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CASE NO.:

Appeal (civil) 1179 of 2002

PETITIONER:

Deb Narayan Shyam & Ors

RESPONDENT:

State of West Bengal & Ors

DATE OF JUDGMENT: 01/12/2004

BENCH:

B.N.Agrawal & A.K. Mathur

JUDGMENT:

J U D G M E N T

W I T H :

C.A.No. 1180 of 2002, C.A.No.1181 of 2002, C.A.1182 of

2002 & C.A.Nos.1183-1184 of 2002.

A.K. MATHUR, J.

All these appeals raise common question of law, therefore they

are disposed off by this common order.

The questions involved in all these appeals are : (i) Whether

the Amins and Surveyors discharge the same duties or not; (ii)

Whether the Amins are entitled to the same pay scale i.e. Scale No.9

of Surveyors and (iii) What is the effect of various decisions of the

High Court of Calcutta passed from time to time in favour of the

Amins treating them equivalent to that of Surveyors and allowing

them pay scale No.9.

The controversy with regard to the issue whether the Amins

and the Surveyors discharge similar duties and therefore the Amins

should be treated equivalent to the Surveyors started with the first

litigation initiated in the High Court of Calcutta by filing of a petition

by one Md. Anwarul Haque & others being Civil Rule No.3469(W) of

1982 and the other by Abdul Bari & others being Civil Rule No.3470

(W) of 1982, which were disposed of by order dated June 6,1985 by

learned Single Judge, Justice Subhas Chandra Sen ( as he then

was). The case of the petitioners in those civil rules was that they

were recruited as Amins under the Land Records and Surveyors,

Directorate, Government of West Bengal. It was alleged that the work

of Surveyors and Amins are identical. It was also contended that the

qualifications for recruitment are almost identical. Therefore, there

was no difference between the surveyors and Amins in the matter of

qualifications and also in the matter of work that they discharge. But

by virtue of a notification issued by the Department of Finance,

Government of West Bengal being Notification No.5472-F dated

December 27,1961 published in the Calcutta Gazette Extraordinary

on January 2,1962 in Part I to the West Bengal Service (Revision of

Pay and Allowance) Rules, 1961, different scales of pay were

prescribed for Surveyors and Amins working in different Departments

under Government of West Bengal. Therefore it was alleged to be

discriminatory and Amins claimed same pay as Surveyors on

principle of equal pay for equal work. The learned Single Judge

without discussing whether the qualifications and duties of the

Amins and the Surveyors are same or not granted equal pay for the

Amins as that of the Surveyors on the basis of well recognized

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principle of 'equal pay for equal work'. Learned Single Judge further

observed that there is no reason to differentiate between an Amin

and a Surveyor when an Amin is appointed on the basis of same

qualification and discharges the same duties that of a Surveyor.

Learned Single Judge referred to a communication from

Commissioner, Jalpaiguri Range and on that basis, he concluded that

the Amins perform the same duties as Surveyors, though that letter,

which we will deal later, is nothing but a proposal submitted by the

Additional Commissioner in response to a representation by Amins.

On the basis of this letter, learned Single Judge concluded that the

pay scale which is being given to the surveyors should also be given

to the Amins. Learned Single Judge further held that by notification

dated July 29,1981, issued by the Government of West Bengal,

Department of Finance, the scale of pay of the Surveyors has been

revised to Rs.380-910/-. Therefore, the learned Single Judge directed

to grant the same pay scale to the Amins also. However, no counter

affidavit was filed, therefore, the allegations were not denied and

nobody appeared on behalf of the Government. On that basis,

learned Single Judge directed that same pay scales should be given

to the Amins as that of the Surveyors. When the said pay scale was

not given, a contempt petition was filed and that contempt petition

was disposed of by learned Single Judge directing the State

Government to allow the petitioners in those two Civil Rule Nos.3469

and 3470 of 1982 same scale of pay as that of Surveyors. But at the

same time it was clarified that the order passed in the contempt

petition on August 16, 1989 will not be a precedent for any other

cases and the other cases will be fought by the State Government by

filing affidavits. It is unfortunate that against this order no appeal was

preferred and subsequently all 36 cases which were filed by different

persons same order was passed. The net result is that all these

persons were given the same pay scale as that of the Surveyors. In

some cases appeals were filed but the same were not pressed, in

some cases appeals were dismissed and in some cases the appeals

were allowed to be withdrawn. So much so that a Special Leave

Petition was filed in this Court which was withdrawn. It is also

unfortunate that in the State Government nobody examined the

matter and they totally ignored the rules on the subject and the

duties performed by the Amins and Surveyors and the Government

allowed them the benefits of the pay scales of the Surveyors. Number

of decisions were given by the High Court of Calcutta following the

decision in Md.Anwarul Haque's case though in the said case it was

clearly mentioned that the order passed in this case will not be

treated as precedent for other cases. Be that as it may, there was

total lack of application of mind on the part of the State Government

in not defending the cases properly, even in subsequent cases no

counter affidavit was filed. The attention of the Court was not invited

in subsequent cases that in Anwarul Haque's case Court has

observed that it will not be treated as precedent. This only reflects

total indifference and gross negligence on the part of the State

Government in not properly defending the cases thereby creating an

unfortunate situation for themselves. This indifferent attitude of the

Government of West Bengal has costed them a huge salary liability.

The State Government accepted the decision of the High Court and

they treated the posts of Amins and that of the Surveyors identical

and they granted higher pay scales to those litigant Amins. This state

of affairs would have continued but for the fact that subsequently the

Amins in the Cooch Behar District filed a writ petition in the High

Court and sought the same relief which was given to the Amins in

the series of decisions given by the High Court of Calcutta. There

they challenged that they must be given the equal pay for equal work

as is being given to Amins of other Department. In that context, the

matter was examined by the learned Single Judge ( Justice Satya

Brata Sinha, as he then was). Learned Single Judge examined the

matter and found that no material was placed by the said petitioners

for seeking the parity treatment. Learned Single Judge observed that

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technical Rules and instructions relating to survey inter alia provides

that the surveyors are to carry out their duties like for the purpose of

traversing survey whereas the Amins inter alia are required to do their

work in cadastral survey by using a 20 metre chain divided by 100

links. The surveyors are required to possess, apart from their general

qualifications, Diploma from Industrial Training Institute which the

Amins do not possess. The Surveyors are specially trained in using

sophisticated survey equipments like Theodolite, automatic levels,

electronic distance measurement etc. The course content for a

senior surveyor is a two years' duration wherein the surveyors are

given specialized training in various subjects including all surveying,

engineering mechanics, engineering drawing, topographic and hydro-

graphic surveying, mine surveying, quantity surveying and costing

etc. So far as the Amins are concerned, their basic qualifications are

Madhyamik or equal. The post of Amin can be filled up from peons

who are group 'D' employees, whereas the surveyors are appointed

by direct recruitment. The amins are merely given simple and

rudimentary survey equipments like Guntur's chain and optical

square and other related accessories. The value of survey

equipments used by the Amins ranges between Rs.100/- and

Rs.150/-. The methodology used by the Amins for doing their job is

absolutely simple. They are given training for office work for about 3-4

months when they are given first posting in erstwhile settlement

camps or any other offices. It is alleged that the job of Amin begins

where the job of Surveyor ends. From this the learned Single Judge

inferred that the nature of duties of Surveyors and Amins are

absolutely distinct and separate. Learned Judge examined and found

that the Surveyors and Amins are placed in different scales of pay

throughout from the report of the Second Pay Commission. Those

Surveyors with qualification of Overseer were granted the pay scale

of Rs.300-600/- whereas the Amins are placed in the pay scales of

Rs.150-350/-. It was observed that the Second Pay Revision

Committee examined the duties and qualifications of both the posts

i.e. Surveyors and Amins and after detailed examination, they have

been put in two different pay scales. All the earlier judgments were

placed before the learned Single Judge. Learned Single Judge after

examining all the earlier decisions given by learned Single Judge

which were not contested by the State Government, no reply was

filed by State, disagreed with the earlier decisions and found that the

earlier decisions were per inquiriam. Therefore, learned Single Judge

did not follow the earlier decisions and dismissed the writ petition.

This judgment was delivered by the learned Single Judge on

February 16,1995. Thereafter, when some more matters came up

before learned Single Judge, Justice Sinha( as he then was), he

recorded detailed reasons and referred the matters to the Chief

Justice for referring it to a larger Bench. The matter was referred to

the larger Bench by the Chief Justice and the matter came to be

disposed off by a Division Bench presided over by Justice

B.P.Banerjee & Justice Vidyanand. Justice B.P.Banerjee examined

the matter at length and after examining the matter in great detail

held that the Amins cannot be treated at par with the Surveyors and

accordingly dismissed the writ petitions without any order as to costs.

Justice Banerjee in the Division Bench examined the qualifications of

the Amins as well as job requirement, methodology and work

discharged by them vis-`-vis that of the Surveyors and found that it

is difficult to hold that the Amins and Surveyors are discharging the

same duties as they are recruited on the basis of different

qualifications and therefore the Amins cannot be treated at par with

that of the Surveyors. Aggrieved against this judgment the matter

was take up by the Amins before this Court and their grievance was

that the appellants herein were not parties to the writ petition but the

benefits which had accrued in their favour by the order of the learned

Single Judge in different cases were sought to be taken away by the

impugned judgment and this Court after hearing both parties at length

passed a detailed order and remitted the matter back to the High

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Court of Calcutta. This Court observed as follows:

" in view of the diverse submissions, the

question for consideration is what the pay scale

the respondents would be entitled to in view of

the mandamus issued by the learned Single

Judge on June 8,1987. It is not disputed that

under ROPA Rules different scale of pay exist

for Surveyors having different qualifications. It is

not the case of the respondents that they

possess the qualification for being absorbed as

Overseer. On the other hand, they possess the

qualification of School Final or its equivalent with

practical experience. That being the position, it

is unexceptionable that only scale of pay which

the respondents would be entitled to pursuance

to the mandamus issued by the learned Single

Judge of Calcutta High Court by its order dated

June 8,1987 is the scale of Rs.340-750/- and in

fact the State Government by its order dated

August 25,1993 rightly granted that scale of pay.

We, therefore, do not find any justification in

holding the respondents guilty of contempt nor

there was any justification for the Division Bench

of the Calcutta High Court to order that they

would get higher pay scale of Rs.380-910/-. The

aforesaid direction of the Division Bench

directing to pay the respondents in the scale of

Rs.380- to Rs.910/- accordingly stands

quashed.

Mr.Sanyal said that since this Court had

remitted the matter at the behest of several

Amins to the Calcutta High Court for getting an

opportunity of hearing in the writ petition the

same relief should be given to him. We allow

this prayer and the present respondents be

added as party to the pending Writ Petition

which we have remitted by setting aside the

judgment of the Division Bench. Mr.Sanyal

undertakes to enter appearance before the

Division Bench within two weeks from today and

would file whatever additional papers within 4

weeks from today. Needless to mention that

these respondents will continue to draw in the

scale of pay of Rs.340- to Rs.750/- which had

been ordered by the Government in its order

dated 25-8-1993 until the same is modified or

altered by the Division Bench of Calcutta High

Court. We are told that the State Government

has also preferred an appeal against the order

of Single Judge. Those appeals may be heard

also by the Division Bench. If the salary has not

been given to the respondents and if there is

any arrear they may be paid within 3 months

from today.

The appeal is disposed of accordingly."

The matter was remitted back by this Court before the Division Bench

of the High Court of Calcutta and the same came to be heard by a

Bench presided over by Justice Altamas Kabir and Justice Gora

Chand De. The Division Bench examined the matter in great detail

and after a detailed discussions, the Division Bench framed two

questions i.e. (i) Do Amins perform the same or similar nature of

duties as Surveyors in the different departments of the State

Government and are their responsibilities, training and qualifications

comparable which would entitle them to equal pay for equal work with

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Surveyors ? and (ii) Can the benefits received by a section of Amins

who had moved this Court earlier in several writ petition and were

drawing higher scale of pay than that recommended by the

successive Pay Commissions pursuant to orders passed in such writ

petitions be withdrawn in the event it is held in these two writ petitions

that Amins are not entitled to the same scale of pay as Surveyors

working in the different departments of the State Government ? This

Division Bench had also observed that in the earlier writ petitions

which were filed by Md.Anwarul Haque & Ors. ( C.R.3469(W) of

1982) and Abdul Bari & Ors. (C.R.3470(W) of 1982) were disposed of

on the doctrine of non-traverse and therefore this need not be treated

as precedent for future cases. It appears that the decisions in the

aforesaid Civil Rule petitions were given by the Single Judge of the

High Court without there being any affidavit filed by the State

Government and without examining the duties and responsibilities

performed by Amins and Surveyors and even no attention was paid

to the order of the learned Single Judge, Justice Subhas Sen ( as he

then was) while disposing of the matter it was observed that this

order will not be treated as precedent. Matters were disposed of by

one after the another Bench without the affidavit of the State

Government, it is equally a sad state of affairs that appeals filed by

the State Government against the order of the learned Single Judge

were allowed to be withdrawn or were dismissed. The Division Bench

examined the matter and found that the Amins and Surveyors

primarily undertake survey work but the duties performed by them are

essentially different. It was found that the method of recruitment and

the required qualification for recruitment of these posts are different. It

was also found that the nature of duties performed by them is also

different. It was observed that the work of Amins begins where the

work of the Surveyors ends. The Division Bench further observed

that before successive Pay Commissions for revision of pay scales,

the matter was examined by the Experts and they have prescribed

different pay scales for the Amins as well as the Surveyors.

Unfortunately, all these recommendations of the Pay Commissions

which ultimately formed part of the ROPA Rules were not brought to

the notice of the Court nor the State Government examined the

matter with reference to the ROPA Rules and mechanically followed

the orders without approaching the higher Court and bringing to the

notice of the Court the correct picture. The Division Bench examined

the matter with regard to the nature of duties and successive reports

of the Pay Commissions and observed as follows:

" On a comparison of the qualification, training

and expertise and the work performed by Amins

and Surveyors, it is apparent that the same

cannot be equated and the two posts cannot be

treated as equal as far as the higher categories

of Surveyors are concerned. Even the

responsibilities shouldered by Surveyors and

Amins do not bear comparison as will be

evident from the Technical Rules and

Instructions. The only point of comparison

between Amins and Surveyors is with regard to

the lower categories of Surveyors who do not

have the requisite qualifications, training and

expertise to do the work performed by Surveyors

of higher categories."

The Division Bench has also quoted the extracts from the report of

the Fourth Pay Commission which reads as under :

" Having regard to the duties and

responsibilities attached to the post of Amin and

those attached to the post of Surveyor and also

the essential recruitment qualifications of these

two categories of posts, we are of the view that

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the post of Amin cannot be equated with that of

Surveyor, both in respect of qualification as well

as in respect of duties and responsibilities.

In our view the scale of Rs.1040-1920/-

(Scale No.6) as allocated to the post of Amin is

just and proper. We accordingly recommend

revised Scale No.6 for the post of Amin."

However, the Division Bench held that both Amins and Surveyors

belong to different categories and their duties are not comparable

and therefore, they cannot be treated at par with each other.

Notwithstanding that the Division Bench observed as follows:

" In fact, since surveyors with only a School

Final Pass or Madhyamik qualification and

practical experience were given Scale No.7, in

our view, it will only be fair to give Amins having

the same qualification and expertise and

performing similar functions the same scale."

Though the Division Bench held that the Amins stand on a different

footing therefore, they cannot get the same scale of pay as that of the

Surveyors but still looking to the qualification of the Surveyors with

only a School Final Pass or Madhyamik qualification and practical

experience they were given the pay scale No.7 & directed the State

Government to give pay scale No.7 to the Amins. Aggrieved against

this direction the State Government has filed Special Leave and

aggrieved by the other part of order the private parties have filed

Special Leave. Therefore, all these Appeals which were clubbed

together are being disposed of by this common order.

The final direction issued by the Division Bench reads as

under:

" We, therefore, answer the reference by

holding that Amins in general cannot be equated

with Surveyors and in order to rationalize and

bring about an uniformity in the pay scales of

Amins in general we dispose of these writ

applications by directing the State Government

to revise the pay scales of Amins in general and

to place them in Scale No.7 with notional effect

from 1st January, 1986, with corresponding

revisional benefits and with actual effect from

the date of implementation of the ROPA Rules,

1998. Amins Grade-I and Amins who have been

given the benefit of Career Advancement

Schemes will continue to retain and receive

such benefits.

As far as Amins who had been enjoying

Scale No.9 pursuant to orders of Court are

concerned, on and from 1st October, 2001, they

shall also be placed in Scale No.7 in such

manner so that they are not given less pay than

they are now receiving and no recovery shall be

made from them for the period prior to 1st

October, 2001."

In this background, the whole controversy has now come up before

this Court.

Learned counsel for the private respondents has submitted that

with reference to the various orders of the Government and

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notifications issued from time to time that the Amins and Surveyors

discharge same duties, their qualification may differ but the duties

discharged by them are identical. Therefore, they are entitled to get

the pay scale prescribed for the Surveyors on the principle of "equal

pay for equal work". It has also been submitted that all earlier

decisions given in all the 36 writ petitions will operate as res judicata

and estoppel against the State Government because the State

Government has not challenged the said order in all the 36 writ

petitions. In some appeals were filed but were allowed to be

withdrawn, in some appeals were dismissed and against some

appeals were not filed. Therefore, the State Government cannot

wriggle out from the situation created by themselves and they are

bound by it. It was also pointed out that Courts can always mould the

reliefs. Learned counsel has also pointed out that it is no longer

contestable. As against this, it was submitted on behalf of the State

Government that the duties of the Surveyors and Amins are different

and that classification has been maintained throughout.

It was submitted that by virtue of some observations made by

some State authorities, it cannot override the statutory provisions like

the recommendations of the Pay Commissions, the ground realities

are that the qualification, training of the Surveyors and that of the

Amins are separate and therefore there is no question of the Amins

being treated at par with that of the Surveyors as both are not

comparable. In this connection, various documents have been filed

by the State Government. It was also contended by the State

Government that the Division Bench has gone wrong in giving

direction for pay scale No.7 to the Amins. It was submitted that the

Courts cannot give pay scale as the pay scales are given on the

basis of the recommendations of the Expert Committee like Pay

Commission which examines the nature of duties and qualifications

for each post and if the Court started directing for giving pay scales

then it will have cascading effect on the part of the other pay scales

and specially in the case of Amins when Division Bench on one hand

has found that both posts are not identical. Yet the Court has given

Amins pay Scale No.7 which is not proper. Therefore, learned

counsel submitted that the order passed by the High Court for giving

pay scale No.7 on the basis of the qualification of phased out

Surveyors is not correct.

An affidavit has been filed by Samir Ghosh, Principal Secretary

to the Government of West Bengal, Finance Department. In that

affidavit, he has pointed out that the Amins are found in the Land

Acquisition Offices under the Land & Land Reforms Department;

Integrated Set Up of Land Reforms under the Land & Land Reforms

Department and under the Refugee Relief & Rehabilitation

Department of the Government of West Bengal. He has also stated

that there was no prescribed qualifications for the Amins and there

was no recruitment rules. In 1989, after the Integrated Set Up of Land

Reforms came into being the recruitment qualification for Amins in the

said Department was prescribed in the recruitment Rules framed

under proviso to Article 309 of the Constitution, as pass in School

Final or its equivalent. These Recruitment Rules came into force with

effect from April 24, 1990. Consequent upon framing of the

Recruitment Rules, Amins in Integrated Set Up under the Land &

Land Reforms Department received two scales of pay namely Non-

School Final Amins, Scale No.5 and School Final Amins, Scale No.6.

Subsequently, in 2001 as well as in 2003 Recruitment Rules were

framed in the Land Acquisition Office as well as in Refugee Relief

and Rehabilitation Department. The minimum qualification prescribed

for Amins now in all Departments as mentioned above is Madhyamik

or its equivalent which is equivalent to School Final qualification.

However, it is also stated in the affidavit , as a policy decision, the

Government had decided that all Amins in the Basic Grade, working

in the aforesaid departments, irrespective of their qualifications would

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now be allowed scale No.6 under Revision of Pay & Allowance

Rules, 1998, effective from January 1,1996. This decision is also

taken to bring about uniformity amongst the Amins. He further stated,

" I say that Amins in the Basic Grade, in whichever department they

are posted would now be allowed Scale No.6 under Revision of Pay

& Allowance Rules, 1998." He further states on oath, "With regard to

Amins in the Basic Grade, who have received Career Advancement

benefit strictly in terms of the Career Advancement Scheme, 1990

would be allowed the revised scale No.7 under Revision of Pay &

Allowance Rules, 1998, with effect from 01.01.1996. Amins in general

will also be allowed modified career advancement scheme under

ROPA Rules, 1998. All posts of Amin Grade-I, which is the

promotional post of Amins, will be allowed Scale No.8 under the

Revision of Pay & Allowance Rules, 1998 in all the Departments." He

further states, " While fitting the Amins in the respective Scales

Nos.6,7 and 8, as aforesaid, their basic pay will be taken into

consideration and their total pay which is being received by them

respectively will be protected, so that in no case the Amins receive

less pay than what they are receiving under orders of Court passed

earlier in 36 judgments up to 1993/94. No recovery shall be made

from them for the period prior to 01.10.2001 as directed by the

Hon'ble Division Bench. " He further states, " Amins who have retired

or expired prior to the introduction of ROPA Rules, 1998( i.e. up to

31.12.1985) will be allowed to have their retiral benefit or family

pension on the basis of last pay drawn pursuant to the Court's order

in scale nio.7 or 9 (unrevised) without creating any precedence."

The respondents have also filed counter affidavit to this

affidavit. Ziaul Haque has filed the said affidavit and he has denied

that the recruitment qualification of Amins and Surveyors are

separate. He has pointed out that Government of West Bengal has

issued Memo No.4884, S & S dated June 22,1990 and expressed

their view regarding qualification for direct recruitment to the post of

Amin in the Integrated Set-up i.e. a pass certificate in School Final/

Madhyamik examination of the West Bengal Board of Secondary

Education or equivalent; good working knowledge of written and

spoken Bengali and diploma or certificate in Survey from a

recognized institution. He further submitted that recruitment

qualifications of Amins are equal to the recruitment qualifications of

Surveyor in Grades III & IV. He has also stated that Government of

West Bengal in 1992 have modified the qualification for both the

posts having the qualification of School Final and Non-School Final at

Rs.300-685/- Scale No.6 and it was duly implemented by the District

Magistrate and Collector of the District and District Settlement Officer

of the Districts. Therefore, it was submitted that the Amins were never

in the Scale No.5. It was pointed out that prior to 2003, Amins of the

Land Acquisition Offices and Land Reforms Circles under the Land &

Land Reforms Department were recruited by the Government orders

and/ or policy under Special Recruitment Rules so framed by the

Government of West Bengal for such appointment prior to framing of

recruitment Rules in 2003. It was contended that prior to framing of

Recruitment Rules, Amins were recruited with qualification of pass

certificate in School Final/ Madhyamik Examination of the West

Bengal Board of Secondary Education and it is contended that there

is no question of up-gradation of the qualification of the Amins. It is

also mentioned that the career advancement scale was given to the

employees and they will be entitled to scale No.7 after completion of

10 years of service; and after completion of 20 years of service to

scale No.8 and after completion of 25 years of service to scale No.9.

It was pointed out that now the respondents are fitted into the

pay scale lower than scale No.9 with effect from April 1,1981 which

will result in stagnation and scale No.9 under the ROPA Rules

cannot be taken away because of res judicata as a result of the

earlier decisions of the Court. It was pointed out that most of Amins

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joined the service during the period of 1973-1980 and they have

already completed 25-30 years of service. Any new pay scale

determined for them be notionally fixed from their date of joining the

service while protecting the benefits which had already been received

by them under pay scale No.9 and no recoveries should be effected.

It was pointed out that pay scale No.9 enjoyed by the Amins pursuant

to earlier 36 judgments of the High Court should be maintained.

Now, in this background, the first question which is framed by

us whether the qualifications, the duties discharged by the Surveyors

and Amins are same and identical so as to treat the Amins at par

with that of the Surveyors may be taken up for consideration. In

support of this, lot of materials have been placed by the Amins before

the Division Bench at Calcutta presided over by Justice Banerjee as

well as the subsequent Division Bench presided over by Justice

Altamas Kabir. Both the Division Benches have considered

exhaustively all the materials placed with regard to the functions and

duties of the Amins and their qualifications and have recorded a

categorical finding that both Amins and Surveyors are discharging

different duties as well as there is different qualifications for

recruitment. In this connection, our attention was also invited to

various materials which were placed before us, like Circular dated

September 18, 1956 issued by the Assistant Secretary relating to the

standardization of work of Surveyors & Amins. This circular also does

not in any way treats the Surveyors and Amins on the same footing. It

only lays norms for discharge of duties of various categories of the

posts namely, Surveyors, Amins, Calculators and Moharrirs. That

does not treat the Amins equivalent to that of the Surveyors. It is

only the norms and standardization of work which has been laid down

for each category of persons i.e. Amins, Surveyors, Calculators and

Moharrirs. Similarly, order dated February 26, 1964 issued by the

Additional District Magistrate, Burdwan relating to standardization of

work of Surveyors or Amins. That also does not treat the Amins and

the Surveyors as equivalent to each other. That would not change

the duties performed by the Amins and the Surveyors. Similarly, by

communication dated April 25, 1975 views were sought with

reference to the representation made by the Amins attached to

different L.R. Circle Officers in the Burdwan district for allowing them

the pay scales attached to the post of Surveyors. That

communication was sent by the Deputy Commissioner, Jalpaiguri for

Commissioner, Jalpaiguri in which an opinion was expressed by the

Deputy Commissioner, Jalpaiguri that identical duties are being

performed by the Surveyors and Amins This opinion was of the

Deputy Commissioner, Jalpaiguri. That does not change the ground

realities of the functions and duties discharged by Surveyors &

Amins. This communication was made the basis in the first judgment

of the High Court in Anwarul Haque's case without making any further

probe and no affidavit was filed by the State Government. Therefore,

the learned Single Judge relied on this communication and

proceeded to decide the matter. We will deal with this

communication at appropriate time when we will deal with the effect

of various orders passed by learned Single Judge of the High Court

from time to time. Similar is the instructions issued on October

29,1980 regarding standardization of work relating to the Amins,

Surveyors, Calculators and Muharriors. Likewise is the memo dated

February 5, 1983 of the Special Land Acquisition Officer, Purulia

showing the action to be taken for completion of land acquisition

cases. This material does not in any case take the case of the

Amins far to show that they can be treated as equivalent to the

Surveyors. Number of orders passed by the High Court of Calcutta

has been filed to show that the Amins and Surveyors have been

treated equally but those judgments/ orders will be dealt with

separately but that cannot be the basis to show that the Amins and

Surveyors should be treated as equivalent to each other as the

validity of those orders is in doubt as the subsequent Division Bench

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presided over by Justice Banerjee has already taken a view that no

affidavit was filed by the State and also some of the appeals which

have been filed by the State were not pressed. All these materials

cannot be taken to be the guideline to decide the issue that the

Surveyors and the Amins are equivalent to each other. As against

this, the State has relied upon the decision of the learned Single

Judge (Justice Sinha, as he then was) on February 16,1995; the

order passed by the Division Bench on April 6, 1998 and the order

passed by this Court on November 28,2000 remitting the matter

before the Division Bench and lastly, the order passed by the Division

Bench in pursuance of the direction given by this Court on September

28,2001 to show that the posts of Amins and Surveyors are not

identical. Similarly, the State has also produced the extracts from the

Second Pay Commission Report, Third Pay Commission Report and

the Fourth Pay Commission Report. In all these reports, the

Commissions have examined the duties and functions of the Amins

and Surveyors and have kept a distinction in the pay scales. In the

Second Pay Commission report, the proposed pay scale which has

been prescribed is as under:

" Land Acquisition Office, Calcutta.

Post Proposed scale

Surveyor & Valuer 11

Amin, Grade II 5

District Collectorate including Calcutta Collectorate

Amin 5

Refugee Relief & Rehabilitation Deptt.

Amin 5."

As against this, the pay scale recommended for the Surveyors

is No.9.

The recommendation of the 4th Pay Commission reads as

under:

" 3.3.10: The posts of Amin are filled up

by direct recruitment to the extent of 75% and

balance 25% are filled up by promotion from

qualified Group 'D' employees. The recruitment

qualification for the post of Amin is Madhyamik

or equivalent. Knowledge of Survey works/

diploma or Certificate in survey from a

recognized Institution is only desirable but not

an essential qualification.

The post of Amin is borne in scale no.6

(1040-1920) as basic grade. A section of the

Amins is now enjoying scale no.9 by Court's

order.

Representations have been made

demanding that Amin should be treated on a par

with Surveyors and should be allotted scale

no.9. It has been contended that the Amins

perform same and similar functions like

Surveyors.

We have considered the demand from all

perspective. We find that the recruitment

qualification for appointment as Surveyor is

Madhyamik or equivalent with Trade Certificate

from Industrial Training Institutes or Senior

Survey Certificate from the Survey Institutes,

Bandel. Having regard to the duties and

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responsibilities attached to the post of Amin and

those attached to the post of Surveyor and also

the essential recruitment qualification of these

two categories of posts, we are of the view that

the post of Amin cannot be equated with that of

Surveyor, both in respect of qualification as well

as in respect of duties and responsibilities.

In our view the scale of pay of Rs.1040-

1920 ( Scale No.6) as allocated to the post of

Amin is just and proper. We accordingly,

recommend revised scale no.6 for the post of

Amin."

The Fourth Pay Commission recommended the pay scale for

Amins as scale No.6 and after carefully examining the matter they

recorded that the demand of the Amins for being equated with the

Surveyors cannot be accepted as recruitment qualification for

appointment as Amin is Madhyamik or equivalent with trade

certificate from Industrial Training Institute or Senior Survey

Certificate from the Survey Institute and have further observed that

having regard to the duties and responsibilities attached to the post of

Amin and those attached to the post of Surveyor and also the

essential recruitment qualification of these two categories of posts,

the Amins cannot be equated with that of Surveyors. A comparative

chart showing the pay scales of Amins and Surveyors since

Independence has also been produced before us which will give us

the synoptic picture of the pay scales which have been granted from

time to time reflecting the pay scales of both the posts. The same is

reproduced as under.

CHART SHOWING THE PAY SCALE OF AMIN AND SURVEYORS SINCE INDEPENDENCE

POST 1950-51 1961 1970

1981 1989 1990 199 8 SC

ALE NO

AMIN:

Calcutta L.A. Office \026Amin 55-130 100-140 180-350

280-617 No change 980-1755 3150-5680 5

Amin Grade-I

340-750 -do - 1140-2160 3600-7050

7

R.R.& R.Deptt.- Amin 50-80 100-140 180-350

280-617 - do- 980-1755 3150-5680 5

Amin Grade-I

340-750 -do - 1140-2160 3

600-7000 7

Settlement Wing and Management

Wing under L &L.R.Deptt..Amin 50-80 100-140 180-350

280-617 } Abolished by None None 5

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Amin Grade I

340-750 } Integration

7

Integrated set up introduced in Not yet Not yet Not

yet Not yet Integrated set up

1989 vide Govt.Order dated 18.2.89 created created created

created created with the

by integrating settlement aWing and

following pay scale

Management Wing of L.& L.R. Deptt.

Have following classes of Amins:

Amin having non-S.F.Qualification 280

-617 980-1755 3150-5680 5

Amin Grade-I (Non-S.F.)

340-750 1140-2160 3600-7050

7

Amin with S.F.Qualification (Scale allowed in 1995 with effect from 1.4.81)

300-685 1040-1920 3350-6325 6

Amin Grade I (S.F. Qualification)

360-815 1200-2360 3800-7775

8

Amin who did not opt for

Integrated set up and remained

Under District Collectors None None

None None 280-617 980-1755 3150-5680 5

Amin Grade I

340-750 1140-2160

3600-7050 7

---------------------------------------------------------------------------------

--------------------------------------------------------------------------------------------

----------------------

SURVEYOR:

I) With qualification of Overseer 125-250 200-400 300-6

00 380-910 No change 1260-2610 4000-8850 9

(Engineering Diploma)

Higher initial

-300

ii)With Sub-Overseer qualification 100-225 175-325 300-600 380-

910 No change 1260-2610 4000-8850 9

since abolished and replaced by

certificate from ITI or Survey

Institute,Bandel.

iii) Certificate from Survey School 80-180 150-250 230-425 3

40-750 No change 1140-2160 3600-7050 7

Higher initial

-275

iv) School Final with Practical

experience None 125-200 2

30-425 340-750 No change 1140-2160 3600-7050 7

v) With practical experience only None 100-140 150-350

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280-617 No change 990-1755 3150-5680 5

N.B. The last categories of qualification mentioned in (iii), (iv) and (v) are not being

recruited since 1981.

It may also be relevant to mention here that the note given

below this is very significant and it has been clearly mentioned that

the last categories of qualification mentioned in (iii), (iv) and (v) of the

Surveyors are not being recruited since 1981. That shows that the

Surveyors with certificate from Survey School, school final with

Practical experience and with practical experience are not recruited

since 1981. Therefore, any reference to them subsequently will be of

no consequence as we will deal with that while dealing with the

finding given by the Division Bench of the High Court that since the

qualification of these posts are almost equivalent to the Amins,

therefore, they should be given the pay scale No.7, was not justified.

However, we will advert to this aspect subsequently. All these

materials which have been placed by both the sides and which have

been reproduced above, would show the contentions of the rival

parties. Therefore, the materials which are on record categorically

show the distinction has already been brought between the posts of

Amins and Surveyors and their nature of duties and functions are

also separate. The Technical Rules and Instructions relating to

survey work indicate that Surveyors use more sophisticated

equipment involving superior training and skills than Amins.

Surveyors use Theodolite for conducting traverse survey requiring

knowledge of trigonometry and they are also trained in the use of

equipment for the measurement of automatic levels and electronic

distance measurement. The Surveyors have to undergo a two- year

specialized training in different kinds of surveying such as

Topographic and Hydrographic surveying and Mine surveying, and

are also trained in mechanics and drawing. On the other hand, the

Amins are given training in simple survey work and in the use of

relatively simple equipment such as Guntur's chain, plane table,

optical square. It is true that both Surveyors and Amins undertake the

survey work but the nature of duties discharged by both of them are

different The Surveyors are technical persons and the Amins are

non-technical persons. The Surveyors are fully qualified in the

engineering surveys whereas the Amins are not supposed to be so

qualified. Therefore, looking to the nature of duties which is being

discharged and the instructions which have been issued go to show

that the Amins and Surveyors are not discharging identical duties.

Therefore, from the nature of duties and the qualifications required

for both the posts, it is absolutely clear that they are separate and it

is not wrong when it was submitted that the work of Amins starts

after the work of Surveyors ends. The Technical Rules and

Instructions of the Settlement Department as mentioned above,

clearly show that the work and duties which are being discharged by

the Surveyors are of technical nature by use of sophisticated

instruments as against the Amins who do the job with the aid of

relatively simple equipment as they are not equated with that of the

Surveyors. The qualifications prescribed for the Surveyors and Amins

are also different. The Surveyor is supposed to be a technically

trained person and as against this, the Amin need not be. The Amins

have to undergo related course of a duration of six months or so, as

against the Surveyors' two years certificate course. Therefore, from

the survey of this discussion we are of opinion that the Surveyors

stand on superior footing than that of the Amins and they cannot be

equated from the functional point of view as well as qualification

point of view. Therefore, we are of opinion that the view taken by the

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Division Bench of the High Court that the Amins cannot be equated

with the Surveyors is correct.

While the work and duties performed by the Amins and

Surveyors are not identical, there is no question of giving them the

equal pay for the equal work. The principle of 'equal pay for equal

work' depends upon the nature of duties performed by a particular

category of posts and the qualifications for their recruitment. From the

above discussion, it is clear that neither the duties nor functions are

identical nor the recruitment for the posts of Amins and Surveyors is

identical as the qualification for recruitment for both the posts is

different. Large number of decisions have been cited before us with

regard to the principle of 'equal pay for equal work' by both sides. We

need not deal with the said decisions to overburden this judgment.

Suffice it to say that the principle is settled that if the two categories

of posts perform the same duties and function and carry the same

qualification, then there should not be any distinction in pay scale

between the two categories of posts similarly situated. But when they

are different and perform different duties and qualifications for

recruitment being different, then they cannot be said to be equated

so as to qualify for equal pay for equal work. In this connection

reference has been made to the following decisions.

1. (1989) 1 SCC 121:

State of U.P. & Ors. v. J.P.Chaurasia & Ors.

2. 1993 Supp. (1) SCC 153:

Secretary, Finance Department & Ors.

v. West Bengal Registration Service Association & Ors.

3. (1994) 2 SCC 521:

Shyam Babu Verma & Ors. v. Union of India & Ors.

4. (1994) 4 SCC 78:

State of W.B. & Ors. v. Hari Narayan Bhowal & Ors.

5. (1998) 2 SCC 589:

Union of India & Ors. Ram Gopal Agarwal & Ors.

6. (2000) 8 SCC 580:

Union of India & Ors. v. Pradip Kumar Dey

7. (2004) 1 SCC 347:

Government of W.B. v. Tarun K Roy & Ors.

We need not deal with the aforesaid cases on the subject of the

principle of equal pay for equal work as it is more than clear that the

post of Amin is different from that of the Surveyor as the Amins do

not discharge the same duties as that of the Surveyors and as such

they are not entitled to claim equal pay for equal work. All these

cases which have been referred to above are only for the purpose of

showing that in each case there are some peculiar reasons which

have persuaded the Court to grant benefit in some cases and decline

to grant benefit in other cases. In the present case, there are

categorical finding that both the categories of posts discharge

different functions and duties and there is no question of granting

equal pay on the principle of 'equal pay for equal work.'

Now, coming to the next question that what is the effect of

various decisions/ orders passed by the learned Single Judge in 36

writ petitions from 1986 to 1993. It is unfortunate that in all these 36

writ petitions the State Government did not file any affidavit and the

Courts were not properly assisted to come to a correct conclusion. In

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fact, the first decision in point of time is the case of Mr.Anwarul

Haque and others and Abdul Bari and others and there was no

affidavit filed by the State and the Court recorded in its order that the

State despite opportunity being granted to it no affidavit has been

filed and no material has been placed by the State before the Court

and neither learned Single Judge examined the detailed functions of

the Amins and that of the Surveyors but only relied on an opinion

expressed by the Deputy Commissioner, Jalpaiguri on a

representation filed by the Amins that they discharge similar functions

and duties. On the basis of that opinion alone, the Court inferred that

the Amins discharge the same functions as that of the Surveyors. In

fact that communication was only of a Deputy Commissioner on the

representations filed by the Amins and that did not reflect the correct

position. In Md.Anwarul Haque's case, learned Single Judge, Justice

Subhas Sen ( as he then was ) referred to the communication of the

Commissioner, Jalpaiguri, referred to above which was Anexure-C to

that petition and observed as follows:

" The petitioners have also relied on

annexure 'C' to the petition where the

Commissioner of Jalpaiguri Range came to the

conclusion after scrutiny and analysis of the

work and performance of the Amins that the

works performed by the Amins and the

Surveyors are identical and the Amins had been

deprived of the benefit of the scale of pay

attained to the post of surveyor. "

In fact, this opinion given by the Deputy Commissioner for

Commissioner, Jalpaiguri Range was a single document and without

further examining the matter, the learned Single Judge came to the

conclusion that the Amins discharge the duties similar to that of the

Surveyors. But the fact of the matter is that the posts of Surveyors

are far distinct and superior to that of the Amins as mentioned above.

Therefore, the two categories of posts i.e. Surveyors and the Amins

by no stretch of imagination be treated equivalent to each other from

the functional point of view and from the qualification point of view

also. But unfortunately there is complete failure on the part of the

State Government that they did not take proper steps in the matter to

represent the case before learned Single Judge. Apart from that this

case was proceeded as a model case and all other remaining cases

were decided in the line of this case alone. In such situation, some

times reference of Md.Anwarul Haque's case and sometimes Abdul

Bari's case was made in subsequent judgments and sometime no

reference was made and it was assumed that the posts of Amins and

Surveyors are similar and the High Court proceeded to give directions

to give the pay scales of the Surveyors. The State Government filed

Letters Patent appeals in some of the cases before the Division

Bench and there also the State Government did not pursue those

appeals. Some of them were withdrawn and some other were

dismissed in default, so much so that even the Finance Department

had to comply with the direction issued by the learned Single Judge

and pointed out that it will involve additional burden of Rs.3 crore. No

steps were taken for challenging the orders of the Court before the

Division Bench properly or before this Court and State Government

passed orders giving the benefit to the petitioners therein. In one of

the matters which was taken up to this Court, there also the State

Government withdrew the Special Leave Petition. This only shows

the total lack of application of mind while dealing with these cases

and the net result of this is that the State Government had to suffer

great financial burden. It is only when the matter came up before the

Justice Sinha ( as he then was), he after examining the matter held

that the earlier decision given by the Courts cannot be accepted and

dismissed the writ petition. When some more matters came to be

heard by learned Single Judge, Justice Sinha ( as he then was) he

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referred the matters to the learned Chief Justice for being placed

before the Division Bench. The learned Chief Justice of the High

Court referred the matter to the Division Bench. The Division Bench

presided over by Justice Banerjee took up the matter in reference

and the Division Bench found all these decisions given by learned

Single Judge were without any affidavit being filed by the State and

without properly examining the duties and functions of the writ

petitioners and they were treated to be per inquiriam. Again, most

surprising feature is that when a contempt petition was filed as the

decisions given in Md.Anwarul Haque and Abdul Bari's case was not

implemented by the State Government, while disposing of the

contempt petition learned Single Judge, Justice Subhas Sen ( as he

then was) in his order dated August 16,1989 clarified that the order

passed today will not be a precedent for any other cases and the

other cases may be fought by the State Government by filing

affidavit. Even this observation made by learned Single Judge was

not brought to the notice of subsequent Benches. We can express

our anguish the way in which the cases were conducted by the State

Government.

Salmond on Jurisprudence (12th Edition) , Prof. P.J.Fitzgerald

has explained the concept of sub silentio as under :

" A decision passes sub silientio, in the

technical sense that has come to be attached to

that phrase, when the particular point of law

involved in the decision is not perceived by the

court or present to its mind. The court may

consciously decide in favour of one party

because of point A, which it considers and

pronounces upon. It may be shown, however,

that logically the court should not have decided

in favour of the particular party unless it also

decided point B in his favour; but point B was

not argued or considered by the court. In such

circumstances, although point B was logically

involved in the facts and although the case had

a specific outcome, the decision is not an

authority on point B. Point B is said to pass sub

silentio.

In Gerard v. Worth of Paris, Ltd.(k) the

only point argued was on the question of the

priority of the claimant's debt, and, on this

argument being heard, the Court of Appeal

granted the order. No consideration was given to

the question whether a garnishee order could

properly be made on an account standing in the

name of the liquidator. When, therefore, this

very point was argued in a subsequent case

before the Court of Appeal, the court held itself

not bound by its previous decision. Sir Wilfrid

Greene, M.R., said that he could not help

thinking that the point now raised had been

deliberately passed sub silentio by counsel in

order that the point of substance might be

decided. He went on to say that the point had to

be decided by the earlier court before it could

make the order which it did; nevertheless, since

it was decided " without argument, without

reference to the crucial words of the rule, and

without any citation of authority", it was not

binding and would not be followed."

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Similarly it was further observed as follows:

" The rule that a precedent sub silentio is not

authoritative goes back at least to 1661, when

counsel said: " An hundred precedents sub

silentio are not material"; and Twisden, J.,

agreed :" Precedents sub silentio and without

argument are of no moment".

This Court also in the case of The Regional Manager & anr. v. Pawan

Kumar Dubey reported in AIR 1976 SC 1766 has observed as

follows:

" It is the rule deducible from the application of

law to the facts and circumstances of a case

which constitutes its ratio decidendi and not

some conclusion based upon facts which may

appear to be similar. One additional or different

fact can make a world of difference between

conclusion in two cases even when the same

principles are applied in each case to similar

facts."

Therefore, it is unfortunate that the first case which was decided by

the learned Single Judge in Md.Anwarul Haque & Abdul Bari, no

material was examined by the learned Single Judge that what were

the exact duties of the Amins and of the Surveyors. The only

communication by the Deputy Commissioner, Jalpaiguri Range was

based as the decisive factor to come to the conclusion that the duties

discharged by the Amins and Surveyors are identical. Thereafter,

learned Single Judge while disposing of the contempt petition has

observed that this order passed today will not be treated as

precedent. But unfortunately, this judgment has been followed by the

High Court in remaining 36 cases and to the utter negligence of the

State Government, letter patent appeals filed were withdrawn.

However, subsequently the Division Bench put the matter in proper

prospective holding that earlier judgment cannot be treated as

precedent and it cannot decide the rights of the parties. More so, the

effect of these judgments was neutralized when beneficiary of these

judgments filed Special Leave Petition before this Court aggrieved

against the judgment passed by Justice Banerjee on the ground that

all these writ petitioners in all these 36 cases were not heard by the

Division Bench and their rights are going to be adversely affected.

This Court set aside the judgment of the Division Bench and remitted

the matter back to the Division Bench of Calcutta High Court to

decide the matter after hearing these writ petitioners, this amounts to

reviewing the whole issue and petitioners cannot bank upon the

principle of res judicata or issue estoppel. Dr.Rajeev Dhawan

appearing for some of the respondents rightly admitted that

technically it may not amount to res judicata but it certainly operates

as estoppel. Therefore, it is not open to make grievance for these writ

petitioners that by virtue of res judicata or issue estoppel the benefit

enjoyed by them cannot be withdrawn. When the whole matter has

been rip open by this Court while remitting back to the Division

Bench of Calcutta High Court at their instance.

Similarly, Mr.R.Venkataramani, learned Senior counsel has

invited our attention to a decision of the Australian High Court in the

case of Thoday v Thoday reported in [1964] All E R 341 on the

question of distinction between issue estoppel and res judicata. So

far as the principle of law is concerned, there is no dispute.

In the case of Raja Sri Sailendra Narayan Bhanja Deo vs. The

State of Orissa reported in [1956] S.C.R. 72 it was observed that a

judgment by consent is as effective in creating an estoppel between

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the parties as a judgment on contest and the test is whether the

judgment in the previous case could have been passed without the

determination of the question which is put in issue in the subsequent

case where the plea of estoppel is raised. Similarly in the case of

Sarguja Transport Service vs. State Transport Appellate Tribunal,

M.P., Gwalior, & Ors. reported in (1987) 1 SCC 5, it was observed

as follows :

"Where a petitioner withdraws a petition filed by

him in the High Court under Article 226/227

without permission to institute a fresh petition,

remedy under Article 226/227 should be

deemed to have been abandoned by the

petitioner in respect of the cause of action relied

on in the writ petition and it would not be open to

him to file a fresh petition in the High Court

under the same article, though other remedies

like suit or writ petition before Supreme Court

under Article 32 would remain open to him. "

It was further observed as follows :

" The principle underlying Rule 1 of Order

XXIII of the CPC should be extended in the

interests of administration of justice to cases of

withdrawal of writ petition also."

In the case of Laxmi Narain Gododia v. Mohd. Shaji Bari & ors.

reported in AIR (36) 1949 East Punjab 141, it was observed that a

consent decree has to all intents and purposes, the same effect as

res judicata and it raises an estoppel as much as a decree passed in

invitum.

But the fact of the matter is that if all these 36 judgments are

allowed to remain which were passed without reference to the

material which ought to have been taken into consideration, it is going

to cause great anomalous situation. It will create two groups i.e. one

in whose favour orders have been passed by Court and the others

without any order and they will be governed by the existing Rules.

This will create an anomalous position in same cadre. Some Amins

are getting scale No.9 and some in Scale No.6 or 7. How can

persons similarly situated be discriminated? This will create

disharmony and discrimination amongst the same class. Therefore,

two options are available i.e. the Amins who are not getting the

benefit of scale No.9 should be given same as is being given to

Amins under order of Court i.e. Scale No.9 or all should be brought

on par without overburdening the State exchequer, and a uniform pay

scale be enforced in the whole State. This anomalous situation has to

be rectified and the whole matter has to be put in proper perspective.

In this connection, learned Senior Counsel Shri Dipankar

Gupta, appearing for the State of West Bengal submitted that in fact

there is no gain saying that there has been negligence on the part of

the State Government in not prosecuting the cases properly but by

that the State exchequer should not be unnecessarily overburdened

by giving the remaining thousands of Amins the pay scale No.9

which will have a cascading effect on the whole State and this will

create disparity amongst other pay scales of the employees in the

entire State. The submissions of Mr. Gupta appears to be justified.

We cannot close our mind to the fact that the decisions in all these 36

cases emanating from the decision rendered in Md. Anwarul

Haque & Abdul Bari has created the confusion. The decision in Md.

Anwarul Haque's case was rendered without any affidavit being filed

by the State Government and relevant material was not placed

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before the Court and simply one letter issued by the Deputy

Commissioner, Jalpaiguri Range for Commissioner, Jalpaiguri has

been made the basis for grant of the relief. That cannot be sustained.

Notwithstanding the fact that the learned Single Judge has himself

clarified that the decision rendered in Md.Anwarul Haque's case shall

not be treated as precedent but rightly or wrongly this fact was not

brought to the notice of the subsequent Benches which decided the

remaining writ petitions and that order has been taken to be final

order.

Mr.Gupta, learned senior counsel strenuously urged before us

that the whole house may be put in order and this Court may exercise

its inherent jurisdiction conferred under Article 142 of the Constitution

of India so that for all time to come the controversy may be put to an

end. Mr.Gupta has also invited our attention to the decision of this

Court in the case of E.S.P.Rajaram & Ors. vs. Union of India & Ors.

reported in (2001) 2 SCC 186 in which similar anomalous situation

was created and Their Lordships exercised the power under Article

142 of the Constitution of India in the interest of justice and it was

observed as under.

" In the present case, the controversy

relates to the scale of pay admissible for Traffic

Apprentices in the Railways appointed prior to

the cut-off date. The controversy in its very

nature is one which applies to all such

employees of the Railways; it is not a

controversy which is confined to some individual

employees or a section of the employees. If the

judgment of CAT which had taken a view

contrary to the ratio laid down by judgment of

the Supreme Court in M.Bhaskar case was

allowed to stand then the resultant position

would have been that some Traffic Apprentices

who were parties in those cases would have

gained an unfair and undeserved advantage

over other employees who are or were holding

the same post. Such an enviable position would

not only have been per se discriminatory but

could have resulted in a situation which would

be undesirable for a cadre of large number of

employees in a big establishment like that of the

Indian Railways. To avoid such a situation the

Supreme Court made the observations in para

17 of the judgment. The appellants' argument on

the merits of the directions of the Supreme Court

is not an impressing one. If some employees

were unjustly and improperly granted a higher

scale of pay and on that basis were given

promotion to a higher post then the basis of

such promotion being non-existent; the

superstructure built on such foundation should

not be allowed to stand. This is absolutely

necessary for the sake of maintaining equality

and fair play with the order similarly-placed

employees. However, it will be just and fair to

clarify that any amount drawn by such

employees either in the basic post (Traffic

Apprentice) or in a promotional post will not be

required to be refunded by the employee

concerned as a consequence of the judgment

herein. This position also follows as a necessary

corollary from the observations made in para 18

of the judgment in M. Bhaskar case."

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Their Lordships referred to the decision rendered in the case of

Union of India v. M.Bhaskar reported in (1996) 4 SCC 416. Therefore,

in order to do complete justice to the parties, it is a fit case where we

need to invoke our inherent power under Article 142 of the

Constitution of India. Learned Senior counsel appearing for the

State of West Bengal has made a categorical submission that all the

Amins irrespective of their qualifications will be entitled to pay scale

No.6 and no money which has been drawn by the Amins in the 36

writ petitions will be recovered from them prior to October 1, 2001 as

directed by the Division Bench of the High Court. Therefore, we

direct that all the Amins irrespective of their qualification in the

minimum scale of pay will be given scale No.6 and they will be

entitled to promotion as per Rules in the scale Nos.7 & 8 as the case

may be. Though the Division Bench has directed that no recovery

shall be made from the Amins drawing higher pay scale for the period

prior to October 1,2001 but since the law has now been declared by

this Court, we extend that period till this date i.e. no recovery shall be

effected from all these Amins in 36 writ petitions and they shall be

properly fixed in the pay scale provided for Amins in ROPA Rules and

their pay should be protected in the respective pay scales. This is

being done because of the fact that the State Government is

responsible for creating such anomalous situation. Had the State

Government contested the matter and consequently pursued the

remedies available under law, then this anomalous situation would

not have been created. Though the Division Bench has given the

benefit of the pay scales up to October 1,2001, the said cut off date is

extended till this date because we are invoking the inherent

jurisdiction under Article 142 of the Constitution of India.

Now, coming to State of West Bengal appeal, State

Government has challenged the part of finding of the Division Bench

of the High Court directing the State Government to give pay scale

No.7 to the Amins. In fact, the Division Bench has already held that

on comparison of the qualification, training and expertise and the

work performed by the Amins and Surveyors, that the same cannot

be equated and the two posts cannot be treated as equal. It was

observed that the responsibilities shouldered by the Surveyors and

Amins do not bear comparison yet the Division Bench directed to

give pay scale No.7 to the Amins which, in our opinion, is not correct.

Once it is found that the Amins and Surveyors discharge different

functions and their qualifications are not the same, then we see no

reason to give the Amins the same pay scale. The Division Bench

has gone wrong while making observation that the surveyors with

only a school pass or Madhyamik qualification and practical

experience were given scale No.7, Same being the position with

Amins, as the qualification for the Amins is same therefore they may

be given same pay scale No.7. This observation, in our view, is not

correct. This amounts to contradiction. Once it is held that the Amins

perform different duties and different functions then how can we go

back and say that because the qualification of the Surveyors is school

final pass or Madhyamik with practical experience, they are given

pay scale No.7, similar pay scale No.7 be given to Amins as they

are also required to have same qualification is not correct. It appears

that it was not brought to the notice of the Division Bench of the

High Court that for three categories of Surveyors i.e. persons having

certificate from Survey School, School Final with Practical experience

and with practical experience only no recruitment has been made

since 1981. While dealing with the comparative pay scales of Amins

and Surveyors as reproduced above since independence there is

note given below that recruitment with this qualification has been

abandoned since 1981. It appears this fact was not brought to the

notice of the Division Bench of the High Court. In order to clarify the

matter, we may reproduce the note appended below Surveyors' post

which reads as under :

" SURVEYOR:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 21

xx xx

(iii) Certificate from Survey School

(iv) School Final with Practical experience

(v) With practical experience only

N.B. The last categories of qualification mentioned in (iii), (iv)

and (v) are not being recruited since 1981."

The attention of the Division Bench was not invited to this note.

In fact recruitment to the posts of Surveyors with these qualifications

has already been stopped since 1981. As such the Division Bench

while dealing with the Amins with these qualifications has granted the

pay scale No.7 which, in our opinion appears to be totally incorrect

appreciation of fact. The order passed by the Division Bench of the

High Court directing the State Government to grant the Amins the

minimum pay scale of No.7 does not appear to be justified and

accordingly, we allow the State appeal and set aside the direction

given by the Division Bench of the High Court granting the Amins the

pay scale No.7.

As a result of our above discussion, we allow the appeal

preferred by the State of West Bengal and the direction given by the

Division Bench of the High Court granting pay scale No.7 to the

Amins is set aside. We dismiss all the appeals filed by the private

appellants but direct that the benefits which have been accrued to

the Amins of all those 36 writ petitions, no recovery shall be made till

the date of this judgment and all these Amins should be given the pay

scale Nos.6,7, & 8 as per the qualifications and their pay shall be

fixed at the appropriate stage in these pay scales and they will be

entitled to further career advancement scheme. There will be no

order as to costs.