Equivalent Citation - 2007(14) SCALE1, (2008)1SCC683 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
Facts of the Case
The brief facts of the present appeal is 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 employer’s establishment. However, for a number of years they continued to be paid wages for the post of Mali.
Services of the Respondents thereafter were regularized as ‘mali’ instead of tractor driver. Respondents made representation against thereto but their grievance was not redressed since there was no post of tractor driver. Respondents accordingly filed the civil suit claiming regularization. Trial Court rejected the claim on the ground that there was no post of tractor driver in the establishment and further held that since golf field being vast, required to be maintained with mechanical gadgets, the plying of tractor a part and parcel of the job of mali in a Golf Club.
Appeal against the Trial Court order was accepted and Judgment and decree of the Trial Court was set aside with direction to create the post of tractor driver and regularizing the services of the respondents against the said newly created posts. Second Appeal filed by the Appellant was also dismissed affirming the finding arrived at in the first appeal with an observation that simply by relying upon technicalities the State authorities cannot be allowed to suppress the individuals and to deny their lawful rights.
- Whether regularization of services can be sought against a post sanctioned to be created?
- Whether Court can direct creation of post not provided by the establishment?
In Tata Cellular v. Union of India the 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.
In Ram Jawaya v. State of Punjab, 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.
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. 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.
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, etc. 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.
Held, In the absence of sanctioned post of tractor driver against which the Respondents could be regularized, the direction vide impugned finding arrived at in the first and second appeal completely beyond jurisdiction. Court cannot direct creation of posts as its creation and sanction a prerogative of the executive or legislative authorities, which Court cannot arrogate to itself. Directions given by the High Court and first Appellate Court to create the posts and regularization of services of the Respondents against the said posts not sustainable and accordingly hereby set aside. Appeal allowed and Judgment of the Trial Court was upheld.
The court was 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. 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. 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 other’s domains. 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.