TRANSPORT & DOCK WORKERS UNION AND ORS.versusMUMBAI PORT TRUST AND. ANR.

               [2010] 14 (ADDL.) S.C.R. 873


  TRANSPORT & DOCK WORKERS UNION AND ORS.                        A
                              V.
             MUMBAI PORT TRUST AND. ANR.
              (Civil Appeal No. 9753 of 2010)
                   NOVEMBER 15, 2010 ·
                                                                 B
 [MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]

      Servi93 Law - Fixation of working/duty hours with ·
reference to date of appointment - Challenge to - Plea of ,
discrimination - Violation of Article 14 of the Constitution C
alleged - Typist-cum-Computer Clerks in Bombay Port trust
- Those appointed prior to 1-11-1996, working only for 6Y2 .
hours a day while those appointed after 1-11-1996 made to
work for 7Y2 hours a day - Such classification with reference ·
to date of appointment challenged - Held: Since the D
classification with reference to the date of appointment of ·
typist-cum-computer clerks was for the purpose of bringing
about uniformity in working hours of the personnel working in
indoor and outdoor establishments, and its aim was to make
the organization competitive and efficient, it cannot be said . E
that it was unreasonable and hence violative of Article 14 of
the Constitution - A/so, the employer-Port Trust wanted to
rationalize its activities by having uniform working hours for
its indoor and outdoor establishment employees, while at the
same time avoiding labour disputes with employees , F
appointed before 1-11-1996 - Avoidance of labour disputes
is a/so a reasonable basis for the classification - Constitution '
of India, 1950 - Article 14.

     Service Law - Fixation of working/duty hours by employer
- Interference by Court - Scope - Held: Fixing of hours of       G
work, provided they do not violate any statutory provision or
statutory rule, are really management functions -

    Court must exercise restraint and not ordinarily interfere
                            873                                  H
    874   SUPREME COURT REPORTS [2010] 14 (AIDDL.) S.C.R.


A   with such management functions - Judicial Review - Scope.

        Constitution of India, 1950 - Article 14 - Equality clause
    - Violation - Reasonable classification - Test to determine
    stated - Held: Differential treatment, per se, does not
    constitute violation of Article 14 - Article 14 is violated only
8
    when there is no reasonable basis for differentiation.

         Coastitution of India, 1950 - Article 226 - Writ jurisdiction
    under - Held: Is discretionary jurisdiction - The discretion
    should not ordinarily be exercised if an alternative remedy is
C   available.

         Appellant no.1 is a registered Trade Union, which
    represents the employees of respondent no.1- Mumbai
    Port Trust, a body corporate constituted under Section 3
0   of the Major Port Trusts Act. The appellant nos.2 and 3
    are working as Typist-cum-Computer Clerks with
    respondent no.1 and were appointed to that post after
    1.11.1996.

      The appellants filed a writ petition in the High Court
E complaining of violation of Article 14 of the Constitution
  on the ground that while Typist-cum-Computer Clerks
  appointed in the Mumbai Port Trust prior to 1.11.1996
  worked for six and half hours a day, Typist-cum-Computer
  Clerks (like the appellants) who had been appointed after
F 1.11.1996 were made to work for seven and half hours
  (excluding lunch break). This, it was alleged, was
  discriminatory and violated Article 14 of Constitution. The
  appellants also claimed that this practice was contrary to
  Clause 24 of the settlement dated 6th December, 1994
G reached between the employees Union and the
  respondent Port, and also violated Section 9A of the
  Industrial Disputes Act. They prayed that either their duty
  hours be reduced by one hour, or else they be given
  overtime allowance for one hour. The instant appeal is
H
TRANSPORT & DOCK WORKERS UNION AND ORS. 875
          v. MUMBAI PORT TRUST
 filed against the judgment passed by the High Court in        A
 the writ petition.

     The question which arose for consideration in the
 instant appeal was whether the action of the respondent
 no.1 in prescribing different working hours for typist-
                                                               8
 cum-computer clerks working in their establishment with
 reference to their date of appointment is contrary to the
 guarantee contained in .Article 14 of the Constitution.

     Dismissing the appeal, the Court
                                                               c
      HELD:1. The writ petition filed by the appellants
 should have been dismissed by the High Court on the
 ground of existence of an alternat_iye remedy under the
 Industrial Disputes Act. It is well settled that writ
 jurisdiction is discretionary jurisdiction, and the           D
 discretion should not ordinarily be exercised if there is
 an alternative remedy available to the appellant. In the
 instant case , there was a clear alternative remedy
 available to the appellant by raising an industrial dispute
 and hence one fails to understand why the High Court          E
 entertained the writ petition. [Para 14] [886-D-E]

        2. The reason that has been given by the respondent-
  Port for adopting the practice of prescribing different
1 working hours for Typist-cum-Computer Clerks recruited
  after 1.11.1996 is the change in the situation, change in    F
  technology, the desire to bring in uniformity in working
  hours of the personnel working on indoor establishment
  and out door establishment. The respondent-Port
  contended that it had considered the option of increasing
  the duty hours of the existing personnel working at that     G
  time on the indoor establishment. However, it thought that
  effecting change in that regard may involve the Port in
  litigation and introduction of the change may get delayed.
  Therefore, the Port decided to change the duty hours of
  the personnel recruited on indoor establishment after        H
    876   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A 1.11.1996 without disturbing the duty hours of the
  personnel working at that time on the indoor
  establishment, after giving the personnel, to be newly
  recruited, a clear understanding that in case they accept
  the offer of appointment, they will have to work for eight
B hours and it is only on their acceptance of this term that
  they were given the appointment. Thus, for the
  achievement of the object i.e. bringing in uniformity in the
  duty hours of the personnel working on the indoor
  establishment and out door establishment, the
c respondent-Port classified persons working on the
  indoor establishment for the purpose of duty hours into
  two classes, the basis for classification being the date of
  their appointment, and the object being to become
  competitive in business and efficient. [Para 19] [888-H;
D 889-A-E]
       3.1. Article 14 of the Constitution does not take away
  from the State or its instrumentality the power of
  classification, which to some· degree is bound to produce
  some inequality. Mere inequality is not enough to violate
E Article 14. Differential treatment, per se, does not
  constitute violation of Article 14. It denies equal protection
  only when there is no reasonable basis for differentiation.
  If the law or the practice deals equally with members of
  a well defined class, it is not obnoxious and it is not open
F to the charge of denial of equal protection on the ground
  that it has no application to other persons. [Para 20] [889-
  F-H; 890-A]

      3.2. Article 14 does not prohibit reasonable
G classification for the purpose of legislation or for the
  purposes of adoption of a policy of the legislature or the
  executive, provided the policy takes care to reasonably
  classify persons for achieving the purpose of the policy
  and it deals equally with all persons belonging to a well
  defined class. It is not open to the charge of denial of
H
TRANSPORT & DOCK WORKERS UNION AND ORS. 877
          v. MUMBAI PORT TRUST
equal protection on the ground that the new policy does          A
not apply to other persons. In order, however, to pass the
test of permissible classification, as has been laid down
by the Supreme Court in the catena of its decisions, two
conditions must be fulfilled; (1) that the classification
must be founded on an intelligible differentia which             B
distinguishes persons or things that are grouped together
from others left out of the group and (2) that the differentia
must have a rational relation to the object sought to be
achieved by the statute in question. Thus the
classification would not violate the equality provision          c
contained in Article 14 of the Constitution if it has a
rational or reasonable basis. [Paras 21 and 22] [890-B-E]

    State of Bombay v. Balsara AIR 1951 SC 318;
Ameerunnissa_Begum v. Mahaboob Begum AIR 1953 SC
91; Babula/ Amthalal Mehta v. Collector of Customs AIR           D
1957 SC 877; Gopi Chand vs. Delhi Administration AIR 1959
SC 609 - relied on.

    Basu's Shorter Constitution of India, 14th edition
2009 page 81 - referred to.                                      E

     4. Certain classifications have been held by this
Court to be reasonable while other classifications have
been held to be unreasonable. But what is reasonable
and what is unreasonable does not appear to have been
                                                                 F
discussed in depth by any decisions of this Court, and
no tests have been laid down in this connection. All that
has been said is that it is not prudent or pragmatic to
insist on a mathematically accurate classification
covering diverse situations and all possible
contingencies in view of the inherent complexities               G
involved in society. While it is true that a mathematically
accurate classification cannot be done in this connection,
there should be some broad guidelines. There may be
several tests to decide whether a classificati'on or
differentiation is reasonable or not. One test which this        H
                                                              'l

    878   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   Court is laying down and which will be useful in deciding
    this case, is : is it conducive to the functioning of modern
    society? If it is, then it is certainly reasonable and rational.
    [Paras 26, 27 and 28] [891-B-F]

B       State of Karnataka v. Manga/ore University Non
    Teaching Employees Association (2002) 3 SCC 302;
    Ombalika Das v. Hulisa Shaw (2002) 4 SCC 539 - referred
    to.

       5.1. In the instant case, the purpose of the
C classification was to make the activities of the Port
  competitive and efficient. With the introduction of
  privatization and setting up private Ports, the respondent
  had to face competition. Also, it wanted to rationalize its
  activities by having uniform working hours for its indoor
D and outdoor establishment employees, while at the same
  time avoiding labour disputes with employees appointed
  before 01.11.1996. In the modern world, businesses have
  to face competition with other businesses. To do so, they
  may have to have longer working hours and introduce
E efficiency, while avoiding labour disputes. Looked at from
  this point of view, the classification in question is clearly
  reasonable as it satisfies the test laid down above. [Paras
  29, 30 and 31] (891-F-H; 892-A-B]

       5.2. The object of the new policy adopted by the
F
  respondent-Port was to bring about uniformity in the
  working hours of the personnel working on the indoor
  and outdoor establishment. For achieving that purpose,
  the Port took a policy decision to lay down a condition
  in the appointment orders of the personnel recruited on
G indoor establishment after 1.11.1996 that they will have
  to work for eight hours. For the purpose of classification
  the date 1.11.1996 was chosen, because different duty
  hours were to be made applicable from the one which
  were applicable to the existing personnel working on the
H
TRANSPORT & DOCK WORKERS UNION AND ORS. 879
          v. MUMBAI PORT TRUST
indoor establishment in relation to the persons to be          A
employed after that date. The purpose of this was to
make the organization competitive and efficient. (Para 33]
(892-D-F]
     5.3. For the purpose of bringing about uniformity in 8
the working hours of the personnel working on the
indoor establishment, two options were available to the
Port; (i) either to take steps to bring about change in the
working hours of the personnel presently working on the
establishment and then apply that change to the C
personnel who are recruited in future, or (ii) to apply the
changed practice in case of new recruits after obtaining
their consent for adoption of the new practice and thus
introduce the change gradually because personnel
recruited before 1.11.1996 were bound to retire sooner or
later with their retirement, and a day would come when D
in the indoor establishment the only personnel working
will be those who have been recruited after 1.11.1996.
(Para 34] (892-G-H; 893-A]

     5.4. Of these two options, the Port appears to have       E
chosen the second option because in the opinion of the
Port it would be relatively hassle free. It was submitted
by the Port that it apprehended that if it had decided to
take the first option, it would have been involved in labour
disputes and that litigation would have prevented the Port     F
from introducing the change. There is nothing
unreasonable in the stand of the Port. The decision of the
Port was bona fide, and hence no fault can be found with
the said decision and it cannot be said that it violates
Article 14 of the Constitution. [Paras 35, 36] (893-B-D]       G
    5.5. The policy decision of the Port cannot be said to
cause any prejudice to the interest of the personnel
recruited after 1.11.1996 because before their recruitment
they were clearly given to understand as to what would
be their working hours, in case they accept the                H
    880   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   appointment. The introduction of the new policy was a
    bona fide decision of the Port, and the acceptance of the
    conditions with open eyes by the appellants and the
    recruits after 1.11.1996 means that they can now have no
    grievance. It is well settled that Courts should not
B   ordinarily interfere with policy decisions. [Para 37] [893-
    E-F]

      6. Since the classification with reference to the date
  of appointment of typist-cum-computer clerks was for the
C purpose of bringing about uniformity in working hours
  of the personnel working in indoor and outdoor
  establishments, and its aim was to make the organization
  competitive and efficient, it cannot be said that it was
  unreasonable and hence violative of Article 14 of the
  Constitution. Also, avoidance of labour disputes is a
D reasonable basis for the classification. [Para 38] [893-G-
  H]

        7. Article 14 cannot be interpreted in a doctrinaire or
    dogmatic manner. Absolute and inflexible concepts are
E   an anathema to progress and change. Those who
    entered service after 1.11.1996 knew that they have to
    work for seven and half hours excluding lunch break and
    with open eyes they accepted the employment. Hence
    there is no question of violation of Article 14 of the
F   Constitution. Fixing of hours of work, provided they do
    not violate any statutory provision or statutory rule, are
    really management functions and this Court must
    exercise restraint and not ordinarily interfere with such
    management functions. [Paras 39, 40, 41] [894-A-D-E]
G       Divisional Manager, Aravali Golf Club v. Chander Hass
    (2008) 1 SCC 683; Government of Andhra Pradesh v. P.
    Laxmi Devi (2008) 4 SCC 720 - referred to.

        Missourie, Kansas and Tennesee Railroad v. May 194
H   U.S. 267(1904) - referred to.
TRANSPORT & DOCK WORKERS UNION AND ORS. 881
          v. MUMBAI PORT TRUST
     8. Differential treatment does not per se amount to A
violation of Article 14 of the Constitution. It violates Article
14 only when there is no conceivable reasonable basis
for the differentiation. In the present case, there is a
reasonable basis and hence there is no violation of Article
14 of the Constitution. It is not prudent,or, pragmatic for B
the Court to insist on absolute equality when there are
diverse situations and contingencies, as in the present
case. In view of the inherent complexities involved in
modern society, some free play must be given to the
executive authorities in this connection. The Judges c
must maintain judicial self restraint while exercising the
powers of judicial review of administrative or legislative
decisions. In administrative matters the Court should,
therefore, ordinarily defer to the judgment of the
administrators unless the decision is clearly violative of D
some statute or is shockingly arbitrary. [Paras 42, 43, 47
and 51) [894-F-H; 895-A; 897-8; 898-E]

    Government of Andhra Pradesh and Ors. v. N.
Subbarayudu and Ors. 2008(14) SCC 702 and Keshavanand
Bharti v. State of Kera/a AIR 1973 SC 1461 .;.. referred to.   E

     9. In the present case, there was a reasonable basis
for the classification, and hence there was no violation
of Article 14 of the Constitution. [Para 56] [899-G)

     'Law and Ethics' by Lord MacMillan, 49 Scot. L. Rev.61,
                                                               F
69 (1933) - referred to.
                           Case Law Reference:
    AIR 1951 SC 318                 relied on      Para 20
                                                               G
    AIR 1953 SC 91                 relied on       Para 20
    AIR 1957 SC 877                relied on       Para 20
    AIR 1959 SC, 6.09               relied on      Para 21
                 ;t>!i•.:'.'";l                                H
    882    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A         (2002) 3 sec 302            referred to           Para 26
          (2002) 4 sec 539            referred to           Para 26
          194 U.S. 267(1904)          referred to           Para 39

B         (2008) 1 sec 683            referred to           Para 39
          (2008) 4 sec 120            referred to           Para 39
          2008(14) sec 102            referred to           Para 44
          AIR 1973 SC 1461            referred to           Para 55
c
        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    9753 of 2010.

        From the Judgment & Order dated 09.10.2009 of the High
D   Court of Judicature at Bombay in Writ Petition No. 3059 of
    1999.

          T.R. Andhyarujina, Susheel Mahadeshwar, Uday B. Dube
    for the Appellants.

E        R.N. Trivedi, Buddy Ranganadhan (for A.V. Rangam) for
    the Respondents.

          The Judgment of the Court was delivered by

          MARKANDEY KATJU, J. 1. Leave granted.
F
          2.Article 14 of the Constitution (the equality provision) is
    a slippery slope, and a fine balancing act must be done by the
    Court to avoid slipping down the slope.

         3. As observed by Lord MacMillan in 'Law and Ethics' 49
G   Scot. L. Rev.G1, 69 (1933) :

               "The judiciary is constantly confronted with the
          necessity of making a choice between a legal principle
          which is sought to be applied in a particular case, and the
H         choice which it makes in the particular instance resulting
TRANSPORT & DOCK WORKERS UNION AND ORS. 883
 v. MUMBAI PORT TRUST [MARKANDEY KAT JU, J.]
     inevitably in the expansion or restriction of the principle      A
     applied or rejected."

     4. The judicial process is thus not a bucket of readymade
answers, but a process, or technique, for easing an endless
flux of changing social tensions. This is illustrated in this case.
                                                                      B
    5. Heard learned counsel for the parties and perused the
record.

    6. This Special Leave Petition has been filed against the
impugned judgment of the Bombay High Court dated 9th                  C
October, 2009 passed in Writ Petition No.3059 of 1999.

     7. The appellants had filed a writ petition in the High Court
complaining of violation of Article 14 of the Constitution on the
ground that those Typist-cum-Computer Clerks who had been
appointed in the Mumbai Port Trust prior to 1.11.1996 have to         D
work for six and half hours a day, whereas Typist-cum-
Computer Clerks (like the appellants) who have been appointed
after 1.11.1996 have to work for seven and half hours (excluding
lunch break). This, it was alleged, violates Article 14 of
Constitution.                                                         E

      8. The appellant no.1 is a registered Trade Union, which
represents the employees of the respondent no.1 - Mumbai
Port Trust, a body corporate constituted under Section 3 of the
Major Port Trusts Act. The appellant nos.2 and 3 are working
as Typist-cum-Computer Clerks with the respondent no.1 and
                                                                      F
were appointed to that post after 1.11.1996. The case of the
appellants, in short, is that as regards the employees who were
recruited as Typist-cum-Computer Clerks before 1.11.1996,
their duty hours are six and half hours per day, whereas for the
personnel who were recruited as Typist-cum-Computer Clerks            G
after 1.11.1996 they are seven and half hours. According to the
appellants, this is discriminatory and violates Article 14 of the
Constitution. The appellants also claim that this practice is
contrary to Clause 24 of the settlement dated 6th December,
1994 reached between the employees Union and the                      H
    884   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.

A   respondent Port, and also violates Section 9A of the ·Industrial
    Disputes Act. The appellants prayed that either their duty hours
    be reduced by one hour, or else they be given overtime
    allowance for one hour.
         9. The reply of the respondent-Port is that the duty hours
8
    of the Typist-cum-Computer Clerks recruited before 1.11.1996
    is seven hours per day, which includes half an hour lunch break,
    while the duty hours for the Typist-cum-Computer Clerks
    recruited after 1.11.1996 it is eight hours per day with half an
    hour lunch break. Thus, according to the respondent no.1, the
C   difference in the duty hours of the personnel recruited before
    1.11.1996 and after 1.11.1996 is one hour. According to the
    respondent no.1, though there is no settlement reached in this
    behalf, as a matter of practice and usage the duty hours of the
    personnel in indoor establishment was six and half hours.
D   However, due to change in the technology and with introduction
    of privatization and setting up private Ports with whom the
    respondent-Port has to compete, the respondent-Port decided-
    as a policy to have uniform working hours for the personnel
    working on the indoor establishment and the out door
E   establishment. It is claimed that from the beginning so far as
    personnel working on out door establishment are concerned,
    their duty hours were seven and a half hours and therefore, to
    bring about uniformity in the duty hours of the personnel working
    on the indoor establishment and out door establishment, a
F   policy decision was taken to change the duty hours of personnel
    working in the indoor establishment. However, in order to avoid
    any litigation it was decided that the working hours of the
    personnel who were in the indoor establishment, will not be
    disturbed. While making new recruitment of-p_ersonnel in the
G   indoor establishment, it was made clear that theY'wltl have to
    work for eight hours, and it is only on acceptance of that
    condition by them that they were given employment. According
    to the respondent no.1, this condition was accepted by the
    personnel who were appointed on indcor establishment after
H   1.11.1996.
 TRANSPORT & DOCK WORKERS UNION AND ORS. 885
  v. MUMBAI PORT TRUST [MARKANDEY KAT JU. J.]

        10. According to the respondent no.1, since the newly           A
  recruited personnel on the indoor establishment appointed after
  1.11.1996 had agreed to eight hours as their duty hours, with
 the retirement of personnel who were recruited before
  1.11.1996 in the indoor establishment, working hours of the
  personnel working in the indoor establishment would uniformly         B
  be eight hours, and thus the uniformity in the working hours of
  the personnelworking on the indoor and outdoor establishments
  will be brought about. It was submitted by the respondent no.1
  that by adopting such practice the respondent no.1 has not
  violated Article 14 of the Constitution. It was also claimed that     c
  the reliance placed by the appellants on Clause 24 of the
. settlement dated 6th December, 1994 is misplaced because
  by that settlement no provision was made in relation to the duty
  hours. What was done by Clause 24 was that none of the
  clauses contained in that settlement were to be taken to have         D
  modified or cancelled any award, practice or usage, which was
  in existence. It was, therefore, submitted that the policy decision
  of the respondent-Port cannot be said to be contrary to Clause
  24 of that settlement.

     11. In so far as the provision of Section 9A of the Industrial     E
Disputes Act is concerned, it was submitted that since by the
policy decision no change in relation to the personnel who were
working was intended to be brought about, there was no
question of giving any notice of change.
                                                                        F
     12. The learned counsel appearing for the appellants relied
on the judgment of the Supreme Court in the case of People's ,
Union for Democratic Rights and Ors. vs. Union of India and
Ors. AIR 1982 SC 1473 to contend that a writ petition by
workers, when they claim any violation of fundamental right, is ,G
maintainable. The learned counsel also relied on the judgment
of the Supreme Court in the case of Moti Ram vs. N.E.
Frontier Railway Al R 1964 SC 600 to claim that the
respondent-Port could not have framed a policy which violates
the guarantee of Article 14 of the Constitution. The learned
                                                                 H
    886    SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.


A   counsel appearing for the appellants further relied on the
    judgment of the Supreme Court in the case of Olga Tellis and
    Ors. vs. Bombay Municipal Corporation and Ors. AIR 1986
    SC 180 to contend that even if an undertaking is given, that
    undertaking does not stop the person who has given the
B   undertaking from asserting his fundamental right.

         13. The learned counsel for the respondents on the other
    hand relied on the judgments of the Supreme Court, in the case
    of Ravi Paul and Ors. vs. Union of India and Ors. 1995 (3) SCC
C   300, and MP. State Textile Corporation Ltd. vs. Mahendra and
    Ors. 2005(10) sec 675, and submitted that in one
    establishment there can be employees having separate duty
    hours.

         14. In our opinion the writ petition filed by the appellants
D   should have been dismissed by the High Court on the ground
    of existence of an alternative remedy under the Industrial
    Disputes Act. It is well settled that writ jurisdiction is
    discretionary jurisdiction, and the discretion should not ordinarily
    be exercised if there is an alternative remedy available to the
E   appellant. In this case there was a clear alternative remedy
    available to the appellant by raising an industrial dispute and
    hence we fail to understand why the High Court entertained the
    writ petition. It seems to us that some High Courts by adopting
    an over liberal approach are unnecessarily adding to their load
F   of arrears instead of observing judicial discipline in following
    settled legal principles. However, we may also consider the
    case on merits.

          15. From the record the following facts emerge :

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

          (ii) The respondent-Port as a matter of policy decided to
H
TRANSPORT & DOCK WORKERS UNION AND ORS. 887
 v. MUMBAI PORT TRUST [MARKANDEY KAT JU, J.]
    include a condition in the offer of appointment that was         A
    given to the personnel who were selected for being
    appointed as a typist-cum-computer clerk after1 .11.1996
    that they will have to work in shift of eight hours duration;

    (iii) They were to give their acceptance of this term, and it
                                                                     8
    was only on their acceptance of the term that they were
    given appointment;

    (iv) It is an admitted position that so far as the personnel
    working on out door establishment of the respondent no.1
    are concerned their duty hours were identical to the typist-     C
    cum-computer clerk appointed after 1.11.1996;

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

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

      16. In the light of these admitted facts, the question to be
considered is whether the action of the respondent no.1 in
prescribing different working hours for typist-cum-computer          F
clerks working in theii indoor establishment with reference to
their date of appointment is contrary to the guarantee contained
in Article 14 of the Constitution. The reason that has been given
by the respondent-Port for prescribing different working hours
for typist-cum-computer clerks with reference to their date of       G
appointment as found in paragraph 9 of the counter affidavit
filed on behalf of the respondent in the writ petition in the High
Court is as follows :

          "At many points the typist-cum-computer clerks had
    to work in shift timings of the docks and other operational      H
    888    SUPREME COURT REPORTS (2010] 14 (ADDL.) S.C.R.

A         departments for eight hours. Thus in subsequent
          appointments a provision for working in shift timing as
          required by the management was included. The
          management also considered that with computerization
          under the MIS project and operation of the Container Traffic
B         Control System and the Cargo Management and
          Information System, persons to be recruited in the category
          of Typist-cum-Computer Clerks had to work full time on
          operation of computers in consonance with the operation
          working."
c        17. In paragraph 10 of their Affidavit the respondents
    stated:

                "10. That the general objective in changing the
          timings of the newly recruited Typist-cum-Computer Clerks
D         was to have persons working in timings in tune with the
          dock working, to do away with the distinction between
          indoor and outdoor and to bring about uniformity in the
          working hours in various fields and administrative posts in
          the organization and thus promote operational efficiency."
E                                                                    1
         18. In paragraph 5 of their Affidavit, the respondent rn
    has further stated :

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

       19. Thus, the reason that has been given by the
  respondent-Port for adopting the practice of prescribing
H different working hours for Typist-cum-Computer Clerks
TRANSPORT & DOCK WORKERS UNION AND ORS. 889
 v. MUMBAI PORT TRUST [MARKANDEY KAT JU, J.]

recruited after 1.11.1996 is the change in the situation, change      A
in technology, the desire to bring in uniformity in working hours
of the personnel working on indoor establishment and out door
establishment. It was submitted before us that the Port
considered the option of increasing the duty hours of the
existing personnel working at that time on the indoor                 8
establishment. However, it was thought that effecting change
in that regard may involve the Port in litigation and introduction
of the change may get delayed. Therefore,"it was decided by
the Port to change the duty hours of the personnel recruited on
indoor establishment after 1.11.1996 without disturbing the duty      0
hours of the personnel working at that time on the indoor
establishment, after giving the personnel, to be newly recruited,
a clear understanding that in case they accept the offer of
appointment, they will have to work for eight hours and it is only
on their acceptance of this term that they were given the             D
appointment. Thus, for the achievement of the object i.e.
bringing in uniformity in the duty hours of the personnel working
on the indoor establishment and out door establishment, the
respondent-Port classified persons working on the indoor
establishment for the purpose of duty hours into two classes,
the basis for classification being the date of their appointment,     E
and the object being to become competitive in business and
efficient.

      20. In our opinion Article 14 of the Constitution does not
take away from the State or its instrumentality the power of          F
classification, which to some degree is bound to produce some
inequality vide State of Bombay vs. Balsara AIR 1951 SC 318.
However, in our opinion, mere inequality is not enough to violate
Article 14. Differential treatment, per se, does not constitute
violation of Article 14. It denies equal protection only when there   G ·
is no reasonable basis for differentiation vide Ameerunnissa
Begum vs. Mahaboob Begum AIR 1953 SC 91 (para 11),
Babula/ Amthalal Mehta vs. Collector of Customs AIR 1957
SC 877 (para 16) etc .. If the law or the practice deals equally
with members of a well defined class, it is not obr:ioxious and       H
    890   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   it is not open to the charge of denial of equal protection on the
    ground that it has no application to other persons.

       21. It has been repeatedly held by this Court that Article
  14 does not prohibit reasonable classification for the purpose
B of legislation or for the purposes of adoption of a policy of the
  legislature or the executive, provided the policy takes care to
  reasonably classify persons for achieving the purpose of the
  policy and it deals equally with all persons belonging to a well
  defined class. It is not open to the charge of denial of equal
  protection on the ground that the new policy does not apply to
C other persons. In order, however, to pass the test of permissible
  classification, as has been laid down by the Supreme Court in
  the catena of its decisions, two conditions must be fulfilled; (1)
  that the classification must be founded on an intelligible
  differentia which distinguishes persons or things that are
D grouped together from others left out of the group and (2) that
  the differentia must i1ave a rational relation to the object ought
  to be achieved by the statute in question, vide Gopi Chand vs.
  Delhi Administration AIR 1959 SC 609 (see also Basu's
  'Shorter Constitution of India, fourteenth edition 2009 page 81 ).
E
         22. Thus the classification would not violate the equality
    provision contained in Article 14 of the Constitution if it has a
    rational or reasonable basis.

         23. However, the question remains: what is 'rational' or
F
    'reasonable'? These are vague words. What may be regarded
    as rational or reasonable by one Judge may not be so
    regarded by another. This could lead to chaos in the law.

       24. Should this vagueness or uncertainty be allowed to
G remain so that Judges may ha·.te total freedom or discretion?
  We think not. The law should be, as far as possible, clear and
  certain so that people know where they stand and conduct their
  affairs accordingly. Also, if total freedom is given to Judges to
  decide according to their own individual notions and fancies
H the law will run riot.
TRANSPORT & DOCK WORKERS UNION AND ORS. 891
 v. MUMBAI PORT TRUST [MARKANDEY KAT JU, J.]
      25. Hence in our opinion an attempt should be made to            A
clarify the meaning of the words 'reasonable' or 'rational'.

      26. Numerous decisions of this Court on Articles 14 and
19 of the Constitution have no doubt held certain classifications
to be reasonable while other classifications have been held to         8
be unreasonable. But what is reasonable and what is
unreasonable does not appear to have been discussed in depth
by any decisions of this Court, and no tests have been laid down
in this connection. All that has been said is that it is not prudent
or pragmatic to insist on a mathematically accurate                    C
classification covering diverse situations and all possible
contingencies in view of the inherent complexities involved in
society, vide State of Karnataka vs. Mangalore University Non
Teaching Employees Association (2002) 3 SCC 302 (para
10), Ombalika Oas vs. Hulisa Shaw (2002) 4 SCC 539 (para
11) etc.                                                               D

    27. In our opinion while it is true that a mathematically
accurate classification cannot be done in this connection, there
should be some broad guidelines.
                                                                       E
     28. There may be several tests to decide whether a
classification or differentiation is reasonable or not. One test
which we are laying down and which will be useful in deciding
this case, is : is it conducive to the functioning of modern
society? If it is then it is certainly reasonable and rational.
                                                                       f
     29. In the present case, as we have noted, the purpose of
the classification was to make the activities of the Port
competitive and efficient. With the introduction of privatization
and setting up private Ports, the respondent had to face
competition. Also, it wanted to rationalize its activities by having   G
uniform working hours for its indoor and outdoor establishment
employees, while at the same time avoiding labour disputes with
employees appointed before 01.11.1996.

     30. In the modern world businesses have to face
                                                                       H
    892   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   competition with other businesses. To do so they may have to
    have longer working hours and introduce efficiency, while
    avoiding labour disputes.

        31. Looked at from this point of view the classification in
8   question is clearly reasonable as it satisfies the test laid down
    above.             ·

       32. We do not mean to say that the above is the only test
  to decide what is reasonable, but in our opinion it is certainly
  one of the tests to be adopted if we want our country to
C progress. We have to take a practical view of the matter
  instead of relying on abstract, a priori notions of equality.

          33. Coming back to the present case, the object of the new
    policy adopted by the respondent-Port was to bring about
o   uniformity in the working hours of the personnel working on the
    indoor and outdoor establishment. For achieving that purpose
    the Port took a policy decision to lay down a condition in the
    appointment orders of the personnel recruited on indoor
    establishment after 1.11.1996 that they will have to work for
E   eight hours. For the purpose of classification the date
    1.11.1996 was chosen, because different duty hours were to
    be made applicable from the one which were applicable to the
    existing personnel working on the indoor establishment in
    relation to the persons to be employed after that date. The
F   purpose of this was to make the organization competitive and
    efficient.

         34. For the purpose of bringing about uniformity in the
  working hours of the personnel working on the indoor
  establishment, two options were available to the Port; (i) either
G to take steps to bring about change in the working hours of the
  personnel presently working on the establishment and then
  apply that change to the personnel who are recruited in future,
  or (ii) to apply the changed practice in case of new recruits after
  obtaining their consent for adoption of the new practice and thus
H introduce the change gradually because personnel recruited
 TRANSPORT & DOCK WORKERS UNION AND ORS. 893
  v. MUMBAI PORT TRUST [MARKANDEY KATJU, J.]
before 1.11.1996 were bound to retire sooner or later with their    A
retirement, and a day would come when in the indoor
establishment the only personnel working will be those who
have been recruited after 1.11.1996.

       35. Of these two options the Port appears to have chosen · B
  the second option because in the opinion of the Port it would
  be relatively hass!e free. It was submitted before us that the Port
. apprehended that if it had decided to take the first option, it
  would have been involved in labour disputes and that litigation
  would have prevented the Port from introducing the change. We C .
  do not see anything unreasonable in the stand of the Port.

     36. It is nobody's case before us that the decision of the
Port was not bona fide. In our opinion, the decision of the Port
was bona fid.e, and hence no fault can be found with the said
decision and it cannot be said that it violates Article 14 of the   D
Constitution.

      37. The policy decision of the Port cannot be said to cause
 any prejudice to the interest of the personnel recruited after
 1.11.1996 because before their recruitment they were clearly       E
 given to understand as to what would be their working hours,
 in case they accept the appointment. In our opinion the
 introduction of the new policy was a bona fide decision of the
 Port, and the acceptance of the conditions with open eyes by
 the appellants and the recruits after 1.11.1996 means that they    F
 can now have no grievance. It is well settled that Courts should
 not ordinarily interfere with policy decisions:

      38. In our opinion, since the classification with reference
to the date of appointment of typist-cum-computer clerks was
for the purpose of bringing about uniformity in working hours G
of the personnel working in indoor and outdoor establishments,
and its aim was to make the organization competitive and
efficient, it cannot be said that it was unreasonable and hence
violative of Article 14 of the Constitution. Also, avoidance of
labour disputes is a reasonable basis for the classification.     H
    894    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A        39. In our opinion, Article 14 cannot be interpreted in a
    doctrinaire or dogmatic manner. Absolute and inflexible
    concepts are an· anathema to progress and change. As
    observed by the great Justice Holmes of the U.S. Supreme
    Court, the machinery of the government would not work if it were
B   not allowed some free play in its joints vide Missourie, Kansas
    and Tennesee Railroad vs. May 194 U.S. 267(1904).
    Excessive interference by the judiciary in the functions of the
    executive is not proper. In several decisions, we have held that
    there must be judicial restraint in such matters, vide Divisional
c   Manager, Aravali Golf Club vs. Chander Hass (2008) 1 SCC
    683. In Government of Andhra Pradesh vs. P. Laxmi Devi
    (2008) 4 sec 720 the doctrine of judicial review of statutes
    has been discussed in great detail, and it has been observed
    that the judiciary must show great restraint in this connection.

D       40. Those who entered service after 1.11.1996 knew that
    they have to work for seven and half hours excluding lunch
    break and with open eyes they accepted the employment.
    Hence there is no question of violation of Article 14 of the
    Constitution.
E
        41. In our opinion, fixing of hours of work, provided they
    do not violate any statutory provision or statutory rule, are really
    management functions and this Court must exercise restraint
    and not ordinarily interfere with such management functions.
F       42. Differential treatment in our opinion does not per se
  amount to violation of Article 14 of the Constitution. It violates
  Article 14 only when there is no conceivable reasonable basis
  for the differentiation. In the present case, as pointed out above,
  there is a reasonable basis and hence in our opinion there is
G no violation of Article 14 of the Constitution.

         43. In ·our opinion it is not pruderitor pragmatic for the Court
    to insist on absolute equality when there are diverse situations
    and contingencies, as in the present case. In view of the inherent
H   complexities involved in modern s9ciety, some free play must
TRANSPORT & DOCK WORKERS UNION AND ORS. 895
 v. MUMBAI PORT TRUST [MARKANDEY KAT JU, J.]
be given to the executive authorities in this connection.          A

    44. As regards cut-off dates, this Court in Government of
Andhra Pradesh and Ors. vs. N. Subbarayudu and Ors.
2008(14) sec 702 has observed vide paragraphs 5 to 9 :

           "5. In a catena of decisions of this Court it has been 8
    held that the cut-off date is fixed by the executive authority
    keeping in view the economic conditions, financial
    constraints and many other administrative and other
    attending circumstances. This Court is also of the view that
    fixing cut-off dates is within the domain of the executive C
    authority and the court should not normally interfere with the
    fixation of cut-off date by the executive authority unless such
    order appears to be on the face of it blatantly
    discriminatory and arbitrary. (See State of Punjab vs.
    Amar Nath Goyal 2005(6) SCC 754)                                D

          6. No doubt in 0. S. Nakara vs. Unipn of India
    1983(1) SCC 305 this Court had struck down the cut-off
    date in connection with the demand of pension. However,
    in subsequent decisions this Court has considerably            E
    watered down the rigid view taken in Nakara case as
    observed in para 29 of the decision of this Court in State
    o; Punjab vs. Amar Nath Goyal.

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

          8. In fact several decisions of this Court have gone
    to the extent of saying that the choice of a cut-off date
    cannot be dubbed as arbitrary even if no particular reason     H
    896    SUPREME COURT REPORTS [2010] 14 (ADDL' S.C.R.

A         is given for the same in the counter-affidavit filed by the
          Government (unless it is shown to be totally capricious or
          whimsical), vide State of Bihar vs. Ramjee Prasad
          1990(3) SCC 368, Union of India vs. Sudhir Kumar
           Jaiswal 1994(4) SCC 212 (vide SCC 5), Ramrao vs. All
B         India Backward Class Bank Employees Welfare Assn.
          2004(2) SCC 76 (vide para 31 ), University Grants
          Commission vs. Sadhana Chaudhary 1996{10) SCC
          536, etc. It follows, therefore, that even if no reason has
          been given in the counter-affidavit of the Government or
c         the executive authority as to why a particular cut-off date
          has been chosen, the court must still not declare that date
          to be arbitrary and violative of Article 14 unless the said
          cut-off date leads to some blatantly capricious or
          outrageous result.
D               9. As has been held by this Court in Aravali Golf
          Club vs. Chander Hass 2008(1) SCC 683 and in Govt.
          of A.P. vs. P. Laxmi Devi 2008(4) sec 720 the court
          must maintain judicial restraint in matters relating to the
          legislative or executive domain."
E
         45. In our opinion, there is often a misunderstanding about
    Article 14 of the Constitution, and often lawyers and Judges
    tend to construe it in a doctrinaire and absolute sense, which
    may be totally impractical and make the working of the
F   executive authorities extremely difficult if not impossible.

          46. As Lbrd Denning observed :

                 "This power to overturn executive decision must be
          exercised very carefully, because you have got to
G         remember that the executive and the local authorities have
          their very own responsibilities and they have the right to
          make decisions. The Courts should be very wary about
          interfering and only interfere in extreme cases, that. is,
          cases where the Court is sure they have gone wrong in
H         law or they have been utterly unreasonable. Otherwise you
TRANSPORT & DOCK WORKERS UNION AND ORS. 897
 v. MUMBAI PORT TRUST [MARKANDEY KAT JU, J.]
    would get a conflict between the courts and the government        A
    and the authorities, which would be most undesirable. The
    courts must act very warily in this matter." (See 'Judging
    the World' by Garry Sturgess Philip Chubb).

     47. In our opinion Judges must maintain judicial self            B
restraint while exercising the powers of judicial review of
administrative or legislative decisions.

     48. "In view of the complexities of modern society", wrote
Justice Frankfurter, while Professor of Law at Harvard
University, "and the restricted scope of any man's experience,        c
tolerance and humility in passing judgment on the worth of the
experience and beliefs of others become crucial faculties in the
disposition of cases. The successful exercise of such judicial
power calls for rare intellectual disinterestedness and
penetration, lest limitation in personal experience and               D
imagination operate as limitations of the Constitution. These
insights Mr. Justice Holmes applied in hundreds of cases and
expressed in memorable language : It is misfortune if a judge
reads his conscious or unconscious sympathy with one side or
the other prematurely into the law, and forgets that what seem        E
to him to be first principles are believed by half his fellow men
to be wrong."

     49. In writing a biographical essay on the celebrated
Justice Holmes of the U.S. Supreme Court in the dictionary of
American Biography, Justice Frankfurter wrote :
                                                                      F

           "It was not for him (Holmes) to prescribe for s'Qciety
    or to deny it the right of experimentation within very wide
    limits. That was to be left for contest by the political forces
    in the state. The duty of the Court was to keep the ring          G
    free. He reached the democratic result by the philosophic
    route of skepticism-by his disbelief in ultimate answers to
    social questions. Thereby he exhibited the judicial function
    at its purest." (see 'Essays on Legal History in Honour of
    Felix Frankfurter' edited by Morris D. Forkosch.)                 H
    898    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A    50. In our opinion adjudication must be done within the
 system of historically validated restraints and conscious
 minimization of the Judges' preferences. The Court must not
 embarrass the administrative authorities and must realize that
 administrative authorities have expertise in the field of
sadministration while the Court does not. In the words of Chief
 Justice Neely, former Chief Justice of the West Virginia
 Supreme Court of Appeals :

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

       51. In administrative matters the Court should, therefore,
 ordinarily defer to the judgment of the administrators unless the
Edecision is clearly violative of some statute or is shockingly
 arbitrary. In this connection, Justice Frankfurter while Professor
 of Law at Harvard University wrote in 'The Public and its
 Government' -

                "With the great men of the Supreme Court
F         constitutional adjudication has always been statecraft. As
          a mere Judge, Marshall had his superiors amon·g his
          colleagues. His supremacy lay in his recognition of the
          practical needs of government. The great judges are
          those to whom the Constitution is not primarily a text for
G         interpretation but the means of ordering the life of a
          progressive people."                           ·

          52. In the same book Justice Frankfurter also wrote -

                "In simple truth, the difficulties that government
H
TRANSPORT & DOCK WORKERS UNION AND ORS. 899
 v. MUMBAI PORT TRUST [MARKANDEY KATJU, J.]

    encounters from law do not inhere in the Constitution. They      A
    are due to the judges who interpret it. That document has
    ample resources for imaginative statesmanship, if judges
    have imagination for statesmanship."

     53. In legal scholarship, Roscoe Pound challenged the rigid
                                                                     8
formalism of Justice Field. Pound strongly argued against a
jurisprudence founded upon immutable first principles and
sought in the social sciences and related fields a means for
making the law responsive to a changing world.

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

    55. In Keshavanand Bharti vs. State of Kera/a AIR 1973           E
SC 1461 (vide paragraph 1547) Khanna,J. observed :

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

     56. In the present case there was a reasonable basis for
the classification, and hence there is no violative of Article 14
of the Constitution.
                                                                     G
    57. For the reasons given above there is no merit in this
appeal and hence it is dismissed.

B.B.B.                                       Appeal dismissed.
                                                                     H