SUPREME COURT EMPLOYEES WELFARE ASSOCIATION ETC. ETC. v. UNION OF INDIA & ANR. ETC. ETC.

A right _or wrong does not arise. If the judgments of the Delhi High Court had m any manner interfered with the fundamental rights of the petitioners before us, in that case, the 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 B 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 c 'equal pay for equal work', as enshrined in Article 39(d) of the Con- stitution 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 Directive Principles of State D Policy is not enforceable by any court in view of Article 37 of the Constitution. He submits that as laid down in Kishori Mohan/al Bakshi v. Union of India, AIR 1962 SC 1139 and Stale 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 deci- E sion in Kishori Mohan/al 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 follows:

"The Preamble to the Constitution of the International Labour Organisation recognises the principle of 'equal F remuneration for work of equal value' as constituting one . of the means of achieving the improvement of conditions "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 G 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 different scales of pay do identical work under the same employer." H

SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. [DUTT, J.I 513

It follows from the above decisions that although the doctripe of 'equal pay for equal work' does not come within Article 14 of the A 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 wm 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 B unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of 'equal pay for equal work', as envisaged 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 discrimina- c tion under Article 14 of the Constitution, the abstract doctrine of/ 'equal pay for equal work', as envisaged by Article 39(d) of the Con- stitution, has no manner of application, nor is it enforceable 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 D 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 E v. G. Sreenivasa Rao, [1989] 1JT615 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 recruiiment, 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, F 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 treat- ment to the two classes of employees is founded on rational basis having nexus to the object sought to be achieved, the classification must be upheld. G

1. 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. H

514 SUPREME COURT REPORTS . [1989] 3 S.C.R.

The answer to the question depends upon several factors. A It does not just depend upon either the·riatlire·Of work or volume of work done by Bench Secretaries. Primarily L requires among others, evaluation of duties and responsibi· ' lities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may B be difference in degrees in the performance. The quant.ity .. 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 post~ or ..... equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commis· sion. They would be the best judge to evaluate .the nature c · of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the Court should· normally accept it. The Court should not tty to tin~er with such equivalent unless it is shown that it was made with extraneous consideration." 1 D I Relying upon the decision in Chaurasia's case, it has been mged, by the lea.med Attorney General that in the instant case also this C(Jurt should accept the recommendations of the Fourth Pay Commission. Normally, when a Pay Commission has evaluated the nature of duties and responsibilities of posts and has also made the equation of posts, E tlle Court should not interfere with the same. The question is not whether the Court shciuld 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 recommenda· tions or any finding of the Pay Commission. ·

F '· Again, in Umesh Chandra Gupta v. Oil and Natural Gas Com- mission, 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 earlief in this judgment that it is not , G the business of this Court to fix the pay-scales in exercise of its jurisdic· tion 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 matters 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. H

SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.I. [DUTT,J.] 515

The last case that has been relied on by the learned Attorney 1 General is the decision in Tarsem Lal Gautam v. State Bank of Patiala, A 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 straightway be applied inasmuch as the qualitative differences in re- gard to degrees of reliability and responsibility could not be put aside as irrelevant. B ~ So far as the judgments of the Delhi High Court are concerned, we find that the High Court has taken into consideration the decision of this Court on the doctrine of 'equal pay for equal work'. In one of

f these judgments in Civil Writ Petition No. 1376 of 1984 relating to the pay-scale·of the petitioner, who was a Restorer which is equivalent to L.D.C./Junior Clerk, the learned Judges of the Delhi High Court have c r 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 successor. 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 work- ing 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 _....I Delhi High Court, it will be discriminatory and violative 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 straightway applied the doctrine of 'equal pay for equal work' as an abstract doctrine, as envisaged by Article 39{d) of the Constitution. } F 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 G servants of the Supreme Court shall be such as may be 1 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, H

516 SUPREME COURT REPORTS [1989] 3 S.C.R.

so far as they relate to salaries, allowances, leave or pen- A sions, require the approval of the President." ~

• Under Article 146(2) the conditions of service of officers 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 B officer of the Court authorised 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 c 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 D the conditions of service, is legislative in nature. The conditions of service that may be prescribed by the r_ules framed by the Chief Justice of India under Article 146(2) will also necessarily include salary, al)o- wances, 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 l E Article 146(2) shall, so far as they relate to salaries, 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 wlll be final and conclusive, except that with regard to salaries, allowances, leave or pensions the approval of the President F 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 involve- ment of the financ;al liability of the Government.

G 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 servants 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 H Parliament, as provided in Article 113 of the Constitution. It is appa-

\ SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. [DUIT,J.] 517

rent 'that in order to maintain the independence of the judiciary, the A "'( 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 func- tion of the President of India approving of the iules framed by the Chief Justice of India relating to salaries, allowances, leave or pen- B sions 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 bf the President of India approving of the rules is analo- gous to giving assent to a Bill. The rules framed by the Chief Justice of India though it is a· piece of subordinate legislation, it is not a fullfledged legislative act requiring assent of the President of India. In C this connection, we may refer to the statement· of law as. to the delegated legislation in Foulkes' Administrative Law, Sixth Edition, Fage 57 which reads as follows:

"It is common for Parliament to confe~ by Act on ministers and other executive bodies the power to make general rules D with the force of law-to legislate. Parliament is said to delegate to such bodies the power to legislate. Thus the phrase 'delegated legislation' covers every exercise of a power to legislate conferred, by Act of Parliament. The phrase is not a tenn of art, it" is not a technical term, it has .rio statutory definition. To decide whether the exercise of a E power constitutes 'delegated legislation' we have to ask whether it is a delegated power that is being exercised and whether its exercise constitutes legislation. Clearly an Act, public or private, is not delegated: it is primary legislation. When a minister or other authority is given power by Act of Parliam_ent to make rules, regulations etc. the power has F, beeh delegated to him, and insofar as the rules made by that authority are legislative in their nature, they comprise delegated legislation. If the contents of the document (made under delegated powers) are not .legislative the document will obviously not be a piece of (delegated) legis- lation. Ministers and others are in fact given power to make G orders, give· directions, issue approvals and notices etc. which one would not, because of their lack of generalit}. classify as legislative but rather as administrative. ...................... j •• ' "

It has been observed in the statement of law that if the contents H

518 SUPREME COURT REPORTS [1989] 3 S.C.R.

of the document made under delegated powers are not legislative. the document would obviously not be a piece of delegated 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 legisla· tive 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 nature, but an administrative act. We do not think it necessary to come to any final decision on the question and we propose to proceed on the assumption that the function of the Presi· derit of India in approving the rules framed by the Chief Justice of

c India relating to salaries, allowances, leave or pensions is a legislative act. 1 ~ It is vehemently contended by the learned Attorney General that as the President of India performs a legislative 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 D 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 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 purpose 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 exercise of that power, whether by the legislature or by its delegate is an exercise of a legislative 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. Similarly '):'. no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to eriact." '

H There can be no doubt that no court can direct a legislature to /

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. [DUTT,J.l 519

·-1 enact a particular law. Similarly, when an executive authority exercises A a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law which he has been empowered to do under the delegated legislative authority.

·'1 The next decision which has been relied on by the learned At- B torney 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 Constitution of India. Provision of - ., i 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 condi- Y tions of service of officers and servants of the High Court. Under the c proyiso 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·appi6val of the Governor of the State. So far as the two provisos are concerned, while under proviso to Article 229(2) the rules reiating to salaries, allowances, leave or pen- D sions require the approval of the Governor 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 ob.served that it is not possi- ble to take the view that merely because the State Government does E not see its way to give the required approval, it will justify the issuance of a writ of mandamus under Article 226 of the Constitution, as if the refus~I of the State Government was ultra vires or made mala fide and arbitrarily.

J 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. F

Union of India, [1982] 2 SCR 272. What happened in that case was that by a Notification the Central Government had brought into force all the sections of the Fortyforth 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 sec- G ~i..,. . tion 3 of the Fortyfourth Amendment Act. It has been observed by J,? Chandra.chud, C.J. delivering the majority judgment that a mandamus ,,,,. cannot be issued to the Central 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 H1

520 SUPREME COURT REPORTS [1989] 3 S.C.R.

A 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 pensions 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 B of the Supreme Court, as contained in his Jetter 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 pro- posals made by the Registrar General of the Supreme Court, presum- ably on the direction of the Chief Justice of India. It is not also the c contention of any of the parties that such a direction can be made by the Court. - y The real question is how and in what manner the President 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 D pensions of the officers and servants of the Supreme Court. The Presi- dent 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 comparative study of some other similar provisions of the Constitution, we find that under Article 98(3), the President of India has been empowered to make rules regulating the recruitments and the conditions of service of ~ E persons appointed 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 Comptoller and Auditor-General shall be F such as may be prescribed by rules made by the President of India after consultation with the Comptroller and Auditor-General. Similarly, the 1 Governor has been empowered under Article 187(3) to make rules regulating the recruitment, and the conditions of service of persons appointed to the secretarial staff of the Assembly or the Council after consultation with the Speaker of the Legislative Assembly or the G Chairman of the Legislative Council, as the case may be. Thus, it appears that except in the cases of the officers and servants 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.

H So far as the Supreme Court and the High Courts are concerned, '

SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. IDUTT,J.] 521

the Chief Justice of India and the Chief Justice of the concerned High A -1 Court, are empowered to frame rules subject to ihis 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 B ---{' 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, allowances, leave or pensions, but it is equally true that when such -f rules have been framed by a very hil)h dignitary of the State, it should be looked upon with respect and unless there is very good reason not to grant approval, the approval should alw.,ays be granted. If the Presi- c y dent of India is of the view that the approval cannot be granted, he cannot straightway refuse to grant such approval, but before doing so, there must be exchange of thoughts between the President of India and the Chief Justice of India. D 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 _j. applies to the provision of Article 146(2) relating to the grant olap- E proval by the President of India. In this connection, we may also refer to a decision of this Court in Gurumoorthy v. Accountant General Assam & Nagaland, I1971] Suppl. SCR 420, which was also considered in Gopalakrishnan's case (supra). In Gurumoorthy's case·, this Court took the view thaLthe unequivocal purpose and obvious intention of the framers of the Constitution in enacting Article 229 is that in the F -~ matter of appo.intmen,ts of officers and servants. of a High Court,, it is the Chief Justice or his nominee who is to be the supreme authority and ther~ 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. G At this stage, it may be noticed that it has been conceded by the ~ learned Attorney General that the validity of the subordinate legisla- · tion as provided in Article 146(2) of the Constitution can be chal- lenged on such grounds as any other legisfative acts can be challenged. So, if the rules framed by the Chief_ Justice of India and approved by H

522 SUPREME COURT REPORTS 11989] 3 S.C.R.

the Presideri.t of India relating to the salaries, allowances, leave or A 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: B "Acts of Parliament have sovereign force, but legislation made under delegated power can be valid only if it con- forms exactly to the power granted. Even where, as is often the case, a regulation is required to be approved by resolu- tions of both Houses of Parliament, it still falls on the 'sub- ordinate' side of the line, so that the court may determine c its validity."

Again, at page 868 it is observed that just as with other kinds of Y administrative action, the courts must sometimes condemn rules or regulations for unreasonableness. D Thus a delegated legislation or a subordinate legislation 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 E virtue of Article 74(1) of the Constitution, the President of India shall, .,L in exercise of his functions, act in accordance 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 Article 146(2) of the Constitution and whatever advice is given to the Presid,nt of India in that regard, the President of India has to act in accorda.1ce with such advice. On the other hand, the Chief Justice of i India has to apply his mind when he frames the rules under Anicle ~ 146(2) with the assistance of nis officers. In such circumstances, it would not be unreasonable to hold that the delegation of the legisla- tive function on the Chief Justice of India and also on the President of India relating to the salaries, allowances, 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

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. (DUTT, J.] 523

Government and the Chief Justice of India. The application of mind will mciude exchange of thoughts and views between the 1..rovernment and the Chief Justice of India and it is highly desirable that there shou]ri be a consensus between the two. The rules framed by the Chief Justice of India should normally be accepted by the Government and the question of exchange of thoughts and views will arise only when the Government is not in a position to accept the rules relating to B 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 Fo,•rth Pay Commission pursuant to the recommendation in that 'regard by the Five-Judge Committee and as directed such referenoe was made. The C y report of the Fourth Pay Commission was not sent directly to the Chief Justice of India, but it came thn;mgh the Ministry of Finance, Depart- ment 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 revision of the pay-scales of the employees of the D 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 dther 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 E 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 F Justice of India to frame rules. What should go to the Presid~nt of India for his approval under the proviso to Article 146 is not the report or the recomm.,ndation 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 G 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 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 H

524 SUPREME COURT REPORTS [1989] 3 S.C.R.

his letter dated July 22; 1987; addressed to the Secretary, Government A of India, Ministry of Finance, Departmeut of Expenditure; did 1not agree with some of the recommendations of the Fourth Pay Com· mission relating to the revision of pay-scales including the re•isic»'. 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 B 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 accordance with the provision of Article 146(2) of the Constitution. Instead, what was done. was that the C Regisirar, General •made· certain· proposals to ·the· Government· and· thos~. proposals were. turned down as. not acceptable. to the. Govern· menL 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 D instructiorts.of,the·Chief1Justice of India. The provision of Article 146(2) 1requires 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 questfon of granting approval, as required ·E 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. theJorm· of, a Jetter. dated. November 23,' 1987 was· , p. made.by,tf)e,Joint.Secretary,to.the.Govemment of India, Ministry of '· ., Finance, Department of Expenditure, addressed to the Registrar Generalc By.that. letter, the Registrar General.was informed of the• sanction of the President, of India to the revised scales as shown· in . column A of. the annexure to the said Jetter in respect of certain posts: The revised . scales· of, pay; stated to have: been sanctioned by• the · G President of· India, were at par-with the crecommendations of the Fourth: Pay Commission. The sanction· of· the President of India,- as communic.ated.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,containedjn,paragraph 15 of: the said-Ietterr ---< I

which is extracted below;."

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.I. [DUTT,J.I S25

"5. Tjle revision of pay scales, for the remaining posts in A the Supreme Court Registry, mentioned in Part III of the Report of the Fourth Central Pay Commission, is separa- tely under consideration.of the Government." · ,,. The remaming posts referred to in paragraph 5 includes the posts held by Junior Clerks and Class IV employees. Even assuming that the B 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 pay- scales of the remaining posts including the posts held by the Junior ·Clerks and Class IV employees; is still under consideration of the Government. It is curious that although t_he question as to the revision c of pay-scales of the remaining posts is siill under consideration of the Governnient, 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 pay- D scales, 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 prci"vision of Article 146(2) has not been complied with. No rules have been framed by the Chief Justice of E India as per the provision of Article -146(2) and, accordingly, the question of granting approval 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 including the recommendations of the Fourth Pay F Commission and submit the same to the President of India for· his approval:· . :.r' -It has been strenuously urged by Mr. Thakur that the staff and the servants of the Supreme Court of India constitute a class by themselves totally disiinct in the_ dvil services under the Union and the G 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, H

526 SUPREME COURT REPORTS [1989] 3 S.C.R.

A apart from the other services under the Union and the States by pro- ,__ viding that unlike other services the Chief Justice of India and not the President of India or the Governor will prescribe their service condi- tions. We have been pressed to hold that the staff and servants of the Supreme Court constitute a class by themselves having a totally dis- tin ct personality. It is submitted that the pay-scales of the employees j B of the Supreme Court shall be fixed on tlie basis of their distinct personality, qualifications and the arduous 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 observation of the Five-Judge Committee. According to the Committee, the borrowed designations without any attempt at I giving distinct and independent identity to the staff in the Registry of c 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 Presi- ~ dent of India to approve the rules under Article 146 of the Consti- D tution. It also appears from paragraph 4.6 of Chapter IV pf 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 -l_ E 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 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 insti- 4 r

tution would be contrary to the basic tenets of equality enshrined in the Constitution. The learned Attorney General has drawn our atten- tion to the C-:mstituent Assembly debates on the draft Article 122 which is the same as Article 146 of the Constitution. In particular, 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. Krishnamachari stated before the Constituent Assembly as follows:

"At the same time, i'!ir, I think it should be made clear that it is not the imemion of this House or of the framers of this

SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. [DUTI,J.) 527

Constitution that they want to create specially favoured bodies which m 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 provision of this nature, not merely in regard to the Supreme Court but also in regard to B · the Auditor-General, in regard to the Union Public Service Commission, in regard to the Speaker and the President of the two Houses of Parliament 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 c 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: D

"But it seems to me that there is another consideration which goes to support the proposition 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 E should be uniform, and there ought not to be material vari- ations in these matters with regard to the civil service. It is likely to create a great deal of heart-burning and might impose upon the treasury an unnecessary burden. Now, if you leave the matter to the Chief Justice 1to decide, it is quite conceivable-I do not say that it will happen-but it F is quite conceivable that t.1e Chief Justice might fix scales of allowances, 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." G Another contention of the learned Attorney General is that if the Junior Clerks and the class IV employees are given the Punjab scales of pay and the Central D.k, there would be a heavy financial liability.of the Central Government. The Junior Clerks and Class IV employees of the Supreme Court have already been given the Punjab scales and the Central D .A. with effect from January 1, 1978 and this H

528 SUPREME COURT REPORTS [19&9] 3 S.C.R.

has cost the exchequer Rs.2 crores. It is submitted that other emp- A loyees of the Supreme Court who have not been given this benefit as well as all other Central Government employees 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 B crores. Further, this D.A. would get merged in the pay-scale from l.1.1986 and would also qualify for D.A. after 1.1.1986 leading to a huge additio.nal 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 beh:!)f of the Registrar of the Supreme Court, as to whether the Chief Justice c of India was agreeable to prescribe ti)e rules re)ating to the salaries, allowances, etc. of the Supreme Court employees. We are glad ~o record that Mr. Rao has informed us that the Chief Justice of lpdia hJis agreed to make necessary amendments to the existing rules relating to the salaries and allowances of the Supreme Court employees in iu:cord- p ance with Article 146 of the Constitutjon after considering the recommendations of the Fourth Pay Commission and all other rele- vant materials, and that the said amendments will be forwarded to the President of India for approval. Mr. Rao has filed a statement jp writing signed by the Registrar General, which is e1<tracted below:

E "After obtaining instructions froip the Hon'ble the ,Chief Justice, I hereby state that necessary amendments to tl)e 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 F 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." G In view of the said statement, our task has become easy. It appears from the said statement that the Chief Justice of India bas )- 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 H to implement t!te same after obt'!ining the approval of the President of

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.J. (DUTT, J.] 529

India in terms of the proviso to Article 146(2). -1 A In our opinion, the Chief Justice of India is the proper authority to consider the question as.to the distinctive nature and personality i:Jf 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 debates in the Constituent Assembly on the draft Article 122 B ~ which is the same as Article 146 of the Constitution. Further, before laying down the pay-structure of the employees 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. I There can be no doubt that at the time of preparing the rules for prescribing the conditions of service including fixing of the pay-scales, the Chief Justice of India will consider the representations and sugges- c y lions 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 D India may appoint a Committee of Judges to submit a report relating ro all relevant matters and, thereafter, the Chief Justice of India may frame rules after taking into consideration the report of the Commit- tee. It will be absolutely in the discretion of the Chief Justice of India J or his nominee as to how and in what manner the rules will be framed. E Before we conclude, it may be recorded that Mr. Kalra, Mr. Gujral, Mr. Ravi Prakash Gupta, Mr. A.K. Sanghi and Mr. A.O. • Malhotra have, besides adopting the arguments of Mr. Thakur, made their own submissions. Mr. Kalra and Mr. Aggarwal have, in parti- cular, drawn our attention to different pay-scales sanctioned to the )- employees of the Central Secretariat, Lok Sabha and Rajya Sabha and F submit that the Supreme Court employees have been discriminated, although their nature of work is more .arc)uous and they are better qualified. In view of our decision that the rules have·nofbeen 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. G In the circumstances, as agreed to by the Chief Justice of India he may, after considering the recommendations of the Fourth Pay 1 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 b'y making necessary amen-dments to the existing rules relating to salaries and allowances of H

530 SUPREME COURT REPORTS [1989] 3 S.C.R.

A 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 B 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 Petitions and the Civil Miscel- laneous Petitions are disposed of as above. There will, however, be no order as to costs in any of them. \ c TH OMMEN, J. I agree with the judgment of my learned brother, M.M. Dutt, J. I add the following observations with parii- cular reference to the scope and ambit of clause (2) of Article 146 of the Constitution of India.

D This Court has, by order dated 25.7.1986, directed, in the pre- sent 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 categories of employees corresponding to those of the Delhi High Court, this Court directed payment of a sum equal to E 10 per cent of their basic pay subject to a minimum of Rs.50 per 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 ). F 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 ana responsibilities and functional and locational distinctions. The Fourth Central Pay Com- missio·n (the "Pay Commission"'), counsel point out, had ignored the G 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. H Employees of those two Classes, constituting about 60 per cent of the

SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.1. [TI!OMMEN,J.] 531

total strength of the Supreme Court Staff, claim pay scales in parity A with their counterparts in the Delhi High Court who are paid, by vfrtue 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, notwithstimd- ing the revised pay scales recommended by the Pay Commission, B because of the interim orders of this Court in the present proceedings. The Attorney General contends that the Punjab pay scales of Rs.409' 600 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 higl,~r Punjab scales have already absorbed all the D.A. i~talments 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. j Referring to the Delhi High Court employees, the Attorney E General, in his written submissions, points out:

• "His counterpart in the Punjab High Court enjoyed higher scale of pay but lesser allowances 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 F 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 difference between 200 annd 320." G This contention of the Attorney General is sought to be met by counsel appearing for the Class IV Employees' Association in his writ- ten submissions in the following words:

"The Delhi High Court in Kamalanand's case has decided that the Class IV employees of that court will get Punj"b H

532. SUPREME COURT REPORTS (1989] 3 S.C.R.

pay scales and. Central D.A. It is submitted that D.A. has A 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."· s· The Attorney General refutes the petitioners' contention. that the Supreme Court employees, by virtue of the special nature of their work or.locatfonal or institutional distinction, 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 C Attorney General points out, is contrary to the intent of the Constitu· · tion makers. The fact that the Delhi High Court has, on a mistaken assumption of law and fact, directed payment to fts employees on the basis of Punjab scales of pay with Central D .A. does not justify repeti· .. tion 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 Consiitutional authorities under Article 146 of the Constitution is beyond judicial scrutiny on grounds other than those relevant to jndi· cial 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. · 1.

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, 198.5 to the .F 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 G India keeping in view the principles of pay determination; or

(b) refer the matter to the 4th Pay C~mmission which is at present considering the question of revision of pay-scales of the Central Government employees and ask it to examine the question of independent pay structure for the staff of

SUPREMECOURTEMPWYEESWELFAREASSN. >. U.0.1. [TIIOMMEN,J.] 533

the Supreme Court Registry and submit a separate report .in this respect to the Chief Justice of India." A

Pursuant to the above suggestions and the decision taker! the1eon, 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 Committee of Judges was made B available to the Pay Commission. The. Committee of Judges had pointed out the functional differences between the Central Secretariat Services and the Service in the Registry of the Supreme Court. The Pay .Commission visited the Registry of the. Supteme Court to familiarise themselves with the nature of the work in the Court. They say: c "The Judges' Committee had observed that the pay . structure for the Supreme Court employees should be devised keeping in view the independent identity of the Registry of the Supreme Court, in evolving the pay /structure, the workload, skill, educational qualifications, l) 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 Registry of the Supreme Court. The team spent a number of days visiting various sections in the g Registry for a proper understanding of the work of diffe• rent functionaries. They had discussions with the con• cemed staff and the officers in charge of the sections and also observed 'n detail the work being performed by diffe- rent task holders. The work done by the team of officers . within the short time available and our own visit proved p very useful in acquainting ourselves with the role and func- tions of the, personnel in the Supreme Court Regis tty. 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 res• ponsibilities of various categories of posts with the help and G . assistanec of senior officials of the Supreme Court." · · (emp!iasis supplied)

This observation of the Pay Commission shows that while an earnest attempt had been made by them to study the distinctive characteristics of the job contents of the Supreme Court employees at fi

534 SUPREME COURT REPORTS [1989] 3 S.C.R.

various levels, and they had borne in mind the observations of Judges' A 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 B functionaries 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 Pun jab 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 c 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 Govern- D ment 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 comparison 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 E 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 judg- ment of the Delhi High 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 F 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 Central 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.

G 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 H and Deputy Secretaries in the Secretariat of the Lok Sabha or the

SUPREMECOURTEMPLOYEESWElFAREASSN. v. U.0.1. jTHOMMEN,J.]. 535

Ra jya Sabha. They contend that the Pay Commision, in view of the A admitted constraint of time, did not make an exhaustive and proper study of the nature of the functions performed 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. B These are weighty arguments and they require thorough investi- gation. In this connection, reference may be made to Part II, Chapter I, of the Report of the Committee of Jupges stating that despite the functional distinctions, no attempt had been made to provide a sepa- ( rate 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 c with marginal modifications. So stating the Committee observed:

"These borrowed designations without any attempt at giv- ing 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 _fl least since the Second Pay Commission appointed by the Central Government for Central Government servants, the pay- scales devised by the Pay C$mniission 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. Appa- rently with a view to avoiding the arduous task of devising a fair pay structure for various categories of staff in the F 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 compar- able posts. And the comparison was not functional but according to the designations. No attempt was made to G 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 to approve the rules under Art. 146 of the Constitutiion."

The Committee further pointed out: H

536 SUPREME COURT REPORTS [1989] 3 S.C.R.

"Equal pay for equal work postulates scientific determina- A tion ofprinciples offair comparison and primarily it must be . functional and not by designation because a comparison by designation is mote often misleading .. , .. not the slightest attempt has been made to compare the workload,. skill, · educational qualifications, 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 setVants of the Supreme Court. This is un- c doubtedly 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 prohibits the Central Goverrunent from undertaking ·"'(· any exercise unless the Parliament enacts a law on the sub- ject to determine conditions of service of officers and staff 'of the Supreme Court. Whenever therefore the Central Government decides to ~et 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 befote the Pay Panel because. their case is not covered by the tetms of reference of the Pay Panel. How- ever, when the Pay Panel completes its task and submits its recommendations and the Govt. after accepting the recom- mendations 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 influ- ence 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} ('· G For these reasons the Committee of Judges re<:Qmmended that in order to assist the Chief Justice in making the rules u!i.der Article 146, -·either a Committee of Judges and experts should be appointed to devfse a fair pay structure for the staff of the Supreme Court or refer the whole question to the Pay Comniission for their recommendations. H It is pursuant to the recommendations of the Committee of Judges that

I SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. (TIIOMMEN, J.) 537

. the matter was, as stated earlier, referred to the l'ay. Commission. The l'ay Commissioo'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 l'ay Commission. The Registrar General of this Court wrote to the concerned Secretary of the Central Government a detailed letter pointing out various anomalies and difficulties if the recommendations of the Pay Commission were implemented. He pointed out that implementation 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 enhariced 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 categories. The various suggestions of the Registrar C General were rejected by the Government except his suggestion for the enhancement of .the· salaries of the Private Secretaries 10 the Judges of this Courl, This is what is stated on the point by Shri S, Ghosh,' Additional Registrar, in his affidavit sworn on 3rd March, 1989: ,I -- D "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 py the Registrar General; on behalf of the Chief Justice of Indi<1 were not appreciatecl by the Ministry of fin:mce and the pay scales recomrnendecl PY the Registrar General in respect of various cadres on behalf of the Chief Justice of India were not approved as those recommended by the l'ay Commission were sanctionecl."

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 Ot this Article is clause (2) which reads: - t' G "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: H

538 SUPREME COURT REPORTS [1989] 3 S.C.R.

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. However, these rules, to the extent that they relate to the salaries, allowances, leave or pensions, require the approval 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 tlie Chief Justice of India with the approval of the President-of 1ndfa 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 intedm 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 responsibility and power of the Chief Justice of India, subject, of course, to the two conditions post- E ulated in clause (2) of Article 146. The Pay Commission was in the past not concerned with this category of employees because of the special position of the latter under the Constitution. These employees, how- ever, 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 F 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 neces- sarily act on the basis of data made avilable to him by persons he might in that regard appoint, or, as has been done in the present case, by the Pay Commission themselves to whom a reference was made by the G Government pursuant to the recommendations of the Judges' Committee. The cardinal function of the Pay Commission, while duly acting in connection with the employees of the Supreme Court, is to 1 ender effective assistance to the Chief Justice 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 condi- H tions of service in relation to salaries, allowances, etc. It is only by

SUPREME COURT EMPLOYEES WELFARE ASSN. v. U.0.1. [THOMMEN, J.] 539

formulating specific rules in that respect can the President (that means A the Government of India) exercise the mind over the question and approve or disapprove the rules. The approval 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 B ~ provisions are contained in the Constitution 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 legisla-

'y ture, a special position of comparative independence in accordance with the fundamental constitutional scheme of maintaining a harmoni- ous balance between the three organs of State. [See M. Gurumoorthy c v. Accountant General Assam & Nagaland & Ors., [1971] Suppl. SCR 420, 429].

In the present case, as stated earlier, no rules have been so far D 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 conse- q uently the disapproval of the Registrar General's proposals was not an exercise of power by the constitutional authority in terms of clause E (2) of Article 146. That this is the correct position is not seriously disputed by any party to the present proceedings. The Attorney ' Gene4:al does not dispute that rules have r.Jt 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 i dated 5.5.1989 has been filed by the Registrar General of this Court F ~ reading as follows:

"After obtaining instructions from the Hon'ble the Chief Justice, I hereby state that necessary amendments to fhe existing rules relating to the salaries _and allowances of the Supreme Court employees will be made in accordance with G Article 146 of the Constitution after considering the recom- mendations of the Fourth Pay Commission in respect of the 1 Supreme Court employees and all other relevant materials and that the said amendments to the Rules will be forwar- ded to the President of India for approval and after obtain- ing the approval of the President, in terms of the proviso to H

540 · SUPREME COURT REPORTS [1989] 3 S.C.R.

clause (2) of Article 146 of the Constitution, the same will be implemented." r · It is not and cannot be disputed that the Chief Justice oflndia, by yirtue 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 sub· ject to the conditions, prescribed by the Constitution. Like all statu- tory instruments, they are •ubordinate to the parent .law. 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 approval of the President that stamps such rules, so far as they relate C . to salaries, allowances, etc., with the authority' of subordinate legisla- tion. The making of the rules by the Chief Justice of India in that . respect is a ste~indeed a vital step-in the process of law making, but they assume the character of subordinate legislation only on their ''('· b( p appr~val tlie President .. ;me Attorney General strenuously contended that the power of. the President under the proviso to clause (2) of Article 146 to grant or refuse approval tantamounu 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 E Parliament, and consequently his actions in that regard are beyond ju<licial review. No court can, he says, sit in judgment 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. p···., ' · ·""·The power of the President under Article P 1 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 delegate. On the other hand, he acts as a to delegate when he acts under tlie proviso Article 146(2). This power G . is no doubt legislative in character, but subordinate in quality and efficacy. The Constitution envisages that the President is not 9nly a part of the legislature, but he is also the ultimate repository of the executive power of the Union (see Article 53( l). It is in the latter capacity that the President acts as a delegate. ln the exercise of this function, he does not assume the mantle of the legislature, but functions as the head of H the executive to whom the Constitution has delegated specific legisla-

SUPREMECOURTEMPLOYEESWELFAREASSN, v. U.O.I: (TI!O~IEN,J.I 541

tive ·power to· make subordinate legislation: This power· is limited by the terms, and subordinate to the objects, of delegation. On the advice A· of his Councirof Ministers, the President'grants or refoses approval of the rules made by· the ChiefJustice of fodia. Ii is indeed this power of approval; which the Constitution has under the proviso to clause (2) of Article 146 delegated to the Piesidennhat·can vitalise and 'activate the rules, 'so far·as they relate to ·salaries; allowances etc., as subordinate B' legislation. In the making of such instruments, both the Chief Justice and: the.· President' act· as delegates· by. virtue of the- constitutional conferment ·of'power: They must in· this regard ·necessarily act in good faith; reasonably, imra vires the power·granted; and on relevant.con· sideration of material facts: c The.fact that the· power·exercised oy the· Chief J iistice of Iirdi'a or• the: President under• Article 146(2) is· derived directly' from· the- Con" stitution, 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 s.trength of power derived directly by constitutional delega- tion is as much justiciable or reviewable upon the same grounds and to I)' the same extent ·as in the case of any statutory instrument: The funda-' mental q1,1estioff in ·determining whether the exercise of power by an· authority is subject' to judicial review is not whether the source of his· power is the constitution or a statute, but whether the subjecl'inatter. under· challenge is· susceptible to ju.dicial review. Pure questions· of .facts ·or· questions which' cannot'be. decided 'without recourse to· E': elaborate· evidence or matters ·which·are· generally' regarded as· nor justiciable....:.such as,. for example, those relating to the conduct ofttie· external. 'affairs· or the :defence of the :nation-are not"amenable · t<I judicial ·review> Seedn"this connection the principle e.nunciated"in• G.C.S:U. &·Ors: v: Ministerfor the·Civil Service; (1984} 3 'All'E.. R':' 935;948;950.> F'

Rules made under Article 146 being subordinate legislation do not partake of the character of ordinances which are legiSlation·in the· true sense forthe limited period of their operation, K; Nagamj &Ors. v; Stateof'.AcP: &Anr., (1985]1 SCC523;'548;A.K: Royv: Union of' India; [1982}'1SCC271,291andR.K:-.Gargv. Union of India, [1981}4 G · SCC 675,'687 .. While ordinances·cannoqierhaps be questioned on any. ground-which is· not.relevant to the validity of legislation; it is'no!So irl"

1.:r the .case of rules· made by.virtue of power granted under the Constitu- • tionc.which'are;' as· stated above,- liable to• be' declared void for· any of the reasondor whichinstrum~ts'made by virtue of dele'gation by Acts'· of. Parliament• can• bi:-·dedared. void.'. Rules; whether· made under tlie": H'

542 SUPREME COURT REPORTS [1989] 3 S.C.R.

A Constitution or a statute, must be intra vires the parent law. under which pov.:er 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 accomplishment of the objects for which power has been delegated to the.authority, courts will declare them to be unreasonable and, thereforeJ void. B There is indeed a higher degree of presumption of constitutiona- ~ lity in favour of subordinate legislation than in respect vf administra- tive orders. This.is especially the case where rules are made by virtue of constitutional conferment 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 ~ C 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 1aws: see K. Nagaraj v. State of A.P., (supra); Raj Kumar v. Union of India, [1975) 4 SCC 13, 14 and B.S. Vaderav. Union of India, [1968)3SCR574. D 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 consiaer what exactly was the area over which, and the purpose for which, power has J.... • E 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 predicated 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 in- volved such oppressiVe or gratuitous interference with the rights of those subject to them as could find no justification ')' 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.' " H

SUPREME COURT EMPLOYEES WELFAREASSN-:v. U.0.1. [THOMMEN,J.) 543

In Union of India & Anr. v. Cynamide1ndia Ltd. & Anr., [1987] A 2 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 con- cern ourselves neither with the policy nor with the rates. But we do not totally deny ourselves the jurisdiction to B enquire into the question, in appropriate proceedings, whether relevant considerations have gone in and irrelevant considerations kept out of the determination of the price." (emphasis supplied)

t In S.I. Syndicate Ltd. v. Union of India, AIR (1975) SC 460 this Court stated: c "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, stated:

·• ... But this does not mean that Government can fix any arbitrary"price or a price ftxed on extraneous considerations 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 inconsi;tent with the guidelines build in the sub-section and its being in contravention of Arts. 19( l)(f) and (g)." F (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 G or not it is in the nature of subordinate legislation, 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 H

544 'SUPREME COURT REPORTS [1989] 3 S.C.R.

the whim and caprice of an absolute monarch ... " A See also Maneka Gandhi v. Union of India, AIR 1978 SC 597 Ajay Hasia v. Khalid Mujtb, AIR (1981) SC 485 and D.S. Nakara v. Union of India, AiR 1983 SC.126.

'B An act is ultra vires either because the authority has acted in excess of its rower 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 unreasonableness: see the principle stated by Lord Greene M.R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corpora- tion, [1947] 2 All. E. R. 880, 885. Power is exercised in bad faith where 'c its r~pository 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 • irrelevant grounds, etc. As stated by Lord Magnaghten in Westminster Corporation v. London and North Western Railway, [1905] AC 426, ·o 430:

" It is well settled that a public body invested with statutory powers such as those conferred upon the Corpo- ration must.take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to 'E 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 Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295; 'F " .... 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 G those limits or is passed on grounds extraneous to the legis- lation 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 nothonestly form its opinion or that in form- H ing it, it did not apply its mind to the relevant facts.

SUPREMECOURTEMPLOYEES%LFAREASSN, v. U.0.1. [TIJOM~N,J,] 545.

The true position thus appears to be that, just as in the cas~ of, an. A administrative action, so also in the case of subordinate legislation ' (whether made directly under the Constitution or a Statute), its vali: dity 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 Russel in Kruse B_, 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; Car/- Iona Ltd. v. Commission~rs of Works and others, [1943] 2 All E.R. 560, 564; Point of Ayr. ,Collieries Ltd. v. Lloyd George, [1943] 2 All c E.R. 546; Scott v. Glasgow Corporation, [1899] AC 470, 492; Robert Baird L.D. and others v. City of Glasgow, [1936] AC 32, 42; Manhat- tan General Equipment 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 D. 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 su~h legislati~e efficacy. E and amplitl,lde that they cannot be questioned on grounds ordinarily sufficient to invalidate the generality of statutory inst~uments, they are nevertheless liable to be struck down if found to be intr.insically arbi- trary or based on an irrational classification or otherwise repugnant to constitutional principles. As stated by this Court in E.P. Royappa v. State of Tamil Nadu, (Supra): F

"Where an act is arbitrary, it is implicit in it, that it is un equal 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 viola- tive of Article 16. Articles 14 and 16 strike at arbitrariness CJ; in State action and ensure fairness and equality of treat- ment. They require that State action must be based o.n vali,~. relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevan,t considerations. because th.a\ wouw_ ~.~ d.enial 'i'f eqt_1al.i,t,Y,. Whi;re th.<; operative reason. fo,i; S,tat~ ac\i.w.i, a.s. <!i~\i.t;\: 1-1.

546 SUPREME COURT REPORTS [1989! 3 S.C.R.

A 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 ma/a fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from II 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 exer.cise of power contemplated under Article 146(2), including its proviso. These principles must, therefore, necessarily weigh with the c 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 inpugried subject matter to judicial review. That of course is a question which must in each case, when challenged, be decided by the court D with reference 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. Constituting the Committee of Judges and their suggestion to refer the question to the Pay Commis- E sion, the dedsion 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 con- taining 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 F submitting the same to the President. for· approval, and the final deci- sion of th<'; 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 G India, he alone is competent to make, or aut&onse 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 dissapproval by the President does not arise. in' n:iaklng the rules, the Chief Justice would no doubt take into account the recommendations of the Pay Commission,pr of any other body or experts he may have consulted. H He will also take 'into account the objections raised by the Government

SUPREMECOURTEMPLOYEESWELFAREASSN. v. U.0.I. [IBOMMEN,J.) 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 Govern- ment 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] l SCR 940, 945. But the President must, upon submission to him bf the Rules made by the Chief Justice of India under Article 146(2), exercise his mind as to whether or n()t he would c grant approval, and, without undue delay, come to a decision on the point: See Aeltemesh Rein, Advocate 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. D 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 .J. 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 E appropiate that, in view of the spirit of the constitutional provision, approval would be accorded in all but the exceptional cases: see the observations of this Court in State of Andh-ra 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 j..- Power Co. & Ors., [1988] 4 SCC 59, 104 is apposite: F , ''The exercise of power whether legislative or administra- tive 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 G 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." H

548 SUPREME COURT REPORTS [1989] 3 S.C.R.

A We place.on record the statementmade by the Registrar Ge;:c ·al that necessary amendments to the existing rules relating to the sai·.: :; · 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 B amendments to the Rules will be forwarded to the President of India for approval, .and, after .obtaining 1he 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 proP'~rly made ,c by way of amendments to the existing rules in accordance with Article 146 of ·1he Constitution, the interim orders of this Court dated 75,7,1986, 14.8.1986 and 15.1.1987 shall remain in full force and the status quo as on this day as regards ~ay and allowances shall .be maintained., Aecordingly, J agree that there shall be a direction as D stated by my learned brother in the final paragraph of his judgment.

Y. Lal. - Petitions Disposed of.