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CASE NO.: Appeal (civil)  5732 of 2007

PETITIONER: Divisional Manager, Aravali Golf Club & Anr.

RESPONDENT: Chander Hass & Anr.

DATE OF JUDGMENT: 06/12/2007

BENCH: A. K. Mathur & Markandey Katju

JUDGMENT: JUDGMENT

O R D E R [Arising out of S.L.P(C) No.3358 of 2007]

1.      Heard learned counsel for the parties.

2.      Leave granted.

3.      This appeal by special leave is directed against the judgment and  order dated 17th February, 2006 passed by a learned Single Judge of the  High Court of Punjab and Haryana in R.S.A. No.666/2006 whereby the  learned Single Judge has affirmed the judgment and decree passed by the  First Appellate Court. 4.      The brief facts which are necessary for the disposal of the present  appeal are that the plaintiffs (respondents in this appeal) were appointed as  Mali (gardener) in the service of the defendant-appellant, which is a golf  club run by the Haryana Tourism Corporation in the year 1989 and 1988  respectively on daily wages.  Subsequently in the year 1989 they were told  to perform the duties of Tractor Drivers, though there was no post of tractor  driver in the employer\022s establishment.  However for a number of years they  continued to be paid wages for the post of Mali.

5.      Thereafter on a recommendation made by the Head Office, the  appellants started paying them wages of tractor driver on daily wage basis,  as per rates recommended by the Deputy Commissioner.  Though they  continued to work for about a decade as tractor drivers, their services were  regularized against the post of Mali in the year 1999 and not as tractor  driver.  When despite representations their grievance was not redressed, the  respondents herein filed civil suit in the month of April, 2001 claiming  regularization against the posts of tractor driver.  Their claim was rejected by  the Trial Court which observed that there was no post of tractor driver in the  establishment, and the suit was dismissed.  The Trial Court held that plying a  tractor is part and parcel of the job of Mali in a Golf Club, since the Golf  Field of the Club is vast and needs to be maintained with mechanical  gadgets.

6.      Aggrieved against the said order of dismissal of the suit, the  respondents herein preferred an appeal before the Additional District Judge,  Faridabad.  Their appeal was accepted and the judgment and decree of the  Trial Court was set aside.  The First Appellate Court observed that the  defendants were taking the work of tractor driver from the plaintiffs since  13.8.1999, and hence it directed the defendants to get the post of tractor  driver sanctioned, and to regularize the plaintiffs on that post.

7.      Thereafter the Divisional Manager, Aravali Golf Club filed a second  appeal before the High Court of Punjab and Haryana.  The learned Single  Judge held that the post of tractor driver should be created as there is no  hitch in not creating the posts of drivers especially when tractors were

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available and there existed need to use those tractors.  It was also observed  by the learned Single Judge that simply by relying upon technicalities the  State authorities cannot be allowed to suppress the individuals and to deny  their lawful rights.   The learned Single Judge also held that no substantial  question of law arose in the matter.  Hence, the second appeal was dismissed  and the judgment of the First Appellate Court was upheld.  Aggrieved  against the said judgment of the learned Single Judge, the appellants are in  appeal before us.

8.      The plaintiff-respondents admitted in the plaint that they were  appointed as Mali.  In the suit the plaintiff-respondents stated that they were  working as tractor driver at Aravali Golf Club.  Initially they were engaged  on daily wages.  Thereafter their services were regularized on the post of  Mali (gardener) instead of tractor driver.  The respondents filed a  representation before the concerned authorities for regularizing them on the  post of Tractor Driver, but that was not done since there was no post of  tractor driver.  Therefore, the respondents filed a suit.

9.      The suit was contested by the defendants-appellants.  The appellants  in their written statement submitted that the plaintiffs were appointed as  Mali on a daily wage basis on 9.10.1989.  The respondent No.1 had earlier  filed Writ Petition No.6216/1991 for regularizing his services.  The Hon\022ble  High Court disposed of the said writ petition by passing the order directing  the respondent No.1 to make a representation against the termination of his  services and the appellants herein were restrained from terminating the  services of the respondent No.1 till his representation was decided.  The writ  petition was accordingly disposed of. 10.     In pursuance of the said order the respondent No.1 made  representation for regularization of his service on 2.5.1991.  The plaintiff- respondent was informed vide order dated 14.5.1991 that there was no post  of tractor driver and his case for regularization would be considered as and  when sanctioned post of the tractor deriver will be available.

11.     The plaintiff-respondent was paid wages of tractor deriver from  August 1990 to 11.5.1999 on daily wage basis on D.C. rate as he was asked  to work as a tractor driver.  He was also informed that whenever a post of  tractor driver was created, his case for appointment of tractor deriver will be  considered.  In the meanwhile services of plaintiff No.1 was regularized as  Mali vide order dated 11.5.1999 which was duly accepted by him without  any protest.  Similar is the case of respondent No.2 herein.  He was engaged  as Mali on daily wage basis w.e.f. 1.9.1988 and his services were also  regularized as Mali vide order dated 11.5.1999.

12.     In the written statement in the suit the appellants took preliminary  objection that as there is no sanctioned post of tractor driver and hence there  is no question of their being appointed on the post of tractor driver.  It was  also asserted in the written statement that as and when the post of tractor  driver will be available their cases will be considered in accordance with  law.  On the basis of these pleadings, several issues were framed and a  finding was recorded by the Trial Court that as there is no sanctioned post of  tractor driver, the plaintiffs cannot be regularized in the said post.  This is a  finding of fact recorded by the Trial Court and it was never disputed at any  stage.  Aggrieved against the said judgment the respondents herein filed an  appeal and the learned First Appellate Court without going into the merit of  the matter set aside the judgment and decree of the Trial Court and directed  creation of the post of tractor driver, and regularization of the respondents on  the said post.  Against the said order of the First Appellate Court, the  appellants herein preferred a second appeal before the High Court of Punjab  and Haryana.  The learned Single Judge has affirmed the judgment and order  of the First Appellate Court.

13.     Learned counsel for the appellants submitted that there is no post of  tractor driver, and therefore, there is no question of regularizing the  respondents in the said post.  It is not disputed that there is no sanctioned  post of tractor driver in the appellant\022s establishment.  Learned counsel for

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the respondents has also not been able to show that there are any sanctioned  posts of tractor driver.

14.     Since there is no sanctioned post of tractor driver against which the  respondents could be regularized as tractor driver, the direction of the First  Appellate Court and the learned Single Judge to create the post of tractor  driver and regularizing the services of the respondents against the said newly  created posts was in our opinion completely beyond their jurisdiction.

15.     The Court cannot direct the creation of posts.  Creation and sanction  of posts is a prerogative of the executive or legislative authorities and the  Court cannot arrogate to itself this purely executive or legislative function,  and direct creation of posts in any organization.  This Court has time and  again pointed out that the creation of a post is an executive or legislative  function and it involves economic factors.  Hence the Courts cannot take  upon themselves the power of creation of a post.  Therefore, the directions  given by the High Court and First Appellate Court to create the posts of  tractor driver and regularize the services of the respondents against the said  posts cannot be sustained and are hereby set aside.

16.     Consequently, this appeal is allowed and the judgment and order of  the High Court as well as that of the First Appellate Court are set aside and  the judgment of the Trial Court is upheld.  The suit is dismissed.  No costs.

17.     Before parting with this case we would like to make some  observations about the limits of the powers of the judiciary.  We are  compelled to make these observations because we are repeatedly coming  across cases where Judges are unjustifiably trying to perform executive or  legislative functions.  In our opinion this is clearly unconstitutional.  In the  name of judicial activism Judges cannot cross their limits and try to take  over functions which belong to another organ of the State.

18.     Judges must exercise judicial restraint and must not encroach into the  executive or legislative domain vide Indian Drugs & Pharmaceuticals  Ltd.  vs.  The Workman of Indian Drugs & Pharmaceuticals Ltd. (2007)  1 SCC 408 and S.C. Chandra and Ors.  vs.  State of Jharkhand and Ors.  JT 2007 (10) 4 SC 272 (See concurring judgment of M. Katju, J.).   

19.     Under our Constitution, the Legislature, Executive and Judiciary all  have their own broad spheres of operation.  Ordinarily it is not proper for  any of these three organs of the State to encroach upon the domain of  another, otherwise the delicate balance in the Constitution will be upset, and  there will be a reaction.

20.     Judges must know their limits and must not try to run the  Government.  They must have modesty and humility, and not behave like  Emperors.  There is broad separation of powers under the Constitution and  each organ of the State \026 the legislature, the executive and the judiciary \026  must have respect for the others and must not encroach into each others  domains.

21.     The theory of separation of powers first propounded by the French  thinker Montesquieu (in his book ‘The Spirit of Laws\022) broadly holds the  field in India too.  In chapter XI of his book ‘The Spirit of Laws\022  Montesquieu writes :         \023When the legislative and executive powers are  united in the same person, or in the same body of  magistrates, there can be no liberty; because  apprehensions may arise, lest the same monarch or senate  should enact tyrannical laws, to execute them in a  tyrannical manner.

    Again, there is no liberty, if the judicial power be  not separated from the legislative and executive.  Were it  joined with the legislative, the life and liberty of the

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subject would be exposed to arbitrary control; for the  judge would be then the legislator.  Were it joined to the  executive power, the judge might behave with violence  and oppression.

       There would be an end of everything, were the  same man or the same body, whether of the nobles or of  the people, to exercise those three powers, that of  enacting laws, that of executing the public resolutions,  and of trying the causes of individuals.\024  

                                       (emphasis supplied)

We fully agree with the view expressed above.  Montesquieu\022s warning in  the passage above quoted is particularly apt and timely for the Indian  Judiciary today, since very often it is rightly criticized for ‘over-reach\022 and  encroachment into the domain of the other two organs.  

22.     In Tata Cellular  vs.  Union of India AIR 1996 SC 11 (vide  paragraph 113) this Court observed that the modern trend points to judicial  restraint in administrative action.  The same view has been taken in a large  number of other decisions also, but it is unfortunate that many courts are not  following these decisions and are trying to perform legislative or executive  functions.    In our opinion adjudication must be done within the system of  historically validated restraints and conscious minimization of the Judges\022  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 word of Chief Justice Neely:

       \023I have very few illusions about my own  limitations as a judge.  I am not an accountant, electrical  engineer, financier, 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.\024  23.     In Ram Jawaya  vs. State of Punjab AIR 1955 SC 549 (vide  paragraph 12),  a Constitution Bench of this Court observed:            \023The Indian Constitution has not indeed  recognized the doctrine of separation of powers in its  absolute rigidity but the functions of the different parts or  branches of the Government have been sufficiently  differentiated and consequently it can very well be said  that our Constitution does not contemplate assumption by  one organ or part of the State, of functions that  essentially belong to another\024

                                                       (emphasis supplied)          24.     Similarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR  1989 SC 1899 a three Judge bench of this Court observed (vide paragraphs  17 to 19) :          \02317. Before adverting to the controversy directly  involved in these appeals we may have a fresh look on  the inter se functioning of the three organs of democracy  under our Constitution.  Although the doctrine of  separation of powers has not been recognized under the  Constitution in its absolute rigidity but the constitution  makers have meticulously defined the functions of  various organs of the State.  Legislature, executive and

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judiciary have to function within their own spheres  demarcated under the Constitution.  No organ can usurp  the functions assigned to another.  The Constitution trusts  to the judgment of these organs to function and exercise  their discretion by strictly following the procedure  prescribed therein.  The functioning of democracy  depends upon the strength and independence of each of  its organs.  Legislature and executive, the two facets of  people\022s will, they have all the powers including that of  finance.  Judiciary has no power over sword or the purse  nonetheless it has power to ensure that the aforesaid two  main organs of State function within the constitutional  limits.  It is the sentinel of democracy.  Judicial review is  a powerful weapon to restrain unconstitutional exercise  of power by the legislature and executive. The expanding  horizon of judicial review has taken in its fold the  concept of social and economic justice.  While exercise  of powers by the legislature and executive is subject to  judicial restraint, the only check on our own exercise of  power is the self imposed discipline of judicial restraint.

18.     Frankfurter, J. of the U.S. Supreme Court  dissenting in the controversial expatriation case of Trop  v. Dulles (1958) 356 US 86 observed as under :

\023All power is, in Madison\022s phrase, \023of an  encroaching nature\024.  Judicial powers is not  immune against this human weakness.  It  also must be on guard against encroaching  beyond its proper bounds, and not the less so  since the only restraint upon it is self  restraint\005\005\005\005\005.

       Rigorous observance of the difference  between limits of power and wise exercise  of power\026between questions of authority  and questions of prudence\026requires the most  alert appreciation of this decisive but subtle  relationship of two concepts that too easily  coalesce. No less does it require a  disciplined will to adhere to the difference.   It is not easy to stand aloof and allow want  of wisdom to prevail to disregard one\022s own  strongly held view of what is wise in the  conduct of affairs.  But it is not the business  of this Court to pronounce policy.  It must  observe a fastidious regard for limitations on  its own power, and this precludes the  Court\022s giving effect to its own notions of  what is wise or politic.  That self-restraint is  of the essence in the observance of the  judicial oath, for the Constitution has not  authorized the judges to sit in judgment on  the wisdom of what Congress and the  Executive Branch do.\024                

19.     When a State action is challenged, the function of  the court is to examine the action in accordance with law  and to determine whether the legislature or the executive  has acted within the powers and functions assigned under  the constitution and if not, the court must strike down the  action.  While doing so the court must remain within its  self-imposed limits.  The court sits in judgment on the  action of a coordinate branch of the Government.  While  exercising power of judicial review of administrative

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action, the court is not an appellate authority.  The  constitution does not permit the court to direct or advise  the executive in matters of policy or to sermonize qua  any matter which under the constitution lies within the  sphere of legislature or executive, provided these  authorities do not transgress their constitutional limits or  statutory powers.\024    

25.     Unfortunately, despite these observations in the above mentioned  decisions of this Court, some courts are still violating the high constitutional  principle of separation of powers as laid down by Montesquieu.  As pointed  out by Hon\022ble Mr. Justice J. S. Verma, the former CJI, in his Dr. K.L.  Dubey  Lecture:

\023\005.Judiciary has intervened to question a \021mysterious  car\022 racing down the Tughlaq Road in Delhi, allotment of  a particular bungalow to a Judge, specific bungalows for  the Judges\022 pool, monkeys capering in colonies, stray  cattle on the streets, clearing public conveniences,  levying congestion charges at peak hours at airports with  heavy traffic, etc. under the threat of use of contempt  power to enforce compliance of its orders.  Misuse of the  contempt power to force railway authorities to give  reservation in a train is an extreme instance\024.   

26.     Recently, the Courts have apparently, if not clearly, strayed into the  executive domain or in matters of policy.  For instance, the orders passed by  the High Court of Delhi in recent times dealt with subjects ranging from age  and other criteria for nursery admissions, unauthorized schools, criteria for  free seats in schools, supply of drinking water in schools, number of free  beds in hospitals on public land, use and misuse of ambulances,  requirements for establishing a world class burns ward in the hospital, the  kind of air Delhities breathe, begging in public, the use of sub-ways, the  nature of buses we board, the legality of constructions in Delhi, identifying  the buildings to be demolished, the size of speed-breakers on Delhi roads,  auto-rickshaw over-charging, growing frequency of road accidents and  enhancing of road fines etc.   In our opinion these were matters pertaining  exclusively to the executive or legislative domain.  If there is a law, Judges  can certainly enforce it, but Judges cannot create a law and seek to enforce  it.

27.     For instance, the Delhi High Court directed that there can be no  interview of children for admissions in nursery schools.  There is no statute  or statutory rule which prohibits such interviews.  Hence the Delhi High  Court has by a judicial order first created a law (which was wholly beyond  its jurisdiction) and has then sought to enforce it.  This is clearly illegal, for  Judges cannot legislate vide Union of India  vs.  Deoki Nandan Agarwal,  AIR 1992 SC 96.  In V.K. Reddy  vs.  State of Andhra Pradesh J.T.  2006(2) SC 361 (vide para 17) this Court observed \023The Judges should not  proclaim that they are playing the role of law maker merely for an exhibition  of judicial valour\024.  Similarly, the Court cannot direct the legislature to make  a particular law vide Suresh Seth  vs.  Commissioner, Indore Municipal  Corporation & Ors. AIR 2006 SC 767, Bal Ram Bali  vs.  Union of India  JT 2007 (10) SC 509, but this settled principle is also often breached by  Courts.    

28.     The Jagadambika Pal\022s case of 1998, involving the U.P. Legislative  Assembly, and the Jharkhand Assembly case of 2005, are two glaring  examples of deviations from the clearly provided constitutional scheme of  separation of powers.  The interim orders of this Court, as is widely  accepted, upset the delicate constitutional balance among the Judiciary,  Legislature and the Executive, and was described Hon. Mr. J.S. Verma, the  former CJI, as judicial aberrations, which he hoped that the Supreme Court  will soon correct.

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29.     Hon\022ble Justice A.S. Anand, former Chief Justice of India has  recently observed : \023Courts have to function within the established  parameters and constitutional bounds.  Decisions should have a  jurisprudential base with clearly discernible principles.       Courts have to be  careful to see that they do not overstep their limits because to them is  assigned the sacred duty of guarding the Constitution.  Policy matters, fiscal,  educational or otherwise, are thus best left to the judgment of the executive.   The danger of the judiciary creating a multiplicity of rights without the  possibility of adequate enforcement will, in the ultimate analysis, be counter  productive and undermine the credibility of the institution.  Courts cannot  \023create rights\024 where none exists nor can they go on making orders which  are incapable of enforcement or violative of other laws or settled legal  principles.  With a view to see that judicial activism does not become  \023judicial adventurism\024, the courts must act with caution and proper restraint.   They must remember that judicial activism is not an unguided missile \026  failure to bear this in mind would lead to chaos.  Public adulation must not  sway the judges and personal aggrandizement must be eschewed.  It is  imperative to preserve the sanctity and credibility of judicial process.  It  needs to be remembered that courts cannot run the government.  The  judiciary should act only as an alarm bell; it should ensure that the executive  has become alive to perform its duties\024.

30.     The justification often given for judicial encroachment into the  domain of the executive or legislature is that the other two organs are not  doing their jobs properly.  Even assuming this is so, the same allegation can  then be made against the judiciary too because there are cases pending in  Courts for half-a-century as pointed out by this Court in Rajindera Singh   vs. Prem Mai & others (Civil Appeal No. 1307/2001) decided on 23  August, 2007.

31.     If the legislature or the executive are not functioning properly it is for  the people to correct the defects by exercising their franchise properly in the  next elections and voting for candidates who will fulfill their expectations,  or by other lawful methods e.g. peaceful demonstrations.   The remedy is not  in the judiciary taking over the legislative or executive functions, because  that will not only violate the delicate balance of power enshrined in the  Constitution, but also the judiciary has neither the expertise nor the  resources to perform these functions.   

32.     Of the three organs of the State, the legislature, the executive, and the  judiciary, only the judiciary has the power to declare the limits of  jurisdiction of all the three organs.  This is a great power and hence must  never be abused or misused, but should be exercised by the judiciary with  the utmost humility and self-restraint.

33.     Judicial restraint is consistent with and complementary to the balance  of power among the three independent branches of the State.  It  accomplishes this in two ways.  First, judicial restraint not only recognizes  the equality of the other two branches with the judiciary, it also fosters that  equality by minimizing inter-branch interference by the judiciary.  In this  analysis, judicial restraint may also be called judicial respect, that is, respect  by the judiciary for the other coequal branches.  In contrast, judicial  activism\022s unpredictable results make the judiciary a moving target and thus  decreases the ability to maintain equality with the co-branches.  Restraint  stabilizes the judiciary so that it may better function in a system of inter- branch equality. 34.     Second, judicial restraint tends to protect the independence of  the  judiciary.  When courts encroach into the legislative or administrative fields  almost inevitably voters, legislators, and other elected officials will conclude  that the activities of judges should be closely monitored.  If judges act like  legislators or administrators it follows that judges should be elected like  legislators or selected and trained like administrators.  This would be  counterproductive.  The touchstone of an independent judiciary has been its  removal from the political or administrative process.  Even if this removal  has sometimes been less than complete, it is an ideal worthy of support and

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one that has had valuable effects.

35.     The constitutional trade \026 off for independence is that judges must  restrain themselves from the areas reserved to the other separate branches.   Thus, judicial restraint complements the twin, overarching values of the  independence of the judiciary and the separation of powers.

36.     In Lochner  vs.  New York 198 US 45(1905) Mr. Justice Holmes of  the U.S. Supreme Court in his dissenting judgment criticized the majority of  the Court for becoming a super legislature by inventing a ‘liberty of  contract\022 theory, thereby enforcing its particular laissez \026 faire economic  philosophy.  Similarly, in his dissenting judgment in Griswold  vs.   Cannecticut 381 U.S. 479, Mr. Justice Hugo Black warned that \023unbounded  judicial creativity would make this Court a day-to-day Constitutional  Convention\024.  In ‘The Nature of the Judicial Process\022 Justice Cardozo  remarked : \023The Judge is not a Knight errant, roaming at will in pursuit of  his own ideal of beauty and goodness\024.  Justice Frankfurter has pointed out  that great judges have constantly admonished their brethren of the need for  discipline in observing their limitations (see Frankfurter\022s ‘Some Reflections  on the Reading of Statutes\022).

37.     In this connection we may usefully refer to the well-known episode in  the history of the U.S. Supreme Court when it dealt with the New Deal  Legislation of President Franklin Roosevelt.  When President Roosevelt took  office in January 1933 the country was passing through a terrible economic  crisis, the Great Depression.  To overcome this, President Roosevelt initiated  a series of legislation called the New Deal, which were mainly economic  regulatory measures.  When these were challenged in the U.S. Supreme  Court the Court began striking them down on the ground that they violated  the due process clause in the U.S. Constitution.  As a reaction, President  Roosevelt proposed to reconstitute the Court with six more Judges to be  nominated by him.  This threat was enough and it was not necessary to carry  it out.  The Court in 1937 suddenly changed its approach and began  upholding the laws.  ‘Economic due process\022 met with a sudden demise.

38.     The moral of this story is that if the judiciary does not exercise  restraint and over-stretches its limits there is bound to be a reaction from  politicians and others.  The politicians will then step in and curtail the  powers, or even the independence, of the judiciary (in fact the mere threat  may do, as the above example demonstrates).  The judiciary should,  therefore, confine itself to its proper sphere, realizing that in a democracy  many matters and controversies are best resolved in non-judicial setting.

39.     We hasten to add that it is not our opinion that judges should never be  ‘activist\022.  Sometimes judicial activism is a useful adjunct to democracy  such as in the School Segregation and Human Rights decisions of the U.S.  Supreme Court vide Brown  vs.  Board of Education 347 U.S. 483 (1954),  Miranda  vs.  Arizona 384 U.S. 436, Roe  vs.  Wade 410 U.S. 113, etc. or  the decisions of our own Supreme Court which expanded the scope of  Articles 14 and 21 of the Constitution.  This, however, should be resorted to  only in exceptional circumstances when the situation forcefully demands it  in the interest of the nation or the poorer and weaker sections of society but  always keeping in mind that ordinarily the task of legislation or  administrative decisions is for the legislature and the executive and not the  judiciary.

40.     In Dennis  vs.  United States (United States Supreme Court Reports  95 Law Ed. Oct. 1950 Term U.S. 340-341) Mr. Justice Frankfurter observed:         \023Courts are not representative bodies.  They are not designed to be a  good reflex of a democratic society.  Their judgment is best informed, and  therefore, most dependable, within narrow limits.  Their essential quality is  detachment, founded on independence.   History teaches that the  independence of the judiciary is jeopardized when courts become embroiled  in the passions of the day and assume primary responsibility in choosing  between competing political, economic and social pressures.\024

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41.     In view of the above discussion we are clearly of the view that both  the High Court and First Appellate Court acted beyond their jurisdiction in  directing creation of posts of tractor driver to accommodate the respondents.   Appeal Allowed.