CWP No. 8630 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 8630 of 2009 Date of decision: 04.03.2010 Swaran Lata and others ...... PETITIONERS VERSUS Punjab and Haryana High Court and others ....... RESPONDENTS CORAM: HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH Present: Mr. Ashwinie Kumar Bansal, Advocate, for the petitioners. Mr. Karminder Singh, Advocate, for respondents No. 1 and 2. Mr. Aman Bahri, Advocate, for respondents No. 3 to 5. *** AUGUSTINE GEORGE MASIH, J. This writ petition has been filed by the officials working in the District and Sessions Court, Chandigarh, wherein the District and Sessions Judge, U.T., Chandigarh-respondent No. 2 has passed an order dated 19.05.2009 (Annexure P-3), vide which cadre of respondents No. 3 to 5 from Judgment Writers (Senior grade) to Superintendent Grade-II has been changed. It is alleged that such change of cadre has been ordered without framing of the relevant Rules by the High Court and contrary to the Rules CWP No. 8630 of 2009 2 governing the service i.e. Chandigarh Union Territory Subordinate Courts Establishment (Recruitment and General Conditions of Service) Rules, 1997 (hereinafter referred to as 'Rules, 1997). Brief facts leading to filing of the petition are that the petitioners were recruited in the clerical cadre whereas respondents No. 3 to 5 in the cadre of Steno-Typist in the District Courts, U.T. Chandigarh. Separate categories have been provided under the Rules, 1997. The petitioners belong to the clerical cadre and have their own line of promotion. From the post of Clerk, promotion is to the post of Junior Assistant and thereafter to Senior Assistant, Superintendent Grade-II and Superintendent Grade-I, whereas in the cadre of Steno-Typist, promotion is to the post of Judgment Writer-II and thereafter, Judgment Writer-I. Thus, these two cadres are different, the line of promotion is different and they have nothing in common as such between them as far as appointment and promotion is concerned. Pursuant to the orders dated 17.12.1997 and 07.01.1998 passed by the Hon'ble Supreme Court in the case of All India Judges Association and others vs. Union of India and others, the First National Judicial Pay Commission on the improvement of service conditions of Non- Judicial staff in the Subordinate Courts was formed, which is commonly called as Shetty Commission. The report of the Shetty Commission was submitted in March, 2003. The Hon'ble Supreme Court, after considering the submissions made by the States/Union Territories/High Courts, accepted the recommendations of the Shetty Commission and issued directions from time to time for consideration of the recommendations and for implementation of the same, wherever accepted by the States/Union Territories. States of Punjab and Haryana as also the Union Territory of CWP No. 8630 of 2009 3 Chandigarh accepted all the recommendations made by the Shetty Commission. On the acceptance of the same by the States of Punjab and Haryana and the Union Territory of Chandigarh, High Court has been issuing letters for implementation of the same. One of the recommendations issued by the Shetty Commission, which relates to and is relevant for the present case, is Chapter X-A of the report. The said chapter has been appended as Annexure R-2/4 with the writ petition. This chapter deals with the issue “Whether the Stenographers should be allowed to switch over to Ministerial/Supervisory Cadres? The Commission consulted all the High Courts and the State Governments and on the basis of the feed back received recommended the switching over of stenographers to ministerial/supervisory cadre after completion of a minimum period of service as determined by the High Court. On the basis of the said recommendations, which were accepted by the Union Territory of Chandigarh, Steno-Typists of the Subordinate Courts in U.T., Chandigarh submitted a representation for switching over the cadre from Steno-Typist to Ministerial/Supervisory Cadre to the District and Sessions Judge, Chandigarh-respondent No. 2. On consideration of the representation of the Steno-Typists, respondent No. 2 dealt with Chapter X-A of the Shetty Commission report in his order dated 15.05.2009 (Annexure R-2/2) and proceeded to accept the recommendations of the Stenographers and permitted them to switch over their cadres to Ministerial/Supervisory. Ratio of 4:1 was also fixed by him. Formal order was passed on 19.05.2009 (Annexure P-3), wherein cadre of respondents No. 3 to 5 was allowed to be switched over to the Ministerial/Supervisory cadre i.e. Superintendent Grade-II. It is this order, which is under challenge in the present writ petition. CWP No. 8630 of 2009 4 Counsel for the petitioners submits that there is no provision in the statutory Rules governing the service i.e. Rules, 1997 providing for change of cadre. Shetty Commission has made a general principle for allowing change of cadre with regard to the Stenographers to the Ministerial/Supervisory but that is subject to the Rules to be made by the High Court. The minimum period of service i.e. required to be completed for such switch over is also to be determined by the High Court. These two conditions are pre-requisite for implementation of the recommendations of the Shetty Commission Report with regard to the Stenographers as contained in Chapter X-A of the Report. It is an admitted position on behalf of the respondents that neither there has been any amendment to the Rules nor has the High Court determined the minimum period to be completed in service for switching over by the Stenographers to the Ministerial/Supervisory Cadre. He, on this basis, contends that the impugned order passed by respondent No. 2 cannot be sustained and deserves to be set aside. His further contention is that respondent No. 2 has exceeded its jurisdiction by prescribing the ratio and determining the condition for switch over from the cadre of Stenographers to the cadre of Ministerial/Supervisory. He, on this basis, submits that on this ground also, the impugned order deserves to be set aside. On the other hand, the stand of the counsel for respondents No. 1 and 2 is that the Union Territory of Chandigarh has accepted the recommendations of the Shetty Commission as a whole. There has been directions by the Hon'ble Supreme Court for implementation of the said Report from time to time. Even the High Court-respondent No. 1 has been pressing to implement the recommendations of the Shetty Commission. Keeping in view the directions issued by the Hon'ble Supreme Court and CWP No. 8630 of 2009 5 the High Court, respondent No. 2 has proceeded to permit the change of cadre of the Stenographers to the Ministerial/Supervisory cadre. He contends that the report of the Shetty Commission has been implemented by respondent No. 2 in letter and spirit and in pursuance thereto, has passed the order dated 15.05.2009 (Annexure R-2/2) and order dated 19.05.2009 (Annexure P-3). He, therefore, submits that the impugned orders deserve to be upheld and the writ petition dismissed. However, he has admitted that till date, neither the Rules have been amended permitting the change of cadre nor has the minimum completed period of service determined by the High Court permitting the Stenographers to switch over to the Ministerial/Supervisory cadre. Counsel for respondents No. 3 to 5 has placed reliance upon the order dated 22.01.2008 (Annexure R-5) passed by the Hon'ble Supreme Court, wherein it finds mention that Punjab, Haryana and Union Territory, Chandigarh have accepted all the recommendations of the Shetty Commission. He further placed reliance upon the order dated 07.10.2009 (Annexure R-6) passed by the Hon'ble Supreme Court, wherein the Hon'ble Supreme Court has directed that the recommendations will be implemented w.e.f. 01.04.2003. He, on this basis, contends that respondent No. 1-High Court, who has been, as per the order dated 07.10.2009 (Annexure R-6), directed on judicial/administrative side to ensure implementation of the Shetty Commission, has itself not determined the minimum completed period of service for switch over to the Ministerial/Supervisory cadre. The inaction on the part of respondent No. 1 should not disentitle respondents No. 3 to 5 to their just right, which has accrued to them in the light of the recommendations of the Shetty Commission, which has been duly accepted by the Union Territory of CWP No. 8630 of 2009 6 Chandigarh and for implementation of which, directions have been issued by the Hon'ble Supreme Court as also respondent No. 1 on the administrative side. He, therefore, contends that the order passed by respondent No. 2 is in consonance with the recommendations of the Shetty Commission and in pursuance to the implementation of the report of the Shetty Commission. He, on this basis, prays for dismissal of the writ petition as being devoid of merit. I have heard the counsel for the parties and have gone through the records of the case. The service of the petitioners as also of the respondents is governed by the Rules, 1997. It is not in dispute that they belong to two different categories. There is no provision under the Rules, which provides for change of cadre from Stenographers to that of Ministerial/Supervisory cadre. The recommendation of the Shetty Commission clearly spells out that the Stenographers may be permitted to switch over to the Ministerial/Supervisory cadre after they have completed a minimum period of service as determined by the High Courts, subject to the condition that the option once exercised shall not be revoked. The recommendations of the Shetty Commission as contained in Chapter X-A of the report reads as follows:- “OUR RECOMMENDATIONS: Stenographers have a unique opportunity of closely working with the Presiding Officers and learning the Court procedures. This experience is a valuable asset for administration. We fail to understand why they cannot be placed in other posts. It is not desirable to treat the Stenographer like “Once a mortgage, always a mortgage”. His valuable experience could be fully utilised in other branches of CWP No. 8630 of 2009 7 administration as well. It is not good even from health point of view as correctly stated by some High Courts/State Governments. We, therefore, recommend that the Stenographers may be permitted to switch over to ministerial/supervisory cadre after they have completed a minimum period of service as determined by the High Court, subject to the condition that the option once exercised shall not be revoked.” It is an admitted position that no minimum period of service, which is required to be completed by the Stenographers in their cadre for permitting the switch over to the Ministerial/Supervisory cadre, has been determined by the High Court till date. No reply has been filed by respondent No. 1 in this case. However, counsel for respondent No. 1 has informed the Court that the matter is pending consideration before this Court. Thus, as of now, there is no decision on the part of the High Court fixing the completed minimum period of service in the cadre of Stenographers which would permit switch over to the Ministerial/Supervisory cadre. The recommendation of the Shetty Commission with regard to permission to switch over from the Stenographers cadre to the Ministerial/Supervisory cadre, is not independent in itself but is dependent upon the minimum period to be determined by the High Court for permitting such switch over in the cadre. This fact is accepted by respondent No. 2 in his order dated 15.05.2009 (Annexure R-2/2), the relevant portion whereof is reproduced herein below:- “ I have perused the relevant rule i.e. Chapter XA of Shetty commission's Report with regard to switching over of CWP No. 8630 of 2009 8 cadre and the Stenographers may be permitted to switch over to ministerial/supervisory cadre after they have completed a minimum period of service as determined by the Hon'ble High court, subject to the condition that the option once exercised shall not be revoked. The office has reported that the Hon'ble High Court has not yet framed any rule, as to how much minimum period of service is required to switch over to ministerial/supervisory cadre, so the reference may be made to the Hon'ble High Court for seeking guidance in the matter. But, if the reference is made to the Hon'ble High Court, it will take some time and the Hon'ble High Court vide above mentioned letter dated 17.4.2009 has directed to implement the Shetty Commission's recommendations in its letter and spirit, without any delay in the matter. Moreover, the Readers who are to be promoted/appointed have already suffered a huge financial loss. The office has suggested that in the alternative the matter may be disposed of by proportioning the strength of clerical staff and Stenographers, which is as under.” Despite acknowledging the powers of the High Court as per the recommendation of the Shetty Commission for determining the minimum period of service by Stenographers in their cadre for permitting switch over, which as yet has not been fixed by the High Court, still respondent No. 2 has proceeded to change the cadre of the Stenographers to the Ministerial/Supervisory cadre. The order, therefore, is against the recommendation of the Shetty Commission itself. Not only this, respondent No. 2 has further proceeded to determine proportionately the ratio to be CWP No. 8630 of 2009 9 granted to the Stenographers and the Ministerial/Supervisory cadres, which again is not permissible in law as there is no such power given by the Shetty Commission which obviously is left open to the High Court to determine. Respondent No. 2 has exceeded his jurisdiction and usurped the powers, authority and responsibility conferred on the High Court by the Constitution of India and the Shetty Commission, which report respondent No. 2 has endeavoured in his order dated 15.05.2009 to give effect to and implement. Respondent No. 2 has himself observed that if the reference is made to the High Court for guidance in the matter with regard to the fixation of the minimum period of service required to switch over to the Ministerial/Supervisory cadre, it will take some time which would delay the matter. These observations are totally uncalled for. The orders dated 15.05.2009 and 19.05.2009 passed by the District and Sessions Judge, Chandigarh-respondent No. 2 qua respondents No. 3 to 5 cannot be sustained and are hereby set aside. The present writ petition is accordingly allowed. The Punjab and Haryana High Court-respondent No. 1 has chosen not to file reply to the present writ petition. However, it has been brought to the notice of the Court that the matter with regard to the determination of the minimum completed period of service in the Stenographers cadre for permitting to switch over to the Ministerial/Supervisory cadre, is pending consideration with respondent No. 1. At this stage, reference can be made to the order dated 07.10.2009 passed by the Hon'ble Supreme Court in the case of All India Judges Association and others (supra), the relevant portion thereof reads as CWP No. 8630 of 2009 10 follows:- “ ORDER 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 15.7.2008, 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 CWP No. 8630 of 2009 11 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. 1.4.2003.” A perusal of the above indicates that the Hon'ble Supreme Court has directed that the High Court on the Judicial/Administrative side will ensure implementation of the recommendation of the Shetty Commission within a reasonable period of one year. Despite the recommendation of the Shetty Commission, which has been reproduced above, permitting Stenographers to switch over to the Ministerial/Supervisory cadre, the right which has accrued to the Stenographers on the acceptance of the recommendation by the States of Haryana, Punjab and Union Territory of Chandigarh, they have been deprived of the fruit due to non-determination of the completed minimum period of service in the cadre of Stenographers. In the light of the order dated 07.10.2009 passed by the Hon'ble Supreme Court, a direction is issued to the Registrar General to personally pursue the matter to ensure that expeditious decision can be taken with regard to the minimum period of completed service in the cadre of Stenographers for permitting switch over to the Ministerial/Supervisory cadre so that the staff of the subordinate Courts are not forced to file writ petitions in this Court for implementation of the recommendations of the Shetty Commission. ( AUGUSTINE GEORGE MASIH ) JUDGE March 04, 2010 pj