DUTT, J.


These writ petitions and civil miscellaneous petition have been filed by the employees of the Supreme Court praying for their pay hike. Two events, which will be stated presently, seem to have inspired the employees of the Supreme Court to approach the court by filing writ petitioners. The first of the two events is the report of a Committee of Five-Judges of this Court consisting of Mr. Justice P. N. Bhagwati (as he then was) as the Chairman, Mr. Justice V. D. Tulzapurkar Mr. Justice D. A. Desai Mr. Justice R. S. Pathak (as her then was) and Mr. Justice S. Murtaza Fazal Ali. The second event, which is the most important one, is the judgments of the Delhi High Court passed in writ proceedings instituted by its employees


2. The Five-Judge Committee in its report stated, inter alia, that no attempt had been made to provide a separate and distinct identity to the ministerial staff belonging to the Registry of the Supreme Court. According to the Committee, the borrowed designations without any attempt at giving a distinct and independent identity to the ministerial staff in the Registry of the Supreme Court led to invidious comparison. The Committee observed that the salary scale applicable to various categories of staff in the Registry would show that at least since the Second Pay Commission appointed by the Central Government for Central Government servants, the pay scales devised by the Pay Commission were practically bodily adopted by the Chief Justice of India for comparable categories in the Supreme Court. This was repeated after the recommendations of the Third Pay Commission were published and accepted by the Central Government. Further, it is observed that apparently with a view to avoiding the arduous task of devising a fair pay structure of various categories of staff in the Registry, this easy course, both facile and superficial, was adopted which led to the inevitable result of linking the pay structure for the various categories of staff in the Registry with the pay structure in the Central Service for comparable posts and the comparison was not functional but according to the designations. No attempt was made to really ascertain the nature of work of an employee in each category of staff and determine the pay structure and then after framing proper rules invite the President of India to approve the rules under Article 146 of the Constitution. The Committee pointed out that the slightest attempt had not been made to compare the workload, skill, educational qualifications, responsibilities and duties of various categories of posts in the Registry and that since the days of Rajadhyakhsha Commission the work had become so complex and the work of even a clerk in the Supreme Court had such distinct identity that it would be necessary not only to fix the minimum remuneration keeping in view the principles for determination of minimum remuneration but also to add to it the functional evaluation of the post. This, according to the Committee, required a very comprehensive investigation and the Committee, ill-equipped to do it. The Committee, inter alia, recommended that the Chief Justice of India might appoint a committee of experts to devise a fair pay structure for the staff of the Supreme Court keeping in view the principles of pay determination and on the recommendations of the committee, the Chief Justice of India might frame rules under Article 146 of the Constitution and submit them or the approval of the President of India. The Committee also took notice of the fact that the Fourth Central Pay Commission appointed by the Central Government and presided over by a former Judge of the Supreme Court, Mr. Justice P. N. Singhal, was then examining the question of pay scales and other matters referred to it in respect of the staff of the Central Government. According to the Committee, it was an ideal situation that a former Judge of this Court was heading the panel and he was ideally situated for examining the question of independent pay structure for the staff in the Registry of the Supreme Court. The Committee recommended that the Chief Justice of India with the concurrence of the Central Government might refer the case of the Supreme Court staff to the Fourth Pay Penal presided over by Mr. Justice P. N. Singhal


3. Several writ petitions were filed before the Delhi High Court by various categories of its employees, namely, the Private Secretaries and Readers to the Judges, Superintendents, Senior Stenographers, Assistants, Junior Readers, Junior Stenographers, Joint Registrars, Assistant Registrars, Deputy Registrars and certain categories of class IV employees. In all these writ petitions, the Delhi High Court revised their respective pay scales. With regard to certain categories of class III and class IV employees, the Delhi High Court revised their pay scales also and granted them Punjab pay scales and Central dearness allowance, the details of which are given below


Sl. Date of Judgment No. of W.P. Post Revised


No. scale of pay


Rs


1. Feb. 3, 1986 and W.P. No. 1376 of Restorer 400-600


May 23, 1986 1984


2. Nov. 11, 1986 W.P. No. 1865 of LDCs 400-600


1986


3. Dec. 4, 1986 W.P. No. 2236 of Class IV 300-430


1986 Sweepers


Ushers


etc


4. Jan. 8, 1987 W.P. No. 2318 of Gestetner 400-600


1986 Operator


5. Feb. 6, 1987 W.P. No. 2402 of Staff Car 400-600


1987 Drivers


6. Aug. 20, 1987 W.P. No. 1656 of Despatch Van 400-600


1987 Drivers


4. Several special leave petitions were filed on behalf of the government in this Court, but all these special leave petitions were summarily rejected by this Court


5. The Supreme Court employees have approached this Court by filing the instant writ petitions and the civil miscellaneous petitions for upward revision of their pay scales as were allowed in the case of the employees working the Delhi High Court. According to the petitioners, the duties and the job assignments in respect to the staff of the Supreme Court being more onerous and arduous compared to the work done by the staff of the Delhi High Court, the petitioners claimed that they are entitled to equal pay for equal work and, therefore, they are approaching this Court for redressal of their grievances by means of the present writ petitions


6. The Writ Petition No. 801 of 1986 has been filed by the Supreme Court Employees' Welfare Association seeking higher pay scales/parity in the pay scales with Delhi High Court employees in the corresponding categories. On July 25, 1986, this Court passed an interim order which provides as follows


"By way of an interim arrangement, pending final disposal of the writ petition, we direct that the officers and staff of the Supreme Court Registry may be paid same pay scales and allowance which are at present being enjoyed by the officers and the members of the staff of the High Court belonging to the same category with effect from the date from which such scales of pay have been allowed to the officers and the members of the staff of the High Court of Delhi, if and insofar as they are higher or better than what the officers and the members of the Registry of the Supreme Court are getting, as proposed by respondent 2. The statement showing the posts in the Registry of the Supreme Court and the corresponding posts in the Delhi High Court, which is annexed to the proposal made by respondent 2 will be annexed to this order also. Learned Additional Solicitor-General submits that the petition for interim directions may be adjourned for period of four weeks since the government is actively considering the matter and to his information the government is inclined to agree with the proposals made by respondent 2. We do not think it is necessary to postpone the interim directions


"The questions of interim directions with regard to the categories of the officers and the members of the staff not covered by the Delhi High Court scales of pay will be considered separately after two weeks Mr. S. N. Kacker, counsel for the petitioner, Mr. P. P. Rao for respondent 2, Supreme Court of India, and the learned Additional Solicitor-General are requested to assist us to arrive at a suitable formula in regard to them"The writ petition is adjourned for four weeks. In the mean-while, respondents 1 and 2 may take steps to refer the question of revision of pay scales to the Fourth Pay Commission as suggested by the Committee consisting of Hon'ble Mr. Justice V. D. Tulzapurkar, Hon'ble Mr. Justice D. A. Desai, Hon'ble Mr. Justice R. S. Pathak and Hon'ble Mr. Justice S. Murtaza Fazal Ali."


7. It appears from the interim order extracted above that this Court directed that the officers and the members of the staff of the Registry might get the same pay and allowances which were then being enjoyed by the officers and the member of the staff of the Delhi High Court belonging to the same category with effect from the date from which such scales of pay had been allowed to the officers and the members of the staff of the Delhi High Court. This Court also by the same interim order directed respondents 1 and 2 to take steps to refer the question of revision of pay scales to the Fourth Pay Commission as suggested by the Five-Judge Committee


8. Another interim order dated August 14, 1986 was passed by this Court in Writ Petition No. 810 of 1986. The said interim order reads as follows


"Those employees who are not covered by our earlier order will be paid by way of an interim arrangement, a sum equal to 10 per cent of their basic pay, subject to a minimum of Rs. 50. This order will take effect from January 1, 1986


The matter was left to us by counsel for all the parties and we have made this interim arrangement


This interim order will be subject to the result of final order in the writ petition


The writ petition is adjourned and will be listed for further hearing in usual course."


9. The said interim order dated August 14, 1986 was, however, modified by a subsequent interim order dated November 14, 1986. The modification was to the effect that the 10 per cent interim relief, subject to a minimum of Rs. 50 per month, which was granted with effect from January 1, 1986, was directed to be granted with effect from January 1, 1978 in respect of class IV staff. Some other interim orders were also passed by this Court. This Court passed interim orders giving higher pay scales to certain categories of employees holding group B, C and D posts. The Court also ordered that certain group C posts, that is to say, Junior Clerks, Senior Library Attendants, etc. would be given the same pay scales of Rs. 400-600 from January 1, 1978 as given to Lower Division Clerks in the Delhi High Court. The Court also ordered that class IV employees would be given the same pay scale of Rs. 300-430 from January 1, 1978 as given to class IV employees of the Delhi High Court. The scales of pay of Rs. 400-600 and Rs. 300-430 were Punjab pay scales. All these employees, who were given the Punjab pay scales, were also granted the Central DA, which brought them at par with the Delhi High Court employees


10. Sub-clause (1) of clause 2 of the terms of reference of the Fourth Central Pay Commission provides as under


"2 (1) To examine the present structure of emoluments and conditions of service, taking into account the total packet of benefits, including death-cum-retirement benefits, available to the following categories of government employees and to suggest changes which may be desirable and feasible


(i) Central Government employees - industrial and non-industrial


(ii) Personnel belonging to the All India Services


(iii) Employees of the Union territories."


11. Pursuant to the interim order of the Supreme court dated July 25, 1986, the Ministry of Finance, Department of Expenditure, published a resolution dated December 24, 1986 in the Gazette of India, Extraordinary, Part I, Section I. By the said resolution, the terms of reference were amended by the addition of a new sub-clause (iv) below paragraph 2(1)(iii) which is as follows


"(iv) Officers and employees of the Supreme Court of India."


12. It thus appears that although initially the cases of the employees of the Supreme Court were not referred to the Fourth Pay Commission, the government, however, in obedience to the order of this Court referred their cases by the amendment of the terms of reference


13. After the reference of the cases of the Supreme Court employees to the Fourth Pay Commission, the Registry of this Court sent to the Fourth Pay Commission a copy of the report of the Five-Judge Committee and also copies of all the interim orders passed by this Court. A team of officers of the Commission visited various sections of the Registry of the Supreme Court and spent a number of days of a proper understanding of the working of the various categories of the employees. The Fourth Pay Commission also visited the Registry to familiarise itself with the nature of their work. The Commission requested the Registrar to bring to the notice of the Associations as also individual employees of the Supreme Court to submit their memoranda to the Commission. The Commission had also some discussions with Hon'ble Mr. Justice Y. V. Chandrachud and Hon'ble Mr. Justice P. N. Bhagwati, two former Chief Justices of India, and also with Hon'ble Mr. Justice D. A. Desai, Chairman, Law Commission, on various aspects of the pay structure etc. of the employees of the Supreme Court. The Commission had also met Hon'ble Mr. Justice R. S. Pathak (as he then was) in his chamber on May 18, 1987


14. The Fourth Pay Commission submitted its recommendations with regard to the Supreme Court employees. The recommendations are contained in Part III of its report. It is not necessary to state in detail as to the revision of pay scales made by the Fourth Pay Commission with regard to the employees of the Supreme Court. In a nutshell, it may be stated that the Fourth Pay Commission reduced the existing 153 pay scales to 36 pays scales. The Commission, however, did not revise the pay scales of the employees of the Supreme Court on the basis of the pay scales granted to them by the interim orders passed by this Court in the writ petitions following the pay scales as revised by the Delhi High Court by its judgments passed in the writ petitions filed by its employees


15. A copy of the Fourth Pay Commission's report relating to the pay structure of the officers and employees of the Supreme Court was first sent to the Ministry of Finance, Government of India. The Ministry of Finance forwarded the said copy to the Chief Justice of India. After the receipt of the said copy of the report of the Fourth Pay Commission with regard to the Supreme Court employees, the Registrar General of this Court, by this letter dated July 22, 1987 addressed to the Secretary, Government of India, ministry of Finance, Department of Expenditure, New Delhi, stated inter alia that if the pay scales as proposed by Fourth Pay Commission were accepted, and implemented, it would result in a number of anomalies and the Supreme Court would encounter some difficulties in implementing the same. The Registrar General was of the option that the Pay Commission should not have made any such recommendation which had the effect of reducing the pay scales than what had been given by this Court by its various interim orders dated July 25, 1986, January 15, 1987, February 19, 1987, etc. to different categories of employees. Further, it was stated by him that the Pay Commission should not also have made recommendation which had the effect of taking away the benefit accrued to other categories of employees by the court's order dated August 14, 1986. It is not necessary for us to refer to the anomalies as pointed out by the Registrar General in his said letter. Suffice it to say that the Registrar General dealt with the case of each category of employees affected by the report of the Fourth Pay Commission and stressed that while accepting the pay scales proposed by the Fourth Pay Commission for the officers and employees of the Supreme Court, the Ministry must give full consideration to the anomalies and difficulties pointed out and the suggestions made in his letter and representations enclosed therewith and intimate its decision to the Registry at an early date


16. The Joint Secretary to the Government of India, Ministry of Finance, by her letter dated November 23, 1987 addressed to the Registrar General communicated to him the sanction of the President of India to the revised pay scales in respect of posts as shown in column 4 of the annexure to the said letter. In other words, the scales of pay as revised and/or recommended by the Fourth Pay Commission in respect of the posts mentioned in the annexure to the said letter, were accepted by the government. Further, it was stated that such scales of pay would have effect from January 1, 1986. In the last paragraph of the said letter, it has been stated that the revision of pay scales for the remaining posts in the Supreme Court Registry, mentioned in Party III of the Report of the Fourth Central Pay Commission, is separately under consideration of the government. The pay scales of Junior Clerks and class IV employees of the Supreme Court, which have not been mentioned in the annexure, are therefore under consideration of the government. Nothing has been produced before us to show that the government has separately considered the revision of pay scales of the junior Clerks and class IV employees of the Supreme Court. All the parties including the learned Attorney-General, however, proceeded on the assumption that the government has not sanctioned the pay scales of the Junior Clerks and the class IV employees as granted to them by this Court by the interim orders and/or the government has accepted the pay scales as recommended by the Fourth Pay Commission. Indeed, the learned Attorney-General vehemently opposed the granting of Punjab pay scales and also the Central Government DA to the Junior Clerks and the class IV employees. In view of the submissions made on behalf of the government, it is clear that although it is stated in the said letter dated November 23, 1987 that the revision of pay scales of the Junior Clerks and the class IV employees of the Supreme Court is under consideration of the government and although no communication has been made to this Court as to the result of such consideration, yet the government has made up its mind not to allow the pay scales given to them by the interim order of this Court. Be that as it may, we may now proceed to consider the contentions of the respective parties in these proceedings


17. Mr. Thakur, learned counsel appearing in Writ Petition No. 801 of 1986 on behalf of the Supreme Court Employees' Welfare Association, has made his submissions in two parts. The first part relates to the Junior Clerks and the class IV employees of the Supreme Court and the second part relates to the other employees of the Supreme Court, who are members of the Supreme court Employees' Welfare Association. It may be stated here that the class IV employees have filed a separate writ petition, that is, the Writ Petition No. 1201 of 1986


18. We shall first of all deal with the submissions of Mr. Thakur with regard to the Junior Clerks and class IV employees of the Supreme Court. The learned counsel has placed much reliance upon the judgments of the Delhi High Court in revising the pay scales of certain categories of class III and class IV employees, as stated hereinbefore, granting the pay scales of Rs. 400-600 and Rs. 300-430 respectively to LDCs and class IV employees. It is submitted that the Delhi High Court was fully empowered under Article 226 of the Constitution to issue appropriate writs, if in its opinion the recommendations of the Third Pay Commission as adopted by the Government of India and as reflected in the revised Pay Rules of 1973, insofar as these rules related to the staff of the Delhi High Court, amounted to discrimination and consequently violated Article 14 of the Constitution of India. Counsel submits that the special leave petitions filed by the government against the judgments of the Delhi High Court having been dismissed by this Court, the Delhi High Court judgments revising the pay scales of its employees including the pay scales of the LDCs and class IV employees have attained finality and operate as res judicata between the parties, namely, the employees of the Delhi High Court and the Union of India. It is submitted that this Court was fully justified in passing the interim orders on the basis of the judgments of the Delhi High Court which had become final and conclusive between the parties and binding on them, and that the pay scales granted by this Court by the interim orders were consonant to justice and equity. It is urged that it was not open to the Fourth Pay Commission while revising the pay scales of the staff of the Supreme Court to take a pay scale lower than the one prescribed by this Court by the interim orders as the basis for revision, as that would amount to negativing and neutralising the effect of the orders passed by this Court. It is submitted by the learned counsel that the recommendations of the Fourth Pay Commission, if allowed to prevail, would result in the reduction of the salaries of the Junior Clerks and class IV employees to a level lower than what they were receiving on the date of the revision and it would be highly discriminatory and violative of Article 14 of the Constitution


19. On the other hand, the learned Attorney-General appearing on behalf of the Union of India, in the first instance, points out that the Delhi High Court judgments, particularly the judgment in C.W.P. No. 1376 of 1984, Kamalanand v. Union of India, are based on the doctrine of 'equal pay for equal work' as enshrined in Article 39(d) of the Constitution of India. The learned Attorney-General has made elaborate submissions as to the applicability of the said doctrine to the cases of the employees of the Delhi High Court and also of the Supreme Court. We shall, of course, consider the submissions of the learned Attorney-General in regard to the doctrine of 'equal pay for equal work', but before we do that we may consider his other submissions


20. It is urged by him that the judgments of the Delhi High Court are absolutely erroneous and that, in any event, they are neither final nor do they operate as res judicata between the parties as contended on behalf of the petitioners. It is pointed out by him that the scales of pay of Rs. 400-600 and Rs. 300-430 are Punjab pay scales. Punjab pay scales were higher than the Central pay scales because the Punjab pay scales were linked to higher Consumer Price Index (for short 'CPI') 320 as on January 1, 1978 instead of CPI 200. On the other hand, the Central pay scales were linked to CPI 200 as on January 1, 1973. The Punjab High Court employees were getting higher pay scales because the dearness allowance up to January 1, 1978 had been merged in the pay scales which related to CPI 320 as on January 1, 1978 instead of CPI 200. The Delhi High Court employees were given the higher Punjab scales of pay linked to CPI 320 and also got the benefit of the difference between CPI 200 and CPI 320 according to the Central Government DA formula which came into effect from January 1, 1973. The Punjab DA formula is correspondingly lower than the General DA which is clear from the letter dated April 16, 1980 of the Government of Punjab. It is submitted by the learned Attorney-General that the employees of the High Court as also of the Supreme Court cannot have the best of both the worlds, that is to say, they cannot get both the Punjab pay scales merging into it the dearness allowance between CPI 200 and CPI 320 and, at the same time, the Central Government DA. Accordingly, it is submitted that the Delhi High Court judgments are absolutely erroneous and should not be relied upon


21. The question whether the High Court judgments relating to the LDCs and the class IV employees are right or wrong, may not be necessary to be considered. But, the relevant question that requires consideration is whether the said judgments of the Delhi High Court have become final and conclusive and binding on the parties. In case it is held that the judgments have not attained finality and do not operate as res judicata between the parties, the question as to the correctness of the judgments may be considered. Let us, therefore, advert to the contention of Mr. Thakur that the Delhi High Court judgments have become final and conclusive between the parties and operate as res judicata


22. It has been already noticed that the special leave petitions filed on behalf of the Union of India against the said judgments of the Delhi High Court were summarily dismissed by this Court. It is now a well settled principle of law that when a special leave petition is summarily dismissed under Article 136 of the constitution, by such dismissal this Court does not lay down any law, as envisaged by Article 141 of the Constitution, as contended by the learned Attorney-General. In Indian Oil Corporation Ltd. v. State of Bihar ((1986) 4 SCC 146 : 1986 SCC (L&S) 740) it has been held by this Court that the dismissal of a special leave petition in limine by a non-speaking order does not justify any inference that, by necessary implication, the contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court. It has been further held that the effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave petition should be granted. In Union of India v. All India Services Pensioners' Association ((1988) 2 SCC 580 : 1988 SCC (L&S) 651 : (1988) 7 ATC 449 : AIR 1988 SC 501) this Court has given reasons for dismissing the special leave petition. When such reasons are given, the decision becomes one which attracts Article 141 of the Constitution which provides that the law declared by the Supreme Court shall be binding on all the courts within the territory of India. It, therefore, follows that when no reasons is given, but a special leave petition is dismissed simpliciter, it cannot be said that there has been a declaration of law by this Court under Article 141 of the Constitution


23. It is true that by the dismissal of a special leave petition in limine, this Court does not lay down any law under Article 141 of the Constitution, but the question is whether after the dismissal of the special leave petition the judgment against which the special leave petition was filed becomes final and conclusive so as to operate as res judicata between the parties thereto. In repelling the contention of the petitioners that the Delhi High Court judgments relating to the LDCs and class IV employees operate as res judicata between the parties, the learned Attorney-General has strongly relied upon the decision of this Court in Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy ((1970) 1 SCC 613 : (1970) 3 SCR 830). In that case, this Court observed as follows : (SCC pp. 616 and 618, paras 5 and 11)


"The previous decision on a matter in issue alone is res judicata : the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the source of the right is res judicata. A previous decision on a matter is issue is a composite decision : the decision on law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law"It is true that in determining the application of the rule of res judicata the court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, whether the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression 'the matter in issue' in Section 11, Code of Civil Procedure means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the court or a decision of the court sanctioning something which is illegal, by resort to the rule of res judicata, a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land."


24. Thus a decision on an abstract question of law unrelated to facts which give rise to a right, cannot operate as res judicata. Nor also can a decision on the question of jurisdiction be res judicata in a subsequent suit or proceeding. But, if the question of law is related to the fact in issue, an erroneous decision on such a question of law may operate as res judicata between the parties in a subsequent suit or proceeding, if the cause of action is the same. The Delhi High Court judgments do not decide any abstract question of law and there is also no question of jurisdiction involved. Assuming that the judgments of the Delhi High Court are erroneous, such judgments being on questions of fact would still operate as res judicata between the same parties in a subsequent suit or proceeding over the same cause of action


25. In Kirit Kumar Chaman Lal Kundaliya v. State of Gujarat ((1981) 2 SCC 436 : 1981 SCC (Cri) 471 : (1981) 2 SCR 718) it has been laid down by this Court that the doctrine of res judicata or the principles of finality of judgment cannot be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the Constitution. On the basis of this principle, it has been argued by the learned Attorney-General that the judgments of the Delhi High Court might operate as res judicata, but they cannot override the provision of Article 14 of the Constitution. In other words, in spite, of the judgments of the Delhi High Court, it is permissible to contend that if the judgments are given effect to the employees of the Supreme Court, it would be discriminatory inasmuch as those who are similarly situated will be getting lesser pay. In Kirit Kumar case ((1981) 2 SCC 436 : 1981 SCC (Cri) 471 : (1981) 2 SCR 718), the order of detention of the petitioner under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act was upheld by the High Court. The petitioner filed a special leave petition against the impugned order of the High Court and also a petition under Article 32 of the Constitution urging certain additional grounds which were not taken before the High Court. A preliminary objection was raised on behalf of the State that the points not taken in the High Court by the detenu could not be agitated in the writ petition under Article 32 of the Constitution because that would be barred by the principle of constructive res judicata. In the context of the facts of that case, this Court laid down the above proposition of law that the doctrine of res judicata or the principles of finality of judgment could not be allowed to whittle down or override the express constitutional mandate to the Supreme Court enshrined in Article 32 of the Constitution


26. It is, however, the contention of the petitioners, that is, that employees of the Supreme Court, that they are being discriminated against by the Union of India because while the Delhi High Court employees are given a higher scale of pay, the Supreme Court employees who perform at least the same duties are paid a lower scale of pay. The observation that has been made in Kirit Kumar case ((1981) 2 SCC 436 : 1981 SCC (Cri) 471 : (1981) 2 SCR 718) was in the context of the facts of that case, namely, that even though certain points were not raised before the High Court that would not preclude the detenu from urging those points in a petition under Article 32 of the Constitution relating to the violation of a provision of Article 22(5) of the Constitution. The fact remains that the Delhi High Court employees would be getting higher scale of pay than the employees of the Supreme Court. It is not the case of the Union of India that the Delhi High Court employees are not similarly situated as the Supreme Court employees and that, therefore, there is a reasonable justification for making a discrimination between these two classes of employees


27. In this connection, we may consider the contention of Mr. P. P. Rao, learned counsel appearing on behalf of the Registrar of the Supreme Court. His contention is that the judgments of the Delhi High Court cannot be collaterally challenged and should be treated as res judicata between the parties, even though the said judgments will be violative of Article 14 of the Constitution. In support of this contention, the learned counsel has placed much reliance upon the decision of this Court in Thakore Sobhag Singh v. Thakur Jai Singh ((1968) 2 SCR 848 : AIR 1968 SC 1328). What happened in that case was that the Board of Revenue rejected the claim of the respondent to be recognised as a adopted son on the ground that under the Jaipur Matmi Rules the adoption, without the previous sanction of the Ruler, could not be recognised for the purpose of determining succession to the jagir. In the writ petition filed by the respondents, the High Court held that the Jaipur Matmi Rules had no statutory force because the Ruler had not given his assent to them. The High Court sent the case back on remand to the Board of Revenue to decide the case in accordance with law declared by the High Court. After the case was sent back on remand by the High Court, Validation Act, 1861 was passed validating the Matmi Rules. The Board of Revenue, however, held after remand that the respondent was the adopted son. On appeal to this Court, it has been held that even though the said Validation Act declared that the Mitmi Rules shall have and shall be deemed always to have had the force of law, notwithstanding anything contained in any judgment in any court, the Act did not supersede the judgment of the High Court. It could not be contended that the judgment of the High Court should not be treated as res judicata on that ground that if it was regarded as binding between the parties the equal protection clause of the Constitution would be violated if another person, similarly situated, was to be differently treated by the Board of Revenue. The decision in Thakore Sobhag Singh Case ((1968) 2 SCR 848 : AIR 1968 SC 1328) is an answer to the contention of the learned Attorney-General


28. The doctrine of res judicata is a universal doctrine laying down the finality of litigation between the parties. When a particular decision has become final and binding between the parties, it cannot be set at naught on the ground that such a decision is violative of Article 14 of the Constitution. So far as the parties are concerned, they will always be bound by the said decision. In other words, either of the parties will not be permitted to reopen the issue decided by such decision on the ground that such decision violates the equality clause under the Constitution. There is no question of overruling the provision of Article 14, as contended by the learned Attorney-General. The judgment which is binding between the parties and which operates as res judicata between them, cannot be said to overrule the provision of Article 14 of the Constitution even though it may be, to some extent, violative of Article 14 of the Constitution. So far as the Supreme Court employees are concerned in these proceedings the only enquiry to be made is whether the judgments of the Delhi High Court relating to the LDCs and the class IV employees have become final and conclusive between the employees of the Delhi High Court and the Union of India


29. It is the contention of the learned Attorney-General that the judgments of the Delhi High Court are erroneous on the face of them inasmuch as by these judgments the Delhi High Court has granted to the Restorers 1/LDCs and the class IV employees Punjab pay scales as also the Central DA. It is urged by the learned Attorney-General that such judgments should not be given effect to so far as the Junior Clerks and class IV employees of the Supreme Court are concerned. It is submitted that because the special leave petitions against the Delhi High Court judgments have been dismissed by this Court, the judgments may be final between the parties, but the benefit of that wrong decision should not be conferred on the employees of the Supreme Court or persons similarly situated. The Delhi High Court has made an error and that error should not be perpetuated


30. In support of that contention, the learned Attorney-General has placed reliance upon a decision of this Court in State of Orissa v. Durga Charan Das ((1966) 2 SCR 907 : AIR 1966 SC 1547 : (1967) 1 LLJ 394). In that case, the respondent claimed that he was discriminated by the State of Orissa in not fixing the amount of his pension on the basis of his confirmation as the Registrar of the High Court on August 23, 1956, that it, the date on which his junior had been confirmed as Registrar. The respondent relied upon the fact that one Mr. Beuria was held entitled to get the pay of the Registrar from December 1, 1958 and his junior was promoted to the rank of Registrar on that date. It was held by this Court that granting to Mr. Beuria the salary of the Registrar with effect from December 1, 1948 was erroneous, as it was granted to him on the misconstruction of the relevant rule and, thereafter, it was observed as follows


"If the respondent's plea of discrimination was accepted on the strength of the single case of Mr. Beuria, it would follow that because the appellant placed a misconstruction on the relevant rule, it is bound to give effect to the said misconstruction for all times; that, plainly, cannot be said to be sound."


31. That learned Attorney-General has also relied on the decisions of this Court in G. V. Ramanaiah v. Superintendent of Central Jail, Rajahmundry ((1974) 3 SCC 531 : 1974 SCC (Cri) 6 : (1974) 1 SCR 852). In that case, this Court observed as follows : (SCC p. 536, para 19)


"Mr. P. K. Rao next contends in a somewhat half-learned manner that even if the State Government had extended the benefit of its G.O. owing to a mistake to four other persons, similarly placed, it was not fair to deny the same treatment to the petitioner. This contention must be repelled for the obvious reason that two wrongs never make a right."


32. It is submitted that this Court is both a court of law and a court of equity, as held in Chandra Bansi Singh v. State of Bihar ((1984) 4 SCC 316 : (1985) 1 SCR 579). The equitable principles require that the court should not apply the result of an erroneous decision in regard to the pay scales to the employees of the Supreme Court


33. The learned Attorney-General has also placed reliance upon the doctrine of prospective overruling and points out that this Court has given effect to the doctrine of prospective overruling in Waman Rao v. Union of India ((1981) 2 SCC 362 : (1981) 2 SCR 1), Minor P. Rajendran v. State of Madras ((1968) 2 SCR 786 : AIR 1968 SC 1012) and State of M.P. v. Ram Raghubir Prasad Agarwal ((1979) 4 SCC 686 : (1979) 3 SCR 41). We are pressed to hold that the judgments of the Delhi High Court are wrong and even though the benefit which has been conferred under the judgments may not be interfered with in respect of those who have got the same, but such benefits may not be conferred on the future employees of the Delhi High Court and on the employees of this Court


34. It is also submitted by the learned Attorney-General that if this Court is of the opinion that the judgments of the Delhi High Court are erroneous, this Court should ignore that by such judgments a certain section of the employees of the Delhi High Court has been benefited and also the hardship that may result in not giving effect to such judgments, so far as the employees of the Supreme Court are concerned. In support of that contention, the learned Attorney-General has placed reliance upon a decision of this Court in Roshanlal Kuthiala v. R. B. Mohan Singh Oberai ((1974) 4 SCC 628 : (1975) 2 SCR 491). In that case, it has been observed by Krishna Iyer, J. that our equitable jurisdiction is not hidebound by tradition and blinkered by precedent, though tramelled by judicially approved rules of conscience. In this connection, we may refer to another observation of Krishna Iyer, J. in Tamil Nadu Education Department Ministerial & General Subordinate Service Association v. State of Tamil Nadu ((1980) 3 SCC 97 : 1980 SCC (L&S) 294 : (1980) 1 SCR 1026). It has been observed that once the principle is found to be rational the fact that a few freak instances of hardship may arise on either side cannot be a ground to invalidate the order or the policy


35. At the same time, the learned Attorney-General submits that the benefit which has been conferred to the employees of the Supreme Court should not be taken away all at a time but, as a court of equity, this Court may by way of reconciliation direct freezing of the pay scales of the Supreme Court employees, which they are getting by virtue of the interim orders of this Court, to be adjusted or neutralised against increments, and if that be done, they would not suffer any appreciable hardship


36. We are unable to accept the suggestion of the learned Attorney-General that reconciliation can be made by freezing the pay scales of Supreme Court employees, which they are getting by virtue of the interim orders of this Court, to be adjusted or neutralised against the increments. It is not the business of this Court of fix the pay scales of the employees of any institution in exercise of its jurisdiction under Article 32 of the Constitution. If there be violation of any fundamental right by virtue of any order or judgment, this Court can strike down the same but, surely, it is not within the province of this Court to fix the scale of pay of any employee in exercise of its jurisdiction under Article 32 of the Constitution. So far as the judgments of the Delhi High Court are concerned, they do not infringe the fundamental rights of the employees of the Supreme Court or any of the petitioners, who are the petitioners before us in the writ petitions, and so the question of considering whether the judgments of the Delhi High Court are right or wrong does not arise. If the judgments of the Delhi High Court had in any manner interfered with the fundamental rights of the petitioners before us, in that case, the question as to the correctness of those judgments would have been germane. The petitioners, far from making any complaint against the judgments of the Delhi High Court, have strongly relied upon them in support of their respective case for pay hike and, accordingly, we do not think that we are called upon to examine the propriety or validity of the judgments of the Delhi High Court


37. We may also deal with the contention of the learned Attorney-General as to the doctrine of 'equal pay for equal work' which we have so long deferred consideration. It is urged by him that the doctrine of 'equal pay for equal work', as enshrined in Article 39(d) of the Constitution of India, cannot be relied on the petitioners in support of their claim for the same pay scales as granted by the Delhi High Court by the said judgments. Article 39(d) being a provision contained in Part IV of the Constitution dealing with Directive Principles of State Policy is not enforceable by any court in view of Article 37 of the Constitution. He submits that as laid down in Kishori Mohanlal Bakshi v. Union of India (AIR 1962 SC 1139 : (1962) 44 ITR 532) and State of Punjab v. Joginder Singh (1963 Supp 2 SCR 169 : AIR 1963 SC 913) the abstract doctrine of 'equal pay for equal work' has nothing to do with Article 14. In Randhir Singh v. Union of India ((1982) 1 SCC 618 : 1982 SCC (L&S) 119) this Court has considered the decision in Kishori Mohanlal Bakshi case (AIR 1962 SC 1139 : (1962) 44 ITR 532) and came to same view that the principle of 'equal pay for equal work' was not an abstract doctrine but one of substance. Therefore, this Court observed as follows : (SCC p. 623, para 8)


"The Preamble to the Constitution of the International Labour Organisation recognises the principle of 'equal remuneration for work of equal value' as constituting one of the means of achieving the improvement of conditions 'involving such injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled'. Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), we are of the view that the principle 'equal pay for equal work' is deducible from those articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer."


38. It follows from the above decisions that although the doctrine of 'equal pay for equal work' does not come within Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay scales and such classification is unreasonable and/or if unequal pay is based on no classification, then Article 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work. In other words, where unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of 'equal pay for equal work', as envisaged by Article 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved, the doctrine of 'equal pay for equal work' will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of 'equal pay for equal work', as envisaged by Article 39(d) of the Constitution, has no manner of application, nor is it enforceable in view of Article 37 of the Constitution. Dhirendra Chamoli v. State of U.P. ((1986) 1 SCC 637 : 1986 SCC (L&S) 187) is a case of 'equal pay for equal work', as envisaged by Article 14, and not of the abstract doctrine of 'equal pay for equal work.'


39. The learned Attorney-General has also placed reliance on some recent decisions of this Court on the question as to the applicability of the doctrine of 'equal pay for equal work'. In State of Andhra Pradesh v. G. Sreenivasa Rao ((1989) 2 SCC 290 : 1989 SCC (L&S) 339 : (1989) 10 ATC 61) it has been observed that 'equal pay for equal work' does not mean that all the members of a cadre must receive the same pay packet irrespective of their seniority, source of recruitment, educational qualifications and various other incidents of service. In V. Markendeya v. State of Andhra Pradesh ((1989) 3 SCC 191) it is laid down that on an analysis of the relevant rules, orders nature of duties, functions, measure of responsibility and educational qualifications required for the relevant posts, if the court finds that the classification made by the State in giving different treatment to the two classes of employees is founded on rational basis having nexus to the object sought to be achieved, the classification must be upheld


40. In State of U.P. v. J. P. Chaurasia ((1989) 1 SCC 121 : 1989 SCC (L&S) 71 : (1988) 8 ATC 929 : AIR 1989 SC 19) this Court observed as follows : (SCC p. 130, para 18)


"The first question regarding entitlement to the pay scale admissible to Section Officers should not detain us longer. The answer to the question depends upon several factors. It does not just depend upon either the nature of work for volume of work done by Bench Secretaries. Primarily it requires among others, evaluation of duties and responsibilities of the respective posts. More often functions of two posts may appear to be the same or similar, but there may be difference in degrees in the performance. The quantity of work may be the same, but quality may be different that cannot be determined by relying upon averments in affidavits of interested parties. The equation of posts or equation of pay must be left to the Executive Government. It must be determined by expert bodies like Pay Commission. They would be the best judge to evaluate the nature of duties and responsibilities of posts. If there is any such determination by a Commission or Committee, the court should normally accept it. The court should not try to tinker with such equivalent unless it is shown that it was made with extraneous consideration."


41. Relying upon the decision in Chaurasia case ((1989) 1 SCC 121 : 1989 SCC (L&S) 71 : (1988) 8 ATC 929 : AIR 1989 SC 19), it has been urged by the learned Attorney-General that in the instant case also this Court should accept the recommendations of the Fourth Pay Commission. Normally, when a Pay Commission has evaluated the nature of duties and responsibilities of posts and has also made the equation of posts, the court should not interfere with the same. The question is not whether the court should interfere with such findings or not, but it will be discussed presently that the Chief Justice of India, who is the appropriate authority, is entitled to accept or reject the recommendations or any finding of the Pay Commission


42. Again, in Umesh Chandra Gupta v. Oil and Natural Gas Commission (1989 Supp (1) SCC 584 : AIR 1989 SC 29), it has been observed by this Court that the nature of work and responsibilities of the posts are matters to be evaluated by the management and not for the court to determine by relying upon the averments in the affidavit in the interest of the parties. It has been observed by us earlier in this judgment that it is not the business of this Court to fix the pay scales in exercise of its jurisdiction under Article 32 of the Constitution. It is really the business of the government or the management to fix the pay scales after considering various other matters and the court can only consider whether such fixation of pay scales has resulted in an invidious discrimination or is arbitrary or patently erroneous in law or in fact


43. The last case that has been relied on by the learned Attorney-General is the decision in Tarsem Lal Gautam v. State Bank of Patiala ((1989) 1 SCC 182 : 1989 SCC (L&S) 139 : AIR 1989 SC 30). In that case, this Court held that it was not an instance to which principle of 'equal pay for equal work' could straightway be applied inasmuch as the qualitative difference regard to degrees of reliability and responsibility could not be put aside as irrelevant


44. So far as the judgment of the Delhi High Court are concerned, we find that the High Court has taken into consideration the decisions of this Court on the doctrine of 'equal pay for equal work'. In one of these judgments in Civil Writ Petition No. 1376 of 1984 relating to the pay scale of the petitioner, who was a Restorer which is equivalent to LDC/Junior Clerk, the learned Judges of the Delhi High Court have held that the principle of 'equal pay for equal work' would be squarely available to the petitioner, particularly having regard to the admitted fact that of the two High Courts in relation to which parity is claimed one was the predecessor of this Court and the other its successor. The Delhi High Court before applying the doctrine of 'equal pay for equal work' has come to the finding that if the Restorers working in the Delhi High Court are given a pay scale lower than the Restorers working in the Punjab High Court, which is a predecessor of the Delhi High Court and Himachal Pradesh High Court which is a successor of the Delhi High Court, it will be discriminatory and violative of Article 14 of the Constitution. It has been already stated by us that we are not called upon to consider the correctness or otherwise of the judgments of the Delhi High Court, but what we would like to point out is that the Delhi High Court has not straightway applied the doctrine of 'equal pay for equal work' as an abstract doctrine, as envisaged by Article 39(d) of the Constitution


45. Elaborate submission have been made by the learned counsel of the parties as to the interpretation and scope of Article 146(2) of the Constitution of India, Article 146(2) provides as follows


"146.(2) Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose


Provided that the rules made under this clause shall, so far as they relate to salaries, allowance, leave or pensions, require the approval of the President


46. Under Article 146(2) the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by the rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose. This is, however, su

bject to the provisions of any law that may be made by Parliament. It is apparent from Article 146(2) that it is primarily the responsibility of Parliament to lay down the conditions of service of the officers and servants of the Supreme Court, but so long as Parliament does not lay down such conditions of service, the Chief Justice of India or some other Judge or officer of the Court authorised by the Chief Justice of India is empowered to make rules for the purpose. The legislative function of Parliament has been delegated to the Chief Justice of India by Article 146(2). It is not disputed that the function of the Chief Justice of India or the Judge or the officer of the Court authorised by him in framing rules laying down the conditions of service, is legislative in nature. The conditions of service that may be prescribed by the rules framed by the Chief Justice of India under Article 146(2) will also necessarily include salary, allowances, leave and pensions of the officers and servants of the Supreme Court. The proviso to Article 146(2) puts a restriction on the power of the Chief Justice of India by providing that the rules made under Article 146(2) shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President of India. Prima facie, therefore, the conditions of service of the employees of the Supreme Court that are laid down by the Chief Justice of India by framing the rules will be final and conclusive, except that with regard to salaries, allowances, leave or pensions the approval of the President of India is required. In other words, if the President of India does not approve of the salaries, allowances, leave or pensions, it will not have any effect. The reason for requiring the approval of the President of India regarding salaries allowances, leave or pensions is the involvement of the financial liability of the government 47. One important thing that is to be noticed is that under clause (3) of Article 146 the administrative expenses of the Supreme Court including all salaries, allowances, leave and pensions payable to or in respect of the officers and servants of the court shall be charged upon the Consolidated Fund of India. In view of the provision of clause (3), such administrative expenses shall not be submitted to the vote of Parliament, as provided in Article 113 of the Constitution. It is apparent that in the order to maintain the independence of the judiciary, the framers of the Constitution though it wise and expedient to make such a provision as contained in clause (3) of Article 146 48. It is contended by the learned Attorney-General that the function of the President of India approving of the rules framed by the Chief Justice of India relating to salaries, allowance, leave or pensions is legislative in character and it is analogous to the President of India giving assent to a Bill. It is difficult to accept the contention that the function of the President of India approving of the rules is analogous to giving assent to a Bill. The rules framed by the Chief Justice of India though it is a piece of subordinate legislation, it is not a full-fledged legislative act requiring assent of the President of India. In this connection, we may refer to the statement of law as to the delegated legislation in Foulkes' Administrative Law, Sixth Edition, page 57 which reads as follows "It is common for Parliament to confer by Act on ministers and other executive bodies the power to make general rules with the force of law - to legislate. Parliament is said to delegate to such bodies the power to legislate. Thus the phrase 'delegated legislation' covers every exercise of a power to legislate conferred by Act of Parliament. The phrase is not a term of art, it is not a technical term, it has no statutory definition. To decide whether the exercise of a power constitutes 'delegated legislation' we have to ask whether it is a delegated power that is being exercised and whether its exercise constitutes legislation. Clearly an Act, public or private, is not delegated : it is primary legislation. When a minister or other authority is given power by the Act of Parliament to make rules, regulations etc. the power has been delegated to him, and insofar as the rules made by that authority are legislative in their nature, they comprise delegated legislation. If the contents of the document (made under delegated powers) are not legislative the document will obviously not be piece of (delegated) legislation. Ministers and others are in fact given power to make orders, give directions, issue approval and notices etc. which one would not, because of their lack of generality, classify as legislative but rather as administrative." 49. It has been observed in the statement of law that if the contents of the document made under delegated powers are not legislative, the document would obviously not be a piece of delegated legislation. Again, it is stated that Ministers and others are, in fact, given power to make orders, give directions, issue approvals and notices etc. which one would not, because of their lack of generality, classify as legislative but rather as administrative. In view of the said statement of law, it may be contended that the function of the President of India is not strictly legislative in nature, but an administrative act. We do not think it necessary to come to any final decision on the question and we propose to proceed on the assumption that the function of the President of India in approving the rules framed by the Chief Justice of India relating to salaries, allowances, leave or pensions is a legislative act 50. It is vehemently contended by the learned Attorney-General that as the President of India performs a legislative act in approving the rules framed by the Chief Justice of India, no writ can lie to compel him to give the approval or to withhold the approval. In support of his contention, reliance has been placed on decision of this Court in Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory, Himachal Pradesh ((1971) 2 SCC 747 : (1972) 1 SCR 940). In that case, Hegde, J. speaking for the Court observed.