DIVISIONAL MANAGER, ARAVALI GOLF CLUB & ANR. versus CHANDER HASS & ANR.

Citation: [2007] 12 S.C.R. 1084 · Decided: 06-12-2007 · Supreme Court of India · Bench: A.K. MATHUR, MARKANDEY KATJU · Disposal: Appeal(s) allowed
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Judgment (excerpt)

A 
DIVISIONAL MANAGER, ARA V ALI GOLF CLUB & ANR. 
v. 
CHANDER HASS & ANR. 
DECEMBER 6, 2007 
B 
[A.K. MATHUR AND MARKANDEY KAT JU, JJ.] 
Service Law: 
C 
Regularization-Malis engaged on daily wage basis-Later 
started working as tractor drivers-Regularized as Mali-Suit for 
regularization as tractor drivers-Dismissed by trial court with a 
finding of fact that there was no sanctioned post of tractor driver-
First appellate court directing to create posts of tractor drivers and 
D to regularize the plaintiffs as tractor drivers-Decree affirmed by High 
Court-HELD: Since there was no sanctioned post of tractor driver 
against which respondents could be regularized, directions of first 
appellate court and single Judge of High Court to create posts of 
tractor drivers and to regularize the plaintiffs against such posts was 
completely beyond their jurisdiction-Court cannot direct creation of 
E posts-Creation and sanction of posts is the prerogative of executive 
or legislative authorities and Court cannot arrogate to itself this purely 
executive or legislative function, and direct creation of posts in any 
organization-Both the High Court and first appellate court acted 
beyond their jurisdiction in directing creation of posts of tractor drivers 
F to accommodate the plaintiffs-Judiciary-Powers and limits of 
[Para 14, 15 and 41) (1089-G, H; 1090-B, C; 1099-F) 
Constitutionalism-Under the Constitution of India, Legislature, 
Executive and Judiciary all have their own broad sphere of operation-
G Ordinarily, it is not proper for any of these three organs of State to 
encroach upon the domain of another, otherwise delicate balance of 
Constitution will be upset and there will be a reaction-If there is a 
law, Judges can certainly enforce it, but Judges cannot create a law 
and seek to enforce it-Constitution of India, 1950-Theory of 
H 
1084 
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1. 
f 
DIVISIONAL MANAGER, ARA V ALI GOLF CLUB v. 
1085 
CHANDER HASS 
separation of powers. [Para 19 and 26] [1090-G; 1091-A; 1095-D] 
A 
Tata Cellular v. Union of India, AIR (1996) SC 11 ; RamJawaya 
v. State of Punjab, AIR (1955) SC 549; Asif Hameedv. State of Jammu 
and Kashmir, AIR (1989) SC 1899; Union of India v. Deoki Nandan 
Agarwal, AIR (1992) SC 96; V.K. Reddyv. State of Andhra Pradesh, 
J.T. (2006) 2 SC 361; Suresh Seth v. Commissioner, Indore Municipal B 
Corporation & Ors., AIR (2006) SC 767; and Bal Ram Bali v. Union 
of India, JT (2007) 10 SC 509, relied on. 
Rajindera Singh v. Prem Mai & Ors., (Civil Appeal No. 13071 
2001) decided on 23 August, 2007, referred to. 
c 
Judiciary-Powers and limits of-Of the three organs of State, 
Legislature, Executive and Judiciary, only the Judiciary has power to 
declare limits ofjurisdiction of all three organs-This is a great power 
and hence must never by abused or misused, but should be exercised 
by Judiciary with utmost humility and self-restraint-Judicial restraint D 
is consistent with and complementary to balance of power among the 
three independent branches of State-It accomplishes this in two 
ways-First judicial restraint not only recognizes the equality of other 
two branches with Judiciary, it also fosters that equality by minimizing 
inter-branch interference by Judiciary-Second, judicial restraint tends E 
to protect independence o.fjudiciary-The constitutional trade-off for 
independence is that judges must restrain themselves from areas 
reserved to other separate branches-Thus, judicial restraint 
complements the twin, overarching values of the independence of 
Judiciary and the separation of powers-Judicial restraint. 
F 
[Para 32, 33, 34 and 35] (1097-B, C, D, E, G; 1098-A] 
Dennis v. United States, (United States Supreme Court Reports 
95 Law Ed. Oct.1950 Term U.S. 340-341), referred to. 
Judicial Activism-In the name of judicial activism, Judges G 
cannot cross their limits and try to take over functions which belong 
to another organ of State-If they do so, it would be clearly 
unconstitutional-Judges must exercise judicial restraint and must not 
encroach into executive or legislative domain-It is not that judges 
should never be 'activist '-Sometimes judicial activism is a useful H 
f 
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1086 
SUPREME COURT REPORTS 
[2007] 12 S.C.R. 
" 
A adjunct to democracy, Supreme Court expanded the scope of Articles 
r 
) 
14 and 21 of the Constitution-This, however, should be resorted to 
only in exceptional circumstances when the situation forcefully 
demands it in the interests of the nation or
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