REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.9753  of 2010 (Arising out of S.L.P.(C) No.4391 of 2010)

Transport & Dock Workers Union & Ors.     ..      Appellants

versus

Mumbai Port Trust & Anr.      .. Respondents

J U D G M E N T

MARKANDEY KATJU, J.

1. Leave granted.

2. Article  14  of  the  Constitution  (the  equality  provision)  is  a  

slippery slope, and a fine balancing act must be done by the Court to  

avoid slipping down the slope.  

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3. As observed by Lord MacMillan in ‘Law and Ethics’ 49 Scot. L.  

Rev.61, 69 (1933) :

“The judiciary is constantly confronted with the  necessity  of  making  a  choice  between  a  legal  principle which is sought to be applied in a particular  case, and the choice which it makes in the particular  instance  resulting  inevitably  in  the  expansion  or  restriction of the principle applied or rejected.”

4. The  judicial  process  is  thus  not  a  bucket  of  readymade  

answers, but a process, or technique, for easing an endless flux of  

changing social tensions.  This is illustrated in this case.

 5. Heard learned counsel for the parties and perused the record.

6. This Special Leave Petition has been filed against the impugned  

judgment  of  the  Bombay  High  Court  dated  9th October,  2009  

passed in Writ Petition No.3059 of 1999.  

7. The  appellants  had  filed  a  writ  petition  in  the  High  Court  

complaining of violation of Article 14 of the Constitution on the ground  

that those Typist-cum-Computer Clerks who had been appointed in  

the Mumbai Port Trust prior to 1.11.1996 have to work for six and half  

hours  a  day,  whereas  Typist-cum-Computer  Clerks  (like  the

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appellants) who have been appointed after 1.11.1996 have to work  

for  seven  and  half  hours  (excluding  lunch  break).   This,  it  was  

alleged, violates Article 14 of Constitution.  

8. The  appellant  no.1  is  a  registered  Trade  Union,  which  

represents  the  employees of  the  respondent  no.1  –  Mumbai  Port  

Trust, a body corporate constituted under Section 3 of the Major Port  

Trusts Act.  The appellant nos.2 and 3 are working as Typist-cum-

Computer Clerks with the respondent no.1 and were appointed to that  

post after 1.11.1996.  The case of the appellants, in short, is that as  

regards the employees who were recruited as Typist-cum-Computer  

Clerks before 1.11.1996, their duty hours are six and half hours per  

day,  whereas for the personnel who were recruited as Typist-cum-

Computer  Clerks  after  1.11.1996  they  are  seven  and  half  hours.  

According to the appellants, this is discriminatory and violates Article  

14 of the Constitution.  The appellants also claim that this practice is  

contrary to Clause 24 of the settlement dated 6th December,  1994  

reached between the employees Union and the respondent Port, and  

also  violates  Section  9A  of  the  Industrial  Disputes  Act.   The  

appellants  prayed  that  either  their  duty  hours  be  reduced  by  one  

hour, or else they be given overtime allowance for one hour.  

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9. The reply of the respondent-Port is that the duty hours of the  

Typist-cum-Computer  Clerks  recruited  before  1.11.1996  is  seven  

hours per day, which includes half an hour lunch break, while the duty  

hours for the Typist-cum-Computer Clerks recruited after 1.11.1996 it  

is eight hours per day with half an hour lunch break.  Thus, according  

to  the  respondent  no.1,  the  difference  in  the  duty  hours  of  the  

personnel recruited before 1.11.1996 and after 1.11.1996 is one hour.  

According  to  the  respondent  no.1,  though  there  is  no  settlement  

reached in this behalf,  as a matter of practice and usage the duty  

hours  of  the  personnel  in  indoor  establishment  was  six  and  half  

hours.   However,  due  to  change  in  the  technology  and  with  

introduction of privatization and setting up private Ports with whom  

the respondent-Port has to compete, the respondent-Port decided as  

a policy to have uniform working hours for the personnel working on  

the  indoor  establishment  and  the  out  door  establishment.   It  is  

claimed that from the beginning so far as personnel working on out  

door establishment are concerned, their duty hours were seven and a  

half hours and therefore, to bring about uniformity in the duty hours of  

the  personnel  working  on  the  indoor  establishment  and  out  door  

establishment, a policy decision was taken to change the duty hours

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of personnel working in the indoor establishment.  However, in order  

to avoid any litigation it  was decided that the working hours of the  

personnel who were in the indoor establishment, will not be disturbed.  

While  making  new  recruitment  of  personnel  in  the  indoor  

establishment, it was made clear that they will have to work for eight  

hours, and it is only on acceptance of that condition by them that they  

were  given  employment.   According  to  the  respondent  no.1,  this  

condition  was accepted  by  the  personnel  who were  appointed  on  

indoor establishment after 1.11.1996.   

10. According  to  the  respondent  no.1,  since  the  newly  recruited  

personnel on the indoor establishment appointed after 1.11.1996 had  

agreed  to  eight  hours  as  their  duty  hours,  with  the  retirement  of  

personnel  who  were  recruited  before  1.11.1996  in  the  indoor  

establishment, working hours of the personnel working in the indoor  

establishment would uniformly be eight hours, and thus the uniformity  

in  the  working  hours  of  the  personnel  working  on  the  indoor  and  

outdoor establishments will  be brought about.  It was submitted by  

the respondent no.1 that by adopting such practice the respondent  

no.1  has  not  violated  Article  14  of  the  Constitution.   It  was  also  

claimed that the reliance placed by the appellants on Clause 24 of the

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settlement dated 6th December, 1994 is misplaced because by that  

settlement no provision was made in relation to the duty hours.  What  

was done by Clause 24 was that none of the clauses contained in  

that settlement were to be taken to have modified or cancelled any  

award, practice or usage, which was in existence.  It was, therefore,  

submitted that the policy decision of the respondent-Port cannot be  

said to be contrary to Clause 24 of that settlement.   

11. In  so  far  as  the  provision  of  Section  9A  of  the  Industrial  

Disputes Act is concerned, it was submitted that since by the policy  

decision no change in relation to the personnel who were working  

was intended to be brought about, there was no question of giving  

any notice of change.

12. The learned counsel appearing for the appellants relied on the  

judgment of the Supreme Court in the case  of    People’s Union for    

Democratic Rights and Ors.  vs.  Union of India and Ors.  AIR  

1982 SC 1473 to contend that a writ petition by workers, when they  

claim any violation of fundamental right, is maintainable.  The learned  

counsel also relied on the judgment of the Supreme Court in the case  

of Moti Ram  vs. N.E. Frontier Railway  AIR 1964 SC 600 to claim

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that  the  respondent-Port  could  not  have  framed  a  policy  which  

violates the guarantee of Article 14 of the Constitution.  The learned  

counsel appearing for the appellants further relied on the judgment of  

the Supreme Court in the case of Olga Tellis and Ors.  vs. Bombay  

Municipal Corporation and Ors.  AIR 1986 SC 180 to contend that  

even if an undertaking is given, that undertaking does not stop the  

person who has given the undertaking from asserting his fundamental  

right.        

13. The learned  counsel  for  the  respondents  on  the  other  hand  

relied on the judgments of the Supreme Court, in the case of  Ravi  

Paul and Ors.  vs. Union of India and Ors.  1995 (3)  SCC 300, and  

M.P.  State  Textile  Corporation  Ltd. vs.  Mahendra  and  Ors.  

2005(10) SCC 675, and submitted that in one establishment there  

can be employees having separate duty hours.

14. In our  opinion the writ  petition filed by the appellants should  

have been dismissed by the High Court on the ground of existence of  

an alternative remedy under the Industrial  Disputes Act.   It  is well  

settled  that  writ  jurisdiction  is  discretionary  jurisdiction,  and  the  

discretion should not ordinarily be exercised if there is an alternative

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remedy available to the appellant.   In this case there was a clear  

alternative remedy available to the appellant by raising an industrial  

dispute  and  hence  we  fail  to  understand  why  the  High  Court  

entertained the writ petition.  It seems to us that some High Courts by  

adopting an over liberal approach are unnecessarily adding to their  

load  of  arrears  instead  of  observing  judicial  discipline  in  following  

settled legal principles.  However, we may also consider the case on  

merits.   

15. From the record the following facts emerge :

(i) As  a  matter  of  practice,  duty  hours  of  the  personnel  working  on  indoor  establishment  including  typist-cum-computer  clerk  was  seven  hours, which included half an hour lunch break;

(ii) The  respondent-Port  as  a  matter  of  policy  decided  to  include  a  condition  in  the  offer  of  appointment  that  was given to the personnel  who  were selected for being appointed as a typist-cum- computer clerk after1.11.1996 that they will have to  work in shift of eight hours duration;

(iii) They  were  to  give  their  acceptance  of  this  term,  and  it  was  only  on  their  acceptance  of  the  term that they were given appointment;

(iv) It  is  an  admitted position  that  so  far  as  the  personnel working on out door establishment of the  respondent  no.1  are  concerned  their  duty  hours  were  identical  to  the  typist-cum-computer  clerk

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appointed after 1.11.1996;

(v) As  a  result  of  change  in  the  policy  after  1.11.1996  in  the  indoor  establishment  of  the  respondent-Port,  there  were  typist-cum-computer  clerks  appointed  before  1.11.1996  whose  duty  hours were seven hours and there were typist-cum- computer  clerks  appointed  after  1.11.1996  whose  duty hours are eight hours;

Except for different duty hours all other conditions of  service  of  typist-cum-computer  clerks  working  on  the  indoor  establishment  of  the  respondent  no.1  were identical.

16. In  the  light  of  these  admitted  facts,  the  question  to  be  

considered is whether the action of the respondent no.1 in prescribing  

different working hours for typist-cum-computer clerks working in their  

indoor establishment with reference to their date of appointment is  

contrary to the guarantee contained in Article 14 of the Constitution.  

The  reason  that  has  been  given  by  the  respondent-Port  for  

prescribing  different  working  hours  for  typist-cum-computer  clerks  

with reference to their date of appointment as found in paragraph 9 of  

the  counter  affidavit  filed  on  behalf  of  the  respondent  in  the  writ  

petition in the High Court is as follows :

“At  many  points  the  typist-cum-computer  clerks had to work in shift timings of the docks and  other operational departments for eight hours.  Thus

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in subsequent appointments a provision for working  in shift timing as required by the management was  included.   The  management  also  considered  that  with  computerization  under  the  MIS  project  and  operation  of  the  Container  Traffic  Control  System  and  the  Cargo  Management  and  Information  System, persons to be recruited in the category of  Typist-cum-Computer  Clerks had to work full  time  on operation of computers in consonance with the  operation working.”

17. In paragraph 10 of their Affidavit the respondents stated:

“10. That  the general  objective in  changing  the  timings  of  the  newly  recruited  Typist-cum- Computer  Clerks was to have persons working in  timings in tune with the dock working, to do away  with the distinction between indoor and outdoor and  to  bring  about  uniformity  in  the  working  hours  in  various  fields  and  administrative  posts  in  the  organization  and  thus  promote  operational  efficiency.”

 18. In paragraph 5 of their Affidavit, the respondent no.1 has further  

stated :

“5. The  respondents  submit  at  the  outset  that  Mumbai  Port  is  a  Commercial  organization,  which  now  competes  not  only  with  other  Indian  major  ports  but  also  private  ports  and  terminals  within  India  and  the  surrounding  region.   In  this  competitive  world,  the  only  way  for  survival  is  through cost  efficient service to port  users.   Thus  systems and work procedures have to be changed  to meet the demands of the Trade.  This is one step  to provide better and cost efficient service.”

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19.Thus, the reason that has been given by the respondent-Port for  

adopting  the  practice  of  prescribing  different  working  hours  for  

Typist-cum-Computer  Clerks  recruited  after  1.11.1996  is  the  

change in the situation, change in technology, the desire to bring  

in uniformity in working hours of the personnel working on indoor  

establishment  and  out  door  establishment.   It  was  submitted  

before us that  the Port  considered the option of  increasing the  

duty hours of the existing personnel working at that time on the  

indoor  establishment.   However,  it  was  thought  that  effecting  

change  in  that  regard  may  involve  the  Port  in  litigation  and  

introduction of  the change may get  delayed.   Therefore,  it  was  

decided by the Port  to change the duty hours of the personnel  

recruited  on  indoor  establishment  after  1.11.1996  without  

disturbing the duty hours of the personnel working at that time on  

the indoor establishment, after giving the personnel, to be newly  

recruited, a clear understanding that in case they accept the offer  

of appointment, they will have to work for eight hours and it is only  

on  their  acceptance  of  this  term  that  they  were  given  the  

appointment.  Thus, for the achievement of the object i.e. bringing

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in  uniformity in the duty hours of  the personnel  working on the  

indoor establishment and out door establishment, the respondent-

Port classified persons working on the indoor establishment for the  

purpose of duty hours into two classes, the basis for classification  

being  the  date  of  their  appointment,  and  the  object  being  to  

become competitive in business and efficient.    

20. In our opinion Article 14 of the Constitution does not take away  

from the State or  its  instrumentality  the power of  classification,  

which to some degree is bound to produce some inequality vide  

State of Bombay vs. Balsara AIR 1951 SC 318.  However, in our  

opinion,  mere  inequality  is  not  enough  to  violate  Article  14.  

Differential  treatment,  per  se,  does  not  constitute  violation  of  

Article  14.   It  denies  equal  protection  only  when  there  is  no  

reasonable basis for  differentiation vide  Ameerunnissa Begum  

vs.  Mahaboob  Begum AIR  1953  SC  91  (para  11),  Babulal  

Amthalal  Mehta vs.  Collector  of  Customs AIR 1957 SC 877  

(para  16)  etc..   If  the  law  or  the  practice  deals  equally  with  

members of a well defined class, it is not obnoxious and it is not  

open to the charge of denial of equal protection on the ground that  

it has no application to other persons.

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21. It has been repeatedly held by this Court that  Article 14 does not  

prohibit reasonable classification for the purpose of legislation or  

for the purposes of adoption of a policy of the legislature or the  

executive,  provided the policy takes care to reasonably classify  

persons  for  achieving  the  purpose  of  the  policy  and  it  deals  

equally with all persons belonging to a well defined class. It is not  

open to the charge of denial of equal protection on the ground that  

the  new  policy  does  not  apply  to  other  persons.   In  order,  

however,  to  pass  the  test  of  permissible  classification,  as  has  

been  laid  down  by  the  Supreme  Court  in  the  catena  of  its  

decisions,  two  conditions  must  be  fulfilled;  (1)  that  the  

classification must be founded on an intelligible differentia which  

distinguishes  persons  or  things  that  are  grouped  together  from  

others left out of the group and (2) that the differentia must have a  

rational relation to the object ought to be achieved by the statute in  

question, vide  Gopi Chand vs.  Delhi Administration AIR 1959  

SC 609 (see also Basu’s ‘Shorter Constitution of India, fourteenth  

edition 2009 page 81).  

22.Thus  the  classification  would  not  violate  the  equality  provision

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contained in Article 14 of the Constitution if  it  has a rational or  

reasonable basis.

23. However,  the  question  remains:  what  is  ‘rational’  or  

‘reasonable’?  These are vague words.  What may be regarded as  

rational  or  reasonable  by  one  Judge  may  not  be  so  regarded  by  

another.  This could lead to chaos in the law.

24. Should this vagueness or uncertainty be allowed to remain so  

that Judges may have total freedom or discretion?  We think not. The  

law should be, as far as possible, clear and certain so that people  

know where they stand and conduct their affairs accordingly.  Also, if  

total  freedom is  given to Judges to decide according to their  own  

individual notions and fancies the law will run riot.   

25. Hence in our opinion an attempt should be made to clarify the  

meaning of the words ‘reasonable’ or ‘rational’.

26. Numerous decisions of this Court on Articles 14 and 19 of the  

Constitution  have  no  doubt  held  certain  classifications  to  be  

reasonable  while  other  classifications  have  been  held  to  be  

unreasonable.   But  what  is  reasonable  and what  is  unreasonable

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does not appear to have been discussed in depth by any decisions of  

this Court, and no tests have been laid down in this connection.  All  

that has been said is that it is not prudent or pragmatic to insist on a  

mathematically accurate classification covering diverse situations and  

all  possible  contingencies  in  view  of  the  inherent  complexities  

involved  in  society,  vide  State  of  Karnataka vs.  Mangalore  

University Non Teaching Employees Association (2002) 3 SCC  

302 (para 10),  Ombalika Das vs.  Hulisa Shaw (2002) 4 SCC 539  

(para 11) etc.  

27. In our  opinion while it  is  true that  a mathematically accurate  

classification  cannot  be  done  in  this  connection,  there  should  be  

some broad guidelines.

28. There may be several tests to decide whether a classification or  

differentiation is reasonable or not.   One test  which we are laying  

down and which will be useful in deciding this case, is : is it conducive  

to  the  functioning  of  modern  society?   If  it  is  then  it  is  certainly  

reasonable and rational.

29. In  the  present  case,  as  we  have  noted,  the  purpose  of  the

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classification was to make the activities of the Port competitive and  

efficient.  With the introduction of privatization and setting up private  

Ports,  the respondent  had to face competition.   Also,  it  wanted to  

rationalize its activities by having uniform working hours for its indoor  

and  outdoor  establishment  employees,  while  at  the  same  time  

avoiding  labour  disputes  with  employees  appointed  before  

01.11.1996.

30.  In the modern world businesses have to face competition with  

other businesses.  To do so they may have to have longer working  

hours and introduce efficiency, while avoiding labour disputes.   

31.  Looked at from this point of view the classification in question is  

clearly reasonable as it satisfies the test laid down above.  

32. We do not mean to say that the above is the only test to decide  

what is reasonable, but in our opinion it is certainly one of the tests to  

be adopted if we want our country to progress.  We have to take a  

practical  view of  the matter  instead of  relying  on abstract,  a  priori  

notions of equality.

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33. Coming back to the present case, the object of the new policy  

adopted by the respondent-Port was to bring about uniformity in the  

working hours of the personnel working on the indoor and outdoor  

establishment.  For  achieving  that  purpose  the  Port  took  a  policy  

decision to lay down a condition in the appointment  orders of  the  

personnel recruited on indoor establishment after 1.11.1996 that they  

will have to work for eight hours.  For the purpose of classification the  

date 1.11.1996 was chosen, because different duty hours were to be  

made applicable from the one which were applicable to the existing  

personnel  working  on  the  indoor  establishment  in  relation  to  the  

persons to be employed after that date.  The purpose of this was to  

make the organization competitive and efficient.  

34. For  the  purpose  of  bringing  about  uniformity  in  the  working  

hours  of  the  personnel  working  on  the  indoor  establishment,  two  

options were available to the Port;  (i)  either to take steps to bring  

about change in the working hours of the personnel presently working  

on the establishment and then apply that change to the personnel  

who are recruited in future, or (ii) to apply the changed practice in  

case of new recruits after obtaining their consent for adoption of the  

new  practice  and  thus  introduce  the  change  gradually  because

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personnel recruited before 1.11.1996 were bound to retire sooner or  

later with their retirement, and a day would come when in the indoor  

establishment  the  only  personnel  working will  be  those  who have  

been recruited after 1.11.1996.

 35. Of  these  two  options  the  Port  appears  to  have  chosen  the  

second option because in the opinion of the Port it would be relatively  

hassle free.  It was submitted before us that the Port apprehended  

that  if  it  had  decided  to  take  the  first  option,  it  would  have  been  

involved in labour disputes and that litigation would have prevented  

the  Port  from introducing  the  change.    We do  not  see  anything  

unreasonable in the stand of the Port.  

36. It is nobody’s case before us that the decision of the Port was  

not bona fide.  In our opinion, the decision of the Port was bona fide,  

and hence no fault can be found with the said decision and it cannot  

be said that it violates Article 14 of the Constitution.  

37. The policy decision of the Port  cannot be said to cause any  

prejudice to the interest  of  the personnel  recruited after  1.11.1996  

because  before  their  recruitment  they  were  clearly  given  to  

understand as to what would be their  working hours,  in case they

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accept the appointment.  In our opinion the introduction of the new  

policy was a bona fide decision of the Port, and the acceptance of the  

conditions with  open eyes by the appellants  and the recruits  after  

1.11.1996 means that they can now have no grievance.  It  is well  

settled  that  Courts  should  not  ordinarily  interfere  with  policy  

decisions.

38. In our opinion, since the classification with reference to the date  

of appointment of typist-cum-computer clerks was for the purpose of  

bringing about uniformity in working hours of the personnel working in  

indoor  and  outdoor  establishments,  and  its  aim  was  to  make  the  

organization competitive and efficient,  it  cannot be said that it  was  

unreasonable and hence violative of  Article 14 of the Constitution.  

Also,  avoidance  of  labour  disputes  is  a  reasonable  basis  for  the  

classification.

39. In our opinion, Article 14 cannot be interpreted in a doctrinaire  

or  dogmatic  manner.   Absolute  and  inflexible  concepts  are  an  

anathema to progress and change.  As observed by the great Justice  

Holmes of the U.S. Supreme Court, the machinery of the government  

would not work if it were not allowed some free play in its joints vide

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Missourie,  Kansas  and  Tennesee  Railroad vs.  May 194  U.S.  

267(1904).  Excessive interference by the judiciary in the functions of  

the executive is not proper.  In several decisions, we have held that  

there  must  be  judicial  restraint  in  such  matters,  vide  Divisional  

Manager, Aravali Golf Club vs. Chander Hass (2008) 1 SCC 683.  

In  Government of Andhra Pradesh  vs.  P. Laxmi Devi (2008) 4  

SCC  720  the  doctrine  of  judicial  review  of  statutes  has  been  

discussed in great detail, and it has been observed that the judiciary  

must show great restraint in this connection.

40. Those who entered service after 1.11.1996 knew that they have  

to work for seven and half hours excluding lunch break and with open  

eyes they accepted the employment.  Hence there is no question of  

violation of Article 14 of the Constitution.

41. In  our  opinion,  fixing of  hours of  work,  provided they do not  

violate  any  statutory  provision  or  statutory  rule,  are  really  

management functions and this Court must exercise restraint and not  

ordinarily interfere with such management functions.

42. Differential treatment in our opinion does not per se amount to  

violation of Article 14 of the Constitution.  It violates Article 14 only

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when there is no conceivable reasonable basis for the differentiation.  

In the present case, as pointed out above, there is a reasonable basis  

and hence in our  opinion there is no violation of  Article 14 of  the  

Constitution.

43. In our opinion it  is  not prudent or pragmatic  for  the Court  to  

insist  on  absolute  equality  when  there  are  diverse  situations  and  

contingencies,  as  in  the  present  case.   In  view  of  the  inherent  

complexities  involved  in  modern  society,  some free  play  must  be  

given to the executive authorities in this connection.

44. As regards cut-off dates, this Court in Government of Andhra  

Pradesh and Ors.  vs.  N. Subbarayudu and Ors.  2008(14) SCC  

702 has observed vide paragraphs 5 to 9 :

“5.  In   a catena of decisions of this Court it  has been held that the cut-off date is fixed by the  executive  authority  keeping  in  view the  economic  conditions, financial constraints and many other ad- ministrative and other attending circumstances. This  Court is also of the view that fixing cut-off dates is  within the domain of the executive authority and the  court should not normally interfere with the fixation  of  cut-off  date  by  the  executive  authority  unless  such order appears to be on the face of it blatantly  discriminatory and arbitrary. (See  State of Punjab  vs. Amar Nath Goyal 2005(6) SCC 754)

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6. No doubt in  D.S. Nakara vs.  Union of  India 1983(1) SCC 305 this Court had struck down  the cut-off  date in connection with  the demand of  pension.  However,  in  subsequent  decisions  this  Court has considerably watered down the rigid view  taken in Nakara case as observed in para 29 of the  decision of this Court in State of Punjab vs. Amar  Nath Goyal.   

7. There may be various considerations in  the mind of the executive authorities due to which a  particular cut-off date has been fixed. These consid- erations  can  be  financial,  administrative  or  other  considerations. The court must exercise judicial re- straint and must ordinarily leave it to the executive  authorities to fix the cut-off date. The Government  must be left with some leeway and free play at the  joints in this connection.

8. In  fact  several  decisions  of  this  Court  have gone to the extent of saying that the choice of  a cut-off date cannot be dubbed as arbitrary even if  no  particular  reason is  given for  the  same in  the  counter-affidavit filed by the Government (unless it  is shown to be totally capricious or whimsical), vide  State of  Bihar vs.  Ramjee Prasad 1990(3)  SCC  368,  Union  of  India vs.  Sudhir  Kumar  Jaiswal  1994(4) SCC 212 (vide SCC 5), Ramrao vs. All In- dia  Backward  Class  Bank  Employees  Welfare  Assn. 2004(2) SCC 76 (vide para 31),  University  Grants  Commission vs.  Sadhana  Chaudhary  1996(10)  SCC 536,  etc.  It  follows,  therefore,  that  even if no reason has been given in the counter-affi- davit of the Government or the executive authority  as to why a particular cut-off date has been chosen,  the court must still not declare that date to be arbi- trary and violative of Article 14 unless the said cut- off date leads to some blatantly capricious or outra- geous result.

9. As has been held by this  Court  in  Ar- avali  Golf  Club vs.  Chander Hass 2008(1)  SCC  683 and in Govt. of A.P. vs. P. Laxmi Devi 2008(4)  SCC 720 the court must maintain judicial restraint in  matters relating to the legislative or  executive do- main.”

       45. In our opinion, there is often a misunderstanding about Article  

14 of the Constitution, and often lawyers and Judges tend to construe

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it  in  a  doctrinaire  and  absolute  sense,  which  may  be  totally  

impractical  and  make  the  working  of  the  executive  authorities  

extremely difficult if not impossible.

46. As Lord Denning observed :

“This  power  to  overturn  executive  decision  must be exercised very carefully, because you have  got  to  remember that  the executive  and the local  authorities have their very own responsibilities and  they have the right to make decisions.  The Courts  should  be  very  wary  about  interfering  and  only  interfere in extreme cases, that is, cases where the  Court is sure they have gone wrong in law or they  have  been  utterly  unreasonable.   Otherwise  you  would  get  a  conflict  between  the  courts  and  the  government  and  the  authorities,  which  would  be  most undesirable.  The courts must act very warily  in this matter.”  (See ‘Judging the World’  by Garry  Sturgess Philip Chubb).  

47. In our opinion Judges must maintain judicial self restraint while  

exercising the powers of judicial review of administrative or legislative  

decisions.

48. “In view of the complexities of modern society”, wrote Justice  

Frankfurter, while Professor of Law at Harvard University,  “and the  

restricted scope of any man’s experience, tolerance and humility in  

passing judgment on the worth of the experience and beliefs of others

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become crucial faculties in the disposition of cases.  The successful  

exercise  of  such  judicial  power  calls  for  rare  intellectual  

disinterestedness  and  penetration,  lest  limitation  in  personal  

experience and imagination operate as limitations of the Constitution.  

These insights Mr. Justice Holmes applied in hundreds of cases and  

expressed in memorable language :  It is misfortune if a judge reads  

his conscious or unconscious sympathy with one side or the other  

prematurely into the law, and forgets that what seem to him to be first  

principles are believed by half his fellow men to be wrong.”

49. In  writing  a  biographical  essay  on  the  celebrated  Justice  

Holmes  of  the  U.S.  Supreme Court  in  the  dictionary  of  American  

Biography, Justice Frankfurter wrote :

“It was not for him (Holmes) to prescribe for  society  or  to  deny  it  the  right  of  experimentation  within  very  wide  limits.   That  was  to  be  left  for  contest by the political forces in the state.  The duty  of the Court was to keep the ring free.  He reached  the  democratic  result  by  the  philosophic  route  of  skepticism-by  his  disbelief  in  ultimate  answers  to  social questions.  Thereby he exhibited the judicial  function at its purest.” (see `Essays on Legal History  in Honour of Felix Frankfurter’ edited by Morris D.  Forkosch.)

50. In our opinion adjudication must be done within the system of

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historically  validated  restraints  and  conscious  minimization  of  the  

Judges’  preferences.   The  Court  must  not  embarrass  the  

administrative  authorities  and  must  realize  that  administrative  

authorities have expertise in the field of administration while the Court  

does not.  In the words of Chief Justice Neely, former Chief Justice of  

the West Virginia Supreme Court of Appeals :

“I  have  very  few  illusions  about  my  own  limitations  as  a  Judge.   I  am not  an  accountant,  electrical engineer, financer, banker, stockbroker or  system management analyst.  It is the height of folly  to expect Judges intelligently to review a 5000 page  record addressing the intricacies of a public utility  operation.  It is not the function of a Judge to act as  a super board, or with the zeal of a pedantic school  master  substituting  its  judgment  for  that  of  the  administrator.”   

51. In administrative matters the Court should, therefore, ordinarily  

defer  to  the judgment  of  the  administrators  unless  the  decision is  

clearly  violative  of  some statute or  is  shockingly  arbitrary.   In  this  

connection,  Justice  Frankfurter  while  Professor  of  Law at  Harvard  

University wrote in `The Public and its Government’ -  

“With  the  great  men  of  the  Supreme  Court  constitutional  adjudication  has  always  been  statecraft.   As  a  mere  Judge,  Marshall  had  his  superiors among his colleagues.  His supremacy lay  in  his  recognition  of  the  practical  needs  of  government.  The great judges are those to whom

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the  Constitution  is  not  primarily  a  text  for  interpretation but the means of ordering the life of a  progressive people.”

52. In the same book Justice Frankfurter also wrote -

“In  simple  truth,  the  difficulties  that  government encounters from law do not  inhere in  the Constitution.  They are due to the judges who  interpret it.  That document has ample resources for  imaginative  statesmanship,  if  judges  have  imagination for statesmanship.”  

53. In  legal  scholarship,  Roscoe  Pound  challenged  the  rigid  

formalism  of  Justice  Field.   Pound  strongly  argued  against  a  

jurisprudence founded upon immutable first principles and sought in  

the social  sciences and related fields a means for making the law  

responsive to a changing world.

54. As observed by Justice Frankfurter :

“It  would  be  comfortable  to  discover  a  Procrustean formula…….. If such were the process  of Constitutional adjudications in this most sensitive  field,  it  would furnish an almost  automatic  task of  applying mechanical formula and would hardly call  for  the labors of Marshall  or Taney,  of Holmes or  Cardozo.  To look for such talismanic formula is to  assume  that  the  broad  guarantees  of  the  Constitution  can  fulfill  their  purpose  without  the  nourishment of history.”

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55. In  Keshavanand Bharti  vs.  State of Kerala AIR 1973 SC  

1461 (vide paragraph 1547) Khanna,J. observed :

“In exercising the power of judicial review, the  Courts cannot be oblivious of the practical needs of  the government.  The door has to be left open for  trial and error.”

56. In  the  present  case  there  was  a  reasonable  basis  for  the  

classification,  and  hence  there  is  no  violative  of  Article  14  of  the  

Constitution.

57. For the reasons given above there is no merit in this appeal and  

hence it is dismissed.

                                           ……...............................J.                               [Markandey Katju]

                                                                                         .. ..................................J.

                             [Gyan Sudha Misra]

New Delhi: November 15, 2010