(Fakkir Mohamed Ibrahim Kalifulla and Shiva Kirti Singh, JJ.)
All India Judges Asson. & Others ___________ Petitioner(s)
v.
Union of India & Others ___________________ Respondent(s)
With
Civil Appeal No. 2943 of 2015
[@ SLP (C) No. 737 of 2012]
Gujarat State Judicial Department Class-III, Employees’ Federation and Another __________________________________ Appellant(s)
v.
State of Gujarat and Others ____________________ Respondent(s)
I.A. No. 297 of 2012 in I.A. No. 71-A in W.P. (C) No. 1022 of 1989, decided on March 16, 2015
With
I.A. No. 329 of 2014, W.P. (C) No. 1022 of 1989
The Judgement of the court was delivered by
Fakkir Mohamed Ibrahim Kalifulla, J.
1. As the issues concerned in the above referred to I.A.s and Special Leave Petition are one and the same, the same are being disposed of by this common judgment.
2. Leave granted in SLP(C) No. 737 of 2012.
3. The appeal is directed against the Division Bench order of the Gujarat High Court dated 07.09.2011 by which the appellants prayer for direction to the State of Gujarat to implement the Justice Shetty Commission’s Report in view of the order passed by this Court by granting the pay-scale to non-Judicial Staff of Subordinate Courts in the State of Gujarat w.e.f. 01.04.2003 has been declined for the period after 31.12.2005.
4. In I.A. No. 297/2012, the applicants prayed for a direction to all the High Courts/States/Union Territories to grant pay-scales and other benefits of the 6th Pay Commission recommendations to the judicial employees over and above what was recommended by Shetty Commission with a further direction to implement the order of this Court dated 07.10.2009. The applicants have also prayed for a direction to appoint a separate Committee/Commission for the judicial employees to look into their pay-scales and service benefits, pursuant to the 6th Pay Commission recommendations in the same manner as was done for the judicial officers for whom Justice Padmanabhan Committee was appointed in I.A. No. 329 of 2014. The applicants also pray for an order to set aside that part of the Notification dated 13.09.2013, in particular, paragraphs 1, 2, 3, 4, 6 and 7 by which the pay revision and other benefits recommended by the Justice Shetty Commission were restricted to the period 01.04.2003 to 31.12.2005 and to hold the same as in violation of the order of this Court dated 07.10.2009. A further direction is sought for the employees of Industrial Courts and Labour Courts to grant service benefits on the basis of what was granted to them by the Shetty Commission and that the 6th Pay Commission benefits should be granted over and above such pay-scale benefits in compliance of the order of this Court dated 07.10.2009 passed in I. A. No. 71A in W.P. (C) No. 1022 of 1989.
5. In respect of the appeal as well as the I.A.s, we heard Mr. Sanjay Parikh, learned counsel for the appellants as well as for the applicants and Shri L. Nageshwar Rao, learned senior counsel for the State of Gujarat, Mr. Ranjit Rao, learned A.A.G. for the State of U.P., Mr. R. Venkataramani, learned senior counsel for the Union Territory of Puducherry and Mr. Maninder Singh, learned A.S.G. for Union of India. Though the prayers in the writ petition preferred before the State of Gujarat as well as in the other two applications are worded differently, the sum and substance of the grievance of the appellants and the applicants are that the order of this Court dated 07.10.2009 by which the recommendation of the Shetty Commission submitted in March, 2003 were approved and certain directions issued, were not appropriately implemented.
6. To appreciate the grievances raised on behalf of the applicants as well as the appellants, the background of the Shetty Commission Report in respect of the staff of the subordinate judiciary as submitted before this Court requires to be stated.
7. By order dated 07.01.1998, this Court requested the Shetty Commission to examine the service conditions of the staff of the Subordinate Courts and make a report about the steps to be taken in each State/Union Territory for improvement of the service conditions of the staff of the Courts. After the said order was passed, the Shetty Commission took upon itself the task of examining the following issues :
“From the aforesaid orders of the Supreme Court, it becomes clear that the Commission has to undertake the following:
(i) To examine the service conditions of the Court Staff in each State/Union Territory and make a report (to the Supreme Court) about the steps, if any, required to be taken in each State/Union Territory for the improvement of their service conditions;
(ii) To examine the facts and circumstances peculiar to any State/Union Territory placed before it by the concerned State/Union Territory;
And
(iii) To take note of the points of distinction, if any, between the States/Union Territories which may be relevant for the purpose of making the report.”
(underlining is ours)
8. While carrying out the said exercise, the Commission, based on the material collected, submitted its report and paraphrased the service conditions of different categories of employees working in different establishments and submitted separate reports for different States. However, the nature of consideration and its ultimate recommendations and its reference to different categories of posts were more or less identical. We are not concerned with the various other areas in which the recommendation of the Shetty Commission came to be made. At the present juncture, we are only concerned with the grievances of the applicants as well as the appellants which pertain to the scale of pay with certain other benefits like medical allowance, special allowance and special increment which were recommended in the Shetty Commission Report. In order to appreciate and understand the crux of the specific issue, the recommendation of the Shetty Commission which were made for the NCT of Delhi as a sample can be noted.
9. The same has been set out at page 274 of the recommendations which is as under:
“Financial Estimate on the Recommendations State: NCT of Delhi
(Centralised System)
Recommended Additional burden estimated per year as per existing cadre strength
(Rs. In Lakhs)
Category
Existing
1
2
3
4
Class-IV
Medical Allowance
Grant of Promotional Scale to Peons etc., of the Estt. of Admn. Subordinate Judge
Not being given Rs. 2550-3200
To pay not less than Rs. 100/- pm.
Rs. 2610-3540
17.59
Cannot be estimated now
Drivers
Spl. All -Nil-
Spl. All. of Rs. 150/- p.m. 2.09
Process Est.
Process Servers Bailiffs TA to PS/Bailiffs
Pay Scales
Rs. 2550-3200 Rs. 2650-4000 Not being Paid
Rs. 2750-4400
Rs. 3050-4590
Not less than Rs. 200/- p.m.
3.07
0.42
9.60
Four Grades with pay scales:
i) Gr.IV-Rs. 3050-4590
ii) Gr.III-Rs. 4000-6000
iii) Gr.II-Rs. 5000-8000
iv) Gr.I-Rs. 5500-9000
Three grades with pay scales:
i) Gr.III Rs. 4000-6000
ii) Gr.II-Rs. 5000-8000
iii) Gr-I-Rs. 6500-10500
Bench Clerks
Reader
0.10 Nil
2.88
Stenographers
Four grades with Pay scales:
i) G
r.III-Rs4000-6000
ii) Gr.II-Rs. 5000-8000
iii) Gr-I-Rs. 5500-9000
iv) Sr.P.A.-Rs. 6500-10 500
Not being paid
Existing grades may be retained:
One more Steno in the grade of Sr.P.A. to be provided to selection Grade Dist. Judges as E.A.
i) Working in NCT of Delhi Rs. 150/- pm.
21.06
9.54
TA/Spl. Pay ii) Spl. Pay of Rs. 200/- pm to EAs
0.65
Common Category Posts:
i) Superintendent ii) Officer/Asst.Lib.cum-IO
iii) Asst./HC/Lib./HCL/Sr.Acct.
iv) Bench In-Charge/Asst. Suptd.
v) UDC/Eng.Cl/Record Keeper/Nazir/Etc.
vi) Court
Asst./LDC/
Insol.Cl/Ahlmed/Nai b Nazir/Copyists etc.,
vii) Steno Gr.III
viii) Steno Gr.II
ix) Steno Gr.I
x) Sr.P.A.
In the pay scale of; Rs. 10000-15200 Rs. 6500-10500
Rs. 5000-8000
Rs. 4500-7000
Rs. 4000-6000
Rs. 3050-4590
Rs. 4000-6000 Rs. 5000-8000 Rs. 5500-9000 Rs. 6500-10500
One increment at the initial rate in the pay scale;
Rs. 325/- Rs. 200/- Rs. 150/- Rs. 125/- Rs. 100/- Rs. 75/- Rs. 100/- Rs. 150/- Rs. 175/- Rs. 200/-
0.63
0.07
0.16
0.05
1.39
14.17
4.28
0.72
2.23
0.67
Total (Rs. In Lakhs) : 91.37
Note: Additional budget required may be about Rs. 91.37 lakhs which is exclusive of D.A., HRA, CCA and other allowances, if any.”
(underlining is ours)
10. The above recommendation of the Shetty Commission with the above modified pay structure for certain categories alone was submitted as early as in March, 2003. The same came to be ultimately approved by this Court only in the order dated 07.10.2009 i.e. after six years and seven months. As the consideration of the prayers made in these applications as well as the appeal are mainly dependant on the said order, the same requires to be extracted which reads as under:
“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 15.7.2008 this Court has directed:
i) the recommendations are reasonable and do not involve any financial burden
ii) the decision to implement the recommendations by all States should be taken within a period of three months
iii) 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 States/UTs. We direct that:
i) 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.
ii) The High Courts shall also see that the recommendations are implemented w.e.f. 01.04.2003.
iii) 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.
iv) 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.”
(Emphasis added)
11. Therefore, after the said order, the recommendations insofar as they related to the grant of certain benefits and grant of different scales of pay as set out in page 274 were to be implemented w.e.f. 01.04.2003. In paragraph (i), the High Court on judicial/administrative side was to ensure implementation of the recommendation within a reasonable period of one year and such implementation was to take effect from 01.04.2003. In paragraph (iii), the benefit of one advance increment as was directed to be given in the recommendation of the Shetty Commission was directed to be given on the existing pay-scale instead of initial pay scale. Here again the High Court was directed to ensure that the same was duly implemented. In paragraph (iv) it was directed that in some of the States, based on various other Pay Commission reports, benefits had been given to the members of the staff and it was made clear that those benefits should be in addition to the recommendation given by the Shetty Commission. Finally, the choice was left to the members of the staff who were getting higher benefits under any of the recommendation of the Pay Commission/Government Order, they were to be permitted to avail those benefits. The sum and substance of the order of this Court was, in the first place, that the recommendation of the Shetty Commission was to be implemented from 01.04.2003.
12. As far as one advance increment was concerned, the direction was that such increment should be on the existing pay-scale instead of initial pay-scale. Wherever any benefit was extended based on various other Pay Commission reports, over and above what has been recommended by the Shetty Commission, such benefit should also be given in addition to the recommendation of the Shetty Commission. Lastly, an option was given to the staff members to opt for any better benefit extended to them by the recommendations of the Pay Commission through Government Orders, if the same was more beneficial to them then what has been recommended by the Shetty Commission.
13. Keeping the above outcome based on the recommendation of the Shetty Commission and the order of this Court dated 07.10.2009 in mind, we have to consider the present claim of the applicants/appellants. As stated by us earlier, though the prayer of the applicants as well as the grievances expressed in the Writ Petition before the High Court of Gujarat did not reflect their real grievance, we could discern from the elaborate submissions made before us that the applicants seek for a direction to grant the appropriate revised 6th Pay Commission recommendation to the corresponding pre-revised scale recommended by the Shetty Commission wherever such recommendation was made as was approved by this Court in the order dated 07.10.2009 apart from certain other benefits such as medical allowance, special allowance, TA/Spl. pay and one increment.
14. To appreciate the said claim of the applicants/appellants more clearly, a reference can be made to the recommendation of the Shetty Commission with reference to NCT of Delhi. In the category noted therein, Class IV employees, Drivers, Process Establishment Employees, Bench Clerks, Stenographs and common category posts have been noted. Insofar as Class IV employees are concerned, while noting the existing benefits, it was found that they were not granted any medical allowance and the recommendation was to pay not less than Rs. 100/- per month by way of medical allowance. In respect of promotional scale to Peons, it was noted that the existing scale was Rs. 2,550-3,200/- and the corresponding higher scale recommended was Rs. 2610-3540/-. Keeping that one single item for consideration in mind, the resultant position was that after the submission of the recommendation of the Shetty Commission and after the order passed by this Court on 07.10.2009, in the State of Gujarat and certain other states; other than States of Andhra Pradesh, Karnataka, Assam, Punjab & Haryana and West Bengal; when the 6th Pay Commission recommendations came into effect from 01.01.2006 and corresponding revision for the pay-scales of Rs. 2550-3200/- and Rs. 2610-3540/- was introduced by a misreading of the recommendation as approved by the order of this Court those States took the view that the recommendation of the Shetty Commission would come to an end as on 31.12.2005 and that from 01.01.2006 they could revert back to the revised pay-scale applicable to the original pay-scale, namely, 2550-3200/- and whatever revision that was applicable for that scale in the 6th Pay Commission Report alone was payable. Apparently, it was because of the said understanding appeared to have been felt by those other States, on a total misreading of Clause (iv) of our order dated 07.10.2009 in which it was directed that in some of the States based on various other Pay Commission reports, benefits had been given to the members of the staff and those benefits, if any, should be in addition to the benefits given by the Shetty Commission.
15. It is relevant to note that by the time the said order came to be passed on 07.10.2009, the 6th Pay Commission report had already come into existence and was implemented w.e.f 01.01.2006. Therefore, when this Court directed in its order dated 07.10.2009 to implement the recommendation of the Shetty Commission as has been set out in the tabulated format in each of its report, the State Governments appeared to have misunderstood the same to the effect that such approval ordered by this Court of the Shetty Commission recommendation to operate only between 01.04.2003 and 31.12.2005 and that from 01.01.2006, the recommendations of the 6th Pay Commission with respect to the revision of various pay-scales corresponding to the scales that existed prior to the Shetty Commission recommendation should operate.
16. It has, therefore, become necessary for us to make it clear that wherever in the Shetty Commission recommendation, depending upon the nature of job performed by different categories of employees, a higher scale of pay came to be recommended in the pre-existing scale that existed prior to 6th Pay Commission recommendation and on such higher pay scale the corresponding revised scale of pay in the 6th Pay Commission recommendation as applicable from 01.01.2006, should have been continued and it was not permissible for the States to revert back to the earlier scale of pay that existed under the 5th Pay Commission which was directed to be improved in the Shetty Commission recommendation for the purpose of applying the corresponding revised pay scale under the 6th Pay Commission recommendation.
17. We, therefore, direct that wherever under the Shetty Commission recommendation which came to be approved by the order of this Court dated 07.10.2009, a higher scale of pay was recommended for different categories, which we have highlighted in the tabulated form in paragraph 9, after the introduction of 6th Pay Commission recommendations, the revised pay should only correspond to such higher scale of pay recommended by the Shetty Commission which alone is the proper way of implementing the recommendation of the Shetty Commission as approved by this Court.
18. As far as special benefits such as medical allowance, special allowance, or TA/special pay are concerned such benefits should be continued to be maintained from 01.04.2003 up to 31.12.2005 and after 01.01.2006 also. As far as grant of one increment at the initial rate in the pay-scale for all common category posts as recommended by the Shetty Commission is concerned, since this Court in the order dated 07.10.2009 directed that such benefit should be granted on the existing pay-scale and if such benefit had been granted in the said manner, there would be no need for any further payment by way of such advance increments to be paid. However, if such one advance increment in the existing scale had not been granted, that should also be paid as a one time payment along with the pay and it is needless to state that fitment in the respective scale should be after the benefit of the said advance increment.
19. Insofar as the other prayer of the applicants/appellants for appointment of new Commission is concerned, in the light of our above conclusion, we do not find any need for making any such appointment inasmuch as all the grievances of the members of the applicants/appellants were duly considered by the Shetty Commission when it submitted its report in March, 2003.
20. In the light of our above conclusion, we direct as under:
i. Such of those States other than the States of Andhra Pradesh, Karnataka, Assam, Punjab and Haryana and West Bengal, wherever the Shetty Commission has tabulated the financial estimate on the recommendations in the report as has been noted and extracted with reference to NCT of Delhi wherein any special allowance, medical allowance TA/special pay were directed to be given on monthly basis, such payment should be continued to be made w.e.f. 01.04.2003 and even after the coming into effect of the 6th Pay Commission recommendation from 01.01.2006 till any modification or revision is made with reference to such allowances/TA/special pay in any future Pay Commission recommendation of the State or Centre.
ii. Wherever under the Shetty Commission recommendation, a higher scale of pay is recommended in the said tabular format for any category of employees apart from applying such higher scale of pay for the period 01.04.2003 up to 31.12.2005 as from 01.01.2006, the corresponding revision should be only with reference to such higher pay scale recommended and made applicable to those categories of employees as revised under the 6th Pay Commission Report and which came to be implemented from 01.01.2006. Instead of adopting the said manner of payment, if any of the States had resorted to the revised pay-scale corresponding to the scale of pay which was existing prior to the recommendation of the Shetty Commission Report, the States are hereby directed to rectify such defect and calculate the revised pay-scale on the above footing as directed by us, work out the difference payable to those categories of employees payable from 01.01.2006 and effect such a payment with effect from the month of April, 2015 payable in May, 2015. The arrears of the difference payable for the past period ending with March, 2015 should be paid in one lump sum or in installments, in any case within nine months from the date of this judgment i.e. on or before 31.12.2015.
iii. Insofar as one advance increment which was recommended by the Shetty Commission for all the common category posts for whom no other scale of pay other than what was existing, is concerned, as directed by this Court in the order dated 07.10.2009, if such advance increment had been paid based on the existing pay-scale, there is no need for making any further payment on that account. It is needless to state that if for any reason, such advance increment on the existing pay-scale has been omitted to be paid in those cases the concerned State Government should effect the payment as directed in our order dated 07.10.2009.
iv. It is reiterated that the above direction in regard to the implementation of 6th Pay Commission recommendation will hold good even for implementation of any future pay Commission recommendation.
v. Whatever pending applications before the High Court on the administrative side or on the judicial side shall be considered and disposed of expeditiously preferably within three months.
21. In the light of our above directions in this judgment, wherever any issue is raised by any of the employees working in different States, such grievances raised by way of representation or by moving appropriate petitions in the respective High Courts shall be examined and appropriate orders passed wherever it finds that such grievances are to be redressed, in tune with the orders passed herein.
22. In the light of our above orders, the impugned judgment of the Division Bench of the Gujarat High Court dated 07.9.2011 is set aside, the writ petition is allowed and the order impugned therein dated 13.9.2013 is set aside. The I.As. and the appeal are allowed on the above terms. There will be no order as to costs.
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