Deb
Narayan Shyam & Ors Vs. State of West Bengal & Ors [2004] Insc 727 (1 December 2004)
B.N.Agrawal & A.K. Mathur 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 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 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 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 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 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 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 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 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 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 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 SCALE NO AMIN:
Calcutta L.A. Office Amin 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 3600-7000 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 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 125-250 200-400 300-600 380-910 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 80-180 150-250 230-425 340-750 No change
1140-2160 3600-7050 7 Higher initial -275 iv) School Final with Practical
experience None 125-200 230-425 340-750 No change 1140-2160 3600-7050 7 v) With
practical experience only None 100-140 150-350 280-617 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 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 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
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." 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 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 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." 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:
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.
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