Rajasthan High Court - Jodhpur
The Raj. Judicial Employees Asso vs State (Law & Legal Affairs) & Ors on 1 February, 2018
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 2 / 2012
The Rajasthan Judicial Employees Association" (Recognized by
Hon'ble Raj. High Court) through its Senior Vice President Dungar
Bhai Rao S/o Late Shri Bhera Bhai aged 59 yrs. R/o 38 Janta
Colony Pali Marwar and General Secretary Shri Hemant Bohra S/o
Late Shri Pukhraj Ji Bohra aged 53 r/o 18/135 Chopasani Housing
Board Jodhpur.
----Petitioner
Versus
1. The State of Rajasthan through the Chief Secretary,
Secretariat, Jaipur (Raj.)
2. The Secretary, State of Rajasthan, Law & Legal Affairs
Department Secretariat, Jaipur (Raj.)
3. The Rajasthan High Court, through the Registrar General,
Rajasthan High Court, Jodhpur (Raj.)
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. H.R. Soni, Dr. Mahesh Sharma, Mr.
Vijendra Yadav
For Respondent(s) : Mr. P.R. Singh, Addl. Advocate General with
Mr. Dinesh Ojha
Mr. G.R.Punia, Sr. Advocate with Mr. Rajesh
Punia
_____________________________________________________
HON'BLE MS. JUSTICE NIRMALJIT KAUR
Order 01/02/2018 (2 of 13) [CW-2/2012] The present writ petition has been filed by the Rajasthan Judicial Employees Association being a registered body corporate and working for the welfare of the staff/subordinate courts of Rajasthan seeking implementation of the recommendations made by the Shetty Commission.
The service conditions, pay scales etc. of the staff of subordinate courts in Rajasthan are governed by the Rajasthan Subordinate Courts Ministerial Establishment Rules, 1986. In pursuance to the directions issued by the Apex Court in All India Judge's Association & Ors. Vs. Union of India & Ors. in W.P. (Civil) NO.1022/1989, Justice Shetty was appointed to inquire about the service conditions of the staff members of the subordinate courts and to suggest ways to improve it. The Commission after affording an opportunity of being heard to the representations of the various Associations, High Courts and State Governments/UTs suggested measures for effective administration of courts as also made recommendations for grant of various allowances, pay scales, other benefits, etc. The said report of Shetty Commission was perused by the Hon'ble Supreme Court and the Supreme Court vide its order dated 7.10.2009 passed the following order in the case of All India Judges Association (supra):-
"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 (3 of 13) [CW-2/2012] staff.
ii) The High Courts shall also see that the recommendations are implemented w.e.f. 1.4.2003.
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. A copy of the consolidated Report of the Shetty Commission may also be sent to the respective High Courts/UTs."
The respondents were duty bound to implement the directions but when the same were not implemented, the petitioner submitted a representation before the Registrar General, Rajasthan High Court way back on 26.11.2009 requesting that all the 19 classified recommendations of Shetty Commission be carried out and the necessary amendments be made in the Rajasthan Subordinate Courts Establishment Rules, 1986 and other rules wherever the said amendment was required.
Accordingly, the Rajasthan High Court constituted a (4 of 13) [CW-2/2012] Committee comprising of two Hon'ble Judges of the High Court for consideration and implementation of the recommendations made by the Shetty Commission with regard to the scales, conditions of service, etc. of the staff of subordinate courts. The aforesaid Committee after considering the recommendation observed as under:-
"After giving anxious and thoughtful consideration, we are of the view that all recommendations including creations of posts of Shestridhars in each court must be implemented. As soon as posts/cadres recommended by Shetty Commission are created, necessary rules regarding filling up of those posts, duties and other essentially matters will be framed."
Thereafter, the Apex Court vide its judgment dated 16.03.2015 in the above mentioned petition passed following directions as under:-
"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 6 th 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 (5 of 13) [CW-2/2012] 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 6 th 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."
Various representations were made by the petitioner association in the light of the above directions and a delegation of the office bearers of the Association also met with Hon'ble the (6 of 13) [CW-2/2012] Chief Justice of the Rajasthan High Court and brought the factum of non compliance of the order of Apex Court and when the said recommendations were still not implemented, the petitioner association was forced to file the present writ petition. Thereafter, another Committee of two Hon'ble Judges comprising of Justice Govind Mathur and Justice Arun Bhansali came to be constituted by the Rajasthan High Court. The said Committee submitted its report on 22.06.2015 and made various suggestions for implementation of the recommendations made by the Shetty Commission in respect of the employees of the subordinate courts in pursuance to the directions of the Supreme Court. The said report was placed before the Full Court in which the report of the Committee was accepted and duly approved by Hon'ble the Chief Justice. The Registrar General, Rajasthan High Court further sent the report to the Principle Secretary, Law and Legal Affairs Department, Government of Rajasthan at Jaipur vide its letter dated 1.9.2015 for its implementation.
Reply has been filed by the State submitting that after the order of the Cabinet dated 15.12.2010, it was decided to implement the recommendations of the Shetty Commission. The first type of recommendations were implemented by the State Government by way of issuance of certain orders but some of the recommendations made by the Shetty Commission were not feasible and therefore, they were not concurred.
As observed above, the entire dispute with respect to the recommendations made by the Shetty Commission was finally considered by the Committee of the Hon'ble Judges of the High (7 of 13) [CW-2/2012] Court. The Committee submitted its report with regard to the various recommendations and proposed the consequential amendment in Rajasthan Subordinate Courts Ministerial Staff Rules. The same was approved by the Full Court. The said report was forwarded to the State Government by the Registrar of the Rajasthan High Court vide its letter dated 1.9.2015.
In view of the above facts, the observation of the Apex Court in the case of Union of India Vs. S.B. Vohra & ors. :: (2004) 2 SCC 150 need to be referred which is as under:-
"Independence of the High Court is an essential feature for working of the democratic form of the Government in the country. An absolute control, therefore, have been vested in the High Court over its staff which would be free from interference from the Government subject of course to the limitations imposed by the said provision. There cannot be, however, any doubt whatsoever that while exercising such a power the Chief Justice of the High Court would only be bound by the limitation contained in Clause 2 of the Article 229 of the Constitution of India and the proviso appended thereto. Approval of the President/Governor of the State is, thus, required to be obtained in relation to the Rules containing provisions as regard, salary, allowances, leave or promotion. It is trite that such approval should ordinarily be granted as a matter of course.
Decisions of this Court, as discussed hereinbefore, in no unmistakable terms suggest that it is the primary duty of the Union of India or the concerned State normally to accept the suggestion made by a holder of a high office like a Chief Justice of a High Court and differ with his recommendations only in exceptional cases. The reason for differing with the opinion of the holder of such high office must be cogent and sufficient. Even in case of such difference of opinion, the authorities must discuss amongst themselves and try to iron out the differences. The appellant unfortunately did not perform its own duties."
In the light of the above background, Mr. P.R. Singh, learned Additional Advocate General assisted by Mr. Dinesh Ojha (8 of 13) [CW-2/2012] appearing for the State has placed on record the recommendations of the Shetty Commission which have been implemented marked as 'Schedule A' as well as the recommendations which are not implemented marked as 'Schedule B'.
This Court shall now proceed to deal with the respective grievances of the petitioner qua the recommendations which are either not implemented or are only partly implemented as under:-
SCHEDULE B S.No.1: Classification of supporting staff of the sub-
ordinate courts into groups:
With respect to this recommendation, it may be noticed that the High Court Committee specifically recommended that the existing classes of staff I, II, III and IV services can be replaced by Groups "A", "B", "C" and "D" in conformity with the proposed revised pay structure adopted by the State Government. The same was accepted by the Full Court.
The recommendations of Shetty Commission qua classification of supporting staff of the subordinate courts into groups have not been accepted by the State on the plea that the Registrar General, Rajasthan High Court, Jodhpur vide his letter dated 8.3.2017 informed that same can be considered later on.
Learned counsel for the petitioner association stated at the bar that the said letter was written by the Registrar in pursuance to the communication addressed by the petitioner to the Registrar. The petitioner wrote the letter to the Registrar as the whole (9 of 13) [CW-2/2012] process was being delayed and therefore it was requested that till as such time, the existing classes of staff is replaced by Group A,B,C and D, the Higher Pay scale be given. Otherwise, till date, they stand by the recommendations of the Shetty Commission which was duly accepted by the High Court Committee.
Thus, the said letter was written by the Registrar General to the respondent-State in pursuance to the representation made by the petitioners themselves. The said situation having been clarified as above, this Court is of the opinion that the State Government should now have no hesitation as there is no further impediment in its way to implement the said recommendation of the Committee which was duly approved by the Full Court. S.No.2 : LTC/HTC benefits to the Court Staff:
The second recommendation is with respect to the LTC/HTC to the courts staff. The same has not been granted by the State as same was not available to the State Government employees. Learned counsel for the petitioner too has very fairly stated before this Court that the petitioner-association does not press for the same. Hence, this Court need not to say anything further at this stage but it goes without saying that the same shall be granted to the petitioner as and when and if granted to the State Government employees.
S.No. 3 : Pool of Stenographers :
There is no dispute with respect to the third recommendation i.e. pool of the stenographers.
S.No.4 & 5 : Medical Allowance, Uniform/Uniform (10 of 13) [CW-2/2012] Allowance to Group -C & Group -D employees:
The 4th and 5th recommendations pertains to Medical allowance and Uniform allowance to Group C & Group D. I see no reason as to why the recommendation of the Committee which was duly approved by the Full Court should not be implemented. Hence, the same be implemented forthwith. SCHEDULE A:
There is no grievance on either side qua the recommendations at S.No.1,3,4,5,6,7,8,9,10,11 and 13 which stand implemented as per Schedule A. The grievance with respect to other recommendations in Schedule-A are dealt as under:- S.No.2: Promotion of the cadre of the Process Server :
With respect to the recommendation at Serial No.2 mentioned in Schedule-A, the grievance of the petitioner is that the reservation quota for promotion for Class-IV/Group-D and Class III/Group-C has been increased upto 25% w.e.f. 2017, whereas, it should have been recommended from 2003. However, there is no such recommendation of the Committee. Therefore, this Court is not inclined to go into the same either. S.No.12: Personal Assistant to Principal Distt & Session Judge:-
The next grievance of the petitioner qua recommendation at Serial No. 12 mentioned in Schedule-A is that the pay scale to the post of Executive Assistant to the District and Sessions Judge carries the pay scale of stenographer Gr.I which is feeder cadre post and hence, there is an anomaly in the pay scale between a (11 of 13) [CW-2/2012] promotional post and feeder post. No doubt, the Registrar General vide his letter dated 24/08/2017 addressed to the Principal Secretary (Law) brought to their notice the said anomaly existing in the pay scale of the higher post of Executive Assistant to the District & Sessions Judge and the feeder posts i.e. Stenographer Gr.I but it is evident from the report that the Committee after due deliberation had recommended that the post should carry the pay scale prescribed for the Stenographer Gr.I. Hence, the claim of the petitioner for removal of anomaly in the pay scale has to be independently considered by the respondents by keeping the basic principle in view that the pay scale/pay of a higher post cannot be less than the feeder post held by an individual before promotion. Suffice it to observe that the pay scale of promotional post cannot be less than that of the feeder post. The Registrar General has already sent the additional proposal vide his letter dated 24/08/2017 to consider the claim for removal of the anomaly in the pay scale. The State shall, accordingly, decide and pass appropriate orders in light of the above observation. The needful be done within four months of the receipt of this order. S.No.14: Sheristedar/Head Clerk for the Courts of Civil Judge (Jr. Div.) and Civil Judge (Sr. Div.):-
With respect to the recommendation at Serial No.14 as mentioned in Schedule A i.e. the pay scale of Sheristedar/Head Clerk for the Courts of Civil Judge (Jr. Div.) and Civil Judge (Sr. Div), the petitioners are aggrieved that the pay scale of Sheristedar/Head Clerk is equivalent to the Bench Clerk whereas it should be higher than the Stenographer.
(12 of 13) [CW-2/2012] Learned counsel for the parties agree that the same can be referred to the State Government to consider the same. Accordingly, the respondent-State is directed to look into the pay anomaly qua Sheristedar and remove the same within four months of the receipt of this order in accordance with law. S.No.15 : One advance increment be allowed to all common category cadres for whom no higher pay scale is recommended by the Commission.
The petitioners are finally aggrieved qua implementation of the recommendation at Serial No.15 i.e. for grant of one advance increment to all common category cadres for whom no higher pay scale is recommended by Commission. Although, the same has been granted vide order dated 24.02.2011 and 12.02.2016 passed by State but the petitioners are dissatisfied as according to them, the increment is subsequently not added in the pay scale as and when revised.
Without commenting on the same, the respondent State is directed to consider the said grievance too in accordance with the settled law by passing a speaking order within four months of the receipt of this order.
The writ petition is accordingly disposed of in the above terms with a direction to the State Government to consider the report of the Committee with utmost priority and decide the same with objectivity and implement the same as per the observations made above with respect to even an anomaly which may have arisen for whatever reason during the recommendations by the High Court Committee and duly approved by the Full Court.
(13 of 13) [CW-2/2012] Needless to say that the State shall make every effort to implement the recommendation of the Committee and also restore the parity in the pay scale and remove the anomaly keeping in mind the judgment rendered by the Apex Court in the case of Union of India Vs. S.B. Vohra & Ors. (supra) as well as all All India Judge's Association (supra).
The needful be done within four months as observed above.
(NIRMALJIT KAUR),J.
Praveen/97