JUDGEMENT Justice Kurian Joseph, C.J. “We are concerned in this Report with the service conditions of the unsung heroes who work overtime but remain unnoticed and unrecognized. They are the staff who form a critical and important mass of our administration of justice in District Courts and Courts subordinate thereto. When we refer to administration of justice, we think only of the judges of the Courts. The judge of a Court, no doubt, is indispensable to our notion of a Court. But, the judge alone cannot administer justice. The working of a Court does not depend only on the work of the Judicial Officer in taking evidence, hearing arguments and rendering judgment. These functions are necessarily to be supplemented by the staff of the Court. Their work extends to pre-trial, during trial and post-trial stages of a case. Without their contribution at all these stages, there cannot be prompt and satisfactory termination of any case.” 2. Extracted above are the opening paragraphs of the Preface in the report of the First National Judicial Pay Commission on improvement of service conditions of non-judicial staff in subordinate courts, popularly known as Shetty Commission report, named after its Chairman Justice K. Jagannatha Shetty, Former Judge, Supreme Court of India. In this Case, we are concerned with the implementation qua the subordinate Courts, in particular the employees in subordinate Courts. The Commission took into consideration the following aspects: “ (i) that the Court Staff have too much work load; (ii) that they work overtime without any compensation; (iii) that there is disparity and inequality in terms of inter-alia job content: and (iv) that there is need to improve the service conditions and proper division in the administration.” 3. As far as the State of Himachal Pradesh is concerned, the following are some of the general recommendations: “III. MEDICAL ALLOWANCE In Himachal Pradesh, no Medical Allowance is being paid to the employees. Reimbursement facility is available. The High Court has suggested adoption of open medical reimbursement facility. The State Government has stated that reimbursement of medical claim is admissible to all the State Government employees as well as the Court employees and as such there is no justification to grant extra payment. The Staff Association has suggested that in case the Commission recommends medical allowance, it should be on par with West Bengal and should be in addition to reimbursement facility. The Staff Association has suggested that in case the Commission recommends medical allowance, it should be on par with West Bengal and should be in addition to reimbursement facility. Having considered the above view and for reasons stated in Chapter-XV, we recommend payment of Medical Allowance of not less than Rs. 100/- p.m. in addition to reimbursement of hospitalization charges, if any, to all Court employees who are below the Clerical Cadres and also to Drivers. IV. SPECIAL ALLOWANCE TO STAFF WORKING IN RECORD ROOM/PROPERTY ROOM It is uniformly found that the Record Room and Property Room, generally in all Courts, do not have proper work place. These branches are housed in basement or cellar and/or at the rear end of the Court building where natural light and air are minimal, besides dust and dirt with awful smell. These places are generally not fit for human habitation, besides resulting into solitary confinement to officials. The High Court has agreed that the Record Room/Property Room should be well ventilated and duly fitted with exhaust fans. Keeping in view the nature of duties in the congested and dust driven files in such rooms, it has recommended grant of Special Allowance to the Record/Property Keeper.The State Government has observed that there is no provision for such payment to the Court staff. Similar is the position in respect of such staff working in Govt. Depts. The Staff Association has suggested payment of Rs. 500/- per month to Record Keeper. With due regard to the views of the High Court, and for reasons stated in Chapter-XVI, Special Allowance of Rs. 100/- per month is recommended to each of the staff working in the Record Room/Property Room.” 4. The petitioner is the H.P. Non-gazetted Judicial Employees Welfare Association. According to the petitioner, no meaningful steps have been taken by the State despite the directions issued by the Supreme Court. It is their contention that the State is bound to implement the directions in view of Annexure P-1, order dated 7.10.2009, issued by the Supreme Court. The order reads as follows: “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 services conditions of the judicial staff is necessary for the administration of justice and rule of law. The order reads as follows: “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 services 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 state/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 thereafter these matter be considered by the respective High Courts of the State/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. 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. 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.” 5. The stand taken by the State is that in the year 2005, a special legislation has been enacted- The Himachal Pradesh Subordinate Courts’ Employees (Pay, Allowances and other Conditions of service) Act, 2005. Paragraph 2 of the affidavit filed by the State before this Court reads as follows: “2.That as on date, the Himachal Pradesh Subordinate Court’s Employees (Pay, Allowances and other Conditions of Service) Act, 2005 governs the position for regulating the pay, allowances and other conditions of service of the subordinate court employees in the State of Himachal Pradesh, wherein under section-3, it has been provided as follows:“3. (1) Notwithstanding anything contained in any rules regulating the pay, allowances and other conditions ofservice or any judicial order or judgment passed by any competent court, the Subordinate courts’ employees shall be paid the pay scales, as specified in the Schedule. (2) The rates of allowances and other conditions of service of the Subordinate Courts’ employees shall be such as may be prescribed.” It is pertinent to submit that the Act ibid still holds good as it has neither been struck down by the Hon’ble Supreme Court nor has been declared ultravires the Constitution. It is humbly submitted that the replying respondent under the aforesaid circumstances is not in a position to depart from the express provisions of the aforesaid enactment. However, it is relevant to submit that the State Government has already revised the pay scales for all the State Government employees w.e.f. 1.1.2006. Said revised pay scales, are also applicable to the subordinate courts employees and a provision for the grant of Grade Pay has also been made therein which is lacking in the Shetty Pay Commission Report. If looked at in totality the revised pay scales given to the Judicial employees are better as compared to those recommended by Shetty Pay Commission Report.” 6. Quite strangely, there is no challenge to the validity of the said legislation in this case. If looked at in totality the revised pay scales given to the Judicial employees are better as compared to those recommended by Shetty Pay Commission Report.” 6. Quite strangely, there is no challenge to the validity of the said legislation in this case. The Writ Petition has been filed only with the following prayers: “i)That a writ of Certiorari may very kindly be issued and impugned act of the respondents No. 1 & 2 which amounts to executive inaction and further as per petitioner amounts to willful disobedience of the directions of the Hon’ble the Apex Court in W.P. (C) No. 1022/1989 may very kindly be quashed and set aside. ii) That a writ of mandamus may very kindly be issued thereby Respondent No.1 & 2 may very kindly be directed to implement the directions of the Hon’ble the Apex Court in above stated writ petition qua implementation of the recommendations of Shetty Commission with respect to the subordinate staff of the courts in its letter and spirit and grant said scales as recommended by the Shetty Commission with effect from 1.4.2003 and further as per said recommendations order the change of designations of the employees of the association, in the interest of law and justice.iii) That respondents may very kindly be directed to take into consideration annexure P-1 while implementing recommendations of Shetty commission in as much as that same are to be implemented w.e.f. 1.4.2003 and benefit of one advance increment on the existing pay scales is to be given but with keeping in mind that if some category of employee is getting more pay, same is not to be reduced. iv) That directions may be given to the respondents to designate the staff as per recommendations of the Shetty commission and further designate the courts as Civil Judge (Senior Division) and Civil Judge (Junior Division) instead of officers as has been done presently. It is submitted that respondents further may kindly be directed to keep in mind that while giving pay scales to the Supdt. Grade II, (Senior Sherishtedar), as the same are to be kept above bench clerk and stenographer, scale of Rs. 7220- 11660 be given to the said category.” 7. It is submitted that respondents further may kindly be directed to keep in mind that while giving pay scales to the Supdt. Grade II, (Senior Sherishtedar), as the same are to be kept above bench clerk and stenographer, scale of Rs. 7220- 11660 be given to the said category.” 7. According to the learned counsel for the petitioner, in view of the mandatory directions issued by the Supreme Court directing the High Courts to ensure the implementation of the Shetty Commission report, the legislation is only to be ignored. At the outset, we may make it clear that the said contention cannot be appreciated. The Supreme Court has not gone into the validity of the legislation. The contention of the petitioner that the State had brought to the notice of the Supreme Court the legislation, referred to above, and yet the Court directed the implementation of the Shetty Commission report and hence, it is not necessary to challenge the legislation is wholly mis-conceived. There is no case that the legislation is not within the competence of the State. In this context, we may also refer to the statement of objects and reasons for introducing the legislation, which reads as follows: “The Hon’ble Supreme Court in its orders in the case Writ Petition No. 1022/89 titled “All India Judges Association Vs. Union of India and Others” dated 20-9-2004 and 17-1-2005 had issued directions on the implementation of various recommendations of the Shetty Commission Report on the pay scales and service conditions of the Judiciary etc. The State Government has examined the recommendations and has accepted number of recommendations despite its involving significant recurring expenditure. The State Government had also expressed its inability before the Supreme Court to implement the recommendations in respect of the Subordinate Courts’ employees pay, allowances and conditions of service interalia because the implementation of the said recommendation for a particular section of employees of the State will result in disparity among the remaining similarly placed categories of the State employees and lead to similar demands from the other services. Keeping in view the various orders of the Hon’ble Supreme Court in this regard, the matter was placed before the Cabinet in its meeting dated 13.10.2005. The Cabinet did not approve the proposal to implement the Shetty Commission Report on the pay scales and service conditions of the Subordinate Courts employees. Keeping in view the various orders of the Hon’ble Supreme Court in this regard, the matter was placed before the Cabinet in its meeting dated 13.10.2005. The Cabinet did not approve the proposal to implement the Shetty Commission Report on the pay scales and service conditions of the Subordinate Courts employees. As such, it has been decided to bring a legislation in order to preserve the presently permissible pay, allowances and conditions of service of the Subordinate Courts’ employees.” 8. Therefore, in the absence of any challenge to the vires of the Act, it will not be proper and possible for this Court to ignore the said legislation. Annexure R-1A is the copy of the Act, Schedule to the Act has prescribed the pay scales of various employees in the Subordinate Courts, covering 15 categories. In the absence of any challenge to the validity of the said legislation, to the extent the reports are otherwise dealt with in the Act, the direction of the Apex Court for ensuring implementation can only be understood as subject to the legislation made by the State. In this context, it is to be noted specifically that Section 3 of the Act introduced as non abstante clause has taken care of the directions issued by the Supreme Court for implementation of the Shetty Commission and it is provided that the legislation is made notwithstanding contained in any judicial order or judgment passed by any competent Court. The legislation having thus purportedly taken away the substratum of the directions issued by the Supreme Court after the submission of the report in 2003 and in the absence of challenge to the validity of the enactment, the legislation validly made by the State cannot be ignored. 9. But, at the same time, it is to be noted that Annexure R-1A legislation has not covered the various other recommendations in the Shetty Commission report. Therefore, to the extent the legislation does not deal with or cover otherwise the recommendations of the Shetty Commission, the State is bound to implement those recommendations in view of the directions of the Apex Court. There is no point in the defence that the employees in the State are to be treated equally. It will not be altogether out of context to also make an observation that in the matter of allowances, the different departments in the State Government have different policies. There is no point in the defence that the employees in the State are to be treated equally. It will not be altogether out of context to also make an observation that in the matter of allowances, the different departments in the State Government have different policies. It is also a fact that the Judicial Officers in the State are paid such allowances. Naturally so, in view of the special duties and job requirements, such allowances are certainly justifiable and that is what is dealt with in the Shetty Commission Report as we have referred to above. Though Annexure R-1A Act has under Section 3(2) provided that the pay and allowances and other service conditions of the service of the subordinate employees shall be such as may be prescribed under the rules, the State has not made the rules in this regard and such allowances also have not been prescribed. In that view of the matter, the State is bound to implement the directions of the Supreme Court so far as matters which are not covered by the Schedule to the legislation. In other words, except in the matter of pay scales, the grading of Readers, grading of Stenographers and other pay scales, the State has to implement the report of the Commission. The petitioner-Association has submitted Annexure P-2, representation bringing to the notice of the State the steps to be taken by the State in implementing the Shetty Commission Report. 10. In the above circumstances, this Writ Petition is disposed of directing respondents No. 1 & 2 to implement the recommendations of the Shetty Commission Report in respect of the employees of the District Courts and other Subordinate Courts, in respect of the matters not covered by the Schedule to the Himachal Pradesh Subordinate Courts’ Employees (Pay, Allowances and other Conditions of Service) Act, 2005. This shall be done within a period of four months from the date of production of the copy of this judgment by the petitioner. 11. With the above observations, the Writ Petition is disposed of, soalso the pending application(s), if any.