
Government employees. Petitioners, therefore can derive no benefit of the
OM dated 31.7.1990.
6. Reliance placed by the petitioner upon the judgment of the
Supreme Court in the case of Union of India Vs. Rajesh Kumar Gond 2013
(9) Scale 749 is misplaced because the facts of the said case show the claim
of parity inter se Central Government employees, whereas in the present
case, petitioners are not employees of different branches of the Central
Government but are employees of an autonomous organization of the
Central Government being the respondent no.3/APEDA.
7. In view of the above, petitioners cannot claim that they should
be granted higher pay-scales by effectively this Court changing the
recommendations of the 4th and 5th Central Pay Commissions.
8. Dismissed.
MAY 20, 2015 VALMIKI J. MEHTA, J
ib
