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PETITIONER: SUPREME COURT EMPLOYEES WELFAREASSOCIATION ETC. ETC.

       Vs.

RESPONDENT: UNION OF INDIA & ANR. ETC. ETC.

DATE OF JUDGMENT24/07/1989

BENCH: DUTT, M.M. (J) BENCH: 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 decla- ration  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  condi- tions  of service--Chief Justice or any other person  autho- rised  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---Dismiss- al--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 recommend- ed  by Pay Commission Supreme Court  employees--Revision  of pay  scales--Reference  to Pay Commission whether  valid  or incompetent.

HEADNOTE:     These writ Petitions have been filed by the employees of the  Supreme Court through their Welfare Associations  pray- ing,  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  consist- ing  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

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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 belong- ing  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 Commis- sion, 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  res- judicata. Nor, also can a decision on the question of juris- diction  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. Jeejeeb- hoy, [1970] 3 SCR 830 and Thakore Sobhag Singh v. Thakur Jai

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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  Constitu- tion. [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  full- fledged 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  pay- scales  of the Supreme Court employees will be of  some  as- sistance  to  the  Chief Justice of India  to  frame  rules. [523D-F]     What should go to the President of India for his approv- al 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  dis-

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cretion  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  predi- cated 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 Chemi- cals 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  ques- tion  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.

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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 Associ- ation  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,  Hima- chal 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  Glas- gow,  [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 Build- ers 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.

JUDGMENT:     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. Venkatarama- ni,  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  Peti- tions.  The first of the two events is the report of a  Com- mittee  of Five Judges of this Court consisting of Mr.  Jus-

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tice  P.N.  Bhagwati (as he then was) as the  Chairman,  Mr. Justice  V.D. Tulzapurkar, Mr. Justice D.A. Desai, Mr.  Jus- tice 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  Commit- tee, 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  com- parison.  The committee observed that the salary  scale  ap- plicable  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  Regis- try,  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  ap- prove  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 quali- fications, responsibilities and duties of various categories of  posts in the Registry and that since the days of  Rajad- hyakhsa  Commission the work had become so complex  and  the work  of even a clerk in the Supreme Court had such  a  dis- tinct  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  pay- structure for the staff of the Supreme Court keeping in view the  principles of pay determination and on the  recommenda- tions  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 Commit- tee 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

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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,  Superintend- ents,  Senior  Stenographers,  Assistants,  Junior  Readers, Junior  Stenographers,  Joint Registrars,  Assistant  Regis- trars, 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  de- tails 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 Miscella- neous  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  peti- tioners 497 claimed  that they are entitled to equal pay for equal  work and. therefore, they are approaching this Court for  redres- sal  of their grievances by means of the present Writ  Peti- tions.     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  fol- lows:--               "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

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             the  High Court of Delhi, if and in so far  as               they are higher or better than what the  Offi-               cers  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  direc-               tions  may be adjourned for a period  of  four               weeks since the Government is actively consid-               ering  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  sug-               gested 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  mem- bers  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 inter-               im  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  peti-               tion.

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                      The  writ petition is  adjourned  and               will  be listed for further hearing  in  usual               course."     The said interim order dated August 14, 1986 was, howev- er,  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 nonindustrial.               (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  Ex- penditure,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

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notice  of the Associations as also individual employees  of the  Supreme Court to submit their Memoranda to the  Commis- sion. 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  recommenda- tions  are  contained in Part III of its report. It  is  not necessary  to  state in detail as to the  revision  of  pay- scales 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  Su- preme  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  imple- menting  the same. The Registrar General was of the  opinion that the Pay Commission should not have made any such recom- mendation  which had the effect of reducing  the  pay-scales than what had been given by this Court by its various inter- im  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 recom- mendation  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  Commis- sion  and stressed that while accepting the pay-scales  pro- posed  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

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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 separate- ly  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 employ- ees  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  discrimi- nation and consequently violated Article 14 of the Constitu- tion of India. Counsel submits that the Special Leave  Peti- tions  filed by the Government against the judgments of  the Delhi  High Court having been dismissed by this  Court,  the

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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  pay- scale  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  Commis- sion,  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  appear- ing 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  petition- ers.  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  Allow- ance 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  Attor- ney 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

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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. Thakur  that the Delhi High Court judgments have become final and conclu- sive between the parties and operate as res judicata.     It  has  been  already noticed that  the  Special  Leave Petitions filed on behalf of the Union of India against  the said  judgments of the Delhi High Court were summarily  dis- missed by this Court. It is now a well settled principle  of law  that  when a Special Leave Petition is  summarily  dis- missed  under Article 136 of the Constitution, by such  dis- missal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney General. In Indian Oil Corporation Ltd. v. State of Bihar, [1986] 4 SCC 146 it has been held by this Court  that the  dismissal  of a Special Leave Petition in limine  by  a non-speaking  order does not justify any inference that,  by necessary implication, the contentions raised in the Special Leave Petition on the merits of the case have been  rejected by  the  Supreme Court. It has been further  held  that  the effect  of  a non-speaking order of dismissal of  a  Special Leave Petition without anything more indicating the  grounds or reasons of its dismissal must, by necessary  implication, be taken to be that the Supreme Court had decided only  that it was not a fit case where Special Leave Petition should be granted. In Union of India v. All India Services  Pensioners Association,  AIR 1988 SC 50 1 this Court has given  reasons for dismissing the Special Leave 505 Petition. When such reasons are given, the decision  becomes one  which  attracts Article 141 of the  Constitution  which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. It, therefore,  follows  that  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 14 1 of the Constitution.     It  is  true that by the dismissal of  a  Special  Leave Petition  in  limine, this Court does not lay down  any  law under  Article 141 of the Constitution, but the question  is whether  after the dismissal of the Special  Leave  Petition the  judgment against which the Special Leave  Petition  was filed  becomes final and conclusive so as to operate as  res judicata  between  the  parties thereto.  In  repelling  the contention  of  the petitioners that the  Delhi  High  Court judgments  relating to the L.D. Cs. and Class  IV  employees operate  as  res judicata between the parties,  the  learned Attorney  General has strongly relied upon the  decision  of this Court in Mathura Prasad Rajoo Jaiswal v. Dossibai  N.B. Jeejeebhoy,  [1970]  3  SCR 830. In that  case,  this  Court observed as follows :--               "The  previous decision on a matter  in  issue               alone  is  res judicata: the reasons  for  the               decision  are  not res judicata. A  matter  in

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             issue between the parties is the right claimed               by one party and denied by the other, and  the               claim  of right from its very  nature  depends               upon  proof  of facts and application  of  the               relevant  law thereto. A pure question of  law               unrelated to facts which give rise to a right,               cannot be deemed to be a matter in issue. When               it  is  said that a previous decision  is  res               judicata,  it is meant that the right  claimed               has been adjudicated upon and cannot again  be               placed in contest between the same parties.  A               previous  decision  of a  competent  Court  on               facts  which are the foundation of  the  right               and the relevant law applicable to the  deter-               mination  of  the  transaction  which  is  the               foundation  of the right and the relevant  law               applicable to the determination of the  trans-               actions  which is the source of the  right  is               res judicata. A previous decision on a  matter               in issue is a composite decision: the decision               of law cannot be dissociated from the decision               on  facts  on which the right  is  founded.  A               decision  on  an issue of law will be  as  res               judicata  in a subsequent  proceeding  between               the  same parties, if the cause of  action  of               the  subsequent proceeding be the same  as  in               the               506               previous proceeding, but not when the cause of               action  is  different, nor when  the  law  has               since  the earlier decision been altered by  a               competent  authority,  nor when  the  decision               relates  to the jurisdiction of the  Court  to               try  the  earlier  proceeding,  nor  when  the               earlier decision declares valid a  transaction               which is prohibited by law."                 .................................................. .....                 ........................               "It  is true that in determining the  applica-               tion of the rule of res judicata the Court  is               not  concerned with the correctness or  other-               wise  of the earlier judgment. The  matter  in               issue, if it is one purely of fact, decided in               the  earlier proceeding by a  competent  court               must  in a subsequent litigation  between  the               same  parties be regarded as  finally  decided               and  cannot be reopened. A mixed  question  of               law  and fact determined in the  earlier  pro-               ceeding between the same parties may not,  for               the same reason, be questioned in a subsequent               proceeding  between  the  same  parties.  But,               where  the decision is on a question  of  law,               i.e. the interpretation of a statute, it  will               be  res  judicata in a  subsequent  proceeding               between  the same parties where the  cause  of               action  is the same, for the  expression  "the               matter in issue" in s. 11 Code of Civil Proce-               dure  means  the right litigated  between  the               parties, i.e. the facts on which the right  is               claimed  or denied and the law  applicable  to               the determination of that issue. Where, howev-               er,  the question is one purely of law and  it               relates to the jurisdiction of the Court or  a               decision  of the Court  sanctioning  something

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             which is illegal, by resort to the rule or res               judicata a party affected by the decision will               not be precluded from challenging the validity               of that order under the rule of res  judicata,               ’for a rule of procedure cannot supersede  the               law of the land."     Thus, a decision on an abstract question of law unrelat- ed  to facts which give rise to a right, cannot  operate  as res  judicata.  Nor also can a decision on the  question  of jurisdiction  be res judicata in a subsequent suit  or  pro- ceeding. 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  subse- quent  suit  or proceeding, if the cause of  action  is  the same.  The  Delhi  High Court judgments do  not  decide  any abstract question of law and there is also no question of 507 jurisdiction involved. Assuming that the question of  juris- diction  involved. Assuming that the judgments of the  Delhi High Court are erroneous, such judgments being on  questions of fact would still operate as res judicata between the same parties  in  a subsequent suit or proceeding over  the  same cause of action.     In Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat, [1981]  2 SCR 7 18 it has been laid down by this Court  that the  doctrine of res judicata or the principles of  finality of  judgment cannot be allowed to whittle down  or  override the  express  constitutional mandate to  the  Supreme  Court enshrined in Article 32 of the Constitution. On the basis of this  principle, it has been argued by the learned  Attorney General  that  the judgments of the Delhi High  Court  might operate as res judicata, but they cannot override the provi- sion  of Article 14 of the Constitution. In other words,  in spite  of the judgments of the Delhi High Court, it is  per- missible  to contend that if the judgments are given  effect to the employees of the Supreme Court, it would be discrimi- natory inasmuch as those who are similarly situated will  be getting  lesser  pay. In Kirit Kumar’s case,  the  order  of detention  of the petitioner under the Conservation of  For- eign Exchange and Prevention of Smuggling Activities Act was upheld  by  the High Court. The petitioner filed  a  Special Leave Petition against the impugned order of the High  Court and  also  a petition under Article 32 of  the  Constitution urging  certain  additional  grounds which  were  not  taken before the High Court. A preliminary objection was raised on behalf  of the State that the points not taken in  the  High Court by the detenu could not be agitated in the Writ  Peti- tion under Article 32 of the Constitution because that would be barred by the principle of constructive res judicata.  In the context of the facts of that case, this Court laid  down the above proposition of law that the doctrine of res  judi- cata or the principles of finality of judgment could not  be allowed  to whittle down or override the  express  constitu- tional mandate to the Supreme Court enshrined in Article  32 of the Constitution.     It is, however, the contention of the petitioners,  that is, the employees of the Supreme Court, that they are  being discriminated  against by the Union of India  because  while the  Delhi High Court employees are given a higher scale  of pay,  the Supreme Court employees who perform at  least  the same  duties are paid a lower scale of pay. The  observation that has been made in Kirit Kumar’s case-was in the  context of the facts of that case, namely, that even though  certain points were not raised before the High Court that would  not preclude  the detenu from urging those points in a  petition

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under 508 Article 32 of the Constitution relating to the violation  of a  provision of Article 22(5) of the Constitution. The  fact remains that the Delhi High Court employees would be getting higher scale of pay than the employees of the Supreme Court. It is not the case of the Union of India that the Delhi High Court  employees are not similarly situated as  the  Supreme Court  employees and that, therefore, there is a  reasonable justification for making a discrimination between these  two classes of employees.     In  this connection, we may consider the  contention  of Mr.  P.P.  Rao, learned Counsel appearing on behalf  of  the Registrar  of the Supreme Court. His contention is that  the judgments  of  the Delhi High Court cannot  be  collaterally challenged and should be treated as res judicata between the parties, even though the said judgments will be violative of Article  14 of the Constitution. In support of this  conten- tion, the learned Counsel has placed much reliance upon  the decision of this Court in Thakore Sobhag Singh v. Thakur Jai Singh, [1968] 2 SCR 848. What happened in that case was that the Board of Revenue rejected the claim of the respondent to be recognised as an adopted son on the ground that under the Jaipur Matmi Rules the adoption, without the previous  sanc- tion  of the Ruler, could not be recognised for the  purpose of determining succession to the jagir. In the Writ Petition filed  by  the  respondents, the High Court  held  that  the Jaipur Matmi Rules had no statutory force because the  Ruler had  not given his assent to them. The High Court  sent  the case  back on remand to the Board of Revenue to  decide  the case  in  accordance with law declared by  the  High  Court. After  the case was sent back on remand by the  High  Court, Validation Act, 1961 was passed validating the Matmi  Rules. The  Board of Revenue, however, held after remand  that  the respondent was the adopted son. On appeal to this Court,  it has  been  held  that even though the  said  Validation  Act declared that the Matmi Rules shall have and shall be deemed always  to have had the force of law,  notwithstanding  any- thing  contained in any judgment in any court, the  Act  did not  supersede the judgment of the High Court. It could  not be contended that the judgment of the High Court should  not be  treated  as res judicata on that ground that if  it  was regarded as binding between the parties the equal protection clause  of  the Constitution would be  violated  if  another person, similarly situated, was to be differently treated by the Board of Revenue. The decision in Thakore Sobhag Singh’s case is an answer to the contention of the learned  Attorney General. The doctrine of res judicata is a universal doctrine  laying down 509 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. There is no question of  overruling the provision of Article 14, as contended  by the learned Attorney General. The judgment which is  binding between  the  parties  and which operates  as  res  judicata between  them, cannot be said to overrule the  provision  of Article  14  of the Constitution even though it may  be,  to

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some extent, violative of Article 14 of the Constitution. So far  as the Supreme Court employees are concerned  in  these proceedings  the  only  enquiry to be made  is  whether  the judgments  of the Delhi High Court relating to  the  L.D.Cs. and the Class IV employees have become final and  conclusive between the employees of the Delhi High Court and the  Union of India.     It  is  the contention of the learned  Attorney  General that the judgments of the Delhi High Court are erroneous  on the  face of them inasmuch as by these judgments  the  Delhi High  Court  has granted to the Restorers  L.D.Cs.  and  the Class  IV  employees Punjab pay-scales as also  the  Central D.A.  It is urged by the learned Attorney General that  such judgments should not be given effect to so far as the Junior Clerks  and  Class  IV employees of the  Supreme  Court  are concerned.  It is submitted that because the  Special  Leave Petitions  against the Delhi High Court judgments have  been dismissed by this Court, the judgments may be final  between the  parties, but the benefit of that wrong decision  should not  be conferred on the employees of the Supreme  Court  or persons similarly situated. The Delhi High Court has made an error and that error should not be perpetuated.     In  support  of that contention,  the  learned  Attorney General has placed reliance upon a decision of this Court in State  of Orissa v. Durga Charan Das, [1966] 2 SCR  907.  In that case, the respondent claimed that he was  discriminated by  the  State  of Orissa is not fixing the  amount  of  his pension on the basis of his confirmation as the Registrar of the  High  Court on August 28, 1956, that is,  the  date  on which  his junior had been confirmed as Registrar.  The  re- spondent  relied upon the fact that one Mr. Beuria was  held entitled  to get the pay of the Registrar from  December  1, 1958  and his junior was promoted. to the rank of  Registrar on that date. It was held by this Court 510 that granting to Mr. Beuria the salary of the Registrar with effect from December 1, 1948 was erroneous, as it was grant- ed  to him on the misconstruction of the relevant rule  and, thereafter, it was observed as follows:               "If  the respondent’s plea  of  discrimination               was  accepted  on the strength of  the  single               case  of  Mr.  Beuria, it  would  follow  that               because the appellant placed a misconstruction               on  the  relevant Rule, it is  bound  to  give               effect  to  the said misconstruction  for  all               times;  that,  plainly cannot be  said  to  be               sound."     The  learned  Attorney General has also  relied  on  the decision of this Court in G.V. Ramanaiah v. The Superintend- ent of Central Jail, Rajahmundry, [1974] 1 SCR 852. In  that case, this Court observed as follows:               "Mr.  P.K.  Rao next contends  in  a  somewhat               half-hearted  manner  that even if  the  State               Government  had  extended the benefit  of  its               G.O. owing to a mistake to four other persons,               similarly placed, it was not fair to deny  the               same treatment to the petitioner. This conten-               tion  must be repelled for the obvious  reason               that two wrongs never make a right."     It  is submitted that this Court is both a court of  law and  a  court of equity, as held in Chandra Bansi  Singh  v. State  of Bihar, [1985] 1 SCR 579. The equitable  principles require  that  the court should not apply the result  of  an erroneous  decision in regard to the pay-scales to  the  em- ployees of the Supreme Court.

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   The  learned Attorney General has also  placed  reliance upon  the doctrine of prospective overruling and points  out that this Court has given effect to the doctrine of prospec- tive overruling in Waman Rao v. Union of India, [1981] 2 SCR 1;  Minor P. Rajendran v. State of Madras, [1968] 2 SCR  786 and  State of M.P.v. Ram Raghubir Prasad Agarwal,  [1979]  3 SCR  41.  We are pressed to hold that the judgments  of  the Delhi High Court are wrong and even though the benefit which has been conferred under the judgments may not be interfered with  in  respect of those who have got the same,  but  such benefits may not be conferred on the future employees of the Delhi High Court and on the employees of this Court. 511     It  is  also submitted by the learned  Attorney  General that  if this Court is of the opinion that the judgments  of the Delhi High Court are erroneous, this Court should ignore that by such judgments a certain section of the employees of the Delhi High Court has been benefitted and also the  hard- ship that may result in not giving effect to such judgments, so far as the employees of the Supreme Court are  concerned. In support of that contention, the learned Attorney  General has placed reliance upon a decision of this Court in Roshan- lal  Kuthiala v. R.S. Mohan Singh Oberai, [1975] 2 SCR  491. In that case, it has been observed by Krishna Iyer, J.  that our equitable jurisdiction is not hidebound by tradition and blinkered  by  precedent, though  trammelled  by  judicially approved  rules  of conscience. In this connection,  we  may refer  to another observation of Krishna Iyer, J.  in  Tamil Nadu Education Department Ministerial & General  Subordinate Service  Association  v. State of Tamil Nadu, [1980]  1  SCR 1026. It has been observed that once the principle is  found to be rational the fact that a few freak instances of  hard- ship may arise on either side cannot be a ground to  invali- date the order or the policy.     At  the same time, the learned Attorney General  submits that  the benefit which has been conferred on the  employees of the Supreme Court should not be taken away all at a  time but,  as a court of equity, this Court may by way of  recon- ciliation  direct freezing of the payscales of  the  Supreme Court  employees,  which they are getting by virtue  of  the interim  order of this Court, to be adjusted or  neutralised against  increments,  and if that be done,  they  would  not suffer any appreciate hardship.     We  are unable to accept the suggestion of  the  learned Attorney General that reconciliation can be made by freezing the  pay-scales of Supreme Court employees, which  they  are getting by virtue of the interim orders of this Court, to be adjusted  or neutralised against the increments. It  is  not the  business  of this Court to fix the  pay-scales  of  the employees of any institution in exercise of its jurisdiction under Article 32 of the Constitution. If there be  violation of any fundamental right by virtue of any order or judgment, this  Court can strike down the same but, surely, it is  not within the province of this Court to fix the scale of pay of any  employee in exercise of its jurisdiction under  Article 32 of the Constitution. So far as the judgments of the Delhi High Court are concerned, they do not infringe the fundamen- tal  rights of the employees of the Supreme Court or any  of the  petitioners, who are the petitioners before us  in  the Writ  Petitions, and so the question of considering  whether the judgments of the Delhi High Court are 512 right or wrong does not arise. If the judgments of the Delhi High Court had in any manner interfered with the fundamental rights  of  the  petitioners before us, in  that  case,  the

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question as to the correctness of those judgments would have been germane. The petitioners, far from making any complaint against the judgments of the Delhi High Court, have strongly relied  upon them in support of their respective  cases  for pay  hike  and,  accordingly, we do not think  that  we  are called  upon  to examine the propriety or  validity  of  the judgments of the Delhi High Court.     We  may  also deal with the contention  of  the  learned Attorney General as to the doctrine of ’equal pay for  equal work’  which we have so long deferred consideration.  It  is urged by him that the doctrine of equal pay for equal work’, as enshrined in Article 39(d) of the Constitution of  India, cannot  be relied on by the petitioners in support of  their claim  for the same pay-scales as granted by the Delhi  High Court by the said judgments. Article 39(d) being a provision contained in Part IV of the Constitution dealing with Direc- tive  Principles of State Policy is not enforceable  by  any court in view of Article 37 of the Constitution. He  submits that  as  laid down in Kishori Mohanlal Bakshi v.  Union  of India,  AIR  1962 SC 1139 and State of  Punjab  v.  Joginder Singh,  [1963]  Supp.  2 SCR 169 the  abstract  doctrine  of ’equal  pay for equal work’ has nothing to do  with  Article 14.  In  Randhir Singh v. Union of India, [1982] 1  SCC  618 this  Court has considered the decision in Kishori  Mohanlal Bakshi’s  case and came to same view that the  principle  of ’equal pay for equal work’ was not an abstract doctrine  but one  of substance. Thereafter, this Court observed  as  fol- lows:               "The  Preamble  to  the  Constitution  of  the               International  Labour Organisation  recognises               the principle of ’equal remuneration for  work               of  equal  value’ as constituting one  of  the               means  of achieving the improvement of  condi-               tions "involving such injustice, hardship  and               privation  to  large numbers of people  as  to               produce  unrest  so great that the  peace  and               harmony of the world are imperilled". Constru-               ing  Articles  14 and 16 in the light  of  the               Preamble and Article 39(d), we are of the view               that the principle ’equal pay for equal  work’               is  deducible from those Articles and  may  be               properly applied to cases of unequal scales of               pay  based on no classification or  irrational               classification  though those drawing the  dif-               ferent  scales of pay do identical work  under               the same employer." 513     It  follows from the above decisions that  although  the doctrine of ’equal pay for equal work’ does not come  within Article 14 of the Constitution as an abstract doctrine,  but if any classification is made relating to the pay-scales and such classification is unreasonable and/or if unequal pay is based on no classification, then Article 14 w411 at once  be attracted  and such classification should be set  at  naught and equal pay may be directed to be given for equal work. In other words, where unequal pay has brought about a discrimi- nation within the meaning of Article 14 of the Constitution, it  will be a case of ’equal pay for equal work’, as  envis- aged  by Article 14 of the Constitution. If the  classifica- tion is proper and reasonable and has a nexus to the  object sought to be achieved, the doctrine of ’equal pay for  equal work’ will not have any application even though the  persons doing the same work are not getting the same pay. In  short, so long as it is not a case of discrimination under  Article 14 of the Constitution, the abstract doctrine of ’equal  pay

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for  equal work’, as envisaged by Article 39(d) of the  Con- stitution, has no manner of application, nor is it  enforce- able  in view of Article 37 of the  Constitution.  Dhirendra Chamoli  v.  State of U.P., [1986] 1 SCC 637 is  a  case  of ’equal pay for equal work’, as envisaged by Article 14,  and not of the abstract doctrine of ’equal pay for equal work’.     The learned Attorney General has also placed reliance on some  recent decisions of this Court on the question  as  to the  applicability of the doctrine of ’equal pay  for  equal work’.  In  State of Andhra Pradesh v.  G.  Sreenivasa  Rao, [1989]  1  JT 615 it has been observed that ’equal  pay  for equal  work’ does not mean that all the members of  a  cadre must  receive  the  same pay-packet  irrespective  of  their seniority, source of recruitment, educational qualifications and various other incidents of service. In V. Markendeya  v. State  of  Andhra Pradesh, [1989] 2 JT 108 it is  laid  down that on an analysis of the relevant rules, orders, nature of duties, functions, measure of responsibility and educational qualifications required for the relevant posts, if the Court finds  that the classification made by the State  in  giving different  treatment  to  the two classes  of  employees  is rounded on rational basis having nexus to the object  sought to be achieved, the classification must be upheld.     In  State of U.P. v J.P. Chaurasia, AIR 1989 SC 19  this Court observed as follows:               "The  first question regarding entitlement  to               the  pay scale admissible to Section  Officers               should not detain us longer.               514               The answer to the question depends upon sever-               al  factors.  It  does not  just  depend  upon               either  the nature of work or volume  of  work               done  by Bench Secretaries. Primarily  it  re-               quires among others, evaluation of duties  and               responsibilities of the respective posts. More               often functions of two posts may appear to  be               the same or similar, but there may be  differ-               ence in degrees in the performance. The  quan-               tity of work may be the same, but quality  may               be  different  that cannot  be  determined  by               relying  upon  averments  in  affidavits   of.               interested  parties. The equation of posts  or               equation of pay must be left to the  Executive               Government.  It must be determined  by  expert               bodies like Pay Commission. They would be  the               best  judge to evaluate the nature  of  duties               and responsibilities of posts. If there is any               such determination by a Commission or  Commit-               tee, the Court should normally accept it,  The               Court  should  not  try to  tinker  with  such               equivalent unless it is shown that it was made               with extraneous consideration."     Relying  upon the decision in Chaurasia’s case,  it  has been  urged  by  the learned Attorney General  that  in  the instant  case also this COurt should accept the  recommenda- tions  of  the Fourth Pay Commission. Normally, when  a  Pay Commission has evaluated the nature of duties and  responsi- bilities  of posts and has also made the equation of  posts, the  Court should not interfere with the same. The  question is not whether the Court should interfere with such findings or  not, but it will be discussed presently that  the  Chief Justice  of  India,  who is the  appropriate  authority,  is entitled  to  accept or reject the  recommendations  or  any finding of the Pay Commission.     Again,  in Urnesh Chandra Gupta v. Oil and  Natural  Gas

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Commission,  AIR  1989 SC 29 it has been  observed  by  this Court  that the nature of work and responsibilities  of  the posts are matters to be evaluated by the management and  not for the Court to determine by relying upon the averments  in the  affidavit in the interest of the parties. It  has  been observed  by us earlier in this judgment that it is not  the business of this Court to fix the pay-scales in exercise  of its  jurisdiction under. Article 32 of the Constitution.  It is  really the business of the Government or the  management to  fix the pay-scales after considering various other  mat- ters  and the Court can only consider whether such  fixation of pay-scales has resulted in an invidious discrimination or is arbitrary or patently erroneous in law or in fact. 515     The  last  case that has been relied on by  the  learned Attorney  General  is the decision in Tarsem Lal  Gautam  v. State  Bank of Patiala, AIR 1989 SC 30. In that  case,  this Court held that it was not an instance to which principle of ’equal  pay  for equal work’ could straightaway  be  applied inasmuch as the qualitative differences in regard to degrees of reliability and responsibility could not be put aside  as irrelevant.     So  far  as the judgments of the Delhi  High  Court  are concerned,  we find that the High Court has taken into  con- sideration  the  decision of this Court on the  doctrine  of ’equal  pay  for equal work’. In one of these  judgments  in Civil  Writ Petition No. 1376 of 1984 relating to  the  pay- scale of the petitioner, who was a Restorer which is equiva- lent to L.D.C./Junior Clerk, the learned Judges of the Delhi High  Court have held that the principle of ’equal  pay  for equal  work’ would be squarely available to the  petitioner, particularly having regard to the admitted fact that of  the two  High Courts in relation to which parity is claimed  one was the predecessor of this Court and the other its  succes- sor.  The Delhi High Court before applying the  doctrine  of ’equal  pay for equal work’ has come to the finding that  if the  Restorers working in the Delhi High Court are  given  a pay-scale  lower  than the Restorers working in  the  Punjab High  Court, which is a predecessor of the Delhi High  Court and  in Himachal Pradesh High Court which is a successor  of the  Delhi High Court, it will be discriminatory and  viola- tive of Article 14 of the Constitution. It has been  already stated  by  us that we are not called upon to  consider  the correctness or otherwise of the judgments of the Delhi  High Court, but what we would like to point out is that the Delhi High  Court  has not straightaway applied  the  doctrine  of ’equal  pay  for  equal work’ as an  abstract  doctrine,  as envisaged by Article 39(d) of the Constitution.     Elaborate  submissions  have been made  by  the  learned Counsel of the parties as to the interpretation and scope of Article 146(2) of the Constitution of India. Article  146(2) provides as follows:               "146(2). Subject to the provisions of any  law               made by Parliament, the conditions of  service               of officers and servants of the Supreme  Court               shall  be such as may be prescribed  by  rules               made by the Chief Justice of India or by  some               other Judge or officer of the Court authorised               by  the Chief Justice of India to  make  rules               for the purpose:               Provided that the rules made under this clause               shall,               516               so far as they relate to salaries, allowances,               leave or pensions, require the approval of the

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             President."     Under Article 146(2) the conditions of service of  offi- cers and servants of the Supreme Court shall be such as  may be  prescribed  by the rules made by the  Chief  Justice  of India or by some other Judge or officer of the Court  autho- rised  by the Chief Justice of India to make rules  for  the purpose. This is, however, subject to the provisions of  any law  that  may be made by Parliament. It  is  apparent  from Article  146(2) 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. The legislative function  of Parliament has been delegated to the Chief Justice of  India by  Article 146(2). It is not disputed that the function  of the  Chief Justice of India or the Judge or the  officer  of the Court authorised by him in framing rules laying down the conditions of service, is legislative in nature. The  condi- tions 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.  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  sal- aries,  allowances, leave or pensions, require the  approval of  the  President  of India. Prima  facie,  therefore,  the conditions of service of the employees of the Supreme  Court that are laid down by the Chief Justice of India by  framing the  rules  will be final and conclusive, except  that  with regard  to salaries, allowances, leave or pensions  the  ap- proval  of  the  President of India is  required.  In  other words,  if  the President of India does not approve  of  the salaries,  allowances, leave or pensions, it will  not  have any  effect.  The reason for requiring the approval  of  the President of India regarding salaries, allowances, leave  or pensions  is the involvement of the financial  liability  of the Government.      One important thing that is to be noticed is that under clause (3) of Article 146 the administrative expenses of the Supreme Court including all salaries, allowances, leave  and pensions payable to or in respect of the officers and  serv- ants  of  the Court shall be charged upon  the  Consolidated Fund of India. In view of the provision of clause (3),  such administrative  expenses shall not be submitted to the  vote of  Parliament, as provided in Article 113 of the  Constitu- tion. It is appa- 517 rent  that  in  order to maintain the  independence  of  the judiciary,  the framers of the Constitution thought it  wise and  expedient  to  make such a provision  as  contained  in clause (3) of Article 146.     It is contended by the learned Attorney General that the function  of the President of India approving of  the  rules framed  by the Chief Justice of India relating to  salaries, allowances,  leave or pensions is legislative  in  character and it is analogous to the President of India giving  assent to a Bill. It is difficult to accept the contention that the function of the President of India approving of the rules is analogous  to giving assent to a Bill. The rules  framed  by the Chief Justice of India though it is a piece of  subordi- nate  legislation, it is not a fullfledged  legislative  act requiring assent of the President of India. In this  connec-

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tion,  we may refer to the statement of law as to the  dele- gated  legislation  in Foulkes’  Administrative  Law,  Sixth Edition, Page 57 which reads as follows:               "It is common for Parliament to confer by  Act               on  ministers and other executive  bodies  the               power to make general rules with the force  of               law--to  legislate.  Parliament  is  said   to               delegate  to such bodies the power  to  legis-               late. Thus the phrase ’delegated  legislation’               covers every exercise of a power to  legislate               conferred by Act of Parliament. The phrase  is               not a term of art, it is not a technical term,               it  has  no statutory  definition.  To  decide               whether  the exercise of a  power  constitutes               ’delegated legislation’ we have to ask whether               it  is a delegated power that is  being  exer-               cised  and  whether its  exercise  constitutes               legislation.  Clearly an Act, public  or  pri-               vate. is not delegated: it is primary legisla-               tion.  When a minister or other  authority  is               given  power  by  Act of  Parliament  to  make               rules,  regulations  etc. the power  has  been               delegated  to  him, and insofar as  the  rules               made  by  that authority  are  legislative  in               their nature. they comprise delegated legisla-               tion.  If the contents of the  document  (made               under  delegated powers) are  not  legislative               the document will obviously not be a piece  of               (delegated) legislation. Ministers and  others               are  in fact given power to make orders,  give               directions,  issue approvals and notices  etc.               which one would not, because of their lack  of               generality. classify as legislative but rather               as administrative  ......." It  has  been observed in the statement of law that  if  the contents 518 of the document made under delegated powers are not legisla- tive,  the document would obviously not be a piece of  dele- gated  legislation. Again, it is stated that  Ministers  and others  are,  in  fact, given powers to  make  orders,  give directions, issue approval and notices etc. which one  would not, because of their lack of generality, classify as legis- lative  but  rather as administrative. In view of  the  said statement  of law, it may be contended that the function  of the  President of India is not strictly legislative  in  na- ture,  but an administrative act. We do not think it  neces- sary  to come to any final decision on the question  and  we propose  to proceed on the assumption that the  function  of the President of India in approving the rules framed by  the Chief  Justice  of India relating to  salaries,  allowances, leave or pensions is a legislative act.     It  is  vehemently  contended by  the  learned  Attorney General  that as the President of India performs a  legisla- tive act in approving the rules framed by the Chief  Justice of India, no writ can lie to compel him to give the approval or  to withhold the approval. In support of his  contention, reliance  has  been placed on a decision of  this  Court  in Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh, [1972] 1 SCR 940. In that case, Hegde, J. speaking for the Court observed as follows:               "What the appellant really wants is a  mandate               from  the court to the competent authority  to               delete the concerned entry from Schedule A and               include  the same in Schedule B. We shall  not

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             go into the question whether the Government of               Himachal  Pradesh  on its  own  authority  was               competent  to make the alteration in  question               or  not. We shall assume for our present  pur-               pose  that it had such a power. The  power  to               impose  a  tax is  undoubtedly  a  legislative               power.  That  power can be  exercised  by  the               legislature  directly  or subject  to  certain               conditions, the legislature may delegate  that               power to some other authority. But the  .exer-               cise of that power, whether by the legislature               or by its delegate is an exercise of a  legis-               lative  power.  The fact that  the  power  was               delegated  to the executive does  not  convert               that power into an executive or administrative               power.  No  court  can issue a  mandate  to  a               legislature  to enact a particular law.  Simi-               larly no court can direct a subordinate legis-               lative  body  to enact or not to enact  a  law               which it may be competent to enact." There can be no doubt that no court can direct a legislature to 519 enact a particular law. Similarly, when an executive author- ity  exercises  a legislative power by  way  of  subordinate legislation pursuant to the delegated authority of a  legis- lature, such executive authority cannot be asked to enact  a law  which he has been empowered to do under  the  delegated legislative authority.     The  next  decision  which has been  relied  on  by  the learned Attorney General is the decision in State of  Andhra Pradesh  v. T. Gopalakrishnan Murthi, AIR 1976 SC 123.  This case relates to the proviso to Article 229(2) of the Consti- tution  of India. Provision of Article 229(2) including  the proviso  thereto  is  a similar to Article  146(2)  and  its proviso.  Under Article 229(2), it is the Chief  Justice  of the High Court or his delegate who frames rules relating  to the  conditions of service of officers and servants  of  the High  Court.  Under the proviso to Article  229(2),  if  the rules  framed by the Chief Justice of the High Court or  his delegate relate to salaries, allowances, leave or  pensions, it shall require the approval of the Governor of the  State. So far as the two provisos are concerned, while under provi- so to Article 229(2) the rules relating to salaries,  allow- ances, leave or pensions require the approval of the  Gover- nor  of  the State, under the proviso to Article  146(2)  it will require the approval of the President of India.     In Gopalakrishnan’s case it has been observed that it is not possible to take the view that merely because the  State Government does not see its way to give the required approv- al, it will justify the issuance of a writ of mandamus under Article  226 of the Constitution, as if the refusal  of  the State  Government  was  ultra vires or made  mala  fide  and arbitrarily.     Another case which has been cited and relied upon by the learned  Attorney General in this regard is the decision  in A.K. Roy v. Union of India, [1982] 2 SCR 272. What  happened in that case was that by a Notification the Central  Govern- ment  had brought into force all the sections of the  Forty- fourth  Amendment act except section 3. The question  before this  Court  was whether this Court could issue  a  writ  of mandamus  directing  the Central Government  to  bring  into force  section  3 of the Fortyfourth Amendment Act.  It  has been  observed by Chandrachud, C.J. delivering the  majority judgment  that  a mandamus cannot be issued to  the  Central

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Government compelling it to bring the provisions of  section 3 of the Fortyfourth Amendment Act into force. On the basis of the principles of law laid down in the above 520 decisions, it is urged by the learned Attorney General  that this Court cannot issue a mandate to the President of  India to  grant approval to the rules framed by the Chief  Justice of  India relating to salaries, allowances, leave  and  pen- sions of the officers and servants of the Supreme Court.  In other  words, the President of India cannot be compelled  to grant approval to the proposals of the Registrar General  of the Supreme Court, as contained in his letter dated July 22, 1987.  There  can be no doubt that an  authority  exercising legislative  function cannot be directed to do a  particular act. Similarly the President of India cannot be directed  by the  Court  to grant approval to the proposals made  by  the Registrar  General of the Supreme Court, presumably  on  the direction of the Chief Justice of India. It is not also  the contention  of any of the parties that such a direction  can be made by the Court.     The  real question is how and in what manner the  Presi- dent  of India should act after the Chief Justice  of  India submits  to  him  the rules framed by him  relating  to  the salaries, allowances, leave and pensions of the officers and servants of the Supreme Court. The President of India is the highest  dignitary  of the State and the  Chief  Justice  of India also is a high dignitary of the State. Upon a compara- tive study of some other similar provisions of the Constitu- tion,  we  find that under Article 98(3), the  President  of India  has been empowered to make rules regulating  the  re- cruitments and the conditions of service of persons appoint- ed  to the secretarial staff of the House of the  People  or the  Council of States, after consultation with the  Speaker of the House of the People or the Chairman of the Council of States, as the case may be. Article 148(5) provides that the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller  and  Auditor-General shall be such  as  may  be prescribed  by  rules made by the President of  India  after consultation  with  the  Comptroller  and   Auditor-General. Similarly,  the  Governor has been empowered  under  Article 187(3)  to  make rules regulating the recruitment,  and  the conditions of service of persons appointed to the secretari- al  staff of the Assembly or the Council after  consultation with the Speaker of the Legislative Assembly or the Chairman of  the  Legislative Council, as the case may be.  Thus,  it appears  that except in the cases of the officers and  serv- ants  of the Supreme Court and those of the High Courts,  in other  cases either the President of India or  the  Governor has been empowered to frame rules. So  far  as the Supreme Court and the High Courts  are  con- cerned, 521 the  Chief  Justice of India and the Chief  justice  of  the concerned  High Court, are empowered to frame rules  subject to this that when the rules are framed by the Chief  Justice of India or by the Chief Justice of the High Court  relating to salaries, allowances, leave or pensions, the approval  of the President of India or the Governor, as the case may,  is required. It is apparent that the Chief Justice of India and the  Chief Justice of the High Court have been placed  at  a higher  level in regard to the framing of  rules  containing the conditions of service. It is true that the President  of India  cannot  be compelled to grant approval to  the  rules framed  by the Chief Justice of India relating to  salaries,

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allowances,  leave or pensions, but it is equally true  that when such rules have been framed by a very high dignitary of the State, it should be looked upon with respect and  unless there is very good reason not to grant approval, the approv- al should always be granted. If the President of India is of the  view  that the approval cannot be  granted,  he  cannot straightaway refuse to grant such approval, but before doing there must be exchange of thoughts between the President  of India and the Chief Justice of India.     In  Gopalakrishnan’s  case  (supra), relied  on  by  the learned  Attorney  General, it has been  observed  that  one should  expect in the fitness of things and in view  of  the spirit  of  Article 229 that ordinarily  and  generally  the approval  should be accorded. Although the said  observation relates to the provision of Article 229(2), it also  equally applies  to the provision of Article 146(2) relating to  the grant of approval by the President of India. In this connec- tion,  we  may  also refer to a decision of  this  Court  in Gurumoorthy  v. Accountant General Assam & Nagaland,  [1971] Suppl.  SCR 420, which was also considered  in  Gopalakrish- nan’s  case (supra). In Gurumoorthy’s case, this Court  took the view that the unequivocal purpose and obvious  intention of  the framers of the Constitution in enacting Article  229 is that in the matter of appointments of officers and  serv- ants. of a High Court, it is the Chief Justice or his  nomi- nee  who is to be the supreme authority and there can be  no interference  by the Executive except to the limited  extent that is provided in that Article. The same observation  will apply  to  the rules framed by the Chief  Justice  of  India under Article 146(2) of the Constitution.      At  this  stage,  it may be noticed that  it  has  been conceded  by the learned Attorney General that the  validity of the subordinate legislation as provided in Article 146(2) of the Constitution can be challenged on such grounds as any other  legislative acts can be challenged. So, if the  rules framed by the Chief Justice of India and approved by 522 the President of India relating to the salaries, allowances, leave or pensions offend against Article 14 or 16, the  same may be struck down by the Court.     In Wade’s Administrative Law, Sixth Edition, Page 863 it is stated as follows:               "Acts of Parliament have sovereign force,  but               legislation made under delegated power can  be               valid only if it conforms exactly to the power               granted.  Even where, as is often the case,  a               regulation  is  required  to  be  approved  by               resolutions  of both Houses of Parliament,  it               still  fails on the ’subordinate’ side of  the               line,  so  that the court  may  determine  its               validity."     Again,  at  page 868 it is observed that  just  as  with other kinds of administrative action, the courts must  some- times condemn rules or regulations for unreasonableness.     Thus  a delegated legislation or a subordinate  legisla- tion  must conform exactly to the power granted. So  far  as the question of grant of approval by the President of  India under  the proviso to Article 146(2) is concerned,  no  such conditions  have been laid down to be fulfilled  before  the President  of India grants or refuses to grant approval.  By virtue  of Article 74(1) of the Constitution, the  President of India shall, in exercise of his functions, act in accord- ance  with the advice of the Council of Ministers. In  other words, it is the particular Department in the Ministry  that considers  the  question of approval under  the  proviso  to

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article  146(2)of  the Constitution and whatever  advice  is given  to the President of India in that regard, the  Presi- dent of India has to act in accordance with such advice.  On the other hand, the Chief Justice of India has to apply  his mind when he frames the rules under Article 146(2) with  the assistance of his officers. In such circumstances, it  would not  be  unreasonable  to hold that the  delegation  of  the legislative function on the Chief Justice of India and  also on  the President of India relating to the salaries,  allow- ances,  leave and pensions of the officers and  servants  of the  Supreme  Court involve, by necessary  implication,  the application of mind. So, not only that the Chief Justice  of India  has  to apply his mind to the framing of  rules,  but also the Government has to apply its mind to the question of approval  of the rules framed by the Chief Justice of  India relating  to salaries, allowances, leave or  pensions.  This condition should be fulfilled and should appear to have been so fulfilled from the records of both the 523 Government  and the Chief Justice of India. The  application of mind will include exchange of thoughts and views  between the  Government  and the Chief Justice of India  and  it  is highly  desirable that there should be a  consensus  between the  two.  The rules framed by the Chief  Justice  of  India should normally be accepted by the Government and the  ques- tion of exchange of thoughts and views will arise only  when the  Government  is not in a position to  accept  the  rules relating to salaries, allowances, leave or pensions.     It  has  been  already noticed that this  Court  by  its interim order directed the respondents Nos. 1 and 2 to refer the question of revision of pay-scales of the Supreme  Court employees  to  the  Fourth Pay Commission  pursuant  to  the recommendation  in that regard by the  Five-Judge  Committee and  as directed such reference was made. The report of  the Fourth  Pay  Commission was not sent directly to  the  Chief Justice  of India, but it came through the Ministry  of  Fi- nance, Department of Expenditure, Government of India. It is significant  to  note  that this is the first  time  that  a reference has been made to the Pay Commission for the  revi- sion  of  the  pay-scales of the employees  of  the  Supreme Court.  If  we are to go 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  pur- pose  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 pay-scales of the Supreme  Court  employees will be of some assistance to the Chief Justice of India  to frame  rules. What should go to the President of  India  for his  approval  under the proviso to Article 146 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  pensions,  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.      Be  that as it may, after the report or  recommendation of the Fourth Pay Commission, was forwarded by the  Ministry

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of  Finance  to the Chief Justice of  India,  the  Registrar General of the Supreme Court, presumably under the authority of the Chief Justice of India, by 524 his letter dated July 22, 1987, addressed to the  Secretary, Government  of  India, Ministry of  Finance,  Department  of Expenditure, did not agree with some of the  recommendations of  the  Fourth Pay Commission relating to the  revision  of pay-scales  including the revision of pay-scales  of  Junior Clerks and Class IV employees of the Supreme Court. It  does not appear that there was any exchange of thoughts or  views between  the Government Department and the Registry  of  the Supreme Court. The Government has not produced before us any material  showing  that there was exchange of  thoughts  and views. But whether that was done or not, is not the question at the present moment. The most significant fact is that  no rules  were framed by the Chief Justice of India in  accord- ance  with the provision of Article 146(2) of the  Constitu- tion. Instead, what was done was that the Registrar  General made certain proposals to the Government and those proposals were turned down as not acceptable to the Government.  There is  a  good deal of difference between rules framed  by  the Chief  Justice  of India under Article  146(2)  and  certain proposals  made  by  the Registrar General  of  the  Supreme Court, may be under the instructions of the Chief Justice of India.  The provision of Article 146(2) requires that  rules have to be framed by the Chief Justice of India and if  such rules relate to salaries, allowances, leave or pension,  the same  shall require the approval of the President of  India. This  procedure  was  not followed. So, the  stage  for  the consideration  by the President of India as to the  question of  granting  approval,  as required under  the  proviso  to Article 146(2), had not then reached. Indeed, it is still in the  preliminary  stage, namely, that the rules have  to  be framed by the Chief Justice of India.     We have also noticed that after the Registrar  General’s letter a communication in the form of a letter dated  Novem- ber 23, 2987 was made by the Joint Secretary to the  Govern- ment  of India, Ministry of Finance, Department of  Expendi- ture,  addressed to the Registrar General. By  that  letter, the  Registrar General was informed of the sanction  of  the President of India to the revised scales as shown in  column 4  of the annexure to the said letter in respect of  certain posts. The revised scales of pay, stated to have been  sanc- tioned  by  the  President of India, were at  par  with  the recommendations  of the Fourth Pay Commission. The  sanction of  the  President  of India, as communicated  by  the  said letter,  does not relate to all categories of  employees  of the Supreme Court. The most significant fact that should  be taken notice of is that contained in paragraph 5 of the said letter which is extracted below: 525               "5.  The revision of pay scales, for  the  re-               maining  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 remaining posts referred to in paragraph 5  includes ,the  posts  held by Junior Clerks and Class  IV  employees. Even assuming ;that the Chief Justice of India had  prepared the  rules  as per the provision of Article  146(2)  of  the Constitution and submitted the same for the approval of  the President  of  India relating to the  salaries,  allowances. leave or pensions, the question of approval of the  revision of payscales of the remaining posts including the posts held

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by the Junior Clerks and Class IV employees, is still  under consideration of the Government. It is curious that although the question as to the revision of pay-scales of the remain- ing  posts is still under consideration of  the  Government, before  us the Government proceeded on the basis  that  upon such consideration the revision of pay-scales, as  suggested by the Registrar General in his said letter, has been turned down. In other words, the President of India has not granted approval  to  the payscales, as suggested by  the  Registrar General  on behalf of the Chief Justice of India in  respect of  the Junior Clerks and Class IV employees of the  Supreme Court.     It  is,  thus, apparent that the  provision  of  Article 146(2) has not been complied with. No rules have been framed by the Chief Justice of India as per the provision of  Arti- cle  146(2) and, accordingly, the question of  granting  ap- proval to the rules by the President of India under  Article 146(2) does not at all arise because that stage has not  yet reached.  We  are,  therefore, of the view  that  the  Chief Justice  of  India should frame rules under  Article  146(2) after taking into consideration all relevant factors includ- ing  the  recommendations of the Fourth Pay  Commission  and submit the same to the President of India for his approval,     It  has  been strenuously urged by Mr. Thakur  that  the staff and the servants of the Supreme Court of India consti- tute  a  class by themselves totally distinct in  the  civil services  under the Union and the States, having  a  totally distinct  personality  and a culture, both  because  of  the nature  of  the functions assigned to them  and  because  of their being an integral part of the institution which stands on  a wholly different pedestal. Counsel submits that it  is because  of this distinctive function and locational  status of  the  staff and servants of the Supreme  Court  that  the Constitution treated them as a class by themselves, 526 apart from the other services under the Union and the States by providing that unlike other services the Chief Justice of India  and not the President of India or the  Governor  will prescribe their service conditions. We have been pressed  to hold  that the staff and servants of the Supreme Court  con- stitute  a  class by themselves having  a  totally  distinct personality.  It  is submitted that the  pay-scales  of  the employees  of the Supreme Court shall be fixed on the  basis of their distinct personality, qualifications and the  ardu- ous  nature  of  work performed by them and not  by  a  mere comparison with the designations of Government employees. In this connection, our attention has been drawn to the  obser- vation of the Five-Judge Committee. According to the Commit- tee, the borrowed designations without any attempt at giving distinct and independent identity to the staff in the Regis- try  of the Supreme Court have led to invidious  comparison. The  Committee  took the view that no attempt  was  made  to really ascertain the nature of the work of the employees  in each  category of staff and to determine  the  pay-structure and then after framing proper rules invite the President  of India to approve the rules under Article 146 of the  Consti- tution. It also appears from paragraph 4.6 of Chapter IV  of Part III of the report of the Fourth Central Pay  Commission that the Commission could not undertake a detailed study  of the  job  contents and different functions  in  the  Supreme Court.     On  the other hand, it is the contention of the  learned Attorney  General that the fact that this Court is the  apex Court where the Judges lay down the law for the country  and whose  independence  has been ensured  by  the  Constitution

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cannot,  in  any  manner, lead to the  conclusion  that  the Supreme  Court  employees should be treated  as  a  separate class  having  a  distinct and separate  identity  and  that should  be  done by giving them higher pay-scales  than  the rest of the employees of the Government and that to  provide them  with different pay-scales on the basis of the  alleged separate  identity of the institution would be  contrary  to the basic tenets of equality enshrined in the  Constitution. The learned Attorney General has drawn our attention to  the Constituent Assembly debates on the draft Article. 122 which is the same as Article 146 of the Constitution. In  particu- lar, the learned Attorney General has drawn our attention to the  statements  of Shri T.T. Krishnamachari  and  Dr.  B.R. Ambedkar made in course of the debate. Shri T.T.  Krishnama- chari stated before the Constituent Assembly as follows:               "At  the same time. Sir, I think it should  be               made  clear  that it is not the  intention  of               this House or of the framers of this               527               Constitution that they want to create special-               ly favoured bodies which in themselves  become               an Imperium in Imperio, completely independent               of  the  Executive and  the  legislature  and-               operating  as a sort of superior body  to  the               general body politic. If that were so, I think               we should rather chary of introducing a provi-               sion  of this nature, not merely in regard  to               the  Supreme Court but also in regard  to  the               Auditor-General, in regard to the Union Public               Service  Commission, in regard to the  Speaker               and the President of the two Houses of Parlia-               ment and so on, as we will thereby be creating               a number of bodies which are placed in such  a               position  that  they are bound  to  come  into               conflict  with the Executive in every  attempt               they make to superiority. In actual  practice,               it  is better for all these bodies to more  or               less  fall in line with the  regulations  that               obtain in matters of recruitment to the public               services, conditions of promotion and salaries               paid to their staff."               The  submission of Dr. B .R. Ambedkar is  also               extracted below:               "But  it  seems to me that  there  is  another               consideration which goes to support the propo-               sition that we should retain the phrase  "with               the approval of the President" and it is this.               It  is  undoubtedly  a  desirable  thing  that               salaries,  allowances and pensions payable  to               servants  of the State should be uniform,  and               there  ought not to be material variations  in               these  matters with regard to the civil  serv-               ice.  It is likely to create a great  deal  of               heart-burning and might impose upon the treas-               ury  an unnecessary burden. Now, if you  leave               the matter to the Chief Justice to decide,  it               is  quite  conceivable--I do not say  that  it               will happen--but it is quite conceivable  that               the  Chief Justice might fix scales of  allow-               ances,  pensions and salaries  very  different               from  those fixed for civil servants, who  are               working  in  other  departments  besides   the               judiciary,  and  I do not think  that  such  a               state of things is desirable thing."     Another  contention of the learned Attorney  General  is

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that  if  the Junior Clerks and the Class IV  employees  are given  the Punjab scales of pay and the Central D.A.,  there would be a heavy financial liability of the Central  Govern- ment.  The Junior Clerks and Class IV employees of  the  Su- preme  Court have already been given the Punjab  scales  and the Central D .A. with effect from January 1, 1978 and this 528 has  cost  the exchequer Rs.2 crores. It is  submitted  that other employees of the Supreme Court who have not been given this benefit as well as all other Central Government employ- ees  including  armed forces personnel  numbering  about  50 lakhs may also demand similar benefit and if they are to  be given  the  same  benefit  with  effect  from  1.1.1978   to 21.12.1985,  it  would involve an  expenditure  of  Rs.8,640 crores. Further, this D.A. would get merged in the pay-scale from 1.1.1986 and would also qualify for D.A. after 1.1.1986 leading to a huge additional expenditure.     At  this stage, it may be stated that in the  course  of the hearing, we enquired from Mr. P.P. Rao, learned  Counsel appearing  on behalf of the Registrar of the Supreme  Court, as  to whether the Chief Justice of India was  agreeable  to prescribe  the rules relating to the  salaries,  allowances, etc.  of the Supreme Court employees. We are glad to  record that Mr. Rao has informed us that the Chief Justice of India has  agreed  to make necessary amendments  to  the  existing rules relating to the salaries and allowances of the Supreme Court  employees in accordance with Article 146 of the  Con- stitution  after  considering  the  recommendations  of  the Fourth Pay Commission and all other relevant materials,  and that the said amendments will be forwarded to the  President of  India  for approval. Mr. Rao has filed  a  statement  in writing signed by the Registrar General, which is  extracted below:               "After obtaining instructions from the Hon’ble               the Chief Justice, I hereby state that  neces-               sary amendments to the existing rules relating               to the salaries and allowances of the  Supreme               Court  employees  will be made  in  accordance               with  Article  146 of the  Constitution  after               considering the recommendations of the  Fourth               Pay Commission in respect of the Supreme Court               employees and all other relevant materials and               that the said amendments to the Rules will  be               forwarded  to the President of India  for  ap-               proval and after obtaining the approval of the               President,  in terms of the proviso to  Clause               (2)  of Article 146 of the  Constitution,  the               same will be implemented."     In view of the said statement, our task has become easy. It appears from the said statement that the Chief Justice of India has agreed to prescribe the rules relating to salaries and  allowances  in accordance with Article  146(2)  of  the Constitution  and has further agreed to forward the same  to the  President  of India for approval and to  implement  the same after obtaining the approval of the President of 529 India in terms of the proviso to Article 146(2).     In our opinion, the Chief Justice of India is the proper authority  to  consider the question as to  the  distinctive nature  and  personality  of the employees  of  the  Supreme Court,  keeping  in view the statements made  by  Shri  T.T. Krishnamachari  and Dr. B.R. Ambedkar in course of  the  de- bates  in the Constituent Assembly on the draft Article  122 which  is the same as Article 146 of the Constitution.  Fur- ther, before laying down the pay-structure of the  employees

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of  the Supreme Court, it may be necessary to ascertain  the job  contents  of various categories of  employees  and  the nature  of duties which are performed by them. There can  be no  doubt that at the time of preparing the rules  for  pre- scribing  the conditions of service including fixing of  the pay-scales,  the  Chief Justice of India will  consider  the representations and suggestions of the different  categories of  employees of the Supreme Court also keeping in view  the financial liability of the Government as pointed out by  the learned Attorney General. 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  abso- lutely  in the discretion of the Chief Justice of  India  or his  nominee as to how and in what manner the rules will  be framed.     Before  we conclude, it may be recorded that Mr.  Kalra, Mr. Gujral, Mr. Ravi Prakash Gupta, Mr. A.K. Sanghi and  Mr. A.D.  Malhotra have, besides adopting the arguments  of  Mr. Thakur, made their own submissions. Mr. Kalra and Mr. Aggar- wal  have, in particular, drawn our attention  to  different pay-scales sanctioned to the employees of the Central Secre- tariat,  Lok Sabha and Rajya Sabha and submit that  the  Su- preme  Court  employees have  been  discriminated,  although their  nature  of work is more arduous and they  are  better qualified.  In view of our decision that the rules have  not been framed as per Article 146(2) of the Constitution, we do not  think we are called upon to decide the question  raised by the learned Counsel.     In the circumstances, as agreed to by the Chief  Justice of  India he may, after considering the  recommendations  of the Fourth Pay Commission and other materials that would  be available to him and the representations of the employees of the Supreme Court and other matters, as stated hereinbefore, frame  rules by making necessary amendments to the  existing rules relating to salaries and allowances of 530 the  Supreme  Court employees and forward the  same  to  the President of India for his approval.     The  parties  are  directed to maintain  status  quo  as regards the scales of pay, allowances and interim relief, as on  this  day, till the framing of the rules  by  the  Chief Justice  of India and the consideration by the President  of India as to the grant of approval of such rules relating  to salaries,  allowances,  leave or pensions, and  the  interim orders  passed  by this Court will also continue  till  such consideration by the President of India. All the Writ  Peti- tions and the Civil Miscellaneous Petitions are disposed  of as  above. There will, however, be no order as to  costs  in any of them.     THOMMEN,  J.  I agree with the judgment  of  my  learned brother, M.M. Dutt, J. I add the following observations with particular reference to the scope and ambit of clause (2) of Article 146 of the Constitution of India.     This  Court has, by order dated 25.7.1986, directed,  in the  present proceedings, that the officers and servants  of the Supreme Court should be placed on the same scales of pay as in the case of the staff of the Delhi High Court. To  the employees of this Court not falling within any of the  cate- gories of employees corresponding to those of the Delhi High Court, this Court directed payment of a sum equal to 10  per cent  of their basic pay subject to a minimum of. Rs.50  per

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month.     Counsel  appearing  for the petitioners in  these  cases submit that the interim orders of this Court which were made with  a view to introducing parity between the employees  of this  Court and those of the Delhi High Court in  regard  to pay  scales must be made absolute, without prejudice to  the claim  of  the  employees of this Court to be  placed  on  a higher  scale  of pay than the employees of the  Delhi  High Court  by reason of their more arduous duties and  responsi- bilities  and  functional and locational  distinctions.  The Fourth Central Pay Commission (the "Pay Commission"),  coun- sel  point  out, had ignored the legitimate  claims  of  the officers and servants of the Supreme Court.      It is contended on behalf of the Government that it has issued sanction to implement the recommendations of the  Pay Commission,  and all categories of employees of  this  Court have benefited by the recommendations except those belonging to  Classes  III  and IV. Employees of  those  two  Classes, constituting about 60 per cent of the 531 total strength of the Supreme Court Staff, claim pay  scales in  parity with their counterparts in the Delhi  High  Court who are paid, by virtue of various judgments of that  Court, salary and allowances on the basis of the Punjab pay  scales coupled  with the Central dearness allowance. The Class  III and Class IV employees of this Court also receive the Punjab pay scales and the Central dearness allowance, notwithstand- ing  the revised pay scales recommended by the  Pay  Commis- sion,  because  of the interim orders of this Court  in  the present proceedings. The Attorney General contends that  the Punjab  pay  scales of Rs.400600 in the case  of  Class  III employees  and Rs.300-430 in the case of Class IV  employees are higher than the corresponding Central pay scales because the  Punjab pay scales are linked to the higher price  index of  320  as  on 1.1.1978 while the Central  pay  scales  are linked to the price index of 200 as on 1.1.1973. The  higher Punjab scales have already absorbed all the D.A. instalments sanctioned  upto  1.1.1978.  The Punjab D  .A.  formula  is, therefore, correspondingly lower. There is no  justification in  linking the Punjab pay scales with the Central D.A.  The decision  of the Delhi High Court, although final being  res judicata  between the parties, is based on  wrong  reasoning and  cannot, therefore, form a legitimate basis  for  paying the  Class  III  and Class IV employees of  this  Court  the Punjab  pay  scales and the Central  D.A.  Their  legitimate entitlement  is to the Central Pay scales with  the  Central D .A. This has been recommended by the Pay Commission.     Referring to the Delhi High Court employees, the  Attor- ney General, in his written submissions, points out:               "His  counterpart  in the  Punjab  High  Court               enjoyed higher scale of pay but lesser  allow-               ances than he, because the D.A. upto 1978  had               been  merged with pay scales of  employees  of               the  Punjab High Court by taking into  account               the higher price index of 320 as on 1.1.  1978               whereas  the Delhi High Court  employees’  pay               scales  had  been  fixed as on  1.1.  1973  by               linking  to price index of 200 but giving  him               D.A. for the higher price index of the differ-               ence between 200 and 320."      This contention of the Attorney General is sought to be met by counsel appearing for the Class IV Employees’ Associ- ation in his written submissions in the following words:               "The Delhi High Court in Kamalanand’s case has               decided  that the Class IV employees  of  that

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             court will get Punjab               532               pay  scales and Central D.A. It  is  submitted               that D.A. has relationship with the place  and               not  with the scale. As the Delhi  High  Court               happens.  to  be located in Delhi  it  is  the               Delhi  D.A. which is Central D A.  which  will               apply and the same will be the position of the               Supreme  Court  employees  who  are  also   in               Delhi."     The Attorney General refutes the petitioners’ contention that  the Supreme Court employees, by virtue of the  special nature of their work or locational or institutional distinc- tion, can legitimately claim higher scales of pay than those applicable to corresponding categories of employees in other sectors  of public life. Any such contention,  the  Attorney General points out, is contrary to the intent of the Consti- tution makers. The fact that the Delhi High Court has, on  a mistaken assumption of law and fact, directed payment to its employees on the basis of Punjab scales of pay with  Central D.A.  does  not justify repetition of the  same  mistake  in respect  of  other employees, for two wrongs  never  make  a right. To perpetuate any such error, he contends, is not  in conformity with Article 14 of the Constitution. In any  view of the matter, the Attorney General submits, the exercise of power by the Constitutional authorities under Article 146 of the  Constitution  is beyond judicial  scrutiny  on  grounds other than those relevant to judicial review of legislation. The President’s approval or disapproval of rules made by the Chief  Justice of India is an exercise of legislative  power and  no direction can be issued to the President as  regards the exercise of that power.     The genesis of the recommendations of the Pay Commission regarding  the  employees of the Supreme Court lies  in  the suggestions of the Committee of Judges of the Supreme  Court in may, 1985 to the effect:               "The Chief Justice of India may               (a) appoint a Committee of Judges, and experts               to  devise a fair pay structure for the  staff               of the Supreme Court of India keeping in  view               the principles of pay determination;               or               (b) refer the matter to the 4th Pay Commission               which is. at present considering the  question               of  revision  of  pay-scalas  of  the  Central               Government  employees and ask it  to  examine:               the question of independent pay structure  for               the staff of               533               the Supreme Court Registry and submit a  sepa-               rate  report  in  this respect  to  the  Chief               Justice of India."     Pursuant to the above suggestions and the decision taken thereon,  the Government amended; the terms of reference  of the Pay Commission to include officers and  employees of the Supreme Court of India. A. copy of the Report of the Commit- tee of Judges was made available to the Pay Commission.  The Committee  of Judges had pointed out the functional  differ- ences  between  the  Central Secretariat  Services  and  the Service  in the Registry of the Supreme Court. The Pay  Com- mission visited the Registry of the Supreme Court to  famil- iarise themselves with the nature of the work in the  Court. They say:               "The  Judges Committee had observed  that  the               pay structure for the Supreme Court  employees

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             should  be devised keeping in view  the  inde-               pendent  identity of tile Registry of the  Su-               preme  Court, in evolving the  pay  structure,               the  workload, skill,  educational  qualifica-               tions, responsibilities and duties of  various               categories of posts in the Registry need to be               taken into account. We considered it necessary               to collect information about these matters  by               a  small  team comprising  officers  from  the               Secretariat of the Commission’ and the  Regis-               try  of  the Supreme Court. The team  spent  a               number  of days visiting various  sections  in               the Registry for a proper understanding of the               work  of  different  functionaries.  They  had               discussions  with the concerned staff and  the               officers   in charge of the sections and  also               observed in, detail the work being   performed               by  different task holders. The work  done  by               the  team of officers within the  short:  time               available  and  our  own  visit   proved  very               useful in acquainting ourselves with the  role               and functions of the personnel in the  Supreme               Court  Registry.  While  it   has  not    been               possible for us to undertake a detailed study,               of the job contents of different functionaries               in  the  Supreme Court, we have  examined  the               duties and responsibilities of various catego-               ries of  posts with  the  help and  assistance               of senior officials of the Supreme Court."                                                 (emphasis               supplied)     This observation of the Pay Commission shows that  while an  earnest attempt had been made by them to study the  dis- tinctive characteristics  of the job contents of the Supreme Court employees at 534 various levels, and they had borne in mind the  observations of Judges’ Committee as regards the independent identity  of the Registry of the Supreme court, no detailed study of  the various  aspects of the problem could be undertaken  by  the Pay Commission within the short time available to them.  The Report of the Pay Commission is apparently not based on  any thorough  study of the job contents of the  different  func- tionaries of the Supreme Court Registry.     The  main thrust of the contentions of the employees  of the Supreme Court is not that they should be paid the Punjab scales  of pay and the Central D.A. as such, as in the  case of  the Delhi High Court employees, but that they should  be paid at least as much as, if not better than, the  employees of  the Delhi High Court. The Supreme Court employees,  they say, have to be paid a higher scale of pay than what is paid to the corresponding categories of employees in the  Central Government  Secretariat  or the Secretariat of  the  Central Legislature  because  of the  functional  and  institutional distinction of the Supreme Court. Although the employees  of the Central Government Secretariat and those of the  Supreme Court Registry at various levels are designated alike, there is  no  functional similarity between them, the  nature  and quality of their work being dissimilar. If a proper compari- son is possible, they say, the Supreme Court employees  must be  compared with the employees of the Delhi High Court.  It would  be  an anomaly, and a source of  discontent,  if  the Supreme Court employees are not paid at least as much as, if not better than, what the employees of the Delhi High  Court are  paid.  The  fact that the judgment of  the  Delhi  High

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Court,  pursuant  to which the employees of that  court  are placed on a higher scale of pay, may be regarded as wrong in law  and  fact does not make any  difference  because  those judgments  have become final and binding,  and  consequently the employees of the Delhi High Court, in the absence of any law made by the legislature to the contrary, are entitled to be  paid according to the Punjab scales of pay and the  Cen- tral D.A. It is neither just nor fair, they say, to deny the Supreme Court employees at least the same salary scale as is now current in respect of the Delhi High Court employees.     In  the written submissions on behalf of  the  Assistant Registrars and Deputy Registrars, it is pointed out that the recommendations of the Pay Commission have resulted in their being  subjected to invidious discrimination  vis-a-vis  the Section  Officers. It is further contended that there is  no justification to place these two categories of Officers on a lower  scale  of pay than what is applicable  to  the  Under Secretaries and Deputy Secretaries in the Secretariat of the Lok Sabha or the 535 Rajya  Sabha. They contend that the Pay Commission, in  view of the admitted constraint of time, did not make an  exhaus- tive  and proper study of the nature of the  functions  per- formed  by different categories of employees of the  Supreme Court Registry in comparison to those working in the Central Government  Secretariat  and that of the Lok Sabha  and  the Rajya Sabha.     These  are weighty arguments and they  require  thorough investigation. In this connection, reference may be made  to Part II, Chapter I, of the Report of the Committee of Judges stating that despite the functional distinctions, no attempt had been made to provide a separate and distinct identity to the  ministerial  staff of the Supreme Court  Registry.  The Committee pointed out that even the designations of  various posts had been borrowed from the Central Secretariat Service with  marginal modifications. So stating the  Committee  ob- served:               "These   borrowed  designations  without   any               attempt  at giving a distinct and  independent               indentity  to  the ministerial  staff  in  the               Registry of the Supreme Court led to invidious               comparison and as a sequel to an  unacceptable               outcome.  History  with regard to  the  salary               scale  applicable  to  various  categories  of               staff in the Registry would show that at least               since  the Second Pay Commission appointed  by               the Central Government for Central  Government               servants,  the  payscales devised by  the  Pay               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  ac-               cepted  by the Central Government.  Apparently               with  a view to avoiding the arduous  task  of               devising  a  fair pay  structure  for  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

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determine  the pay structure and then after  framing  proper rules  invite the President to approve the rules under  Art. 146 of the Constitution." The Committee further pointed out: 536 "Equal  pay for equal work postulates scientific  determina- tion of principles of fair comparison and primarily it  must be functional and not by designation because a comparison by designation is more often misleading  .....  not the slight- est  attempt has been made to compare the  workload,  skill, educational  qualification, responsibilities and  duties  of various categories of posts in the Registry." The Committee concluded: "Art.  146(2) casts a duty on the Chief Justice of India  to frame  rules  for determining the conditions of  service  of officers and servants of the Supreme Court. This is undoubt- edly  subject to the provisions of any law that may be  made by  Parliament  but so far none has been  made.  This  power conferred  on the Chief Justice of India precludes and  pro- hibits the Central Government from undertaking any  exercise unless the Parliament enacts a law on the subject to  deter- mine  conditions  of service of officers and  staff  of  the Supreme  Court.  Whenever therefore the  Central  Government decides to set up a Pay Panel for revising the pay structure of  the Central Government staff, the terms of reference  do not include the officers and servants of the Supreme  Court. As  a necessary corollary they cannot appear before the  Pay Panel  because  their case is not covered by  the  terms  of reference  of  the Pay Panel. However, when  the  Pay  Panel completes  its task and submits its recommendations and  the Govt. after accepting the recommendations devises a  revised pay  structure, the same is bodily applied to the  staff  of the  Supreme  Court of India by comparison  by  designation. Consequently the staff of the Supreme Court of India without any  opportunity to influence the thinking of the Pay  Panel by  its representations and submissions has  the  unenviable misfortune of being bound by the recommendations of the  Pay Panel." (emphasis supplied)    For  these reasons the Committee of  Judges  recommended that  in  order to assist the Chief Justice  in  making  the rules  under Article 146, either a Committee of  Judges  and experts  should be appointed to devise a fair pay  structure for the staff of the Supreme Court or refer the whole  ques- tion to the Pay Commission  for theft recommendations. It is pursuant  to the recommendations of the Committee of  Judges that 537 the  matter  was,  as stated earlier, referred  to  the  Pay Commission. The Pay Commission’s report was forwarded by the Government  to  the Registrar of the Supreme Court  for  his comments on the pay structure of the Supreme Court employees as recommended by the Pay Commission. The Registrar  General of  this Court wrote to the concerned Secretary of the  Cen- tral  Government  a  detailed letter  pointing  out  various anomalies and difficulties if the recommendations of the Pay Commission were implemented. He pointed out that implementa- tion  of  such recommendations would  have  the  unfortunate effect  of reducing the pay scales of certain categories  of employees  of the Supreme Court whose pay has  already  been enhanced  by  reason of various orders of this  Court.  This anomaly, he pointed out,. was glaringly striking in  respect of Class IV and Class III employees and certain other  cate- gories.  The  various suggestions of the  Registrar  General were  rejected by the Government except his  suggestion  for the  enhancement of the salaries of the Private  Secretaries

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to  the Judges of this Court. This is what is stated on  the point by Shri S. Ghosh, Additional Registrar, in his affida- vit sworn on 3rd March, 1989: "That except the enhancement of the salaries of the  Private Secretaries of the Judges of the Supreme Court of India, the rest of the anomalies and infirmities as pointed out by  the Registrar  General, on behalf of the Chief Justice of  India were not appreciated by the Ministry of Finance and the  pay ’scales  recommended by the Registrar General in respect  of various cadres on behalf of the Chief Justice of India  were not approved as those recommended by the Pay Commission were sanctioned."     In  the light of these facts, which my learned  brother, Dutt, J. has discussed more elaborately, I must now  examine the  scope and ambit of Article 146 of the  Constitution  of India so far as it concerns the salaries, allowances,  leave or pensions of the officers and servants of this Court.  The relevant portion of this Article is clause (2) which reads: "Subject  to the provisions of any law made  by  Parliament, the  conditions of service of officers and servants  of  the Supreme  Court shall be such as may be prescribed  by  rules made by the Chief Justice of India or by some other Judge or officer  of  the Court authorised by the  Chief  Justice  of India to make rules for the purpose: 538 Provided that the rules made under this clause shall, so far as  they relate to salaries, allowances, leave or  pensions, require the approval of the President." It is clear from clause (2) that, subject to the  provisions of any law made by Parliament, the conditions of service  of officers  and servants of the Supreme Court are governed  by rules  made by the Chief Justice of India or by  some  other Judge or officer of the Court duly authorised by him. Howev- er,  these  rules,  to the extent that they  relate  to  the salaries, allowances, leave or pensions, require the approv- al  of  the  President of India.  These  provisions,  albeit subject to the abovesaid conditions, are intended to protect the  special position of the Court. 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 Decem- ber, 1985. No amendment of these Rules has been made  subse- quent 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.     The  regulation  of  the conditions of  service  of  the Supreme Court employees is thus the constitutional responsi- bility and power of the Chief Justice of India, subject,  of course,  to the two conditions postulated in clause  (2)  of Article  146.  The Pay Commission was in the past  not  con- cerned  with this category of employees because of the  spe- cial  position of the latter under the  Constitution.  These employees,  however, came to be included within the  purview of  the Pay Commission on account of the recommendations  of the  Committee  of Judges. The Judges had intended  the  Pay Commission  to study all aspects of the matter in depth  and make their recommendations to the Chief Justice of India  to aid  him  in the discharge of  his  constitutional  function under  clause (2) of Article 146. In this respect the  Chief Justice  must  necessarily  act on the basis  of  data  made available to him by persons he might in that regard appoint, or, as has been done in the present case, by the Pay Commis- sion themselves to whom a reference was made by the  Govern-

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ment pursuant to the recommendations of the Judges’  Commit- tee. The cardinal function of the Pay Commission, while duly acting  in  connection  with the employees  of  the  Supreme Court,  is to render effective assistance to the Chief  Jus- tice of India to discharge his responsibility of formulating rules  under Article 146(2). This is the first step  towards the final adoption of the rules governing the conditions  of service in relation to salaries, allowances, etc. It is only by 539 formulating specific rules in that respect can the President (that means the Government of India) exercise the mind  over the  question and approve or disapprove the rules.  The  ap- proval of the President follows the making of the rules, and unless  and  until rules are made by the  Chief  Justice  of India specifically in regard to salaries, allowances,  etc., the  President, acting as a constitutional  authority,  does not  and cannot exercise the power of granting  or  refusing approval. Similar provisions are contained in the  Constitu- tion in relation to the High Court (see Article 229).  These constitutional requirements are not an empty formality,  but are  prescriptions required to be strictly complied with  to insulate  the  judiciary from undue  executive  interference with a view to according it, subject to any law made by  the competent  legislature,  a special position  of  comparative independence  in accordance with the  fundamental  constitu- tional  scheme of maintaining a harmonious  balance  between the three organs of State. [See M. Gurumoorthy v. Accountant General Assam & Nagaland & Ors., [1971] Suppl. SCR 420,429].     In  the present case, as stated earlier, no  rules  have been  so far made with reference to the  recommendations  of the  Pay Commission or with reference to the pay  scales  of the Delhi High Court employees, which have been extended  to the Class III and Class IV employees of this Court, pursuant to  the interim orders of this Court, and  consequently  the disapproval of the Registrar General’s proposals was not  an exercise  of power by the constitutional authority in  terms of  clause  (2)  of Article 146. That this  is  the  correct position  is  not  seriously disputed by any  party  to  the present  proceedings. The Attorney General does not  dispute that rules have not been so far made by the Chief Justice of India,  although certain suggestions had been received  from the Registrar General by the concerned Ministry. A statement dated  5.5. 1989 has been filed by the Registrar General  of this Court reading as follows: "After  obtaining  instructions from the Hon’ble  the  Chief Justice,  I  hereby state that necessary amendments  to  the existing  rules relating to the salaries and  allowances  of the Supreme Court employees will be made in accordance  with Article 146 of the Constitution after considering the recom- mendations  of the Fourth Pay Commission in respect  of  the Supreme Court employees and all other relevant materials and that  the said amendments to the Rules will be forwarded  to the President of India for approval and after obtaining  the approval of the President, in terms of the proviso to 540 clause (2) of Article 146 of the Constitution, the same will be implemented."     It is not and cannot be disputed that the Chief  Justice of  India, by virtue of the constitutional grant,  exercises legislative power when he makes rules under Article  146(2). Those  rules  are in the nature of  subordinate  legislation having  .the force of law to the extent, and subject to  the conditions, prescribed by the Constitution. Like all  statu- tory  instruments, they are subordinate to the  parent  law.

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The  power of the President under the proviso to clause  (2) of  Article 146 to approve or disapprove the rules  made  by the Chief Justice of India (relating to salaries, allowances etc.)  is likewise legislative in character. It is  the  ap- proval  of the President that stamps such rules, so  far  as they relate to salaries, allowances, etc,, with the authori- ty  of subordinate legislation. The making of the  rules  by the Chief Justice of India in that respect is a step--indeed a vital step--in the process of law making, but they  assume the  character  of  subordinate legislation  only  on  their approval by the President.     The  Attorney  General strenuously  contended  that  the power  of the President under the proviso to clause  (2)  of Article  146  to grant or refuse approval tantamounts  to  a legislative  function  comparable in its nature,  ambit  and quality to the President’s power under Article 111 to assent to, or withhold assent from, a Bill passed by the Houses  of Parliament, and consequently his actions in that regard  are beyond judicial review. No court can, he says, sit in  judg- ment  over the validity or correctness or reasonableness  of the President’s act of approval or disapproval of the rules. This  comparison of the President’s power under Article  146 with  his power under Article 111 is, with great respect  to the Attorney General, misplaced.     The power of the President under Article 111 is  primary and plenary and not delegated and subordinate. He  exercises legislative  power  under Article 111 in his capacity  as  a part of the legislature (see Article 79) and not as a  dele- gate. On the other hand, he acts as a delegate when he  acts under the proviso to Article 146(2). This power is no  doubt legislative  in  character, but subordinate in  quality  and efficacy.  The Constitution envisages that the President  is not  only  a  part of the legislature, but he  is  also  the ultimate repository of the executive power of the Union (see Article 53(1). It is in the latter capacity that the  Presi- dent  acts as a delegate. In the exercise of this  function, he does not assume the mantle of the legislature, but  func- tions as the head of the executive to whom the  Constitution has delegated specific legisla- 541 tive  power to make subordinate legislation. This  power  is limited  by  the terms, and subordinate to the  objects,  of delegation.  On the advice of his Council of Ministers,  the President  grants or refuses approval of the rules  made  by the  Chief  Justice  of India. It is indeed  this  power  of approval,  which the Constitution has under the  proviso  to clause  (2) of Article 146 delegated to the  President  that can  vitalise and activate the rules, so far as they  relate to salaries, allowances etc., as subordinate legislation. In the  making of such instruments, both the Chief Justice  and the  President act as delegates by virtue of  the  constitu- tional conferment of power. They must in this regard  neces- sarily act in good faith, reasonably, intra vires the  power granted, and on relevant consideration of material facts.     The  fact that the power exercised by the Chief  Justice of  India or the President under Article 146(2)  is  derived directly  from  the Constitution, and not  from  a  statute, makes  no  difference to the power of judicial review  by  a competent court. Any action taken (or refusal to act) on the strength of power derived directly by constitutional delega- tion  is  as much justiciable or reviewable  upon  the  same grounds and to the same extent as in the case of any  statu- tory  instrument.  The fundamental question  in  determining whether the exercise of power by an authority is subject  to judicial  review is not whether the source of his  power  is

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the  Constitution  or  a statute, but  whether  the  subject matter  under challenge is susceptible to  judicial  review. Pure questions of facts or questions which cannot be decided without recourse to elaborate evidence or matters which  are generally regarded as not justiciable--such as, for example, those relating to the conduct of the external affairs or the defence of the nation--are not amenable to judicial  review. See in this connection the principle enunciated in  C.C.S.U. & Ors. v. Minister for the Civil Service, [1984] 3 All  E.R. 935,948,950.     Rules made under Article 146 being subordinate  legisla- tion do not partake of the character of ordinances which are legislation  in  the true sense for the  limited  period  of their operation, K. Nagaraj & Ors. v. State of A.P. &  Anr., [1985] I SCC 523; 548; A.K. Roy v. Union India. [1982] 1 SCC 271,  291  and  R.K. Garg v. Union of India,  [1981]  4  SCC 675,687.  While ordinances cannot perhaps be  questioned  on any ground which is not relevant to the validity of legisla- tion,  it is not so in the case of rules made by  virtue  of power  granted under the Constitution which are,  as  stated above, liable to be declared void for any of the reasons for which  instruments made by virtue of delegation by  Acts  of Parliament  can be declared void. Rules, whether made  under the 542 Constitution  or a statute, must be intra vires  the  parent law-under which power has been delegated. They must also  be in harmony with the provisions of the Constitution and other laws. If they do not tend in some degree to the  accomplish- ment  of the objects for which power has been  delegated  to the  authority, courts will declare them to be  unreasonable and, therefore, void.     There  is indeed a higher degree of presumption of  con- stitutionality in favour of subordinate legislation than  in respect  of  administrative orders. This.is  especially  the case  where rules are made by virtue of constitutional  con- ferment of power. Rules made directly under the Constitution may  have  in a certain sense greater  legislative  efficacy than rules made under a Statute; within the field demarcated by the Constitution, the former can, if so provided, operate retrospectively. These rules are, of course, as in the  case of all statutory instruments, controlled by the Constitution and the laws: see K. Nagaraj v. State of A.P., (supra);  Raj Kumar v. Union of India, [1975] 4 SCC 13, 14 and B.S. Vadera v. Union of India, [1968] 3 SCR 574.     Where the validity of a subordinate legislation (whether made  directly  under the Constitution or a statute)  is  in question, the Court has to consider the nature, objects  and scheme  of the instrument as a whole, and, on the  basis  of that  examination, it has to consider what exactly  was  the area  over which, and the purpose for which, power has  been delegated by the governing law.     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  predi- cated 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. In the words  of Lord  Russel of Kilowen, C.J. in Kruse v. Johnson, [1898]  2 Q.B. 91, 99: "If, for instance, they were found to be partial or  unequal in  their  operation as between different classes;  if  they were manifestly unjust; if they disclosed bad faith; if they involved such oppressive or gratuitous interference with the

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rights of those subject to them as could find no  justifica- tion  in the minds of reasonable men, the Court  might  well say,  "Parliament never intended to give authority  to  make such rules; they are unreasonable and ultra vires." 543        In  Union of India & Anr. v. Cynamide ’India  Ltd.  & Anr., [1987] SCC 720, 734 Chinnappa Reddy, J. observed  that price fixation being a legislative activity, it was: "neither the function nor the forte of the court. We concern ourselves neither with the policy nor with the rates. But we do  not totally deny ourselves the jurisdiction  to  enquire into  the  question,  in  appropriate  proceedings,  whether relevant considerations have gone in and irrelevant  consid- erations kept out of the determination of the price."                                    (emphasis supplied)     In S.I. Syndicate Ltd. v. Union of India, AIR (1975)  SC 460 this Court stated: "Reasonableness,  for purposes of judging whether there  was an  ’excess of power’ or an ’arbitrary’ exercise of  it,  is really  the demonstration of a reasonable nexus between  the matters  which are taken into account in exercising a  power and the purposes of exercise of that power." In P.C.S. Mills v,. Union of India, AIR (1973) SC 537,  this Court, referring to statutory fixation of fair price,  stat- ed: "...  But  this does not mean that Government  can  fix  any arbitrary  price or a price fixed on  extraneous  considera- tions or such that it does not secure a reasonable return on the capital employed in the industry. Such a fixation  would at  once evoke a challenge, both on the ground of its  being inconsistent  with the guidelines build in  the  sub-section and its being in contravention of Arts. 19(1)(f) and (g)."                                     (emphasis supplied) See  also observation to the same effect in Shree  Meenakshi Mills v. Union of India, AIR 1974 SC 366.     Any  arbitrary exercise of power by a public  authority, whether  or not it is in the nature of subordinate  legisla- tion, is liable to be condemned as violative of Article  14. As  stated in E.P. Royappa v. State of Tamil Nadu, AIR  1974 SC 555: "  .....  equality and arbitrariness are sworn enemies;  one belongs to the rule of law in a republic while the other, to 544 the whim and caprice of an absolute monarch ..." See  also Maneka Gandhi v. Union of India, AIR 1978  SC  597 Ajay  Hasia  v.  Khalid Mujib, AIR (1981) SC  485  and  D.S. Nakara v. Union of India, AIR 1983 SC 126.     An  act is ultra vires either because the authority  has acted in excess of its power in the narrow sense, or because it  has  abused its power by acting in bad faith or  for  an inadmissible  purpose  or on irrelevant grounds  or  without regard  to relevant considerations or with gross  unreasona- bleness:  see  the principle stated by Lord Greene  M.R.  in Associated  Provincial  Picture Houses  Ltd.  v.  Wednesbury Corporation, [1947] 2 All. E.R. 880,885. Power is  exercised in  bad faith where its repository is motivated by  personal animosity  towards  those who are directly affected  by  its exercise. Power is no less abused even when it is  exercised in good faith, but for an unauthorised purpose or on irrele- vant grounds, etc. As stated by Lord Magnaghten in  Westmin- ster Corporation v. London and North Western Railway, [1905] AC 426, 430: "  ....  It is well settled that a public body invested with statutory  powers such as those conferred upon the  Corpora- tion  must take care not to exceed or abuse its  powers.  1t

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must  keep within the limits of the authority  committed  to it.  It must act in good faith. And it must act  reasonably. The  last proposition is involved in the second, if  not  in the first  ...." This  principle was restated by this Court in Barium  Chemi- cals Ltd. v. Company Law Board, AIR 1967 SC 295; "   ....   Even if (the statutory order) is passed  in  good faith and with the best of intention to further the  purpose of  the  legislation  which confers the  powers,  since  the Authority  has  to  act in accordance with  and  within  the limits of that legislation, its order can also be challenged if it is beyond those limits or is passed on grounds  extra- neous  to the legislation or if there are no grounds at  all for  passing it or if the grounds are such that no  one  can reasonably  arrive at the opinion or satisfaction  requisite under the legislation. In any one of these situations it can well  be said that the authority did not honestly  form  its opinion or that in forming it, it did not apply its mind  to the relevant facts. 545     The  true position thus appears to be that, just  as  in the case of an administrative action, so also in the case of subordinate  legislation  (whether made directly  under  the Constitution or a Statute), its validity is open to question if  it is ultra vires the Constitution or the governing  Act or  repugnant to the general principles of the laws  of  the land  or  it is so arbitrary or unreasonable  that  no  fair minded  authority  could  ever have made it.  See  the  test adopted by Lord Russet in Kruse v. Johnson, [1898] 2 Q.B. 91 and  by  Lord Greene M.R. in Associated  Provincial  Picture Houses  Ltd. v. Wednesbury Corporation, [1948] 1  K.B.  223. See  also Mixnam Properties Ltd. v. Chertsey U.D.C.,  [1965] AC  735;  Commissioners of Customs and Excise  v.  Cure  and Deeley Ltd., [1962] 1 Q.B. 340; Meeldowney v. Forde,  [1971] AC 632; Carltona Ltd. v. Commissioners of Works and  others, [19431 2 All E.R. 560, 564; Point of Ayr. Collieries Ltd. v. Lloyd George, [1943] 2 All E.R. 546; Scott v. Glasgow Corpo- ration, [1899] AC 470, 492; Robert Baird L.D. and others  v. City of Glasgow, [1936] AC 32, 42; Manhattan General  Equip- ment  Co.  v. Commissioner, [1935] 297 US  129,  134;  Yates (Arthur)  &  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. (2d) 211; Re Burns and Township of Haldimand, [1966] 52  DLR (2d) 101 and Lynch v. Tilden Produce Co., 265 U.S.  315,320- 322.     Even if it were to be assumed that rules made by  virtue of  power granted by a provision of the Constitution are  of such legislative efficacy and amplitude that they cannot  be questioned  on grounds ordinarily sufficient  to  invalidate the generality of statutory instruments, they are  neverthe- less  liable to be struck down if found to be  intrinsically arbitrary or based on an irrational classification or other- wise  repugnant to constitutional principles. As  stated  by this Court in E.P. Royappa v. State of Tamil Nadu, (Supra): "Where an act is arbitrary, it is implicit in it that it  is unequal both according to political logic and constitutional law  and  is  therefore violative of Article 14  and  if  it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at  arbi- trariness  in State action and ensure fairness and  equality of  treatment. They require that State action must be  based on  valid relevant principles applicable alike to all  simi- larly situate and it must not be guided by any extraneous or irrelevant  considerations because that would be  denial  of

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equality.  Where the operative reason for State  action,  as distin- 546 guished  from  motive inducing from the antechamber  of  the mind,  is not legitimate and relevant but is extraneous  and outside  the  area of permissible considerations,  it  would amount  to malla fide exercise of power and that is  hit  by Articles  14 and 16. Mala fide exercise of power  and  arbi- trariness are different lethal radiations emanating from the same  vice; in fact the latter comprehends the former.  Both are inhibited by Articles 14 and 16."     These  are  some of the general  principles  which  must guide the repository of power in all his actions. They apply with equal force to the exercise of power contemplated under Article  146(2),  including its  proviso.  These  principles must,  therefore, necessarily weigh with the court  whenever the  action  of a constitutional or statutory  authority  is under challenge. These principles are, however, subject,  as stated  earlier, to the overriding consideration as  to  the amenability  of  the  impugned subject  matter  to  judicial review.  That  of course is a question which  must  in  each case,  when challenged, be decided by the court with  refer- ence to the facts in issue.     As stated earlier, the constitutional process  envisaged under  Article 146(2) has not been completed. Initial  steps had  indeed been taken in that regard and to that end.  Con- stituting  the Committee of Judges and their  suggestion  to refer  the question to the Pay Commission, the  decision  to refer the matter to the Pay Commission, the  recommendations of the Pay Commission, and, consideration of the same by the Registrar General and his letter to the Government  contain- ing  certain suggestions, form the components of a  link  in the  chain  leading to the ultimate end; but  they  are  not themselves  the ultimate end, which means the making of  the rules  by the Chief Justice and submitting the same  to  the President  for  approval,  and the final  decision  of  the. President in that behalf. The Registrar General’s letter and the  Government’s reaction to that letter were at best  only the process of consultation preceding the rule making act.     The  ultimate authority in this regard being  the  Chief Justice  of India, he alone is competent to make, or  autho- rise  the making of the rules. Until the rules are  made  by him  (or  by a Judge or officer of the court  authorised  by him), the question of approval or disapproval by the  Presi- dent 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 or experts he may  have consulted.  He  will also take into account  the  objections raised by the Government 547 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), for such refusal or approval can arise  only upon submission to him of duly framed rules.     It  is  of  course true that no court  will  direct  the President to grant approval, for a writ of mandamus will not lie to compel a person to exercise a legislative function in a  particular fashion (See A.K. Roy etc. v. Union  of  India and  Anr.,  (supra)  Narinder Chand Hem Raj &  Ors.  v.  Lt. Governor, Administrator, Union Territory, Himachal Pradesh & Ors.,  [1972] 1 SCR 940. 945. But the President  must,  upon submission to him of the Rules made by the Chief Justice  of India under Article 146(2), exercise his mind as to  whether

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or  not he would grant approval, and, without  undue  delay, come  to a decision on the point: See Aeltemesh Rein,  Advo- cate  Supreme Court of India v. Union of India  and  Others, [1988] 4 SCC 54. In the present case, the time for  decision by the President has of course not come.     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. It is but  proper and appropriate that, in view of the spirit of the constitu- tional provision, approval would be accorded in all but  the exceptional  cases:  see the observations of this  Court  in State of Andhra Pradesh & Anr. v. T. Gopalakrishna Murthi  & Ors., [1976] 1 SCR 1008. In this connection the  observation of  Mukharji, J. in State of U.P. & Ors. v. Renusagar  Power Co. & Ors., [1988] 4 SCC 59, 104 is apposite: "The exercise of power whether legislative or administrative will be set aside if there is manifest error in the exercise of  such  power or the exercise of the power  is  manifestly arbitrary.  Similarly, if the power has been exercised on  a non-consideration  or  non-application of mind  to  relevant factors the exercise of power will be regarded as manifestly erroneous.  If a power (whether legislative  or  administra- tive) is exercised on the basis of facts which do not  exist and  which  are patently erroneous, such exercise  of  power will stand vitiated." 548     We  place on record the statement made by the  Registrar General  that  necessary amendments to  the  existing  rules relating to the salaries and allowances of the Supreme Court employees will be made in accordance with Article 146 of the Constitution  after considering the recommendations  of  the Pay Commission in respect of the Supreme Court employees and all  other relevant materials, and that the said  amendments to the Rules will be forwarded to the President of India for approval, and, after obtaining the approval of the President in terms of the proviso to clause (2) of Article 146 of  the Constitution, the same will be implemented.     In  the circumstances, no further order is  required  in the  present proceedings’, apart from directing that,  until rules are properly made by way of amendments to the existing rules  in accordance with Article 146 of  the  Constitution, the interim orders of this Court dated 25.7.1986,  14.8.1986 and 15.1.1987 shall remain in full force and the status  quo as on this day as regards pay and allowances shall be  main- tained. Accordingly, I agree that there shall be a direction as  stated by my learned brother in the final  paragraph  of his judgment. Y. Lal.                           Petitions Disposed of. 549