A bench of Justices R V Raveendran and Markandey Katju has held that even prerogative power of an authority is open to judicial review in the country that follows the principle of rule of law.

“In a democracy, governed by rule of law, where arbitrariness in any form is eschewed, no government or authority has the right to do whatever it pleases. Where rule of law prevails, there is nothing like unfettered discretion or unaccountable action.”

“Even prerogative power is subject to judicial review, but to a very limited extent. The extent, depth and intensity of judicial review may depend on the subject matter of judicial review,” the court said.

The observations came while setting aside an order of the division bench of the Calcutta High Court granting higher pay benefits to some employees of the high court on the basis of one of their junior fellow, who had got some out of turn increments and promotion.

The high court had held that the state government could not challenge the fixation of salaries of the employees, recommendation of posts, etc., as these were recommended by the chief justice under the rules.

Allowing the appeal of the West Bengal government, the apex court after analysing the facts came to the conclusion that Gopinath Dey, a junior employee, was given a higher pay for “wholly erroneous” reasons.

“The fact that a mistake was committed in the case of Dey by extending the benefit of second higher scale under Career Advancement Scheme cannot be a ground for the chief justice to direct perpetuation of the mistake by directing similar benefit to other senior employees,” Justice Raveendran, writing the judgment, said.

The apex court also rejected the view of the high court that the state government cannot challenge the order passed by the chief justice as it was not “justiciable” and the chief justice can pass such orders under exceptional circumstances.

“It is therefore clear that the chief justice has the power and authority to grant premature increments in exceptional circumstances. But the chief justice cannot grant such relief in an irrational or arbitrary manner. If the rules provide that premature increments could be granted in exceptional circumstances, there should be a reference to the existence of exceptional circumstances and application of mind to those exceptional circumstances,” the bench said.