# J DEB NARAYAN SHY AM AND ORS v. STATE OF WEST BENGAL AND ORS

- **Citation:** [2004] Supp. 6 S.C.R. 551
- **Court:** Supreme Court of India
- **Decided:** 2001-10-01
- **Bench:** B.N. Agrawal, A.K. Mathur
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/j-deb-narayan-shy-am-and-ors-v-state-of-west-bengal-and-ors-20381
- **Pages:** 34

## Headnote

Service Law:
West Bengal Service (Revision of Pay and Allownace) Rules, 1961,-
Surveyors and Amins working in different Departments-Parity in pay scale
by Amins with Surveyors-Claim of-Principle of 'Equal pay for equal
work '-Applicability of~Held: Nature of duties and functions and essential
recruitment qualifications of Am ins different from that of Surveyors-As such
principle of 'Equal pay for equal work' not applicable-Hence, Amin not
entitled to claim parity in pay scale with Surveyor-However, various
decisions of High Court giving parity in scale treating an earlier decision
giving parity as precedent despite clear stipulation that it should not be
treated as precedent, unchallenged by the State Government-Effect ofHeld: Earlier decisions cannot operate as res judicata or estoppel-Jn
another matter, Division Bench of High Court held the earlier decisions
to be per incuriam and cannot be treated as precedent against which
beneficiaries of earlier decision filed SPL as their rights adversely affected
on not being heard by Division Bench-This order of Division Bench was
A
B
c
D
E
F
set aside and matter was remitted back, which amounted to review of the
whole issue-Also the effect of earlier decisions neutralized by filing of
SLP-However, if the earlier decisions are allowed to remain it would create
anomalous situation by creating two groups, one getting pay scale 9 and
other getting scale 6 or 7, and also resulting in overburdening of State
exchequer-As such inherent powers under Article 142 invoked-Amins
directed to be fixed in pay scales as given in the Rules-However, pay
drawn by them under the earlier decisions not to be recovered-Code of
Civil Procedure, 1908, Section 11-Evidence Act, 1872, Section 115G
Constitution of India, 1950, Article 142.
Am ins recruited in the State of West Bengal filed a petition to claim
same pay scale as that of Surveyors. Single Judge of High Court without
discussing whether the qualification and duties of Amin and Surveyor H
551
552
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A are same or not and on reference from a Commissioner that Amins
performed same duties as Surveyors directed that the Amins be granted
same pay scale. However, the Government did not contest the same.
Thereafter, as the Amins were not given the said pay scale, contempt
petition was filed. The Government was directed to give Am ins the same
B pay scale as that of Surveyors and it was clarified that the order will
not be treated as precedent for any other cases and the Government
would contest the otlfer cases. However, subsequently in 36 cases the
Government did not file any application nor pointed to the High Court
about the precedent stipulation and the High Court following the previous
c
decision granted the Amins the same pay scale as that of Surveyors.
Thereaft~r, Amins in another matter claimed the same relief as granted
in earlier decision. Single Judge of High Court disapproved the earlier
decision and dismissed the writ petition. The beneficiaries of the earlier
decisions filed Special Leave Petition before this Court on the ground
that the writ petitioners in all the 36 cases were not heard by the Division
D Bench and as such their rights are going to be adversely affected. This
Court set aside the order of Division Bench of High Court and remitted
tlle matter to the Division Bench of High Court. Division Bench held that
the decision in earlier case should not be treated as precedent; that
Amins cannot be equated with Surveyors, however, looking to the
E
qualification of Surveyors with only school final pass or Madhyamik
and practical experience they were given pay Scale 7 and as such
directed the State Government to give Am ins pay scale 7; that the Amins
enjoying Scale 9 pursuant to the order of the Court would be placed in
Scale 7; and no recovery would be made from them prior to October
1, 2001. Hence, the present appeals by the State Government and the
F private parties.
G
Private respondents contende

## Text

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-.J
DEB NARAYAN SHY AM AND ORS.
v.
STATE OF WEST BENGAL AND ORS.
DECEMBER I, 2004
'
~ .- .
[B.N. AGRAWAL AND A.K. MATHUR, JJ.]
Service Law:
West Bengal Service (Revision of Pay and Allownace) Rules, 1961,-
Surveyors and Amins working in different Departments-Parity in pay scale
by Amins with Surveyors-Claim of-Principle of 'Equal pay for equal
work '-Applicability of~Held: Nature of duties and functions and essential
recruitment qualifications of Am ins different from that of Surveyors-As such
principle of 'Equal pay for equal work' not applicable-Hence, Amin not
entitled to claim parity in pay scale with Surveyor-However, various
decisions of High Court giving parity in scale treating an earlier decision
giving parity as precedent despite clear stipulation that it should not be
treated as precedent, unchallenged by the State Government-Effect ofHeld: Earlier decisions cannot operate as res judicata or estoppel-Jn
another matter, Division Bench of High Court held the earlier decisions
to be per incuriam and cannot be treated as precedent against which
beneficiaries of earlier decision filed SPL as their rights adversely affected
on not being heard by Division Bench-This order of Division Bench was
A
B
c
D
E
F
set aside and matter was remitted back, which amounted to review of the
whole issue-Also the effect of earlier decisions neutralized by filing of
SLP-However, if the earlier decisions are allowed to remain it would create
anomalous situation by creating two groups, one getting pay scale 9 and
other getting scale 6 or 7, and also resulting in overburdening of State
exchequer-As such inherent powers under Article 142 invoked-Amins
directed to be fixed in pay scales as given in the Rules-However, pay
drawn by them under the earlier decisions not to be recovered-Code of
Civil Procedure, 1908, Section 11-Evidence Act, 1872, Section 115G
Constitution of India, 1950, Article 142.
Am ins recruited in the State of West Bengal filed a petition to claim
same pay scale as that of Surveyors. Single Judge of High Court without
discussing whether the qualification and duties of Amin and Surveyor H
551
552
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A are same or not and on reference from a Commissioner that Amins
performed same duties as Surveyors directed that the Amins be granted
same pay scale. However, the Government did not contest the same.
Thereafter, as the Amins were not given the said pay scale, contempt
petition was filed. The Government was directed to give Am ins the same
B pay scale as that of Surveyors and it was clarified that the order will
not be treated as precedent for any other cases and the Government
would contest the otlfer cases. However, subsequently in 36 cases the
Government did not file any application nor pointed to the High Court
about the precedent stipulation and the High Court following the previous
c
decision granted the Amins the same pay scale as that of Surveyors.
Thereaft~r, Amins in another matter claimed the same relief as granted
in earlier decision. Single Judge of High Court disapproved the earlier
decision and dismissed the writ petition. The beneficiaries of the earlier
decisions filed Special Leave Petition before this Court on the ground
that the writ petitioners in all the 36 cases were not heard by the Division
D Bench and as such their rights are going to be adversely affected. This
Court set aside the order of Division Bench of High Court and remitted
tlle matter to the Division Bench of High Court. Division Bench held that
the decision in earlier case should not be treated as precedent; that
Amins cannot be equated with Surveyors, however, looking to the
E
qualification of Surveyors with only school final pass or Madhyamik
and practical experience they were given pay Scale 7 and as such
directed the State Government to give Am ins pay scale 7; that the Amins
enjoying Scale 9 pursuant to the order of the Court would be placed in
Scale 7; and no recovery would be made from them prior to October
1, 2001. Hence, the present appeals by the State Government and the
F private parties.
G
Private respondents contended that the qualifications of the Amins
and Surveyors might be different but since the duties discharged by
them are identical, they are entitled to get the pay scale of Surveyors
on the principle of "equal pay for equal work"; and that the earlier
decisions given in all the 36 writ petitions having remained unchallenged
by the State Government will operate as res judicata and estoppel against
the State.
State Government contended that the duties the qualification,.
H training of the Surveyors and that of the Amhis are different and as such
DEB NARAYAN SHY AM v. ST ATE
553
Am ins cannot be treated at par with Surveyors; that the State exchequer A
should not be unnecessarily overburdened by giving the remaining
Amins the pay scale No. 9; that this Court should exercise its inherent
jurisdiction under Article 142 of the Constitution; and that the order
passed by High Court for giving pay scale No. 7 to Amins is not correct.
Dismissing the appeals of the private parties and allowing the State
Government's appeals, the Court
B
HELD: 1.1. The Technical Rules and Instructions of the Settlement
Department clearly show that the work and duties which are being
discharged by the Surveyors are of technical nature by use of sophisticated C
instruments as against the Am ins 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 whereas Amins is a non-technical person. The Amins have to undergo D
related course of duration of six months or so, as against the Surveyors'
two years certificate course. The Surveyors stand on supedor footing
than that of the Amins. They are not discharging identical duties and
are separate and cannot be equated from the functional point of view
as well as qualification point of view. Therefore, the view taken by the
Division Bench of the High Court that the Amins cannot be equated with E
the Surveyors is correct. [57MD.-F)
1.2. 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' F
depends upon the nature of duties performed by a particular category
of posts and the qualifications for their recruitment. In the instant case,
there are categorical findings that both the categories of posts, the
Surveyor and the Amins, discharge different functions and duties and
also the recruitment for the posts of Am ins and Surveyor is not identical
as the qualification for recruitment for the both the posts is different,
there is no question of granting equal pay on the principle of 'equal pay
for equal work'. (573-G; 574-A-B, H; 575-A)
G
State of U.P. & Ors. v. JP. Chaurasia & Ors., (1989) 1 SCC 121;
Secretary, Finance Department & Ors. v. West Bengal Registration Service H
554
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
Association & Ors., (1993] Supp. I SCC 153; Shyam Babu Verma & Ors.
v. Union of India, (1994] 2 SCC 521; State ofWB. & Ors. v. Hari Narayan
Bhowal & Ors., [i994] 4 SCC 78; Union of India & Ors. v. Ram Gopal
Agarwal & Ors., (1998] 2 SCC 589; Union of India & Ors. v. Pradip Kumar
Dey, (2000] 8 sc·c 580 and Government of WB. v. Tarun K Roy & Ors.,
B
(20041 1 sec 347, referred to.
c
2.1. In the model cases, the State did not place any material before
the Court and neither the Single Judge of High Court examined the detailed
functions of the Amins and that of the Surveyors but only relied on an
opinion expressed by the Deputy Commissioner. Thereafter, in all these
36 writ petitions, the State Government did not file any affidavit nor took
proper steps to represent the case before Single Judge to come to a correct
conclusion. These cases were decided in the line of the model case despite
the clear stipulation that it will not be treated as precedent. Further the
State Government did not take any steps for challenging the orders of the
D Court before the Division Bench properly or before this Court which
shows the total lack of application of mind while dealing with these cases
and as a net result the State Government had to suffer great financial
burden. It is only when the matter came up bef~re the Single Judge he
held that the earlier decision given by the Courts cannot be accepted and
E dismissed the writ petition. Subsequently, when some more matters came
to be heard by him, on reference by him, the Division Bench found all
these decisions given by the.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 incuiriam. It had put
F
the matter in proper prospective holding that the 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 on the
ground that a!I these writ petitioners in all these 36 cases were not heard
G
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 that
matter back to the Division Bench to decide the matter after hearing these
writ pe.titioners, which amounts to reviewing the whole issue. Therefore,
the writ petitioners cannot take a plea that by virtue of res judicata or
issue estoppel the benefit enjoyed by them cannot be withdrawn.
H
(575-C-D, B; 576-H; 577-A; 576-D-G; 578-E-H; 579-A]
...
-
DEB NARAYAN SHYAM v. STATE
555
The Regional Manager & Anr. v. Pawan Kumar Dubey, AIR (1976) A
SC 1766; Raja Sri Sailendra Narayan Bhanja Deo v. The State ofOrissa,
[1956) SCR 72; Sarguja Transport Service v. State Transport Appellate
Tribunal, M.P., Gwalior & Ors., [1987) l SCC 5 and Laxmi Narain Gododia
v. Mohd. Shaji Bari, AIR 36 (1949) East Punjab 141, referred to.
B
Thoday v. Thoday, [1964] All E.R. 341, referred to.
Salmond on Jurisprudence (12th Edition), referred to.
2.2. If all these 36 judgments are allowed to remain which were
passed without reference to the material which ought to have been taken C
into consideration, 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. Some Amins are getting
scale No. 9 and some in Scale No. 6 or 7. This will create an anomalous
position in same cadre. It will create disharmony and discrimination D
amongst the same dass. 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 !he whole State. The
anomalous situation create by the'State has to be rectified and the whole
matter has to be put in proper perspective. [580-B-D]
2.3. In order to do complete justice to the parties, it is a m case
to invoke the inherent power under Article 142 of the Constitution. It
E
is directed that all the Amins irrespective of their qualification in the F
minimum scale of pay would be given scale No. 6 and would be entitled
to promotion as per Rules in scale Nos. 7 and 8 as the case may be.
Further since the law has now been declared· by this Court, no recovery
should be effected from all these Amins in 36 writ petitions till the date
of this judgment and thry should be properly fixed in the pay scale
provided for Amins in ROPA Rules and their pay should be protected
in the respective pay scale and would be entitled to further career
advancement scheme. [582-B-D, G-H; 583-A-B, G, H; 584-C-D]
E.S.P. Rajaram & Ors. v. Union of India, [2001) 2 SCC 186 and Union
G
of India v. M. Bhaskar, [1996] 4 sec 416, referred to.
H
556
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
2.4. The Division Bench of High Court erred in giving pay scale No.
7 to the Amins even though it observed that the Amins and Surveyors
discharge different functions and their qualifications are not the same.
Division Bench erred while making observation that th.e surveyors with
only a school pass ~>r Madhyamik qualification and practical experience
B were given scale No. 7, same being the position with Amins, as the
qualification for the· Amin.s is same, therefore, they may be given same
pay scale No. 7, is not correct and amounts to contradiction. Hence, the
direction given by the Division Bench granting the Am ins the pay scale
No. 7 being unjustified is set aside. (582-G-H; 583-A-B, G-H; 584-A)
C
CIVIL APPELLATE JURISDITION : Civil Appeal No. 1179 of2002.
D
E
F
From the Judgment and Order dated 28.9.200 I of the High Court at ~
Calcutta in C.O. No. 10955 (w) of 1995.
WITH
C.A. Nos. 1180, 1181, 1182, & 1183-84 of2002.
R. Venkatarammani, D.P. Gupta, M.N. Rao, Altaf Ahmad, Sanjay
Ghosh, Avijit Bhattacharjee, Ashok. Panigrahi, J. Kar, Rana Mukherjee,
Siddharth Gautam, Goodwill Indeevat, Ms. Sumita Ray, Pranab Kumar
Mullick, Prashant Venkatesh, Anupam Lal Das, Manish Verma, Ms. Pramila
Chaudhary Ranjan Mukherjee, T.A. Khan and Chanchal Kumar Ganguli for
the appearing parties.
The Judgment of the Court was delivered by
A.K. MA THUR, 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
G 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
H No. 9.
-
DEB NARAYAN SHYAM v. STATE [MATHUR, J.]
557
The controversy with regard to the issue whether the Amins and the A
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 B
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, differei:.it
scales of pay were prescribed for Surveyors and Amins working in different
Departments under Government of West Bengal. Therefore it was alleged
to be discriminatory and Amins claimed same pay as Surveyors on principle
of equal pay for equal work. The learned Single Judge without discussing
whether the qualifications and duties of the Amins and the Surveyors are
same or not granted equal pay for the Amins as that of the Surveyors on
the basis of well recognized principle of'equal pay for equal work'. Learned
Single Judge further observed that there is no reason to differentiate between
c
D
E
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· F
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 Jetter, 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.380-9 I 0. Therefore, the learned Single Judge directed to grant the
G
same pay scale to the Amins also. However, no counter affidavit was filed, H .
558
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A 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
B 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
C 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
D 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
E
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
F
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
G 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
H Court of Calcutta. There they challenged that they must be given the equal
DEB NARAYAN SHYAM v. STATE [MATHUR, J.)
559
pay for equal work as is being given to Amins of other Department. In that A
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 B
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 Am ins ranges between Rs. l 00 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
r 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
c
D
E
F
G
H
560
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
earlier decisions and found that the earlier decisions were per incuriam.
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
B
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
C 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-a-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
1'1· ...
D
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 .
E judgment and this Court after hearing both parties at length passed a detailed
order and remitted the matter back to the High Court of Calcutta. This Court
observed as follows:
F
G
H
"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 Cou1i 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,
DEB NARAYAN SHYAM v. STATE [MATHUR, J.]
561
1993 rightly granted that scale of pay. We, therefore, do not find A
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 ofRs.380-to Rs.910 accordingly B
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 C
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 D
respondents will continue to draw in the scale of pay of Rs.340to Rs.750 which had been ordered by the Government in its order
dated 25-8-1993 until the same is modified or altered by !he 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 E
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
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SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
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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.
B (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 thatthe 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
C 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
D 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
E
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
F
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
G reports of the Pay Commissions and observed as follows:
H
"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
(
DEB NARAYAN SHYAM v. STATE [MATHUR, J.]
563
the responsibilities shouldered by Surveyors and Am ins d? not bear A
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."
B
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 C
also the essential recruitment qualifications of these two categories
of posts·, we are of the view that the post of Amin cannot be equated
with that of Surveyor, both in respect of qualification as well as in
respect of duties and responsibilities.
In our view the scale of Rs. I 040-1920 (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:
D
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" In fact, since surveyors with only a School Final Pass or
Madhyamik qualification and practical experience were given Scale p
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 G
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 H
564
SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
A
parties ha_ve filed Special Leave. Therefore, all these Appeals which were
clubbed together are being disposed of by this common order.
B
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D
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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 lst 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 I st October, 200 I,
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 I st October, 200 I."
In this background, the whole controversy has now come up before this
Court.
Learned counsel for the private respondents has submitted that with
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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
G 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
H themselves and they are bound by it. It was also pointed out that Courts can
DEB NARAYAN SHYAM v. STATE [MATHUR, J.]
565
always mould the reliefs. Learned counsel has also pointed out that it is no A
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 B
State authorities, it cannot override the statutory provisions like the
recommendations of the Pay Commissions, the ground realities are trutt 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 C
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 D
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 couns~l 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 E
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
Reforn:1s 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 Constitutio~, as pass in School Final or its equivalent.
These Recruitment Rules came into force with effect from April 24, 199\J.
Consequent upon framing of the Recruitment Rules, Amins in Integrated Set
Up under the Land & Land Reforms Department received two scales of pay
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SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
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namely N9n-School Final Am ins, 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
B 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
c
is also taken to bring about uniformity amongst the Am ins. 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
D No.7 under Revision of Pay & Allowance Rules, 1998, with effect from
01.01.1996. Amins in general will also be aJlowed modified career
advancement scheme under ROPA Rules, 1998. All posts of Amin Gradel, 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
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further states, "While fitting the Amins in the respective Scales Nos.