TMI Blog2004 (12) TMI 691X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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but the same were not pressed, in some cases appeals were dismissed and in some cases the appeals were allowed to be withdrawn. So much so that a Special Leave Petition was filed in this Court which was withdrawn.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Amins ranges between ₹ 100/- and ₹ 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 ₹ 300-600/- whereas the Amins are placed in the pay scales of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 ₹ 380-910/-. The aforesaid direction of the Division Bench directing to pay the respondents in the scale of ₹ 380- to ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Amin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 Ami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy 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, Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te or Senior Survey Certificate from the Survey Institute and have further observed that having regard to the duties and responsibilities attached to the post of Amin and those attached to the post of Surveyor and also the essential recruitment qualification of these two categories of posts, the Amins cannot be equated with that of Surveyors. A comparative chart showing the pay scales of Amins and Surveyors since Independence has also been produced before us which will give us the synoptic picture of the pay scales which have been granted from time to time reflecting the pay scales of both the posts. The same is reproduced as under. CHART SHOWING THE PAY SCALE OF AMIN AND SURVEYORS SINCE INDEPENDENCE POST 1950-51 1961 1970 1981 1989 1990 199 8 SCALE NO AMIN: Calcutta L.A. Office Amin 55-130 100-140 180-350 280-617 No change 980-1755 3150-5680 5 Amin Grade-I 340-750 -do - 1140-2160 3600-7050 7 R.R. R.Deptt.- Amin 50-80 100-140 180-350 280-617 - do- 980-1755 3150-5680 5 Amin Grade-I 340-750 -do - 1140-2160 3600-7000 7 Settlement Wing and Management Wing under L L.R.Deptt..Amin 50-80 100-140 180-350 280-617 } Abolished by None None 5 Integrated set up introduced in Not yet Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -750 No change 1140-2160 3600-7050 7 v) With practical experience only None 100-140 150-350 280-617 No change 990-1755 3150-5680 5 N.B. The last categories of qualification mentioned in (iii), (iv) and (v) are not being recruited since 1981. It may also be relevant to mention here that the note given below this is very significant and it has been clearly mentioned that the last categories of qualification mentioned in (iii), (iv) and (v) of the Surveyors are not being recruited since 1981. That shows that the Surveyors with certificate from Survey School, school final with Practical experience and with practical experience are not recruited since 1981. Therefore, any reference to them subsequently will be of no consequence as we will deal with that while dealing with the finding given by the Division Bench of the High Court that since the qualification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Surveyors. The qualifications prescribed for the Surveyors and Amins are also different. The Surveyor is supposed to be a technically trained person and as against this, the Amin need not be. The Amins have to undergo related course of a duration of six months or so, as against the Surveyors' two years certificate course. Therefore, from the survey of this discussion we are of opinion that the Surveyors stand on superior footing than that of the Amins and they cannot be equated from the functional point of view as well as qualification point of view. Therefore, we are of opinion that the view taken by the Division Bench of the High Court that the Amins cannot be equated with the Surveyors is correct. While the work and duties performed by the Amins and Surveyors are not identical, there is no question of giving them the equal pay for the equal work. The principle of 'equal pay for equal work' depends upon the nature of duties performed by a particular category of posts and the qualifications for their recruitment. From the above discussion, it is clear that neither the duties nor functions are identical nor the recruitment for the posts of Amins and Surveyors is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot file any affidavit and the Courts were not properly assisted to come to a correct conclusion. In fact, the first decision in point of time is the case of Mr.Anwarul Haque and others and Abdul Bari and others and there was no affidavit filed by the State and the Court recorded in its order that the State despite opportunity being granted to it no affidavit has been filed and no material has been placed by the State before the Court and neither learned Single Judge examined the detailed functions of the Amins and that of the Surveyors but only relied on an opinion expressed by the Deputy Commissioner, Jalpaiguri on a representation filed by the Amins that they discharge similar functions and duties. On the basis of that opinion alone, the Court inferred that the Amins discharge the same functions as that of the Surveyors. In fact that communication was only of a Deputy Commissioner on the representations filed by the Amins and that did not reflect the correct position. In Md.Anwarul Haque's case, learned Single Judge, Justice Subhas Sen ( as he then was ) referred to the communication of the Commissioner, Jalpaiguri, referred to above which was Anexure-C to that petition and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petition. This only shows the total lack of application of mind while dealing with these cases and the net result of this is that the State Government had to suffer great financial burden. It is only when the matter came up before the Justice Sinha ( as he then was), he after examining the matter held that the earlier decision given by the Courts cannot be accepted and dismissed the writ petition. When some more matters came to be heard by learned Single Judge, Justice Sinha ( as he then was) he referred the matters to the learned Chief Justice for being placed before the Division Bench. The learned Chief Justice of the High Court referred the matter to the Division Bench. The Division Bench presided over by Justice Banerjee took up the matter in reference and the Division Bench found all these decisions given by learned Single Judge were without any affidavit being filed by the State and without properly examining the duties and functions of the writ petitioners and they were treated to be per inquiriam. Again, most surprising feature is that when a contempt petition was filed as the decisions given in Md.Anwarul Haque and Abdul Bari's case was not implemented by the State G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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