Law, not equity must prevail: SC

The Supreme Court has ruled that law should prevail over equity and that judges should not legislate as it would violate the basic democratic principles.

Last Updated: Mar 21, 2011, 18:04 PM IST

New Delhi: The Supreme Court has ruled that
law should prevail over equity and that judges should not
legislate as it would violate the basic democratic
principles.

A bench of justices Markandeya Katju and Gyan Sudha
Mishra in a recent judgement said courts should not interpret
rules on the basis of equity.

"In other words, once we depart from the literal rule,
then any number of interpretations can be put to a statutory
provision, each judge having a free play to put his own
interpretation as he likes.

"This would be destructive of judicial discipline,
and also the basic principle in a democracy that it is not for
the judge to legislate as that is the task of elected
representatives of the people. Even if the literal
interpretation results in hardship or inconvenience, it has
to be followed," the bench said.

The apex court passed the ruling while setting aside a
May 23, 2006 judgement of a Full Bench of the Kerala High
Court which on the basis of principles of equity upheld the
promotion of general category candidates for the post of Block
Development Officer (BDOs).

The dispute related to inter se seniority for the post
of BDOs between the general category candidates and petitioner
Scheduled Caste/Scheduled Tribe candidates.

The apex court said, "The Full Bench and single judge
have relied on equity, justice and good conscience, rather
than law. We are of the opinion that this approach is
incorrect. When there is a conflict between law and equity, it
is the law which is to prevail.

"Equity can only supplement the law when there is a
gap in it, but it cannot supplant the law. In the present
case, Rule 27(c) clearly makes the appellants senior to the
respondents as the advice for their appointments were made
prior to that for the respondents," the bench said.

According to Rule 27(c) of the Kerala State and
Subordinate Services Rules, seniority is to be determined
"by the date of first effective advice made by the Public
Service Commission to the State Government for appointment.

In the present case for the appellants B Premanand and
other SC/ST candidates the said advice for appointment was
made by the Kerala Public Service Commission on July 8, 1992
and they joined between July 13, 1992 and October 22,1992.

Whereas, "advice" for the general category candidates
was made on April 6, 1993 and they were appointed as BDOs on
September 28, 1993 and they joined between October 6,1993 and
November 17, 1993.

However, the Full Bench of the High Court ruled in
favour of the general category candidates vis-a-vis seniority
on the ground that their original selection was much prior to
the SC/ST candidates.

PTI

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