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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:

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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.