A.K.Mathur, J. - (1.) ALL these appeals raise common question of law, therefore they are disposed off by this common order.
(2.) THE questions involved in all these appeals are : (i) Whether the Amins and Surveyors discharge the same duties or not; (ii) Whether the Amins are entitled to the same pay scale i.e. Scale No.9 of Surveyors and (iii) What is the effect of various decisions of the High Court of Calcutta passed from time to time in favour of the Amins treating them equivalent to that of Surveyors and allowing them pay scale No.9. The controversy with regard to the issue whether the Amins and the Surveyors discharge similar duties and therefore the Amins should be treated equivalent to the Surveyors started with the first litigation initiated in the High Court of Calcutta by filing of a petition by one Md. Anwarul Haque and others being Civil Rule No. 3469(W) of 1982 and the other by Abdul Ban and others being Civil Rule No. 3470 (W) of 1982, which were disposed of by order dated June 6, 1985 by learned Single Judge, Justice Subhas Chandra Sen (as he then was). The case of the petitioners in those civil rules was that they were recruited as Amins under the Land Records and Surveyors, Directorate, Government of West Bengal. It was alleged that the work of Surveyors and Amins are identical. It was also contended that the qualifications for recruitment are almost identical. Therefore, there was no difference between the surveyors and Amins in the matter of qualifications and also in the matter of work that they discharge. But by virtue of a notification issued by the Department of Finance, Government of West Bengal being Notification No 5472-F dated December 27, 1961 published in the Calcutta Gazette Extraordinary on January 2, 1962 in Part I to the West Bengal Service (Revision of Pay and Allowance) Rules, 1961, different scales of pay were prescribed, for Surveyors and Amins working in different Departments under Government of West Bengal. Therefore it was alleged to be discriminatory and Amins claimed same pay as Surveyors on principle of equal pay for equal work. The learned Single Judge without discussing whether the qualifications and duties of the Amins and the Surveyors are same or not granted equal pay for the Amins as that of the Surveyors on the basis of well recognized principle of 'equal pay for equal work'. Learned Single Judge further observed that there is no reason to differentiate between an Amin and a Surveyor when an Amin is appointed on the basis of same qualification and discharges the same duties that of a Surveyor. Learned Single Judge referred to a communication from Commissioner, Jalpaiguri Range and on that basis, he concluded that the Amins perform the same duties as Surveyors, though that letter, which we will deal later, is nothing but a proposal submitted by the Additional Commissioner in response to a representation by Amins. On the basis of this letter, learned Single Judge concluded that the pay scale which is being given to the surveyors should also be given to the Amins. Learned Single Judge further held that by notification dated July 29, 1981, issued by the Government of West Bengal, Department of Finance, the scale of pay of the Surveyors has been revised to Rs. 380-910/-. Therefore, the learned Single Judge directed to grant the same pay scale to the Amins also. However, no counter affidavit was filed, therefore, the allegations were not denied and nobody appeared on behalf of the Government. On that basis, learned Single Judge directed that same pay scales should be given to the Amins as that of the Surveyors. When the said pay scale was not given, a contempt petition was filed and that contempt petition was disposed of by learned Single Judge directing the State Government to allow the petitioners in those two Civil Rule Nos. 3469 and 3470 of 1982 same scale of pay as that of Surveyors. But at the same time it was clarified that the order passed in the contempt petition on August 16, 1989 will not be a precedent for any other cases and the other cases will be fought by the State Government by filing affidavits. It is unfortunate that against this order no appeal was preferred and subsequently all 36 cases which were filed by different persons same order was passed. The net result is that all these persons were given the same pay scale as that of the Surveyors. In some cases appeals were filed but the same were not pressed, in some cases appeals were dismissed and in some cases the appeals were allowed to be withdrawn. So much so that a Special Leave Petition was filed in this Court which was withdrawn. It is also unfortunate that in the State Government nobody examined the matter and they totally ignored the rules on the subject and the duties performed by the Amins and Surveyors and the Government allowed them the benefits of the pay scales of the Surveyors. Number of decisions were given by the High Court of Calcutta following the decision in Md. Anwarul Haque's case though in the said case it was clearly mentioned that the order passed in this case will not be treated as precedent for other cases. Be that as it may, there was total lack of application of mind on the part of the State Government in not defending the cases properly, even in subsequent cases no counter affidavit was filed. The attention of the Court was not invited in subsequent cases that in Anwarul Haque's case Court has observed that it will not be treated as precedent. This only reflects total indifference and gross negligence on the part of the State Government in not properly defending the cases thereby creating an unfortunate situation for themselves. This indifferent attitude of the Government of West Bengal has costed them a huge salary liability. The State Government accepted the decision of the High Court and they treated the posts of Amins and that of the Surveyors identical and they granted higher pay scales to those litigant Amins. This state of affairs would have continued but for the fact that subsequently'the Amins in the Cooch Behar District filed a writ petition in the High Court and sought the same relief which was given to the Amins in the series of decisions given by the High Court of Calcutta. There they challenged that they must be given the equal pay for equal work as is being given to Amins of other Department. In that context, the matter was examined by the learned Single Judge (Justice Satya Brata Sinha, as he then was). Learned Single Judge examined the matter and found that no material was placed by the said petitioners for seeking the parity treatment. Learned Single Judge observed that technical Rules and instructions relating to survey inter alia provides that the surveyors are to carry out their duties like for the purpose of traversing survey whereas the Amins inter alia 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 hydrographic surveying, mine surveying, quantity surveying and costing etc. So far as the Amins are concerned, their basic qualifications are Madhyamik or equal. The post of Amin can be filled up from peons who are group 'D' employees, whereas the surveyors are appointed by direct recruitment. The Amins are merely given simple and rudimentary survey equipments like Guntur's chain and optical square and other related accessories. The value of survey equipments used by the Amins ranges between Rs. 100/- and Rs. 150/-. The methodology used by the Amins for doing their job is absolutely simple. They are given training for office work for about 3-4 months when they, are given first posting in erstwhile settlement camps or any other offices. It is alleged that the job of Amin begins where the job of Surveyor ends. From this the. learned Single Judge inferred that the nature of duties of Surveyors and Amins are absolutely distinct and separate. Learned Judge examined and found that the Surveyors and Amins are placed in different scales of pay throughout from the report of the Second Pay Commission. Those Surveyors with qualification of Overseer were granted the pay scale of Rs. 300-600/- whereas the Amins are placed in the pay scales of Rs. 150-350/-. It was observed that the Second Pay Revision Committee examined the duties and qualifications of both the posts i.e. Surveyors and Amins and after detailed examination, they have been put in two different pay scales. All the earlier judgments were placed before the learned Single Judge. Learned Single Judge after examining all the earlier decisions given by learned Single Judge which were not contested by the State Government, no reply was filed by State, disagreed with the earlier decisions and found that the earlier decisions were per inquiriam. Therefore, learned Single Judge did not follow the earlier decisions and dismissed the writ petition. This judgment was delivered by the learned Single Judge on February 16,1995. Thereafter, when some more matters came up before learned Single Judge, Justice Sinha (as he then was), he recorded detailed reasons and referred the matters to the Chief Justice for referring it to a larger Bench. The matter was referred to the larger Bench by the Chief Justice and the matter came to be disposed off by a Division Bench presided over by Justice B.P. Banerjee and 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 visa-vis that of the Surveyors and found that it is difficult to hold that the Amins and Surveyors are discharging the same duties as they are recruited on the basis of different qualifications and therefore the Amins cannot be treated at par with that of the Surveyors. Aggrieved against this judgment the matter was take up by the Amins before this Court and their grievance was that the appellants herein were not parties to the writ petition but the benefits which had accrued in their favour by the order of the learned Single Judge in different cases were sought to be taken away by the impugned judgment and this Court after hearing both parties at length passed a detailed order and remitted the matter back to the High Court of Calcutta. This Court observed as follows: "in view of the diverse submissions, the question for consideration is what the pay scale the respondents would be entitled to in view of the mandamus issued by the learned Single Judge on June 8, 1987. It is not disputed that under ROPA Rules different scale of pay exist for Surveyors having different qualifications. It is not the case of the respondents that they possess the qualification for being absorbed as Overseer. On the other hand, they possess the qualification of School Final or its equivalent with practical experience. That being the position, it is unexceptionable that only scale of pay which the respondents would be entitled to pursuance to the mandamus issued by the learned Single Judge of Calcutta High Court by its order dated June 8, 1987 is the scale of Rs. 340-750/- and in fact the State Government by its order dated August 25, 1993 rightly granted that scale of pay. We, therefore, do not find any justification in holding the respondents guilty of contempt nor there was any justification for the Division Bench of the Calcutta High Court to order that they would get higher pay scale of Rs. 38-910/-. The aforesaid direction of the Division Bench directing to pay the respondents in the scale of Rs. 380/- to Rs. 910/- accordingly stands quashed. Mr. Sanyal said that since this Court had remitted the matter at the behest of several Amins to the Calcutta High Court for getting an opportunity of hearing in the writ petition the same relief should be given to him. We allow this prayer and the present respondents be added as party to the pending Writ Petition which we have remitted by setting aside the judgment of the Division Bench. Mr. Sanyal undertakes to enter appearance before the Division Bench within two weeks from today and would file whatever additional papers within 4 weeks from today. Needless to mention that these respondents will continue to draw in the scale of pay of Rs. 340/- to 750/- which had been ordered by the Government in its order dated 25-8-1993 until the same is modified or altered by the Division Bench of Calcutta High Court. We are told that the State Government has also preferred an appeal against the order of Single Judge. Those appeals may be heard also by the Division Bench. If the salary has not been given to the respondents and if there is any arrear they may be paid within 3 months from today. The appeal is disposed of accordingly." The matter was remitted back by this Court before the Division Bench of the High Court of Calcutta and the same came to be heard by a Bench presided over by Justice Altamas Kabir and Justice Gora Chand De. The Division Bench examined the matter in great detail and after a detailed discussions, the Division Bench framed two questions i.e. (i) Do Amins perform the same or similar nature of duties as Surveyors in the different departments of the State Government and are their responsibilities, training and qualifications comparable which would entitle them to equal pay for equal work with Surveyors? and (ii) Can the benefits received by a section of Amins who had moved this Court earlier in several writ petition and were drawing higher scale of pay than that recommended by the successive Pay Commissions pursuant to orders passed in such writ petitions be withdrawn in the event it is held in these two writ petitions that Amins are not entitled to the same scale of pay as Surveyors working in the different departments of the State Government? This Division Bench had also observed that in the earlier writ petitions which were filed by Md. Anwarul Haque and Ors. (C.R. 3469 (W) of 1982) and Abdul Bari and Ors. (C.R. 3470 (W) of 1982) were disposed of on the doctrine of non-traverse and therefore this need not be treated as precedent for future cases. It appears that the decisions in the aforesaid Civil Rule petitions were given by the Single Judge of the High Court without there being any affidavit filed by the State Government and without examining the duties and responsibilities performed by Amins and Surveyors and even no attention was paid to the order of the learned Single Judge, Justice Subhas Sen (as he then was) while disposing of the matter it was observed that this order will not be treated as precedent. Matters were disposed of by one after the another Bench without the affidavit of the State Government, it is equally a sad state of affairs that appeals filed by the State Government against the order of the learned Single Judge were allowed to be withdrawn or were dismissed. The Division Bench examined the matter and found that the Amins and Surveyors primarily undertake survey work but the duties performed by them are essentially different. It was found that the method of recruitment and the required qualification for recruitment of these posts are different. It was also found that the nature of duties performed by them is also different. It was observed that the work of Amins begins where the work of the Surveyors ends. The Division Bench further observed that before successive Pay Commissions for revision of pay scales, the matter was examined by the Experts and they have prescribed different pay scales for the Amins as well as the Surveyors. Unfortunately, all these recommendations of the Pay Commissions which ultimately formed part of the ROPA Rules were not brought to the notice of the Court nor the State Government examined the matter with reference to the ROPA Rules and mechanically followed the orders without approaching the higher Court and bringing to the notice of the Court the correct picture. The Division Bench examined the matter with regard to the nature of duties and successive reports of the Pay Commissions and observed as follows: . "On a comparison of the qualification, training and expertise and the work performed by Amins and Surveyors, it is apparent that the same cannot be equated and the two posts cannot be treated as equal as far as the higher categories of Surveyors are concerned. Even the responsibilities shouldered by Surveyors and Amins do not bear comparison as will be evident from the Technical Rules and Instructions. The only point of comparison between Amins and Surveyors is with regard to the lower categories of Surveyors who do not have the requisite qualifications, training and expertise to do the work performed by Surveyors of higher categories." The Division Bench has also quoted the extracts from the report of the Fourth Pay Commission which reads as under: "Having regard to the duties and responsibilities attached to the post of Amin and those attached to the post of Surveyor and also the essential recruitment qualifications of these, two categories of posts, we are of the view that the post of Amin cannot be equated with that of Surveyor, both in respect of qualification as well as in respect of duties and responsibilities. In our view the scale of Rs.1040-1920/ - (Scale No. 6) as allocated to the post of Amin is just and proper. We accordingly recommend revised Scale No.6 for the post of Amin." However, the Division Bench held that both Amins and Surveyors belong to different categories and their duties are not comparable and therefore, they cannot be treated at par with each other. Notwithstanding that the Division Bench observed as follows: "In fact, since surveyors with only a School Final Pass or Madhyamik qualification and practical experience were given Scale No. 7, in our view, it will only be fair to give Amins having the same qualification and expertise and performing similar functions the same scale." Though the Division Bench held that the Amins stand on a different footing therefore, they cannot get the same scale of pay as that of the Surveyors but still looking to the qualification of the Surveyors with only a School Final Pass or Madhyamik qualification and practical experience they were given the pay scale No. 7 and directed the State Government to give pay scale No.7 to the Amins. Aggrieved against this direction the State Government has filed Special Leave and aggrieved by the other part of order the private parties have filed Special Leave: Therefore, all these Appeals which were clubbed together are being disposed of by this common order. The final direction issued by the Division Bench reads as under: "We, therefore, answer the reference by holding that Amins in general cannot be equated with Surveyors and in order to rationalize and bring about an uniformity in the pay scales of Amins in general we dispose of these writ applications by directing the State Government to revise the pay scales of Amins in general and to place them in Scale No. 7 with notional effect from 1st January, 1986, with corresponding revisional benefits and with actual effect from the date of implementation of the ROPA Rules, 1998. Amins Grade-I and Amins who have been given the benefit of Career Advancement Schemes will continue to retain and receive such benefits. As far as Amins who had been enjoying Scale No.9 pursuant to orders of Court are concerned, on and from 1st October, 2001, they shall also be placed in Scale No. 7 in such manner so that they are not given less pay than they are now receiving and no recovery shall be made from them for the period prior to 1st October, 2001." In this background, the whole controversy has now come up before this Court.
(3.) LEARNED counsel for the private respondents has submitted that with reference to the various orders of the Government and notifications issued from time to time that the Amins and Surveyors discharge same duties, their qualification may differ but the duties discharged by them are identical. Therefore, they are entitled to get the pay scale prescribed for the Surveyors on the principle of "equal pay for equal work". It has also been submitted that all earlier decisions given in all the 36 writ petitions will operate as res judicata and estoppel against the State Government because the State Government has not challenged the said order in all the 36 writ petitions. In some appeals were filed but were allowed to be withdrawn, in some appeals were dismissed and against some appeals were not filed. Therefore, the State Government cannot wriggle out from the situation created by themselves and they are bound by it. It was also pointed out that Courts can always mould the reliefs. LEARNED counsel has also pointed out that it is no longer contestable. As against this, it was submitted on behalf of the State Government that the duties of the Surveyors and Amins are different and that classification has been maintained throughout. It was submitted that by virtue of some observations made by some State authorities, it cannot override the statutory provisions like the recommendations of the Pay Commissions, the ground realities are that the qualification, training of the Surveyors and that of the Amins are separate and therefore, there is no question of the Amins being treated at par with that of the Surveyors as both are not comparable. In this connection, various documents have been filed by the State Government. It was also contended by the State Government that the Division Bench has gone wrong in giving direction for pay scale No. 7 to the Amins. It was submitted that the Courts cannot give pay scale as the pay scales are given on the basis of the recommendations of the Expert Committee like Pay Commission which examines the nature of duties and qualifications for each post and if the Court started directing for giving pay scales then it will have cascading effect on the part of the other pay scales and specially in the case of Amins when Division Bench on one hand has found that both posts are not identical. Yet the Court has given Amins pay Scale No. 7 which is not proper. Therefore, learned counsel submitted that the order passed by the High Court for giving pay scale No. 7 on the basis of the qualification of phased out Surveyors is not correct.;