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Judgment
Srinivasan, J.—Respondents 1 and 2 herein filed the writ petition for issue of certiorarified mandamus quashing the letter of the appellant
bearing No. 92793/ Court-V/93-2, 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 as recommended by the Registrar of 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 which was later
designated as 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. l,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 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.
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 to 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.
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 or 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.
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 and Another Vs. T. Gopalakrishnan Murthi and Others, . Referring to the provisions of Article 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 Article 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 Article 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.
In the present case, the revision of scale of pay is not on the basis that in 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 scale of pay as that of an Overseer. Then 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 categories had the same scale throughout. Inasmuch 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 Article 14 of the Constitution of India are already violated.
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.
The question whether a mandamus can be issued by court and direction can be given to the government has been considered in detail on
Comptroller and Auditor-general of India, Gian Prakash, New Delhi and Another Vs. K.S. Jagannathan and Another, . 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. That the Division Bench did was to issue directions to the appellants in
the exercise of its jurisdictions under Article 226 of the Constitution. Under Article 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 of them, for
the enforcement of the fundamental rights conferred by Part III of the Constitution or for any other purpose. In Dwarka Nath Vs. Income Tax
Officer, Special Circle D-ward, Kanpur and Another, , this Court pointed out Article 226 is designedly couched in a wide language in order not to
confine the power conferred by it only to the power to 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 Vs. State of Orissa and Others, , 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 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 mis government,
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
In Hochtief Gammon Vs. State of Orissa and Others, , 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 cases where, although there is an alternative legal remedy
yet that mode of redress is less convenient beneficial and effectual.
There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 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 considerations 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 Article 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.
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 has got power to issue directions in appropriate cases, particularly where the Government has
acted arbitrarily and the provisions of Article 14 of the Constitution are violated.
In the result, the appeal 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.