Madras High Court
Government Of Tamil Nadu And Anr. vs S. Palayam And Anr. on 10 August, 1994
JUDGMENT Srinivasan, J.
1. Respondents 1 and 2 herein filed the writ petition for issue of certiorarified mandamus question the letter for the appellant bearing No. 92793/Court-V93-2, dated 29-9-1993 and direct the appellant to pay the Overseer on the scale of Rs. 1,640 - Rs. 2,900 from 1-5-1992 to the first respondent and from 18-11-1992 to the second respondent was recommended by the Registrar or the High Court. It is not in dispute that, before the revision of scales of pay, at the instance of the Vth Pay Commission, the scales of pay for Assistant Section Officer was same as scale of pay for an Overseer. Then the Pay Commission filed its report, revising the scales of pay, that was accepted by the Government and the scale to pay of the Assistant was revised into Rs. 1,640 - Rs. 2,900. But the scale of pay relating to the Overseer was not revised. The High Court made a recommendation that the position of the Overseer was equivalent to the position of Overseer was equivalent to the position of the Assistant in the matter of pay scale and it was always treated as such previously there should not be any disparity in the situation after the Vth Pay Commission. In reply to that letter, the appellant sent letter No. 92793/Courts-V/93-2 dated 29-9-1993 stating that the proposal for the revision of scale of pay of Overseer and Additional Overseer in the High Court from Rs. 1,400 - 2,600 to Rs. 1,640-2,900 can be made to the next Pay Commission as and when it is constituted. Aggrieved thereby, respondents 1 and 2 filed the writ petition with the prayers already set out.
2. The appellant did not file any counter affidavit before the learned single Judge. After hearing both parties, learned Judge passed a detailed order holding that there was discrimination on the part of the appellant, it should not continue and consequently allowed the writ petition. Learned Judge directed the appellant to fix the pay of Overseer in the High Court in the scale of Rs. 1,640 - Rs. 2,900 and pay at that rate of the first respondent herein from 1-5-1992 and to the second respondent from 18-11-1992. The arrears were directed to be paid within four weeks from the date of the receipt of the order.
3. The first contention of learned counsel for the appellant is that the letter dated 29-9-1993 does not amount to rejection of the recommendation made by the High Court of refusal to revise the scale of pay. According to him, the matter is only postponed till the Constitution of the next Pay Commission and that will not give a cause of action to respondents 1 and 2 to file a writ petition. There is no merit in this contention. The reply merely says that it can be referred to the next Pay Commission as and when it is constituted. The letter does not indicate as to when the next Pay Commission will be constituted. The next Pay Commission may never be constituted. It is left entirely to the Government. In such a situation, the letter dated 29-9-1993 is nothing but a refusal to accept the recommendation of the High Court and grant the revision of scale of pay.
4. The next contention urged by learned counsel for the appellant is that this Court cannot issue a mandamus to the Government in the matter of fixation of scale of pay. According to him, even if the letter dated 29-9-1993 is quashed, the Court can only direct the Government to act in accordance with law and fix the scale of pay accordingly. Reliance is placed by learned counsel on the judgment of the Supreme Court in State of Andhra Pradesh v. Gopalkrishnan, . Referring to the provisions of Art. 229 of the Constitution, the Supreme Court held that the High Court was not justified in issuing a writ of mandamus directing the fixation of particular scale of pay. The Supreme court pointed out that in the matter of salaries of the staff, the approval of the Governor was necessary under Art. 229 of the Constitution of India and therefore, a mandamus cannot issue. The ratio of the Supreme Court is clear from the following sentence in the judgment. It reads :
"It is, however, not possible to take the view that merely because the State Government does not see its way to give the required approval it will justify the issuance of a writ of mandamus under Art. 226 of the Constitution as if the refusal of the State Government was ultra vires or mala fide and arbitrary."
The Court proceeded to express its anguish and hoped that the Government will give their second thought to the matter and see whether it is possible for the State of Andhra Pradesh to obliterate the distinction in the matter of pay scales etc., between the High Court and the secretariat staff as there was no good or justifiable reasons for maintaining the distinction.
5. In the present case, the revision of scale of pay is not on the basis that the Secretariat a different scale of pay has been fixed and that should be adopted in the matter of the employees of the high court. Here another category in the High court, viz., that of the Assistant was getting the same sale of pay as that of an Overseer. When the scale of pay of the Assistant was revised pursuant to the recommendation of the Vth Pay Commission, the scales of pay of the Overseer should be automatically revised, as both the categories had the same scale throughout. In as much as the government has failed to revise the scale of pay of the Overseer to be on par with that of the Assistant, it has introduced discrimination and it has acted arbitrarily in the matter. The principles of Art. 14 of the Constitution of India are already violated.
6. In such a case, it is certainly open to this court to issue a direction to obliterate the discrimination that is maintained by the Government in the matter of scale of pay between the two categories in the high Court itself.
7. The question whether a mandamus can be issued by Court and direction can be given to the Government has been considered in detail. In the Comptroller and Auditor General v. K. S. Jagannathan, . Even in a matter of exercise of discretion, the Supreme Court said that the Court can, in appropriate cases, issue mandamus giving particular directions to the Government. The law is stated in the following passage :
"The first-contention urged by learned counsel for the appellants was that the Division bench of the High Court could not issue a writ of mandamus to direct a public authority to exercise its discretion in a particular manner. There is a basic fallacy underlying this submission both with respect to the order of the Division bench and the purpose and scope of the writ of mandamus. The High Court had not issued a writ of mandamus. A writ of mandamus was the relief prayed for by the respondents in their writ petition. What the division bench did was to issue directions to the appellants in the exercise of its jurisdiction under Art. 226 of the Constitution. Under Art. 226 of the Constitution, every High Court has the power to issue to any person or authority including in appropriate cases, any Government, throughout the territories, in relation to which it exercises jurisdiction, directions, orders, or writs including writs in the nature of habeas corpus, mandamus, quo warranto and certiorari, or any or them, for the enforcement of the fundamental rights conferred by Part III of the Constitution or for any other purpose. In Dwarkanath v. Income-tax Officer, Special Circle Kanpur, , this Court pointed out Art. 226 is designedly couched in a wide language in order not to confine the power conferred by it only to the power it issue prerogative writs as understood in English, such wide language being used to enable the High Courts "to reach injustice wherever it is found" and "to mould the reliefs to meet the peculiar and complicated requirements of this country. In Hochtief Gammon v. State of Orissa , this Court held that the powers of the Courts in England as regards the control which the judiciary has over the executive indicate the minimum limit to which the Courts in this country would be prepared to go in considering the validity of orders passed by the Government or its officers.
Even had the Division Bench issued a writ of mandamus giving the directions which it did, if circumstances of the case justified such directions, the High Court would have been entitled in law to do for even the Courts in England could have issued a writ of mandamus giving such directions. Almost a hundred and thirty years ago, Martin B In Mayor of Rochester v. Regina, 1958 K. B. & E 1024, 1032, 1034 said :
"But were there no authority upon the subject, we should be prepared upon principle to affirm the judgment of the Court of Queen's Bench. That Court has power by the prerogative writ of mandamus to amend all errors which tend to the oppression of the subject or other misgovernment, and ought to be used when the law has provided no specific remedy, and justice and good Government requires that there ought to be one for the execution of the common law of the provisions of a statute; Comyn's Digest, mandamus (A).......... Instead of being astute to discover reasons for not applying this great constitutional remedy for error and misgovernment, we think it our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable". The Principle enunciated in the above case was approved and followed in The King v. Revising Barrister for the Borough of Hanley, (1912) 3 KB 518, 528-9, 531. In Hochtief's case , this Court pointed out at page 675 that the powers of the Courts in relation to the orders of the Government who has been conferred any power under any statute, which apparently confers on them absolute discretionary powers, are not confined to cases where such power is exercised or refused to be exercised on irrelevant considerations or on erroneous ground or mala fide and in such a case a party would be entitled to move the High Court for a writ of mandamus. In Padfield v. Minister of Agriculture, Fisheries and Food, 1968 A. C. 977, the House of Lords held that where Parliament had conferred a discretion on the Minister of Agriculture Fisheries and Food, to appoint a committee of investigation so that it could be used to promote the policy and objects of the Agricultural Marketing Act, 1958, which were to be determined by the construction of the Act which was a matter of law for the Court and though there might be reasons which would justify the Minister in refusing to refer a complaint to a committee of investigation the Minister's discretion was not unlimited and if it appeared that the effect of his refusal to appoint a committee of investigation was to frustrate the policy of the Act, the Court was entitled to interfere by an order of mandamus. In Halsbury's Laws of England, Fourth Edition, Volume I, paragraph 89, it is stated that the purpose of an order of mandamus is to remedy defects of justice and accordingly it will issue, to the end that justice may be done, in all cases where there is specific legal right and no specific legal remedy for enforcing that right, and it may issue in chases where, although there is alterative legal remedy yet that mode of redress is less convenient, beneficial and effectual."
There is thus no doubt that the High Court in India exercising their jurisdiction under Art. 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant consideration or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Art. 226, issue a writ of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion."
8. In view of the categorical statement of law by the Supreme Court in the above case, we have no hesitation to reject the contention of learned counsel for the appellant and hold that the court had got power to issue directions in appropriate cases, particularly where the government has acted arbitrarily and the provisions of Art. 14 of the Constitution are violated.
9. In the result, the appeals fails and it is dismissed. The Government must implement the order of this Court by passing proper orders and also pay the arrears due to the writ petitioners/respondents 1 and 2 herein on or before 30-9-1994. No costs.