GOVERNMENT OF TAMIL NADU Vs. S PALAYAM

JUDGEMENT

(1.) 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 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 (1976) 1 S. C. R. 667, 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 AC 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. "