D. M., ARAVALI GOLF CLUB V.

CHANDER
HASS
FACTS OF THE CASE
 The plaintiffs were appointed as Mali 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.
 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.
 Thereafter on a recommendation made by the Head Office, the appellants started paying
them wages of tractor driver on daily wage basis, as per rates recommended by the
Deputy Commissioner.
 Though they continued to work for about a decade as tractor drivers, their services were
regularized against the post of Mali in the year 1999 and not as tractor driver.
 When despite representations their grievance was not redressed, the respondents herein
filed civil suit in the month of April, 2001 claiming regularization against the posts of
tractor driver.
 Their claim was rejected by the Trial Court which observed that there was
no post of tractor driver in the establishment, and the suit was dismissed.
 The Trial Court held that plying a tractor is part and parcel of the job of
Mali in a Golf Club, since the Golf Field of the Club is vast and needs to
be maintained with mechanical gadgets.
 Aggrieved against the said order of dismissal of the suit, the respondents
herein preferred an appeal before the Additional District Judge, Faridabad.
Their appeal was accepted and the judgment and decree of the Trial Court
was set aside.
 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.
ISSUE OF THE CASE
1. Whether regularization of services can be sought against a post
sanctioned to be created?
Since there is no sanctioned post of tractor driver against which the respondents could be
regularized as tractor driver, the direction of the First Appellate Court and the learned Single
Judge to create the post of tractor driver and regularizing the services of the respondents
against the said newly created posts was in our opinion completely beyond their jurisdiction.
2. Whether Court can direct creation of post not provided by the
establishment?
The Courts cannot take upon themselves the power of creation of a post. Therefore, the
directions given by the High Court and First Appellate Court to create the posts of tractor
driver and regularize the services of the respondents against the said posts cannot be
sustained and are hereby set aside.
ARGUMENTS

>>>Learned counsel for the appellants submitted that there is no post of tractor
driver, and therefore, there is no question of regularizing the respondents in the
said post. It is not disputed that there is no sanctioned post of tractor driver in the
appellant's establishment. Learned counsel for the respondents has also not been
able to show that there are any sanctioned posts of tractor driver.

>>>Since there is no sanctioned post of tractor driver against which the

respondents could be regularized as tractor driver, the direction of the First
Appellate Court and the learned Single Judge to create the post of tractor driver
and regularizing the services of the respondents against the said newly created
posts was in our opinion completely beyond their jurisdiction.
>>>The Court cannot direct the creation of posts. Creation and sanction of posts is
a prerogative of the executive or legislative authorities and the Court cannot
arrogate to itself this purely executive or legislative function, and direct creation of
posts in any organization. This Court has time and again pointed out that the
creation of a post is an executive or legislative function and it involves economic
factors.

>>>Therefore, the directions given by the High Court and First Appellate Court to
create the posts of tractor driver and regularize the services of the respondents
against the said posts cannot be sustained and are hereby set aside.
OBSERVATIONS
>>>Before parting with this case we would like to make some observations about the limits of
the powers of the judiciary. We are compelled to make these observations because we are
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 others domains.
IN RAM JAWAYA V. STATE OF PUNJAB
 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.
In Tata Cellular v. Union of India
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. The
Court must not embarrass the administrative authorities and must realize that administrative
authorities have expertise in the field of administration while the Court does not
JUDGEMENT
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.
OUR VIEW ON THIS CASE
The court has regularly come across incidents where judges threaten to execute
administrative or legislative duties unjustifiably. This is obviously illegal, in our view.
Judges are reluctant to reach their boundaries in the interest of judicial activism to threaten
to take on roles belonging to another state agency. The Legislative, Executive and Judiciary
all have their own broad spheres of activity under our Constitution. It is generally not
acceptable for either of these three state institutions to enter the territory of another, or the
fragile equilibrium in the Constitution will be disrupted, and there will be a backlash.
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.
‘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.