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2011 passed by the Division bench of the High Court of Gujarat at Ahmedabad in Special Civil Application No. 7813 of 2010. In the Special Civil Application, the Petitioners had
prayed for implementation of the order dated 7.10.2009 passed by this Honble Court in All India Judges and Ors. Vs. Union of India and Ors, in Writ Petition (Civil) No. 1022 of 1989 as well as
recommendations of Justice Shetty Pay Commission. By the order dated 7.10.09 this Honble Court had directed implementation of the recommendations of the Shetty Pay
Commission relating to the Judicial Staff of Subordinate Courts including those working in the State of Gujarat. The High Court, in the Special Civil Application has directed implementation of all the recommendation of Shetty Pay Commission as well as direction given by this Honble Court in the order dated 7.10.2009 except not granting further revised pay scale w.e.f. 1.1.2006 on the basis of pay scales revised pursuant to Justice Shetty Commission
Recommendation. The result of not granting the said relief is that though the Judicial Staff has received revised Pay scale till 1.1.2006 but after the said date their pay scales and other benefits have again been put at par with the other employees of the State Government. In short, there is non-implementation of the following directions in the order dated 7.10.2009 of this Honble Court: (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 of if the the members of of the the staff pay association/subordinate staff getting higher benefits under any recommendations commission/Government orders, they shall be permitted to avail those benefits. [Emphasis Supplied]
The non-implementation of the said direction has virtually nullified all the efforts which were made by this Honble Court in
implementation of the Shetty Pay Commission by which the Pay Scales and other benefits of the Judicial Staff were revised keeping in view the work and duties performed by them in courts and also keeping the efficient administration of justice as paramount
consideration. It is important to point out that in the other States, the direction given by the Honble Supreme Court vide order dated 7.10.2009 has been correctly applied, some of those States are: Haryana and Karnataka. In the State of Haryana, the 6th Pay Commission benefits have been given on the basis of higher benefits / Pay Scales given by the Shetty Pay Commission. In Karnataka, higher benefits have been given on the basis of States own Pay Commission recommendations. This has created an anomalous situation: in some States, benefit of order dated 7.10.2009 by this Honble Court has been extended whereas in other States this has been denied. This is creating frustration among the Judicial Employees of those States where the benefits have not been granted. Hence, this Special Leave petition only against the limited portion of the impugned order/judgment by which the above said benefit has been denied.
LIST OF DATES
Petitioners
are
an
Association
of
Non-Judicial
Staff
of
Subordinate Courts in the State of Gujarat. Their association has been recognized by Honble High Court of Gujarat vide its
resolution No. B-1437-71, dated 12th July 1991. Vide this resolution the Petitionerassociation are entitled to raise the issues for protection of their rights guaranteed under Constitution of India. 7.10.2009 This Honble Court passed order in the matter of All India Judges Association and Others Vs. Union Govt. of India an Ors in Writ Petition (C) No. 1022/1989 to implement the recommendation of Shetty Commission
Report by all States/ UTs/ High Courts w.e.f. 1.4.2003. The said order dated 7.10.2009 reproduced as under:
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: 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. implemented w.e.f 1.4.2003. We are told that so far all the The recommendations will be
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
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. that The High Courts shall also see 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.
various
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 higher benefits under of staff any the getting of the pay
recommendations
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.
A true and correct copy of the order I.A. No. 71 A and other connected I.A.s dated 7.10.2009 passed by this Honble Court in Writ Petition (C) No. 1022/1989 is Annexure P-1.
Petitioners
Association
made
representations before the Registrar (Admn) High Court of Gujarat at Ahmedabad and requested for implementation of the Report of Justice Shetty Commission w.e.f. 1.4.2003 as applicable for the State of Gujarat. The Petitioner also requested for implementation of the order dated 7.10.2009 passed by this Honble Court. Justice Shetty Commission Report as made applicable for the State of Gujarat at the earliest.
But no positive response was received by the Petitioners. 25.11.2009 In response to the representations made by the Petitioners, Registrar (Inspection)
informed the Petitioners that in this regard Secretary to the Government of Gujarat, Legal Department, Gandhi Nagar has been requested to take necessary action for
compliance of this Honble Courts order dated 7.10.2009. A true and correct copy of the Letter No. 1083/2009 dated 27.11.2009 for compliance of order dated 7.10.2009 passed by this Honble Court in Writ Petition (C) No. 1022/1989 is Annexure P-2.
28.6.2010
Petitioners filed Special Civil Application No. 7813 of 2010 before the Gujarat High Court, inter-alia, praying for implementation of the Recommendation of the Justice Shetty
commission as well as the order dated 7.10.2009 passed by this Honble court. A
true and correct copy of the Special Civil Application No. 7813 of 2010 dated
18.12.2010
State of Gujarat filed an affidavit. It was stated in the affidavit filed by Legal
Commission to the Non-Judicial Staff of Subordinate Court. A true and correct copy of the affidavit filed by State of Gujarat dated 18.12.2010 in Special Civil Application No. 7813 of 2010 is Annexure P-4.
7.5.2011
The
Government
of
Gujarat,
Legal
which benefits of Shetty Commission to the staff of Subordinate Courts in the State were granted. Resolution A true dated and correct is copy filed of as
7.5.2011
Annexure P-5.
13.6.2011
The Petitioners filed an Additional Affidavit. In this Additional Affidavit the Petitioners submitted that the Government has not issued Resolution No. PGR-102010-14-PartIIID dated 7.5.2011 in full compliance of the recommendations Commission made by and the the Shetty order
Report-2003
dated 7.10.2009 passed by this Honble Court. The Petitioners stated that in the Resolution, some criminal benefits for which the Judicial Staff was entitled have been
ignored. A true and correct copy of the Additional Affidavit dated 13.6.2011 filed by the Petitioner in Special Civil Application No. 7813 of 2010 is filed as Annexure P-6.
27.7.2011
The
State
of
Gujarat
filed
an
affidavit
enclosing notification stating therein that vide notification dated 26.7.2011 benefits to the Non-Judicial Staff of Subordinate Courts as recommended by Honble Justice Shetty Pay Commission have been granted and this Honble Courts order dated 7.10.2009 has been complied with in its true letter and spirit. A true and correct copy of the affidavit dated 27.7.2011 in Special Civil Application No. 7813 of 2010 along with Notification dated 26.7.2011 are filed as Annexure P-7 (Colly).
Though in the Notification dated 26.7.2011, it was stated that all the directions given by this Honble Court have been complied with in letter and spirit, till the notification did not permit grant of enhanced pay-scale for the Judicial Staff as provided in the Sixth Pay Commission w.e.f. 1.1.2006. The Petitioners have prepared a chart showing the pay-scales which were
admissible as per the recommendations of the Shetty Pay Commission and the
Comparative Pay Scales which should have been given in the 6th Pay Commission, however, the 6th Pay Commission Benefits have not been given on the basis of payscales granted by the Honble Supreme Court based on Shetty Pay Commission Recommendations. This has resulted in loss of pay, loss of Pay Scale, loss of Special Pay as well as loss of increment. A true and correct copy of the chart prepared by the Petitioner for City Civil Court, Ahmedabad, District Courts and Rural Courts, Gujarat & Small Causes Court and Metropolitan
Magistrate Court are Annexed as Annexure P-8 (C0lly). 7.9.2011 The High Court disposed of the Special Civil Application No. 7813 of 2010. The High Court held that: 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 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 provide revised Commission. further pursuant The Supreme scale, as Court has not passed any order to revised 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 Courts order is whatever the scale of pay has been provided commission pursuant (6th pay to the recommendation of the pay revision commission), should be provided to the staff in addition to the recommendation of Justice Shetty Commission. In the present case, the State Government w.e.f. has implemented and the recommendation of the pay revision 01.04.2003 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 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. by Justice Shetty
It is clear from the above that the High Court has not granted corresponding pay-scales in the 6th Pay Commission on the basis of payscales which were of granted the as per Pay
recommendations
Shetty
Commission, which were accepted by this Honble Court in the order dated 7.10.2009.
7.12.2011
Hence, the Special Leave Petition is filed against the judgment and order dated
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION (ORDER XVI, RULE 4(1)(a) (UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA) SPECIAL LEAVE PETITION (CIVIL) NO._______ OF 2011 (WITH PRAYER FOR INTERIM RELIEF) BETWEEN: POSITION OF THE PARTIES In the In this High Honble Court Court Gujarat State Judicial Department Petitioner Class-III, Employees Federation No.1 Through President I I Malvat, Small Cause Court Bhadra Ahmedabad (Gujarat) 1. 2. Gujarat State Judicial Department Stenographer/ P S Association Through President S.R. Thakkar, Ahmedabad (Rural) Court, Mirzapur, Ahmedabad. (Gujarat) Versus 1. State of Gujarat Through Secretary, General Administrative Department, Sachivalaya, Gandhinagar (Gujarat) Respondent Respondent No.1 No.1 Secretary, Legal Department Sachivalaya, Gandhinagar (Gujarat) No. 2 3. The Registrar (Admn) High Court of Gujarat Sola, Ahmedabad (Gujarat) Secretary, Finance Department New Sachivalaya Gandhinagar (Gujarat) Respondent No.3 Petitioner No.1
Petitioner No.2
Petitioner No.2
2.
Respondent No.2
Respondent
Respondent No.3
4.
Respondent No.4
Respondent No.4
CONTESTING RESPONDENTS TO
THE HONBLE THE CHIEF JUSTICE OF INDIA AND HIS HONBLE COMPANION JUDGES OF THE SUPREME COURT OF INDIA. THE SPECIAL LEAVE PETITION OF THE PETITIONER MOST RESPECTFULLY SHEWETH: 1. This Special Leave Petition has been filed against the final order/judgment dated 7.9.2011 passed by the High Court of Gujarat at Ahmedabad in Special Civil Application No. 7813 of 2010. In the Writ Petition the Petitioners had prayed for implementation of the order dated 7.10.2009 passed by this Honble Court in All India Judges and Ors Vs. Union of India and Ors in Writ Petition Civil No. 1022 of 1989. By the said order dated 7.10.09, this Honble Court has directed implementation of the recommendations of the Shetty Pay Commission relating to the Judicial Staff of the Subordinate Courts, including those working in the State of Gujarat. The High Court has directed implementation of all the recommendation of the Shetty Pay Commission as well as direction given by the Honble Court in the order dated 7.10.2009 except not granting further revised pay of scale w.e.f. 1.1.2006 on the basis of pay scales revised pursuant to Justice Shetty Commission recommendations. The result of not granting the said relief is that though the Judicial Staff had received revised Pay scale till 1.1.2006 but after the said date their pay scales and other benefits have been put at par with the other employees of the State Government. In short there is non-
implementation of the following directions of this Honble Court: (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 of if the the members of of the the staff pay association/subordinate staff getting higher benefits under any recommendations commission/Government orders, they shall be permitted to avail those benefits. [Emphasis Supplied]
The non-implementation of the said direction has virtually nullified all the efforts which were made by this Honble Court in implementation of the Shetty Pay Commission by which the Pay Scales and other benefits of the Judicial Staff were revised keeping in view the work and duties performed by them in the courts and also keeping the efficient administration of justice as paramount consideration. Hence the Present Special Leave petition only against the limited portion of the impugned order/judgment by which the above said benefit in pay-scales has been denied. 2. QUESTIONS OF LAW: The following questions of law arise for consideration by this Honble Court: (i) Whether the High Court was justified in not granting comparative pay-scales to the Judicial Staff on the basis of what was granted by the Shetty Pay Commission with
effect from 1.4.2003, in the 6th Pay Commission with effect from 1.1.2006? (ii) Whether the High Court could have overlooked the fact that non-grant of revised pay scales to the Judicial Staff in the 6th Pay Commission would result in the Judicial Staff getting benefits of Shetty Pay Commission upto 1.4.2003 and thereafter w.e.f. 1.1.2006 brought back at par with the other State Government employees? (iii) Whether the effect of non-grant of the benefit of the 6th Pay Commission will not result in nullifying the entire effort made by the Shetty Pay Commission in granting more benefits / higher pay scales to the Judicial Staff in comparison to the State Employees, owing to Judicial Staff discharging heavy and onerous responsibilities? (iv) Whether the grant of 6th Pay Commission benefits granted by the Shetty Pay Commission by some of the States (Haryana, Punjab, Karnataka Etc.) and non-grant of the same benefit by State like Gujarat will not be discriminatory, arbitrary and violation of the order dated 7.10.2009 passed by this Honble Court? (v) Whether the Judicial Staff can be put at par with the employees, when their work and duties are different and whether it will not amount to treating unequals as equals?
3.
The Petitioners state that no other petition seeking leave to appeal has been filed by them against the impugned judgment and order.
4.
DECLARATION IN TERMS OF RULE 6 The Annexures produced along with Special Leave Petition are true copies of the pleadings/documents which formed part of the records of the case in the Courts below against whose order, the leave to appeal is sought for in this Petition.
5.
GROUNDS: The leave to appeal is sought for on the following, amongst other, grounds:
A)
Because this Honble Court while exercising powers under Article 32 r/w Article 142 of the Constitution had desired that in the interest of administration of Justice, the service conditions, benefits and pay-scales of the Judicial Employees should improve. Keeping this object in mind, Justice Shetty Pay Commission was requested to give recommendations. The Justice Shetty Pay Commission had given its recommendations keeping in view the efficiency in the administration of justice as the main criteria. The Commission had made comparison of the work done by the Common Category Staff as well as by other staff working in the State departments with the Judicial Staff. It was found that the duties discharged by the Judicial Staff are not only arduous but also quite hectic and onerous. The Commission had therefore, justified grant of higher payscales to the Judicial Employees in comparison to the staff employed in executive wing of the Government. There was,
therefore, a rational basis to classify the Judicial Staff being in a separate category for grant of higher pay scales. The High Court has failed to keep this object in view while considering the grant of benefits of the 6th Pay Commission to the Judicial Employees. B) Because by virtue of the recommendations of the Shetty Pay Commission and the order dated 7.10.2009 passed by this Honble Court, the Judicial Staff pertaining to Gujarat became entitled to the higher benefits of the pay scale w.e.f. 1.4.2003. It was on the basis of these pay scales that the 6th Pay Commissions benefit should have been applied w.e.f.
1.1.2006. But instead of doing that, the 6th Pay Commission benefits have been given on the old pay-scales (without considering the higher benefits / pay-scales which the Judicial Staff were enjoying), thereby bringing the Judicial Staff at par with the executive staff. This has resulted in denial of payscales, grade pay, increment, special allowance etc. to the Judicial Employees. C) Because the resultant effect on the Judicial Employees after 6th Pay Commission is as follows: (i) The Judicial Staff has been given higher benefits/pay scales on the basis of Shetty pay-commission
recommendation and order dated 7.10.2009 passed by this Honble Court w.e.f. 1.4.2003. (ii) But w.e.f. 1.1.2006 the Judicial Staff will get the same benefits / pay scales which are given to other employees of the State. Therefore, the Judicial Staff will get the
D)
Because in the other States, the direction given by the Honble Supreme Court vide order dated 7.10.2009 has been correctly applied, some of those States are: Haryana and Karnataka. In the State of Haryana, the 6th Pay Commission benefits have been given on the higher benefits / Pay Scales given by the Shetty Pay Commission. In Karnataka, higher benefits have been given on the basis of States own Pay Commission recommendations. This has created an anomalous situation: in some States, benefit of order dated 7.10.2009 by this Honble Court has been extended whereas in other States this has been denied. This situation is creating frustration among the Judicial Employees of those States where the benefit has not been granted.
E)
Because this Honble Court has appointed another PayCommission to revise the benefits and pay-scales of the Judicial Officers, in whose case also Justice Shetty Pay Commission had given recommendations. It is required in the interest of justice as well as administration of Justice that another Pay Commission is constituted for looking into the grant of benefits to the subordinate staff through out the country.
6.
7.
MAIN PRAYER:
It is, therefore, most respectfully prayed that this Honble Court may be pleased to:(a) GRANT special leave to appeal against the
order/judgment dated 7.9.2011 passed by the High Court of Gujarat at Ahmedabad in Special Civil
Application No.7812 of 2010. (b) PASS such other and further orders as may be deemed fit and proper in the facts and circumstances of the case.
8.
Settled by: Mr. Sanjay Parikh, Advocate, Supreme Court, Drawn on: FILED ON:
DRAWN
(ANI ADVO P
IN THE SUPREME COURT OF INDIA (ORDER XVI, RULE 4(1)(a) CIVIL APPELLATE JURISDICTION (UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA) SPECIAL LEAVE PETITION (CIVIL) NO._______ OF [Against the final order/judgement dated 7.9.2011 passed by the High Court of Gujarat at Ahmedabad in Special Civil Apllication No. 7813 of 2010]
IN THE MATTER OF : Gujarat State Judicial Department Class-III, Employees Federation and another. Vs. ....Petitoners
PAPER BOOK
FILED BY: MS. ANITHA SHENOY, ADVOCATE FOR THE PETITIONERS NEW DELHI DATED : 7.12.2011 IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) No. IN THE MATTER OF : Gujarat State Judicial Department Class-III Employees Federation & Anr. Petitioners Versus State of Gujarat & Ors Respondents . OF 2011
CERTIFICATE Certified that the Special Leave Petition is confined only to the pleadings before the Court/Tribunal whose order is challenged and the other documents relied upon in those proceedings. No additional facts, documents or grounds have been taken therein or relied upon in the Special Leave Petition. It is further certified that the copies of the documents/annexures attached to the Special Leave Petition are necessary to answer the question of law raised in the Petition or to make out grounds urged in the Special Leave Petition for consideration of this Honble Court. This certificate is given on the basis of the instructions given by the Petitioner/person authorised by the Petitioner whose affidavit is filed in support of the Special Leave Petition. FILED BY (ANITHA SHENOY) ADVOCATE FOR THE PETITIONER NEW DELHI DATED: 7.12.2011
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) No. IN THE MATTER OF : Gujarat State Judicial Department Class III Employees Federation & Anr. Petitioners Versus State of Gujarat & Ors. Respondents OF 2008
AFFIDAVIT I, Iqbal Husen Malvat, S/o Isabhai Malvat, aged about 51 years, President, Gujarat State Judicial department Class II Employees Federation, Small Causes Court, Bhadra, Ahmedabad, Gujarat 380001 aged do hereby solemnly affirm and say as under :-
1)
such am aware of the facts and circumstances of the case and I am competent to swear this Affidavit on behalf of all the petitioners.
2)
I say that the contents of the Special Leave Petition mentioned to and List of Dates to are
true to my own knowledge as derived from the records and legal advice received and believed by me to be true. I further say that the contents of the Special Leave Petition i.e. Prayer Clause and Certificate are true to my own knowledge. I further say that the contents of I. As are true to my knowledge.
3)
to
are
true copies of the respective originals and form part of the records of the Courts below.
4)
I say that facts stated in this Affidavit are true and correct, no
DEPONENT VERIFICATION Verified that the contents of the above affidavit mentioned in paras 1 to 4 are true and correct to my knowledge and nothing material has been concealed therefrom.
DEPONENT
INDEX S.N. 1. 2. 3. 4. PARTICULARS Office Report on Limitation Listing Proforma Synopsis & List of Dates True and Copy correct copy of the impugned order/judgment dated 7.9..2011 passed by the High Court of Gujarat in Special Application No. 7813 of 2010 Special Leave Petition along with Affidavit ANEXXURE P1 True and correct copy of the order in I.A. No. 71 A and other connected I.A.s dated 7.10.2009 passed by this Honble Court in Writ Petition (C) No. 1022/1989 7. ANEXXURE P2: True and correct copy of the Letter No. 1083/2009 dated 27.11.2009 sent by State of Gujarat. 8. ANEXXURE P3: True and correct copy of the affidavit dated 18.12.2010 in Special Civil Application No. 7813 of 2010 filed before High court of Gujarat 9. ANEXXURE P4: True and correct copy of the affidavit dated 18.12.2010 in Special Civil Application No. 7813 of 2010 filed before High Court of Gujarat. 10. ANEXXURE P5: True and correct copy of Resolution dated 7.5.2011 11. ANEXXURE P6: True and correct copy of the Additional Affidavit dated 13.6.2011 filed in Special Civil Application No. 7813 of 2010 before High court of Gujarat. PAGE
5. 6.
12. ANEXXURE P7 (Colly): True and correct copy of the (i) affidavit dated 27.7.2011 in Special CivilApplication No. 7813 of 2010 filed before Gujarat High Court (ii) Notification dated 26.7.2011 13. ANEXXURE P8: True and correct copy of the charts in respect of Various courts in State of Gujarat