Divisional Manager, Aravali Golf ... vs Chander Hass & Anr on 6 December, 2007

    CASE NO.:

Appeal (civil) 5732 of 2007

PETITIONER:

Divisional Manager, Aravali Golf Club & Anr.

RESPONDENT:

Chander Hass & Anr.

DATE OF JUDGMENT: 06/12/2007

BENCH:

A. K. Mathur & Markandey Katju

JUDGMENT:

JUDGMENT

O R D E R

[Arising out of S.L.P(C) No.3358 of 2007]

1. Heard learned counsel for the parties.

2. Leave granted.

3. This appeal by special leave is directed against the judgment and order dated
17th February, 2006 passed by a learned Single Judge of the High Court of Punjab
and Haryana in R.S.A. No.666/2006 whereby the learned Single Judge has affirmed
the judgment and decree passed by the First Appellate Court.

4. The brief facts which are necessary for the disposal of the present appeal
are that the plaintiffs (respondents in this appeal) were appointed as Mali
(gardener) in the service of the defendant-appellant, which is a golf club run
by the Haryana Tourism Corporation in the year 1989 and 1988 respectively on
daily wages. Subsequently in the year 1989 they were told to perform the duties
of Tractor Drivers, though there was no post of tractor driver in the employers
establishment. However for a number of years they continued to be paid wages for
the post of Mali.

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

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

7. Thereafter the Divisional Manager, Aravali Golf Club filed a second appeal
before the High Court of Punjab and Haryana. The learned Single Judge held that
the post of tractor driver should be created as there is no hitch in not
creating the posts of drivers especially when tractors were available and there
existed need to use those tractors. It was also observed by the learned Single
Judge that simply by relying upon technicalities the State authorities cannot be
allowed to suppress the individuals and to deny their lawful rights. The learned
Single Judge also held that no substantial question of law arose in the matter.
Hence, the second appeal was dismissed and the judgment of the First Appellate
Court was upheld. Aggrieved against the said judgment of the learned Single
Judge, the appellants are in appeal before us.

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

9. The suit was contested by the defendants-appellants. The appellants in their
written statement submitted that the plaintiffs were appointed as Mali on a
daily wage basis on 9.10.1989. The respondent No.1 had earlier filed Writ
Petition No.6216/1991 for regularizing his services. The Honble High Court
disposed of the said writ petition by passing the order directing the respondent
No.1 to make a representation against the termination of his services and the
appellants herein were restrained from terminating the services of the
respondent No.1 till his representation was decided. The writ petition was
accordingly disposed of.

10. In pursuance of the said order the respondent No.1 made representation for
regularization of his service on 2.5.1991. The plaintiff- respondent was
informed vide order dated 14.5.1991 that there was no post of tractor driver and
his case for regularization would be considered as and when sanctioned post of
the tractor deriver will be available.

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

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

13. Learned counsel for the appellants submitted that there is no post of
tractor driver, and therefore, there is no question of regularizing the
respondents in the said post. It is not disputed that there is no sanctioned
post of tractor driver in the appellants establishment. Learned counsel for the
respondents has also not been able to show that there are any sanctioned posts
of tractor driver.

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

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

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

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

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

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

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

21. The theory of separation of powers first propounded by the French thinker
Montesquieu (in his book `The Spirit of Laws) broadly holds the field in India
too. In chapter XI of his book `The Spirit of Laws Montesquieu writes :

 When the legislative and executive powers are

united in the same person, or in the same body of magistrates, there can be no
liberty; because

apprehensions may arise, lest the same monarch or senate should enact tyrannical
laws, to execute them in a tyrannical manner.

     Again, there is no liberty, if the judicial power be not separated from the
legislative and executive. Were it joined with the legislative, the life and
liberty of the subject would be exposed to arbitrary control; for the judge
would be then the legislator. Were it joined to the executive power, the judge
might behave with violence and oppression.

 There would be an end of everything, were the

same man or the same body, whether of the nobles or of the people, to exercise
those three powers, that of enacting laws, that of executing the public
resolutions, and of trying the causes of individuals.

     (emphasis supplied)

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

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

 I have very few illusions about my own

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

23. In Ram Jawaya vs. State of Punjab AIR 1955 SC 549 (vide paragraph 12), a
Constitution Bench of this Court observed:  The Indian Constitution has not
indeed

recognized the doctrine of separation of powers in its absolute rigidity but the
functions of the different parts or branches of the Government have been
sufficiently differentiated and consequently it can very well be said that our
Constitution does not contemplate assumption by one organ or part of the State,
of functions that essentially belong to another

       (emphasis supplied)



24. Similarly, in Asif Hameed vs. State of Jammu and Kashmir, AIR 1989 SC 1899 a
three Judge bench of this Court observed (vide paragraphs 17 to 19) :

  17. Before adverting to the controversy directly involved in these appeals we
may have a fresh look on the inter se functioning of the three organs of
democracy under our Constitution. Although the doctrine of separation of powers
has not been recognized under the Constitution in its absolute rigidity but the
constitution makers have meticulously defined the functions of various organs of
the State. Legislature, executive and judiciary have to function within their
own spheres demarcated under the Constitution. No organ can usurp the functions
assigned to another. The Constitution trusts to the judgment of these organs to
function and exercise their discretion by strictly following the procedure
prescribed therein. The functioning of democracy depends upon the strength and
independence of each of its organs. Legislature and executive, the two facets of
peoples will, they have all the powers including that of finance. Judiciary has
no power over sword or the purse nonetheless it has power to ensure that the
aforesaid two main organs of State function within the constitutional limits. It
is the sentinel of democracy. Judicial review is a powerful weapon to restrain
unconstitutional exercise of power by the legislature and executive. The
expanding horizon of judicial review has taken in its fold the concept of social
and economic justice. While exercise of powers by the legislature and executive
is subject to judicial restraint, the only check on our own exercise of power is
the self imposed discipline of judicial restraint.

18. Frankfurter, J. of the U.S. Supreme Court

dissenting in the controversial expatriation case of Trop v. Dulles (1958) 356
US 86 observed as under :

All power is, in Madisons phrase, of an

encroaching nature. Judicial powers is not

immune against this human weakness. It

also must be on guard against encroaching

beyond its proper bounds, and not the less so

since the only restraint upon it is self

restraint.

 Rigorous observance of the difference

between limits of power and wise exercise

of powerbetween questions of authority

and questions of prudencerequires the most

alert appreciation of this decisive but subtle

relationship of two concepts that too easily

coalesce. No less does it require a

disciplined will to adhere to the difference.

It is not easy to stand aloof and allow want

of wisdom to prevail to disregard ones own

strongly held view of what is wise in the

conduct of affairs. But it is not the business

of this Court to pronounce policy. It must

observe a fastidious regard for limitations on

its own power, and this precludes the

Courts giving effect to its own notions of

what is wise or politic. That self-restraint is

of the essence in the observance of the

judicial oath, for the Constitution has not

authorized the judges to sit in judgment on

the wisdom of what Congress and the

Executive Branch do.

19. When a State action is challenged, the function of the court is to examine
the action in accordance with law and to determine whether the legislature or
the executive has acted within the powers and functions assigned under the
constitution and if not, the court must strike down the action. While doing so
the court must remain within its self-imposed limits. The court sits in judgment
on the action of a coordinate branch of the Government. While exercising power
of judicial review of administrative action, the court is not an appellate
authority. The constitution does not permit the court to direct or advise the
executive in matters of policy or to sermonize qua any matter which under the
constitution lies within the sphere of legislature or executive, provided these
authorities do not transgress their constitutional limits or statutory powers.

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

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

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

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

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

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

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

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

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

33. Judicial restraint is consistent with and complementary to the balance of
power among the three independent branches of the State. It accomplishes this in
two ways. First, judicial restraint not only recognizes the equality of the
other two branches with the judiciary, it also fosters that equality by
minimizing inter-branch interference by the judiciary. In this analysis,
judicial restraint may also be called judicial respect, that is, respect by the
judiciary for the other coequal branches. In contrast, judicial activisms
unpredictable results make the judiciary a moving target and thus decreases the
ability to maintain equality with the co-branches. Restraint stabilizes the
judiciary so that it may better function in a system of inter- branch equality.

34. Second, judicial restraint tends to protect the independence of the
judiciary. When courts encroach into the legislative or administrative fields
almost inevitably voters, legislators, and other elected officials will conclude
that the activities of judges should be closely monitored. If judges act like
legislators or administrators it follows that judges should be elected like
legislators or selected and trained like administrators. This would be
counterproductive. The touchstone of an independent judiciary has been its
removal from the political or administrative process. Even if this removal has
sometimes been less than complete, it is an ideal worthy of support and one that
has had valuable effects.

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

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

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

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

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

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

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