Shri D.R. Arya v. Lt. Governor of Delhi & Ors.

1. No one has appeared for the petitioner on the last three dates of hearing being 11.5.2009, 15.5.2009 and 22.5.2009. No one appears for the petitioner even today although it is 12.40 PM. I have therefore heard the counsel for respondent and after perusing the record am proceeding to decide the case.

2. By this writ petition, petitioner has sought relief from the respondent no.3 being the Delhi State Co-operative Bank Ltd. for increasing the age limit from 58 to 60 years. 2013:DHC:5209

3. A writ petition will only lie if respondent no.3 is an instrumentality of State or is doing a public function/public duty. Respondent no.3 has been held not to be a State by various judgments of this Court, and I have held so in one such order in the case titled as Prem Singh Verma Vs. Delhi State Co-Operative Bank Ltd. in W.P.(C) 3377/2003 decided on 10.1.2013. This order reads as under:- “1. This writ petition is filed by the petitioner-Sh. Prem Singh Verma against the respondent-Delhi State Co-operative Bank Ltd, and of which respondent bank the petitioner was an employee. The petitioner was charge-sheeted and there was an enquiry report against the petitioner, however, the petitioner superannuated during the pendency of the enquiry proceedings and the respondent took action against the petitioner on the basis of the enquiry report to the extent that the service benefits post the suspension order have been denied to the petitioner.

2. Learned counsel for the respondent relies upon the judgment of learned Single Judge of this Court in the case of Anand Prakash Vs. The Delhi State Co-operative Bank Ltd. & Anr. in W.P.(C) No.105/2010 decided on 20.4.2011 which holds that present respondent is not a State and therefore no writ petition lies against the respondent. I have seen the aforesaid judgment and copy of which has also been given to the counsel for the petitioner. The decision of learned Single Judge holding that the respondent- Delhi State Co-operative Bank Ltd is not a State, and therefore no writ lies, is binding on me. Counsel for the respondent states that this judgment has become final and to his knowledge there is no other contrary view of either a Single Judge or of a Division Bench of this Court.

3. In view of the above, the writ petition is dismissed as not maintainable, however, the petitioner is given liberty to seek such reliefs in appropriate independent proceedings which the petitioner may want to initiate. In case, the petitioner initiates such independent proceedings, the petitioner, in accordance with law, will be entitled to the benefit of Section 14(1) of the Limitation Act, 1963 and which application if filed in the concerned Court in which the appropriate independent proceedings are filed will hear and dispose of the application in accordance with law.

4. Writ petition is dismissed as not maintainable in terms of aforesaid observations.”

4. I may also state that Courts cannot impose its own terms and conditions of employment to the terms and conditions of employment decided by the employer and this is held by the Supreme Court in the judgment in the case of Indian Drugs and Pharmaceuticals Ltd. vs. Workmen, Indian Drugs and Pharmaceuticals Ltd. (2007) 1 SCC 408. The relevant paragraphs of this judgment are as under:- “16. We are afraid that the Labour Court and the High Court have passed their orders on the basis of emotions and sympathies, but cases in court have to be decided on legal principles and not on the basis of emotions and sympathies.

18. In State of M.P. v. Yogesh Chandra Dubey this Court held that a post must be created and/or sanctioned before filling it up. If an employee is not appointed against a sanctioned post he is not entitled to any scale of pay. In our opinion, the ratio of the aforesaid decision squarely applies to the facts of the present case also.

37. Creation and abolition of posts and regularisation are purely executive functions vide P.U. Joshi v. Accountant General. Hence, the court cannot create a post where none exists. Also, we cannot issue any direction to absorb the respondents or continue them in service, or pay them salaries of regular employees, as these are purely executive functions. This Court cannot arrogate to itself the powers of the executive or legislature. There is broad separation of powers under the Constitution, and the judiciary, to, must know its limits.

40. The Courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularisation, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improver for Judges to step into this sphere, except in a rare and exceptional cases. The relevant case-law and philosophy of judicial restraint has been laid down by the Madras High Court in great detail in Rama Muthuramalingam v. Dy. Supdt. Of Police and we fully agree with the views expressed therein.” (underlining added)

5. The aforesaid paras of the judgment in the case of Indian Drugs and Pharmaceuticals Ltd.(supra) shows that Courts cannot create sanctioned posts, Courts cannot decide pay-scales, Courts cannot decide what is the correct monetary emoluments etc etc because employer knows its financial conditions and its circumstances to decide these particular aspects. Courts therefore also cannot decide to increase the retirement age.

6. Therefore, the writ petition does not have merit, and the same is accordingly dismissed, leaving the parties to bear their own costs.

OCTOBER 08, 2013 VALMIKI J. MEHTA, J. ib