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TMI Blog2004 (12) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... ties. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, 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. Thus, 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. - HON'BLE B.N. AGRAWAL AND A.K. MATHUR, JJ. For the Appellant : R. Venkataramani, D.P. Gupta, M.N. Rao, Altaf Ahmad, Sr. Advs., Sanjoy Ghose, Avijit Bhattacharjee, Ashok Panigrahi, J. Kar, Rana Mukherjee, Siddharth Gautam, Goodwill Indeevar, Sumita Ray, Pranab Kumar Mullick, Prashant Venkatesh, Anupam Lal Das, Manish Verma, Pramila Chaudhary, Ranjan Mukherjee, T.A. Khan and Chanchal Kumar Gangul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ior to 1st October, 2001. In this background, the whole controversy has now come up before this Court. 5. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted 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. 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 becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 qualificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lready 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. 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 entitl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cases were conducted by the State Government. 18. 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 ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adre. 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. 23. 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 just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 25. 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urveyors 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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