REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5538 OF 2008   

State of West Bengal … Appellant

VERSUS

Subhas Kumar Chatterjee & Ors. …  Respondents

JUDGMENT

B. SUDERSHAN REDDY, J.

1. This appeal by special leave is directed against the final  

judgment and order dated 19th December, 2007 passed   by  

the Division Bench of the High Court of Calcutta in  W.P.S.T  

No.  33 of  2007 whereby  and whereunder  the High Court  

dismissed the writ petition preferred by the State of West

Bengal,  appellant herein and confirmed the judgment and  

order  dated  18th August,  2005  passed  by  the  State  

Administrative Tribunal, West Bengal.  

2.  In order to consider the question as to whether the  

judgment  suffers  from  any  infirmities  requiring  our  

interference,  it  may  be  just  and  necessary  to  notice  the  

relevant facts.   

3.  The  controversy  involved  in  the  present  matter  

requiring resolution centers around the issue as to whether  

the Senior Laboratory Assistants in the Roads and Buildings  

Research  Institute  and  various  other  divisions  under  the  

Public  Works  (Roads)  Department,  Government  of  West  

Bengal are entitled to the same pay scale at par with the  

Research Assistants in the same department?

4.  On 4th July, 1972 the Government of West Bengal, in  

exercise of its power conferred by the proviso to Article 309  

of the Constitution of India made the Rules for regulation of  

recruitment  to  the  post  of  Senior  Research  Assistant,  

Research Assistant and Senior Laboratory Assistant in the  

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Roads and Buildings Research Institute and various other  

divisions under the Public Works (Roads) Department.  The  

post of Senior Laboratory Assistant is a feeder to the post  

of  Research  Assistant.   The  pay  scale  fixed  under  the  

Revision  of  Pay  and  Allowances  Rules,  1981  (  for  short  

ROPA Rules) for the post of Research Assistant was scale  

no. 9 ( Rs. 300-910) and for the post of Senior Laboratory  

Assistant scale no. 6 (Rs. 300-685).   

5.  In the year 1982, three Senior Laboratory Assistants  

filed  a  Writ  Petition  in  the  Calcutta  High  Court  claiming  

scale no. 11 under ROPA Rules on the allegation that they  

were performing similar duties as that of Senior Research  

Assistants.   The said  Writ  Petition  was disposed of  by a  

learned Single Judge of the High Court granting scale no.  

11 as claimed by the writ petitioners therein vide judgment  

dated 25th November, 1987.  Be it noted that the said writ  

petition  was  disposed  of  on the doctrine  of  non-traverse  

since  the  State  Government  was  unrepresented  and  no  

affidavit  filed on its behalf.  However, the learned Judge  

granted relief directing the said pay scale  to be paid w.e.f  

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1st April,  1981  but,  directed  that  the  petitioners  therein  

would be entitled to arrears only w.e.f  April,  1987.  The  

State was also directed to place the matter before the 3rd  

Pay Commission so that the Commission could consider  the  

case of  the Senior  Laboratory Assistants  for  higher  scale  

duly  taking  into  consideration  their  qualifications  and  

duties.

6. On 30th June 1987, 3rd Pay Commission for the State of  

West Bengal was constituted to consider the revision of pay  

and  emoluments  of  its  employees.  The  Commission  

submitted its report in December, 1988, granting only scale  

6  (revised  to  Rs.  1040-1920)  to  the  Senior  Laboratory  

Assistants and scale 9 (revised to Rs. 1260-2610) for the  

Research  Assistants.  The  State  Government  having  

accepted the recommendations framed ROPA Rules, 1990  

allowing  scale  nos.  6  and  9  respectively  to  the  Senior  

Laboratory Assistants and Research Assistants.  The 4th Pay  

Commission  retained the same pay scales.  However,  the  

pay  structure  was  revised.  The  State  Government  

accordingly framed ROPA Rules, 1998.  

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7. The  respondents  herein  who  are  the  Research  

Assistants approached the Tribunal after a period of more  

than 12 years claiming revision of scale of pay and fixation  

of benefits w.e.f 1st April, 1981 in scale no. 14.  Their case  

essentially was based upon the judgment of the High Court  

in Writ Petition No. 2893W of 1982 granting scale no. 11 to  

Senior Laboratory Assistant which was the feeder post to  

the  Research  Assistant  and  therefore,  the  Research  

Assistants were entitled to the proportionate hike in their  

scale of pay. The Tribunal disposed of the O.A filed by the  

respondents  herein  directing  the  Chief  Engineer,  Public  

Works  (Roads)  Directorate  to  treat  the  application   filed  

before it along with its annexures as a representation and  

to dispose  of the same by a reasoned order.

8. Be that as it may, by order dated 31st August, 2001  

the  Chief  Engineer  extended  the  scale  no.  11  to  the  

respondents  which  was  not  acceptable  to  the  State  

Government.  The respondents once again approached the  

Administrative  Tribunal  in  the  year  2002  seeking  

appropriate directions as against the State to revise the pay  

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scale in terms of  the orders of  the Chief  Engineer.   The  

Tribunal  while rejecting the objections of the State that the  

Chief  Engineer  was  not  competent  to  modify  or  amend  

ROPA Rules as he did by his order,  allowed the claim of the  

respondents.  

9. The appellant State challenged the said order of the  

Tribunal in a writ petition filed before the High Court. The  

High Court vide impugned order dismissed the writ petition  

and confirmed the order of the Tribunal. Hence this appeal.  

10. Shri  Bhaskar  P.  Gupta,  learned  senior  counsel  

submitted  that  the  impugned  order  suffers  from  errors  

apparent  on  the  face  of  the  record.   The  High  Court  

completely  misdirected  itself  in  deciding  the  matter  in  

controversy by ignoring the well settled legal principles.  It  

was submitted that Revision of Pay and Allowances Rules  

(ROPA) are framed by the Government of West Bengal by  

the  directions  of  the  Governor  under  Article  309  of  the  

Constitution of India and are binding in their nature.  The  

Rules  are  amended  from  time  to  time  based  upon  the  

recommendations  of  successive  Pay  Commissions.   The  

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successive  Pay  Commissions  have  consistently  

recommended scale  no.  9 for  the Research Assistants  to  

which category the respondents belong.  The State cannot  

be compelled to act contrary to statutory rules framed by it  

in exercise of the powers under proviso to Article 309 of the  

Constitution.  It  was  also  submitted  that  the  Pay  

Commission fixed pay scales after evaluation of duties of  

the  concerned  class  of  employees,  educational  

qualifications,  total  pay  structure,  finances  of  the  

Government and various other factors.  The State having  

accepted  the  recommendations  made  necessary  

amendments to the Rules and cannot be compelled to make  

isolated changes in one of the category inasmuch as such a  

change  may  have  a  cascading  effect  on  the  whole  pay  

structure of its employees.  

11. The  learned  counsel  for  the  respondents  strongly  

supported the impugned judgment. It was submitted that  

the Government having implemented the directions of the  

learned Single Judge in case of Senior Laboratory Assistants  

in  the  feeder  category,  cannot  fix  the  pay  scales  of  

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Research Assistants in the lower pay scale than that of the  

Senior Laboratory Assistants.   

12. Now  we  shall  proceed  to  consider  the  submissions  

made by the counsel during the course of the hearing of  

this appeal.

13. This  Court  time and  again  cautioned  that  the  court  

should avoid giving a declaration granting a particular scale  

of pay and compel the Government to implement the same.  

Equation of posts and equation of salaries is a matter which  

is  best  left  to  an  expert  body.  Fixation  of  pay  and  

determination  of  parity  in  duties  and responsibilities  is  a  

complex  matter  which  is  for  the  executive  to  discharge.  

Even  the  recommendations  of  the  Pay  Commissions  are  

subject  to  acceptance  or  rejection,  the  Courts  cannot  

compel the State to accept the recommendations of the Pay  

Commissions though it is an expert body.  The State in its  

wisdom and in furtherance of its valid policy may or may  

not accept  the recommendations of the Pay Commission.  

[See: Union of India V. Arun Jyoti Kundu1  and State of  

1 (2007) 7 SCC 472

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Haryana & Anr. V.  Haryana Civil Secretariat Personal  

Staff  Assn.2].   It  is  no  doubt,  the  constitutional  courts  

clothed with power of judicial review have jurisdiction and  

the  aggrieved  employees  have  remedy  only  if  they  are  

unjustly treated by arbitrary State action or inaction while  

fixing the pay scale for a given post.

14.   In the present case, the 3rd Pay Commission vide its  

recommendations  made  in  December,  1988  allowed  only  

scale no. 6, to the Senior Laboratory Assistants and scale  

no. 9, for the Research Assistants.  The Government having  

accepted the recommendations framed rules allowing scale  

no.  6  and  9,  respectively  to  the  Senior  Laboratory  

Assistants  and  Research  Assistants.   The  4th Pay  

Commission  retained  same scales  though  the  actual  pay  

structure was revised. It appears from the record that in  

the  State  of  West  of  Bengal  pay  scales  are  fixed  under  

statutory  rules.  The  constitutional  validity  of  those  rules  

under  which  the  pay  scales  are  fixed  has  not  been  

challenged.  

2 (2002) 6 SCC 72

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15. Be  that  as  it  may,  the  Chief  Engineer  while  acting  

under  the  directions  of  the  Tribunal  passed  the  order  

declaring that the respondents are entitled to the relief as  

prayed for by them and accordingly granted scale no. 11 to  

the respondents. The Chief Engineer completely ignored the  

statutory  rules  under  which  the  respondents  are  entitled  

to only scale no. 9. The Government did not implement the  

same.   The  respondents  once  again  approached  the  

Tribunal seeking appropriate directions for implementation  

of the order passed by the Chief Engineer.  

16. The Tribunal  vide its  order  dated 18th August,  2005  

having allowed the OA of the Respondents held that they  

are entitled to fixation of pay as recommended by the Chief  

Engineer and State must give effect to the same.  We fail to  

appreciate as to how the Administrative Tribunal could have  

directed the State to implement the recommendations of  

the  Chief  Engineer  which  run  counter  not  only  to  the  

recommendations of the Pay Commission but also the ROPA  

Rules, 1998.  

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17.  Being  aggrieved  by  the  order  of  the  Tribunal  the  

appellant-State of West Bengal filed a writ petition in the  

High Court of Calcutta and the same was dismissed by the  

High Court. The High Court while upholding the validity of  

the order passed by the Administrative Tribunal adopted a  

very  peculiar  reason  which  in  our  considered  opinion  is  

totally untenable and unsustainable in law.  The High Court  

took the view that “the Tribunal, in exercise of its power  

under  Article  226  read  with  Section  19  of  the  Central   

Administrative  Tribunals  Act,  has  delegated  rather  

conferred power upon” the Chief Engineer “to decide the  

issue and has done it with reason and the same remains   

unchallenged. As such, even if on fact or in law, both the  

two orders might or  might  not  be correct  one,  once the  

same is passed and is not set aside by  the appropriate   

forum and the same is binding between the parties.”

18.  According to the High Court the decision of the Chief  

Engineer is a quasi judicial one in its nature and the same  

has been passed in exercise of delegation of powers by the  

Tribunal  to  decide  the  dispute  between  the  parties  as  

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regards the fixation of pay scales.  The High Court also held  

that  the  order  of  the  Chief  Engineer  operates  as  res-

judicata. We shall deal with this aspect of the matter a little  

later.  

19. This  court  on  more than one occasion  decried  such  

practices  adopted  by  the  tribunals  directing  applications  

filed before them to be treated as representations before  

the executive authorities for their decision on merits.  It is  

for  the tribunals  that are empowered to examine service  

disputes on merits.  Such delegation of power apart from  

being illegal and unconstitutional amounts to avoidance of  

constitutional duties and functions to decide such disputes  

which  are  exclusively  entrusted  to  them  by  law.   In  

pursuance of the power conferred upon it by Clause (1) of  

Article  323-A  of  the  Constitution,  Parliament  enacted  

Administrative  Tribunals  Act,  1985.   The  Statement  of  

Objects and Reasons of the Act, indicates that it was being  

enacted  to  provide  for  the  adjudication  or  trial  by  

Administrative  Tribunals  of  disputes  and  complaints  with  

respect to recruitment and conditions of service of persons  

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appointed to public services and posts in connection with  

the affairs of the Union or of any State or of any local or  

other  authority  within  the  territory  of  India.  Chapter  III  

deals  with  the  jurisdiction,  powers  and  authority  of  the  

Tribunals.   Sections  14,  15  and  16  deal  with  the  

jurisdiction,  powers  and  authority  of  the  Central  

Administrative Tribunals, the State Administrative Tribunals  

and  the  Joint  Administrative  Tribunals  respectively.  The  

Tribunals under the Act possess jurisdiction and powers of  

every other court in the country except the jurisdiction of  

the  Supreme  Court,  in  respect  of  all  service  related  

matters.  The  Administrative  Tribunals  are  conferred  with  

the jurisdiction  to  hear  matters  where  even the  vires  of  

statutory  provisions  are  in  question.  Their  function,  

however, in this regard is only supplementary inasmuch as  

such decisions are subject to scrutiny of the High Courts.  

Such  is  the  extent  of  awesome  powers  and  jurisdiction  

conferred upon the Tribunals.  It is their bounden duty to  

adjudicate  the  matters  coming  before  them  but  not  

delegate its jurisdiction to extra constitutional authorities.  

Such  practice  is  fraught  with  undesirable  consequences  

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destroying the very purpose and scheme under which they  

are  created  and  constituted  to  adjudicate  disputes  in  

specified areas.  We hope and trust that the Tribunals in the  

country henceforth will not repeat such practice of sending  

the original applications filed before them to the Executive  

Authorities for their disposal.  

20. The origin of this controversy lies and is traceable to  

the  improper  exercise  of  jurisdiction  by  the  Tribunal  

remitting  the  original  application  made  to  it  to  the  Chief  

Engineer for his decision. We are at a loss to appreciate as  

to  how  the  tribunal  could  have  issued  such  a  direction  

virtually surrendering its jurisdiction to the Chief Engineer.  

21. Now we shall revert to the question as to whether  

the High Court  was justified  in  rejecting the  writ  petition  

filed by the appellant herein.  

22.      The High Court while rejecting the writ petition  

held that the Chief Engineer has discharged “a solemn duty  

undertaking the task of quasi-judicial duty has now reached  

its finality. Now, it is a question of implementation of the  

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same”.  The High Court went to the extent of holding that  

the decision rendered by the Chief Engineer pursuant to the  

order of the Tribunal operates as res judicata if not issue  

estoppel.  We are bewildered to note that the High Court  

advanced  such  an  unstatable  proposition.   The  Chief  

Engineer did not undertake any task of discharging of any  

quasi-judicial  duty.  The Administrative Tribunals by their  

orders  cannot  create  and  constitute  any  quasi-judicial  

authorities  and  entrust  matters  for  their  decision  which  

otherwise are not within their jurisdiction.  

23. Whether the Administrative Tribunal can delegate its  

power of judicial review and confer the same upon a Chief  

Engineer?  The Tribunals  cannot  travel  beyond the power  

conferred on them and delegate their essential function and  

duty to decide service related disputes. Such delegation is  

ab  initio  void.   It  is  too  elementary  to  restate  that  no  

judicial  tribunal  can  delegate  its  responsibilities  except  

where  it  is  authorized  to  do  so  expressly.  The  power  

conferred  upon  the  Administrative  Tribunals  under  the  

provisions of the said Act flows from Article 323-A of the  

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Constitution.  Such power  can  never  be  delegated  except  

under a valid law made by Parliament.  The Tribunals by  

their  own  act  cannot  delegate  the  power  to  decide  any  

dispute which in law is required to be decided exclusively by  

such Tribunals.  

24. For  the  aforesaid  reasons,  the  order  of  the  

Administrative Tribunal directing the Chief Engineer, Public  

Works (Roads) Directorate to decide the dispute raised by  

the respondents with regard to their pay scales is void ab  

initio and cannot be given effect to.  

25.  The next question that arises for our consideration is  

whether  the  decision  of  Chief  Engineer  operates  as  res-

judicata? The High Court fell into serious error in construing  

the  orders  passed  by  the  Chief  Engineer  as  a  decision.  

There was no adjudication as such of any lis between the  

parties by the Chief Engineer.  The Chief Engineer in law was  

not entitled to decide any dispute and much less with regard  

to any dispute and complaint with respect to conditions of  

service of any persons appointed to public posts controlled  

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by  the  State  Government.   The  Chief  Engineer  was  not  

acting  in  any  judicial  or  quasi-judicial  capacity.  

Administrative decisions by the executive authorities do not  

bind the courts and much less operate as res judciata. In the  

circumstances, the view taken by the Chief Engineer that the  

respondents were entitled to scale No.11, cannot operate as  

res judicata.    

26. Yet another question that arises for our consideration is  

whether a writ of mandamus lies compelling the State to act  

contrary to law? The State Government having accepted the  

recommendations of the successive Pay Commissions gave  

effect to those recommendations by framing statutory rules  

being ROPA Rules and scales of the employees have been  

accordingly  fixed.   The respondents did not challenge the  

vires of  the said Rules under which they were entitled to  

only a particular scale of pay.   The State Government is  

under obligation to follow the statutory rules and give only  

such  pay  scales  as  are  prescribed  under  the  statutory  

provisions.   Neither the Government can act contrary to the  

rules  nor  the  Court  can  direct  the  Government  to  act  

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contrary to rules. No Mandamus lies for issuing directions to  

a Government to refrain from enforcing a provision of law.  

No court can issue Mandamus directing the authorities to act  

in  contravention  of  the  rules  as  it  would  amount  to  

compelling the authorities to violate law.   Such directions  

may result in destruction of rule of law.  In the instant case,  

the impugned order of the High Court virtually compelled the  

State to give pay scales contrary to statutory rules under  

which pay scales of the employees are fixed. The decision of  

the  Chief  Engineer  being  contrary  to  ROPA  Rules,  1998,  

cannot be enforced even if such a decision was taken under  

the directions of the Administrative Tribunal.  The orders of  

the  Tribunal  as  well  as  of  the  High  Court  suffer  from  

incurable infirmities and are liable to be set aside.   

27. For the reasons above, the impugned judgment of the  

High Court as well as the judgment of the Tribunal is set  

aside.   However,  the  amounts  if  any  paid  to  the  

respondents pursuant to the impugned orders shall not be  

recovered.   

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28. The appeal is accordingly allowed without any order as  

to costs.  

………………………………………..J. (B. SUDERSHAN REDDY)

…………………………………………J. (SURINDER SINGH NIJJAR)

NEW DELHI, AUGUST  17, 2010.  

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