Gujarat High Court Case Information System Print SCA/7813/2010 40/ 40 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7813 of 2010 For Approval and Signature: HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GUJARAT STATE JUDICIAL DEPARTMENT CLASS III EMPLOYEE'S FEDERATION & ANR. Versus STATE OF GUJARAT & ORS. ========================================================= Appearance : MR VK JOSHI for Petitioners. MR PRAKASH JANI, GOVERNMENT PLEADER with MS KRINA CALLA, ASST. GOVT. PLEADER for Respondents : 1 - 2. MR SHALIN MEHTA, for Respondent : 3. NOTICE SERVED BY DS for Respondent : 4. ========================================================= CORAM : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 07/09/2011 CAV JUDGMENT
(Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) This writ petition has been preferred by Gujarat State Judicial Department (Class-III) Employee's Federation, Ahmedabad and Gujarat State Judicial Department Stenographer/PS Association, Ahmedabad who represent the non-judicial staff of subordinate courts in the State of Gujarat.
The grievance of the petitioners is that despite the order dated 7th October 2009 passed by the Supreme Court in the case of ALL INDIA JUDGES ASSON & ORS. v/s UNION OF INDIA & ORS. in W.P. (C). No. 1022 of 1989, no satisfactory progress has been made despite representations made by the petitioner-Associations to implement the Justice Shetty Commission report by the respondent State. The petitioners have therefore prayed for a direction to the respondents to implement the Justice Shetty Commission report in view of the order passed by the Supreme Court and grant the pay scale to non-judicial staff of subordinate courts in the State of Gujarat w.e.f. 01.04.2003 immediately.
By order dated 7th October 2009, the Supreme Court disposed of a number of Interlocutory Applications which were filed in the case of ALL INDIA JUDGES ASSON & ORS. v/s UNION OF INDIA & ORS. in W.P. (C). No. 1022 of 1989 directing the State Governments to implement the recommendations of Justice Shetty Commission within a period of 3 months. It was ordered to implement the recommendation w.e.f. 1st April 2003 with additional increment as ordered by the Supreme Court, and all High Courts were directed to ensure on judicial/administrative side that the recommendations of Justice Shetty Commission is implemented within a reasonable period of one year.
Admittedly, the recommendations of Justice Shetty Commission in regard to revised scale of pay for non-judicial staff of subordinate courts were not implemented in the State of Gujarat. With a view to ensure implementation of the order of the Supreme Court and thereby the recommendations of Justice Shetty Commission in its letter and spirit, the Court monitored the matter, and finally the State Government implemented the order w.e.f. 01.04.2003.
Some doubts have been raised by the petitioners regarding some of the posts with regard to revision of pay scale from 01.01.2006, i.e. the date from which the 6th Pay Commission recommendations have been implemented.
It is necessary to note that the order passed by the Supreme Court on 7th October 2009 in I.A. Nos. 71A, 135-136, 137-138 and 142 in W.P. (C) No. 1022 of 1989 in the case of All India Judges Association & Ors. vs. Union of India, which reads as under:
"Upon hearing counsel the Court made the following O R D E R Impleadment applications are allowed.
The Shetty Commission Report was submitted in March 2003, pursuant to the orders dated 17.12.1997 and 7.1.1998 passed by this Court wherein it was emphasized that the improvement in service conditions of the judicial staff is necessary for the administration of justice and rule of law. This Court, after considering the submission made by the States/UTs/High Courts, has accepted the Shetty Commission recommendations and passed various orders. Finally, on 15.07.2008 this Court has directed:
the recommendations are reasonable and do not involve any financial burden.
the decision to implement the recommendations by all States should be taken within a period of three months.
the recommendations will be implemented w.e.f 1.4.2003.
We are told that so far all the States/UTs have not implemented the recommendations fully. Some of the States have implemented the recommendations but had given effect to the date later than 1.4.2003. Still some of the grievances of various officers are subsisting. In view of these circumstances, we direct that hereafter these matters be considered by the respective High Courts of the State/UTs. We direct that:
The High Courts, on judicial/administrative side, will ensure implementation of the recommendations of the Shetty Commission within a reasonable period of one year. The High Court shall permit writ petitions or applications that may be filed by the individual or staff association representing the various members of the staff.
The High Courts shall also see that the recommendations are implemented w.e.f. 1.4.2003.
There shall be benefit of one advance increment on the existing pay-scale instead of initial pay-scale. In many of the States, the same benefit has not been given to the members of the staff, the High Court should also see that these recommendations are implemented.
In some of the States based on various other pay commissions Reports, benefits had been given to the members of the staff, these benefits, if any, given shall be in addition to the recommendations given by the Shetty Commission.
In any case if the members of the staff association/subordinate staff getting higher benefits under any of the recommendations of the pay commission/Government orders, they shall be permitted to avail those benefits.
Office is directed to send back all the records, if any, to the respective High Courts. A copy of the consolidated report of the Shetty Commission may also be sent to the respective High Courts/UTs.
I.As. are disposed of accordingly."
On notice, the respondent State appeared and readily agreed to implement the recommendations made by the Justice Shetty Commission for the administrative staff of the subordinate courts in the State and issued a resolution, being Resolution No. PGR-102010-14-PART III D dated 07.05.2011 from Legal Department, Government of Gujarat.
The petitioners objected to the resolution dated 07.05.2011 issued by the State Government on the ground that the recommendations of Justice Shetty Commission have not been implemented in letter and spirit. Petitioners filed an additional affidavit on 13th June 2011 setting out in paragraphs 4 to 6 therein the main benefits they are entitled to, which have been ignored in the said resolution, which is reproduced verbatim as under:
"4. It is submitted that as stated herein above, the entire reports of Shetty Commission requires to be implemented by the State Govt. as per the direction to implement issued by the Hon'ble Supreme Court in its order dated 7/10/2009, still following effects have not been incorporated in resolution dated 7/5/2011 issued by the respondent State Govt. and not only that following main benefits which are entitle by judicial staff have been ignored in the said Govt. resolution.
[A] The G.R. Dated
7./5/2011 issued by the State Govt. speaks about to grant of special pay instead of revision of pay scale and as a some stop gap arrangement during the period between 1/4/2003 to 31/12/2005 and thereafter the so called "Special Pay" has also been discontinued w.e.f. 31/12/2005 for the reasons that the State Govt. implement the Six it is submitted that, the Special Pay means to grant some reward or remuneration for extra work which has different meaning other than Shetty Commission Report. The employees of judicial subordinate courts are entitled to avail benefit of pay scale as recommended by the Shetty Commission and directed by the Hon'ble Supreme Court w.e.f. 1/4/2003 and thereafter corresponding pay scale of the Sixth Pay Commission w.e.f. 1/1/2006. Neither in the report of the Shetty Commission or in the order dated 7/10/2009 passed by the Hon'ble Supreme Court the "Special Pay" words has never been used in entire report or in order of the Hon'ble Supreme Court. The State Govt. should modify the resolution dated 7/5/2011 accordingly.
[B] As per recommendation made in Chapter VI [Page 244] in the Shetty Pay Commission Report, the following pay scale ought to have been granted for the post of Stenographers have been left out in the govt. Resolution dated 7/5/2011.
[i] Stenographer Gr.III 5500-9000 + One Increment [ii] Stenographer Gr.II 6500-10550 + One Increment [iii] Stenographer Gr.I 10000-15200 + One Increment [50% post to be upgraded] i. Travelling allowance for Stenographer:
Taluka Headquarters Rs. 100/-
Cities Courts Rs.
Executive Assistant Rs. 200/-
[PA. To Dist.Judge and City Civil Courts]
5. Retired Govt. Employees of Judicial Department: As described in Govt. Resolution dated 7/5/2011, the effect of pay scale as recommended by the Shetty Commission as a Special Pay during the period between 1/4/2003 to 31/12/2005 and thereafter discontinued w.e.f. 1/1/2006, the retired employees shall not get benefit of pay scale in their pension which also contrary to the order passed by the Supreme Court dated 7/10/2009.
6. General Recommendations which are not incorporated in Govt. Resolution dated 7/5/2001 such as 5% compensatory allowance of the basic pay for the staff of Legal Service Authority, Rules for post of Stenographer to be switched over in supervisory cadre in ministerial staff, Uniform and Uniform allowances, Recruitment and Promotion Process, Staff Training, Promotion for cadre of Class-IV in the cadre of Class-III for the bailiff are also overlooked by the State Govt. in the Govt. Resolution dated 7/5/2011."
The matter was discussed in presence of Mr. I.I. Malvat, President, Gujarat State Judicial Department Class-III Employees' Federation along with Mr. Suresh Thakkar, President, Gujarat State Judicial Department Stenographers' Association; Mr. H.P. Kanthariya, Secretary, Gujarat State Judicial Department Class-III Employees' Federation; Mr. H.P.Darbar, Secretary, Gujarat State Judicial Department Stenographers' Association; Mr. M.M. Srivastava, Additional Chief Secretary, Finance Department and Mr. Harsh V. Brahmbhatt, Additional Secretary, General Administration Department and Mr. O.L. Pande, Law Secretary. Counsel for the respective parties, namely, Mr. V.K. Joshi, appearing on behalf of the petitioners, Mr. P.K. Jani, learned Government Pleader with Ms. Krina Calla, learned AGP, appearing on behalf of respondent nos.1 & 2 and Mr. Shalin Mehta, learned counsel appearing on behalf of respondent no.3 were also present.
Pursuant to the discussions, officials of the State Government agreed to come out with another resolution in place of the earlier one. Accordingly, the State Government issued another resolution being Resolution No. PGR/102010/14/Part-III/D dated 26th July 2011 from Legal Department, Government of Gujarat in supersession of its earlier resolution. It was simply stated in the resolution that the Government is pleased to accept the Shetty Pay Commission Recommendations for non-judicial staff of subordinate Courts of the State as per schedule attached with the said resolution.
Subsequently, when again the matter was taken up, the petitioners pointed out certain defects in the resolution dated 26th July 2011. There were some clerical errors and non-clarity with regard to some of the provisions, and as some of the provisions were not in accordance with the recommendations of Justice Shetty Commission, the respondent State took time to come out with a fresh resolution.
Finally, the State Government from its Legal Department has issued another resolution being Resolution No. PGR/102010/14/Part-III/D dated 2nd September 2011 whereby in supersession of Legal Department's earlier resolutions dated 07.05.2011 and 26.07.2011, the State Government has decided to implement Justice Shetty Commission recommendations for non-judicial staff of the subordinate courts of the State granting pay revision as per the recommendations of Justice Shetty Commission from 01.04.2003 to 31.12.2005. For proper appreciation of the case, a copy of the resolution is annexed to this judgment, which shall form part of this judgment.
The petitioners have accepted that most of the recommendations of Justice Shetty Commission have been implemented. However, they raised certain doubts with regard to the decision as contained at Sl. No. 1 to 7 of the resolution dated 2nd September 2011 at pages 3 and 4 of the resolution. It was submitted that pay should be fixed taking into account the last pay drawn by employees on 31st December 2005.
It is stated that 6th Pay Commission recommendations have been accepted by the State Government vide resolution No. (GN8) PGR-1009-2-pay cell (m) dated 27th February 2009 with effect from 01.01.2006. The pay of the employees of the subordinate Courts has already been fixed as per the said resolution w.e.f. 01.01.2006.
Now, in view of resolution dated 2nd September 2011, the pay of employees of subordinate courts had to be fixed from 01.04.2003 by allowing benefit of one advance increment on the existing pay scale instead of initial pay scale as ordered by the Supreme Court.
The State Government has agreed to provide the benefit of one advance increment on the existing pay scale instead of initial pay scale. Therefore, it is fixed from 01.04.2003, the employees will draw the benefits including arrears on such revision of pay. The pay is to be fixed accordingly.
The Supreme Court, in its order 7th October 2009 in the case of ALL INDIA JUDGES ASSON & ORS. v/s UNION OF INDIA & ORS. in W.P. (C). No. 1022 of 1989 has noticed that in some States, based on various other pay commissions Reports, benefits had been given to the members of the staff and held that these benefits, if any, given shall be in addition to the recommendation given by the Shetty Commission.
Therefore, the employees of the subordinate courts of Gujarat, who have already received the benefits of 6th Pay Commission w.e.f. 01.01.2006 shall continue to get such benefits in addition to the recommendations given in the recommendation by Justice Shetty Commission.
In this background, according to the petitioners, while fixing pay of the employees as on 01.01.2006 in the scale prescribed by the 6th Pay Commission, the fixation of pay is to be made by taking into consideration the revised scale of pay the employees received w.e.f. 01.04.2003 with one advance increment on the existing pay scale instead of initial pay scale, as ordered by the Supreme Court.
Orally, the officers of the State have agreed that the staff of the subordinate courts are entitled for fixation of pay as per Government's circular but we make it clear that employees of the subordinate courts will be entitled to fixation of pay w.e.f. 01.01.2006 in the scale prescribed by the 6th Pay Commission which they are receiving at present after fixation of pay as per the recommendation of Justice Shetty Commission in the revised scale of pay w.e.f. 01.04.2003 by adding one advance increment on the then existing pay-scale instead of initial pay scale.
For example, if the pay of a person is fixed in the revised scale of pay as per recommendation of Justice Shetty Commission after adding one advance increment on the existing pay scale comes to Rs.10,500/-, irrespective of the fact that whatever the fixation of pay earlier made with regard to such employee in the absence of recommendation of Justice Shetty Commission w.e.f. 01.01.2006, now the pay of such employee is to be fixed at Rs.10,500/- w.e.f. 01.01.2006 as per the scale recommended by the 6th Pay Commission, i.e. the scale in which the pay of such employee has been fixed.
Learned counsel for the petitioners submitted that there are certain isolated posts for which separate scale of pay has not been recommended in the 6th Pay Commission Report. According to them, if the salary of the Registrar, City Civil Court, Ahmedabad, District Court and Rural Court are looked into, their salary will stand reduced or may get same scale of pay without any benefit from 01.01.2006. The following example has been shown:
Registrar Small Causes Court & Metropolitan Court.
Registrar & Additional Registrar City Civil Court Ahmedabad District Registrar & Additional District Registrars District Courts & Rural Courts Pay Scale as on 01.04.2003 6500-10500 10000-15200 6500-10500 Pay Scale admissible from 1/4/2003 as per recommendation of Justice Shetty Commission Report Pay Commission 8000-13500 12000-16500 12000-16500 Revision of pay scale admissible from 1.1.2006 as per order of the Hon'ble Supreme Court 9300-34800 Grade Pay 5400 15600-39100 Grade Pay 7600 5600-39100 Grade Pay 7600 Pay scale as on 1.1.2006 reduced as per condition laid down in G.R. due to condition to discontinue the benefit of Special Pay and the benefit of Shetty Pay Commission.
9300-34800 Grade Pay 4600 15600-39100 Grade pay 6600 9300-34800 Grade Pay 4600 Due to condition laid down in G.R.
benefit or loss LOSS [Less Grade Pay] LOSS [Less Grade Pay] LOSS [Less Pay Scale and Grade Pay] Therefore, according to the petitioners, pay should be fixed in the corresponding revised scale of pay as recommended by the 6th Pay Commission. That means that if Registrars and Additional Registrars of City Civil Court, Ahmedabad or Registrars of District Court and Rural Courts are in the pay scale of Rs.12000-16500 from 01.04.2003, then in that case the corresponding revised scale of Rs.15,600-39000 should be provided to such Registrars w.e.f. 01.01.2006 with grade pay of Rs.7600/- instead of lesser grade pay. It is stated that in the case of Registrar, Small Causes Court, while they will get lesser Grade pay of Rs.4600/- instead of Rs.5400/-, in the case of Registrar and Additional Registrar of City Civil Court, Ahmedabad, they will get lesser grade pay of Rs.6600/- instead of Rs.7600/-, and in the case of Registrar and Additional Registrar of District Court and Rural Courts, they will get a lower scale of Rs.9300-34800.
In this regard, we may only mention that the Supreme Court by its order dated 7th October 2009 has directed that recommendations of Justice Shetty Commission are implemented w.e.f. 1.4.2003; the benefit of one advance increment on the existing pay-scale should be given to the members of the staff; and, the benefit of revision of pay as per recommendation of the 6th pay commission shall be in addition to the recommendations given by the Shetty Commission. The Supreme Court has not passed any order to provide further revised scale of pay w.e.f. 01.01.2006 on the basis of revised scale, as revised pursuant to Justice Shetty Commission Report. If that is allowed, then it will amount to grant of revision of pay twice - one w.e.f. 01.04.2003 and the other w.e.f. 01.01.2006. The essence of the Supreme Court's order is that whatever the scale of pay has been provided pursuant to the recommendation of the pay revision commission [6th pay commission], should be provided to the staff in addition to the recommendation of Justice Shetty Commission.
In the present case, the State Government has implemented the recommendation of the pay revision w.e.f. 01.04.2003 and thereby complied with the directions of the Supreme Court.
State Government has also allowed benefit of one advance increment on the then existing pay scale in favour of the employees of the subordinate court, and thereby also the State has complied with the directions of the Supreme Court.
The benefit of Justice Shetty Commission Report has been allowed by the State Government in addition to the pay to which the staff of the subordinate courts are entitled to as per the recommendations of the 6th Pay Commission w.e.f. 01.01.2006 which has also been allowed by the State Government.
We are, therefore of the opinion that the order of the Supreme Court dated 7th October 2009 passed in I.A. Nos. 71A, 135-136, 137-138 and 142 in W.P. (C) No. 1022 of 1989 in the case of All India Judges Association & Ors. vs. Union of India has been implemented by the State in letter and in spirit.
So far as the doubt raised with regard to some of the employees that their scale of pay will be brought down, we are of the view that they will not suffer any loss as option has been provided under the Rule to the employees to continue in the old scale of pay, i.e. the scale of pay as recommended by Justice Shetty Commission even beyond 31.12.2005, i.e. even from 01.01.2006 onwards also. Hence such employees may opt to continue in the scale of pay as recommended by Justice Shetty Commission.
In view of the developments as referred to above, no further order is required to be passed in the present case. The writ petition stands disposed of. No costs.
MUKHOPADHAYA, C.J] [J.B.PARDIWALA, J.] mathew Top