Holding

Mere forwarding of a representation by the Chief Justice does not satisfy the constitutional requirements of Article 229; fixation of pay scales must be effected by a rule of the Chief Justice (with Governor’s approval) or by an expert body, rendering the High Court’s mandamus ultra vires.

Summary

The Allahabad High Court staff—including Section Officers, Private Secretaries, Bench Secretaries and Assistant Registrars—filed writ petitions seeking higher pay scales on parity with their counterparts in the Delhi High Court. The Chief Justice of the Allahabad High Court merely forwarded their representation to the Uttar Pradesh Government recommending parity, and the High Court issued a writ of mandamus directing the State to fix the higher pay. On appeal, the Supreme Court held that such forwarding does not constitute the exercise of the constitutional power under Article 229, which requires the Chief Justice to frame rules (with the Governor’s approval) or rely on an expert body like a Pay Commission for pay fixation. Consequently, the High Court’s direction was ultra vires and the impugned judgments were set aside, though the Court left open the possibility for the Chief Justice to frame appropriate rules or constitute a committee for future consideration.

Issues considered

The High Court’s jurisdiction to issue a writ of mandamus directing the State to fix pay scales based solely on the Chief Justice’s forwarding of a representation.
Whether the exercise of power under Article 229 of the Constitution requires the Chief Justice to frame rules with Governor’s approval or to act on recommendations of an expert body.
Whether judicial review under Article 226 is available in matters concerning fixation of pay scales for High Court staff.

Legislation cited

Constitution of Indias. Article 226, s. Article 229

Subjects

Service lawPay scale fixationArticle 229Judicial reviewHigh Court staffWrit of mandamusPay CommissionArticle 226Constitutional jurisdictionParity

Judgment

A STA TE OF UTTAR PRADESH
v.
SECTION OFFICER BROTHERHOOD AND ANR.

SEPTEMBER 27, 2004

B [N. SANTOSH HEGDE AND S.B. SINHA, JJ.]

Service Law:

Constitution of India, 1950-Artic/e 229:
c Allahabad High Court Officers and Staff (Conditions of Service and
Conduct) Rules, 1976-Rule 40:

Higher Pay Scale-Demand-By employees of High Court in parity
with employees of another High Court-Representation-Forwarded by
D Chief Justice of High Court to State Government- No Rules framed or
decision by ChiefJustice ofHigh Court f1Xing terms and conditions ofservice
or f1Xing pay scale of employees in parity with employees of another High
Court-Writ Petition-Grant ofhigher pay scale by High Court-On appeal,
held: In the absence ofany rule or decision by ChiefJustice, High Court was
not justified to direct higher pay scale-Mere forwarding of representation
E would not amount to exercise of constitutional jurisdiction u!A 229.

Article 226-Judicial review-Scope of-Held: It lies where pu.blic law
element is involved-Question as to whether such element is involved is to
be determined in each case.
F
Respondents-Section Officers, Private Secretaries, Bench Secretaries
and Assistant Registrars working in the High Court of Allahabad made
representation to the Chief Justice of the High Court demanding higher
pay-scale on par with their counterparts in Delhi High Court. Chief
Justice forwarded the representation to the State Government with
G recommendations to consider the same on the ground of parity. They
filed Writ Petition seeking direction for higher pay scale on the ground
that the State Government had decided as a matter of policy to grant
central pay scales to the employees of High Court and it was within
power of Chief Justice of the High Court to determine the equivalence
H of the employees of High Court vis-a-vis employees of Central
744
STA TE v. SECTION OFFICER BROTHERHOOD 745

Government/Delhi High Court for determination of consequent pay scale A
applicable thereto. Case of the appellant-State was that staff and officers
of the Allahabad High Court were being paid salaries at par with their
counterparts in U.P. Secretariat as per order of the State Government
made in terms of recommendation of Chief Justice in view of the
resolution adopted in the Chief Justices' Conference in 1962; that in B
absence of any order for discontinuance or withdrawal of the said order
no relief could be granted to the writ petitioners; that neither any decision
had been taken to grant parity to the employees of the Allahabad High
Court with the employees of Delhi High Court, nor any Pay Commission
or Pay Committee or any Expert Body was constituted for ·the said
purpose; that in absence of any recommendation, High Court in exercise c
of its jurisdiction u/A 226 of the Constitution could not issue a writ of
mandamus.

High Court allowed the Writ Petition directing the State to fix
the salary of the petitioners in parity with their counterparts of Delhi D
High Court w.e.f. the date when the recommendations of the Chief Justice
of High Court were communicated·to State Government.

On appeal this Court granted stay of the operation of High Court
judgment and in respect of the other appeal granted interim stay of
payment of first instalment of arrears. E
Allowing the appeals, the Court

HELD: 1.1. Determination of different scales of pay for different
categories of employees would ordinarily fall within the realm of an
expert body like the Pay Commission or Pay Committee. In view of F
Article 229 of the Constitution of India, laying down the conditions of
service· applicable in the case of staff and officers of a High Court is
within the exclusive domain of the Chief Justice but in case of any
financial implication involved the approval of the State Governor is
imperative. [753-B]
G
State of HP. v. P.D. Attri and Ors., (1999] 3 SCC217 and State of
Maharashtrta v. Association of Court Stenos, P.A. P.S. and Anr., (2002] 2
sec 141, referred to.
1.2. In the present case, the Chief Justice merely forwarded the H
746 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

.A representation of the Respondents for grant of a higher scale of pay
with effect from 1.1.1986 directing the Registry to forward the same to
the State Government with recommendations to consider the same on
the ground of parity. Such forwarding of recommendations to the State
Government did not involve any application of mind on the part of the
Chief Justice as was required under Article 229 of the Constitution of
B
India. The Chief Justice on his own did not arrive at any decision that
the jobs performed by the concerned officers were comparable to their
counterparts in the Central Secretariat or Delhi High Court. No rule
was framed fixing the terms and conditions of service or the scale of pay
for different categories of the employees of the High Court. Only because
c in the forwarding letter, the State Government was asked to consider
the demand of the concerned officers favourably, the same by itself
would not mean that the requirements of Article 229 of the Constitution
stood complied with. Unless the Chief Justice of the High Court exercises
his constitutional power or acts on the basis of the recommendations of
a committee constituted by him for the purpose of fixation of scale of
D pay and laying down other conditions of service mere forwarding of a
representation to the State Government to consider the same favourably
without anything more would not amount to exercise of the constitutional
jurisdiction under Article 229 of the Constitution. (758-E-H; 759-A)

E 1.3. The impugned judgment are set aside. However, the present
order shall be subject to the Rules framed by the Chief Justice in the case
of the Private Secretaries of the High Court. It will be open to the Chief
Justice of Allahabad High Court to frame appropriate rules as has been
done in the case of the Private Secretaries or constitute an appropriate
committee for the said purpose. If such committee is constituted and any
F recommendation is made for enhancement of the scale of pay for the
concerned officers by the Chief Justice, the same would be considered by
the State Government in its proper perspective. [759-D-F)

State of H.P. v. P.D. Attri and Ors., (1999) 3 SCC 217 and State of
Maharashtra v. Association of Court Stenos P.A., P.S. and Anr., [2002) 2
G
sec 141, referred to.
2. Judicial review lies inter a/ia when public law element is involved
and the question as to whether public law remedy enforceable under
Article 226 of the Constitution of India is available or not is required to
H be determined in each case. (756-A]
STATE v. SECTION OFFICER BROTHERHOOD [SINHA, J.) 747

Union of India and Anr. v. S.B. Vohra and Ors., [2004) 2 SCC 150 A
and State of U.P. v. Johri Mal, AIR (2004) SC 3800, relied on.

Union of India v. Kishan K. Sharma and Ors., [2004) 2 SCC 173,
distinguished.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1980 of2000. B

From the Judgment and Order dated 22.11.99 of the Allahabad High
Court in C. Misc. W.P. No. 18979 of 1998.

WITH
c
C.A. Nos. 1260/2001, 1528-29/2004 and 2732 of 1999.

Ravi Prakash Mehrotra and Garvesh Kabra for the Appellant.

P.P. Rao and V. J. Francis for the Appellant in C.A. No. 1260/2001.
D
Tripurari Rai, Vishwajit Singh, Mrs. Virola Sinha, Abhishek Chaudhary,
Gaurav Bhatia, Gaurav Dhama, Adarsh Upadhyaya, Prashant Kumar and
Ashok K. Srivastava for the Respondents.

The Judgment of the Court was delivered by
E
S.B. SINHA, J. : These appeals arising out of the judgments and orders
dated 22.11.1999, 16.11.2000 (as corrected on 11.12.2000), 20.5.2003 and
29.7.1998 passed by the Allahabad High Court in Civil Misc. Writ Petition
Nos. 18979 of 1998, 970 of 2000, 30234 of 200 l and 17885 of 1996
respectively involving similar questions of law and fact were taken up for F
hearing together and are being disposed of by this common judgment.

FACTS:

The Respondents herein are Section Officers, Private Secretaries, Bench
Secretaries and Assistant Registrars working in the High Court of Judicature G
at Allah~bad. They filed several writ petitions praying inter alia for issuance
of a writ of or in the nature of mandamus inter alia directing the State of
Uttar Pradesh to fix higher scale of pay. Such scales of pay were claimed
purported to be on the basis of scales of pay paid to their counterparts i.e.
Section Officers, Private Secretaries, Bench Secretaries or Assistant Registrars H
748 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A of Delhi High Court. The Private Secretaries/PAs, Bench Secretaries filed
writ petitions bearing 1'j'o. WP No. 1408/93 and WP No. 26550/95 respectively
before the Allahabad High Court which were allowed by judgments and
orders dated 2 l.12.1993 and l.l l.l 996. The Special Leave Petitions filed
against the said judgments and orders were said to have been dismissed by
B orders dated 26.3.1996 and 7.7.1997. Both the aforementioned categories of
employees therafter had been getting the pay-scale of Rs. 3000-4500 with
effect from 1.l.1986.

It is not in dispute that the Chief Justice of the High Court of Allahabad
in exercise of his power conferred upon him by Article 229 of the
C Constitution of India made rules known as Allahabad High Court Officers
and Staff (Conditions of Service & Conduct) Rules, 1976. The Section
Officers, Bench Secretaries Grade I and Private Secretaries are holders of
Class II posts referable to Rule 16 of the said Rules. The posts of Deputy
Registrar is a Class I post and allegedly Class II officers are entitled to be
considered for promotion to Class I post.
D
. It is not in dispute that Rule 36 of the Rules provides that the scales
of pay admissible to various categories of posts in the establishment of the
High Court are to be determined by the Chief Justice from time to time with
the approval of the Government of Uttar Pradesh. Rule 40 while conferring
E power of superintendence and control on the Chief Justice provides that in
financial matters, the orders containing modifications or variations relating
to the salary etc. shall be made by the Chief Justice with the approval of the
Governor. However, sub-rule (3) of Rule 40 postulates that in case of any
doubt as regards equivalence of a post of an officer in the High Court vis-
a-vis posts in the State Government, the matter should be decided by the
F Chief Justice.

WRIT PROCEEDINGS:

Contention of the Writ Petitioners/Respondents:

G The contention of the Respondents in the said writ petition appears to
be that the State of Uttar Pradesh as a matter of policy adopted in the year
1988 decided to grant central pay scales to the employees of the High Court
and, therefore, the Chief Justice has the final say as regard equivalence of
the employees of the High Court vis-a-vis the employees of the Central
H Government and/or Delhi High Court for the purpose of determination of
STATE v. SECTION OFFICER BROTHERHOOD [SINHA, J.] 749

consequent scale of pay applicable thereto. A
The claim for higher scales of pay for Class II and Class I officers
indisputably was made in view of the decisions of Delhi High Court in A.K.
Gulati and Anr. v. Union of India and Ors., [1991] 44 DLT 590 and Shri
Madan Lal v. Registrar, Delhi High Court and Others, [1992] 46 DLT 133.
B
It was further contended that although the posts of Private Secretaries,
Court Masters and the Superintendents of Delhi High Court were found to
be of same status and the employees were inter-transferable, such
slight difference in the recruitment process of Allahabad High Court
would be of no relevance as all the three relevant posts in the High Court C
of Allahabad form a common feeder cadre for promotion to the post of Class
I.

Section Officers of the High Court in their writ petition prayed for
issuance of a writ of or in the nature of mandamus directing the Appellant
herein to fix their salary in the scale of pay of Rs. 3000-4500 with effect from D
1.1.1986; whereas Bench Secretaries and Private Secretaries in their writ
petitions prayed for fixation of their salary in the scale of pay of
Rs. 3000-4500 with effect from I. I .1996. The Assistant Registrars in
their writ petition prayed for issuance of a writ of or in the nature of
mandamus directing the Appellant herein to fix their salary in the pay scale E
of Rs. I 0650- I 5 850 being the next higher pay scale payable for Class I Post.

Contention of the Respondents in the Writ Petitions/Appellant herein:

The contention of the Appellant herein was that in view of the resolution
adopted in the Chief Justices' Conference held at Bombay in 1962 the staff F
of the I-ligh Court be equated with the corresponding staff of the State
Secretariat. The employees of the Allahabad High Court have been granted
scales of pay in parity with the corresponding employees/ officers of the U.P.
Secretaries in the matter of pay scales and allowances etc. on the
recommendations of the Chief Justice of the High Court made in exercise
of the powers conferred under Article 22(2) of the Constitution by a
G
government order dated 20th March, 1968.

In view of the resolution adopted in the Chief Justices' Conference in
the year I 962, the staff and officers of the Allahabad High Court were being
·""' paid the same salaries which were being paid to their counterparts working H
750 SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A in the U.P. Secretariat. However, as a higher pay scale was directed to be
paid by the High Court on its judicial side in writ petition No. 643 of 1983
(J.P. Upadhyay and Others v. State of U.P. and Others), the Private
Secretaries attached to the Judges of the High Court had bee_n granted the
same scale of pay which was being paid to their co_unterparts of the U.P.
Secretariat. Any claim for a higher scale ofpay;-according to the Appellants,
B
thus, would be contrary to the government order dated 20th March, 1968
which was made in terms of the recommendations of the Chief Justice of the
Allahabad High Court in exercise· of his power under Article 229 of the
Constitution. The Chief Justice of the High Court having -not made any
recommendation that there is no further need of continuance of the government
c order dated 20th March, 1968 nor any recommendation had been made for
withdrawal thereof, no reJtef can be granted to the writ petitioners. No
decision has been taken by the State Government to grant parity in the matter
of pay scales and other conditions of service to the employees of the High
Court with the employees of the Delhi High Court nor any such proposal had
ever been received by it from the Chief Justice of the Allahabad High Court.
D Furthermore, no Pay Commission or Pay Committee or any other expert body
was ever constituted for the said purpose. Even the High Court itself had not
examined various relevant aspects of the demand of the Respondents. In
absence of any recommendation of any Pay Commission or Pay Committee
or any other expert body, the High Court in exercise of its jurisdiction under
E Article 226 of the Constitution of India cannot issue a writ of mandamus.

The writ petitioners-Respondents cannot claim any parity as
regard conditions of service with the employees of Delhi High Court
who are enjoying the benefits of common seniority (Court Master,
Superintendent and Private Secretaries) under the rules framed by Delhi High
F Court under Article 229 of the Constitution of India in terms whereof the said
posts have been held to be equated or interchangeable which aspects are
absent in the case of the Respondents in terms of 1976 Service Rules. Even
the source ofrecruitment of the posts of Superintendent in Delhi High Court
was different inasmuch as the eligibility criteria laid down therefor are as
G under:

"(a) 26% of the vacant post by promotion on the basis of seniority-
cum-merit for joint seniority list of Assistant, Senior Translators, &
Proof Reader and Caretaker.

(b) 75% of the vacant post by selection on merit on the basis
..,_
H
STATE v. SECTION OFFICER BROTHERHOOD [SINHA, J.] 751

of written test & interview from the categories of Senior A
Assistant, Assistant, Senior Translator, Proof Reader, Junior Reader,
Personal Assistant to Registrar, Senior Stenographer and Caretaker";

Whereas in Allahabad High Court only permanent U.D.As can be
promoted as Section Officers and there is no provision for direct recruitment.
B
HIGH COURT JUDGMENT :

The High Court by its impugned judgment, however, issued a writ of
or in the nature of mandamus commanding the Appellant to fix the salary
of Section Officers of the Allahabad High Court in the same scale of pay as C
payable to the Superintendent of Delhi High Court with effect from 3rd June,
1994 when the recommendations of the Chief Justice of the Allahabad High
Court were allegedly communicated to the State Government. It, however,
directed:

"However, it is provided that the scale of pay of the Section Officers D
along with one half of the arrears (being the difference in the scale
of Section Officers of Allahabad High Court and Superintendent of
Delhi High Court, shall be paid on lst January, 2000 but the
remaining half of such arrears shall be deposited in the provident
fund account of the Section Officers on lst July, 2000."
E
It was observed:

"The State Government failed to delve into the matter by examining
itself, the nature of work, work load and area of functioning of the
Section Officers of this Court, which is more onerous, difficult and
responsible in comparison to the duties of the superintendent of the F
Delhi High Court inasmuch as the High Court at Allahabad is much
larger in comparison to Delhi High Court."

SUBMISSIONS :
,.....
Mr. P.P. Rao and Mr. Ravi Prakash Mehrotra, learned counsel appearing u
on behalf of the State ofUttar Pradesh would submit that the High Court had
no jurisdiction to issue a writ of or in the nature of mandamus directing the
State to pay such scales of pay to the Superintendents, Private Secretaries and
Assistant and Deputy Registrars which are payable to the counterparts of
Delhi High Court. H
752 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A The learned counsel would contend that the High Court at best could
<
have. directed the State to constitute a Pay Commission or Pay Committee
,

· or refer the matter to an expert body.

The learned counsel appearing on behalf of the Respondents supported
the judgment of the High Court.
B
ANALYSIS:

There cannot be any doubt or dispute whatsoever that detennination of
different scales of pay for different categories of employees would ordinarily
C fall within the realm of an expert body like the Pay Commission or Pay
Committee. The Chief Justice of a High Court exercises constitutional power
in tenns of Article 229 of the Constitution of India which reads as under:

"229. Officers and servants and the expenses of High Courts.-(1)
Appointments of officers and servants of a High Court
D shall be made by the Chief Justice of the Court or such other
Judge or officer of the Court as he may direct:

Provided that the Governor of the State may by rule require that in
such cases as may be SJ?ecified in the rule no person not already
attached to the Court shall be appointed to any office connected with
E the Court save after consultation with the State Public Service
Commission.

(2) Subject to the provisions of any law made by the Legislature of
the State, the conditions of service of officers and servants of a High
F Court shall be such as may be prescribed by rules made by the Chief
Justice of the Court or by some other Judge or officer of the Court
authorised by the Chief Justice to make rules for the purpose:

Provided that the rules made under this clause shall, so far as they
relate to salaries, allowances, leave or pensions, require the approval
G of the Governor of the State.

(3) The administrative expenses of a High Court, including all
salaries, allowances and pensions payable to or in respect of the
officers and servants of the Court, shall be charged upon the
H Consolidated Fund of the State, and any fees or other moneys taken
STATE v. SECTION OFFICER BROTHERHOOD [SINHA, J.] 753

by the Court shall fonn part of that Fund." A
Such a provision has evidently been made to uphold the independence
of the judiciary.

A bare perusal of the aforementioned provision would clearly go t.o
show that laying down the conditions of service applicable in the case of staff B
and officers of a High Court is within the exclusive domain of the Chief
Justice but in case of any financial implication involving therein the approval
of the State Governor is imperative.

In State ofHP. v. P.D. Attri and Others, (1999] 3 SCC 217, it is stated:
c
"5.The case of the respondents is not based on any constitutional
or any other legal provisions when they claim parity with the posts
similarly designated in the Punjab and Haryana High Court and their
pay scales from the same date. They do not allege any violation of
any constitutional provision or any other provision of law. They say D
it is so because of "accepted policy and common practice" which,
according to them, are undisputed. We do not think we can import
such vague principles while interpreting the provisions of law. India
is a union of States. Each State has its own individualistic way of
governance under the Constitution. One State is not bound to follow
the rules and regulations applicable to the employees of the other E
State or if it had adopted the same rules and regulations, it is not
bound to follow every change brought in the rules and regulations
in the other State"

In State ofMaharashtra v. Association of Court Stenos, P.A., P.S. and F
Another, [2002] 2 SCC 141, Pattanaik, J. (as the learned Chief Justice then
was) noticed this Court's earlier decision in Supreme Court Employees'
Welfare Asson. v. Union of India, [1989] 4 SCC 187 and stated the law in
the following tenns:

"On a plain reading of Article 229(2), it is apparent that the Chief G
Justice is the sole authority for fixing the salaries etc. of the
employees of the High Court, subject to the Rules made under the
said article. Needless to mention rules made by the Chief Justice will
be subject to the provisions of any law made by the legislature of
the State. In view of proviso to sub-article (i) of Article 229, any H
754 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A rule relating to the salaries, allowances, leave or pension
of the employees of the High Court would require the
approval of the governor, before the same can be enforced. The
approval of the governor, therefore, is a condition precedent to the
validity of the rules made by the Chief Justice and the so-called
approval of the Governor is not on his discretion, but being advised
B
by the Government. It would, therefore, be logical to hold that apart
from any power conferred by the rules framed under Article 229,
the Government cannot fix the salary or authorise any particular pay
scale of an employee of the ~igh Court. It is not the case of the
employees that the Chief Justice made any rules, providing a
c particular pay scale for the employees of the Court, in accordance
with the constitutional provisions and that has not been accepted by
the governor. In the aforesaid premises, it requires c.onsideration as
to whether the High Court in its discretionary jurisdiction under
Article 226 of the Constitution, can itself examine the nature of work
D discharged by its employees and issue a mandamus, directing a
particular pay scale to be given to such employees. In the judgment
under challenge, the Court appea~s to have applied the principle of
"equal pay for equal work" and on an evaluation of the nature of
duties discharged by the Court Stenographers, P~rsonal Assistants
and Personal Secr~taries, 'has issued the impugned directions. In
E Supreme Court Employees' Welfare Asson. v. Union of1ndia this
Court has considered the powers of the Chief Justice of India in
relation to the employees of the Supreme Court in the matter of
laying down the service conditions of the employees of the Court,
including the grant of pay .scale and observed that the Chief Justice
F of India should -frame rules after taking into consideration all
relevant factors including the recommendations of ·the Pay
Commission and submit the same to the President of India for his
approval. What has been stated in the aforesaid judgmr.nt in relation
to the Chief Justice of Indiii vis-a-vis the employees of the S~preme
Court, should equally apply to the Chief Justice of the High Court
G vis-a-vis the employees of the High Court. Needless to mention,
notwithstanding the constitutional provision that the rules framed by
the Chief Justice of a High Court, so far as they relate to salaries
and other emoluments are concerned, require the prior approval of
the Governor. It is always expected that when the Chief Justice of
H a High Court makes a rule, providing a particular pay scale for its
STATE v. SECTION OFFICER BROTHERHOOD [SINHA, J.] 755

employees, the same should be ordinarily approved by the Governor, A
unless there is any justifiable reason, not to approve the same. The
aforesaid assumption is on the basis that a high functionary like the
Chief Justice, before framing any rules in relation to the service
conditions of the employees of the Court and granting any pay scale
for them is expected to consider all relevant factors and fixation is
B
made, not on any arbitrary basis."

It was furthermore stated:

"The Court also expressed the view in the aforesaid case that the
Chief Justice of India is the appropriate authority to consider the
question as to the distinctive nature and personality of the employees
c
of the Supreme Court and before laying down the pay scales of the
employees, it may be necessary to ascertain the job contents of
various categories of employees and nature of duties which are
performed by them. Further, at the time of preparing the rules for
prescribing the conditions of service, including the fixation of the D
pay scales, the Chief Justice oflndia will consider the representations
and suggestions of the different categories of employees of the
Supreme Court, also keeping in view the financial liability of the
Government. In view of the aforesaid decision of this Court, it is
difficult for us to sustain the impugned judgment, whereunder the E
t:ligh Court in exercise of its jurisdiction under Article 226, has
issued the mandamus, directing a particular pay scale to be given
to the Court Stenographers, Personal Assistants and Personal
Secretaries attached to the Hon'ble Judges of the Court."

In the instant case, the Chief Justice did not frame any rules except in F
the case of Private Secretaries. Such rules have only been framed on or about
15th November, 2001. Thus, at the relevant time i.e. when the wri! petition
was filed and the impugned judgment was passed, there existed no such rule.

The jurisdiction of the High Court .to exercise its power of judicial
review is required to be examined in the aforementioned situation. G

For our purpose, it is not necessary to refer to a large number of
decisions on this question as the matter has been considered by a 3-Judge
Bench of this Court in Union ofIndia and Another v. S.B. Vohra and Others,
[2004] 2 SCC 150 wherein, one of us (S.B. Sinha, J.), speaking for the Bench H
756 SUPREME COURT REPORTS [2004J SUPP. 4 S.C.R.

A opined that judicial review lies inter alia when public law element is involved
and the question as to whether public law remedy enforceable under Article
226 of the Constitution of India is available or not is required to be
determined in each case. It was held:

"30. Judicial review is a highly complex and developing subject. It
B
has its roots long back and its scope and extent varies from case to
case. It is considered to be the basic feature of the Constitution. The
Court in exercise of its power of judicial review would jealously
guard the human rights, fundamental rights and the citizens' right
oflife and liberty as also many non-statutory powers of governmental
c bodies as regards their control over property and .assets of various
kinds which could be expended on building hospitals, roads and the
like, or overseas aid, or compensating victims of crime.

32. It is not possible to lay down the standard exhaustively
D as to in what situation a writ of mandamus will issue and in
what situation it will not. In other words, exercise of its
discretion by the Court will also depend upon the law which governs
the field, namely, whether it is a fundamental law or an ordinary law.

33. It is, however, trite that ordinarily the Court will not exercise
E the power of the statutory authorities. It will at the first instance
allow the statutory authorities to perform their own functions and
would not usher the said jurisdiction itself."

The Court noticed that fixation of scale of pay in favour of one· class
F of employees have a spiralling effect and in that view of the matter it is
important that the matter as regard fixation of scale of pay of officers working
in different High Courts must either by examined by an expert body like the
Pay Commission or any other body and in absence thereof the High Court
itself should undertake the task, keeping in view the special constitutional
provisions contained in Article 229 of the Constitution of India.
G
Having regard to the .high position and status enjoyed by the Chief
Justice, it was observed, his recommendations should ordinarily be approved
by the State and. refusal thereof must be for strong and adequate reasons.

H .It was opined:
STATE v. SECTION OFFICER BROTHERHOOD [SINHA, J.] 757
J
"52.The High Court, however, should not ordinarily issue a writ of A
or in the nature of mandamus and ought to refer the matter back to
the Central/ State Government with suitable directions pointing out
the irrelevant factors which are required to be excluded in taking the
decision and the relevant factors which are required to be considered
therefor. The statutory duties should be allowed to be performed by B
the statutory authorities at the first instance. In the event, however,
the Chief Justice of the High Court and the State are not ad idem,
the matter should be discussed and an effort should be made to arrive
at a consensus.

53. We are further of the opinion that only in exceptional cases the c
High Court may interfere on the judicial side, but ordinarily it would
not do so. Even if an occasion arises for the High Court to interfere
on its judicial side, the jurisdiction of the High Court should be
exercised with care and circumspection."

The scope of judicial review has also been considered recently by this D
Court State of UP. and Another v. Johri Mal, AIR (2004) SC 3800, wherein
it was opined:

"28. The Scope and extent of power of the judicial review of the
High Court contained in Article 226 of the Constitution of India E
would vary from case to case, the nature of the order, the relevant
statute as also the other relevant factors including the nature of
power exercised ·by the public authorities, namely, whether the

- power is statutory, quasi judicial or administrative. The power of
judicial review is not intended to assume a supervisory role or done
the robes of omnipresent. The power is not intended either to review F
governance under the rule of law nor do the courts step into the areas
exclusively reserved by the suprema lex to the other organs of the
State. Decisions and actions which do not have adjudicative
disposition may not strictly fall for consideration before a judicial
review court. The limited scope of judicial review succinctly put are: G
(i) Courts, while exercising the power of judicial review, do not
sit in appeal over the decisions of administrative bodies;

(ii) A petition for a judicial review would lie only on certain well-
defined grounds. H
758 SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A (iii) An <?rder passed by an administrative authority exercising
discretion vested in it, cannot be interfered in judicial review unless
it is shown that exercise of discretioµ itself is perverse or illegal.

(iv) A mere wrong decision without anythingmore is not enough
B to attract the power of judicial review; the supervisory jurisdiction
conferred on a Court is limited to seeing that Tribunal functions
within the limits of its authority and that its decisions do not
occasion miscarriage of justice.

(v) The Courts cannot be called upon to undertake the Government
c duties and functions. The Court shall not ordinarily interfere with
a policy decision of the State; Social and economic belief of a Judge
should Rot be invoked as a substitute for the judgment of the
legislative bodies. (See Ira Munn v. State of Ellinois, (1876] 94 US
Supreme Reports 113)"
D
The High Court in its impugned judgment, however, did not adequately
address itself to the said issue.

In this case, the Chief Justice merely .forwarded the representation of
the Respondents dated 15th March, 1994 for grant of a higher scale o( pay
E with effect from 1.1.1986 directing the Registry to forward the same to the
State Government with recommendations to consider the same on the ground
of parity. Such forwarding ofrecommendations to the State Government did
not involve ~ny application of mind on the part of the Chief Justice as was
required under Article 229 of the Constitution of India. The Chief Justice on
F his own did not arrive at any decision that the jobs perforined by the
concerned officers were comparable to their counterparts in the Central
Secretariat or Delhi High Court. No rule was framed fixing the terms and
conditions of service or the scale of pay for different categories of the
employees of the High Court. Only because in the forwarding letter, the State·
Government was asked to consider the demand of the concerned officers
G favourably, the .same by itself would not mean that the requirements of
Article 229 of the Constitution stood.complied with. Unless the Chief Justice
of the High Court exercises his constitutional power or acts on the basis ·of
the recommendations of a committee constituted by him for the purpose of
fixation of scale of pay and laying down other conditions of service; only
H forwarding of a representation to the State Government to consider the same
STATE v. SECTION OFFICER BROTHERHOOD [SINHA, J.] 759

favourably without anything more would not amount to exercise of the A
constitutional jurisdiction under Article 229 of the Constitution.

In this case, our attention has been drawn to a decision of this Court
in Union of India v. Kishan K. Sharma and Others, [2004] 2 SCC 173,
wherein this Court despite holding that the High Court was not correct in
issuing a writ of or in the nature of mandamus directing the Central
B
Government to pay a scale of Rs. 1640-2900 with effect from 1.1.1986 in
favour of the Respondents, did not interfere in the matter considering the
same to be old one and having regard to the fact that the direction of the High
Court hao already acted upon. Such is not the position here.
c
This Court granted stay of the operation of the judgment regarding
enhancement in Civil Appeal No. 1260 of 2001 and granted an ad interim
stay of the payment of first instalment of arrears which was going to fall on
1.1.2000 in Civil Appeal No. 1980 of 2000.

CONCLUSION : D

We, therefore, are of the opinion that the impugned judgments cannot
be.sustained which are set aside accordingly. However, this order shall be
subject to the rules framed by the Chief Justice in the case of the Private
Secretaries of the High Court. It will, however be open to the Chief Justice E
of the Allahabad High Court to frame appropriate rules as has been done in
the case of the Private Secretaries or constitute an appropriate committee for
the said purpose. We have no doubt in our mind that if such committee is
constituted and any recommendation is made for enhancement of the scale
of pay for the concerned officers by the Chief Justice, the same would be
considered by the State Government in its proper perspective and in the light F
of the observations made hereinbefore expeditiously.

For the reasons aforementioned, these appeals are allowed with the
aforementioned observations. No Costs.

K.K.T. Appeals allowed.
G