Holding

Amins cannot be equated with Surveyors as their duties and qualifications differ, so they are not entitled to the Surveyors' pay scale; the Court, exercising power under Article 142, fixes Amins' minimum pay at Scale 6 (with promotion to Scales 7 and 8) and sets aside the High Court's direction of Scale 7.

Summary

A group of Amins employed by the West Bengal government sought to be placed in the same pay scale as Surveyors, invoking the principle of ‘equal pay for equal work’. The High Court had earlier granted such parity in a number of writ petitions without examining the distinct qualifications and duties of the two posts, and the State did not contest those orders, leading to an anomalous situation where some Amins were on Scale 9 while others were on lower scales. The Supreme Court examined whether the duties and recruitment qualifications of Amins and Surveyors were identical, and whether the earlier High Court decisions could bind the parties by res judicata or estoppel. It held that the posts are materially different and the principle of equal pay does not apply, and that the earlier judgments cannot operate as precedent. Invoking its inherent power under Article 142, the Court fixed the minimum pay for all Amins at Scale 6 (with promotion to Scales 7 and 8) and set aside the High Court’s direction to grant Scale 7, while also protecting the pay already drawn by Amins up to the date of judgment. The State’s appeal was allowed and the private parties’ appeals were dismissed.

Issues considered

Whether Amins and Surveyors discharge identical duties and possess the same recruitment qualifications for the purpose of invoking the principle of equal pay for equal work.
Whether Amins are entitled to the same pay scale as Surveyors under the principle of equal pay for equal work.
Whether the earlier High Court decisions in 36 writ petitions constitute res judicata or issue estoppel against the State.
Whether the Supreme Court can invoke its inherent power under Article 142 to prescribe a uniform pay scale for Amins.
Whether the Division Bench direction to grant Scale 7 to Amins is legally correct.

Legislation cited

Subjects

equal pay for equal workpay scale parityservice lawres judicataissue estoppelArticle 142West Bengal Service Rulesclassification of postspay revision

Judgment

DEB NARAYAN SHYAM AND ORS. A
v.
STATE OF WEST BENGAL AND ORS.

-.J
DECEMBER I, 2004 ' ~ .- .

B
[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 c
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 ofAm ins different from that ofSurveyors-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 D
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 of-
Held: 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 E
beneficiaries of earlier decision filed SPL as their rights adversely affected
on not being heard by Division Bench-This order of Division Bench was
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 F
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 115- G
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
decision granted the Amins the same pay scale as that of Surveyors.
c 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
qualification of Surveyors with only school final pass or Madhyamik
E 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.

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
G 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
B
Government's appeals, the Court

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, G
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)

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 ofIndia & 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.

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
c 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
by the Division Bench and their rights are going to be adversely affected.
G 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 E
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
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 G
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 ofIndia, [2001) 2 SCC 186 and Union
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.

From the Judgment and Order dated 28.9.200 I of the High Court at ~
Calcutta in C.O. No. 10955 (w) of 1995. -
D 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,
E 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.

F 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 c
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 D
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 E
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· 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 G
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
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
the decision in Md.Anwarul Haque's case though in the said case it was
E 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 c
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 D
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 E
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 F
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 G
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 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:

"in view of the diverse submissions, the question for consideration
F 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
G 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
H 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.340-
to Rs.750 which had been ordered by the Government in its order
dated 25-8-1993 until the same is modified or altered by !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."
F
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 G
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 H
562 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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
these posts are different. It was also found that the nature of duties performed
E 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:

"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
H 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.
D
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, E
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 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.

The final direction issued by the Division Bench reads as under:

" We, therefore, answer the reference by holding that Amins
B
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,
c 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.
D
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."
E
In this background, the whole controversy has now come up before this
Court.

Learned counsel for the private respondents has submitted that with
F 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
F
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 G
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 H
566 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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
is also taken to bring about uniformity amongst the Am ins. He further stated,
c "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 Grade-
l, which is the promotional post of Amins, will be allowed Scale No.8 under
the Revision of Pay & Allowance Rules, 1998 in all the Departments." He
further states, "While fitting the Amins in the respective Scales Nos. 6, 7
E and 8, as aforesaid, their basic pay will be taken into consideration and their
total pay which is being received by them respectively will be protected,
so that in no case the Amins receive less pay than what they are receiving
under orders of Court passed earlier in 36 judgments up to 1993/94. No
recovery shall be made from them for the period prior to 01.10.2001 as
F 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\ast pay drawn pursuant to the Court's order in scale
nio.7 or 9 (unrevised) without creating any precedence."

G 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
H recruitment to the post of Amin in the Integrated Set-up i.e. a pass certificate
DEB NARAYAN SHYAM v. STATE [MATHUR, J.] 567

in School Final/Madhyamik examination of the West Bengal Board of A
Secondary Education or equivalent; good working knowledge of written and
spoken Bengali and diploma or certificate in Survey from a recognized
· institution. He further submitted that recruitment qualifications of Amins are
equal to the recruitment qualifications of Surveyor in Grades III & IV. He
has also stated that Government of West Bengal in 1992 have modified the B
qualification for both the posts having the qualification of School Final and
Non-School Final at Rs. 300-685 Scale No.6 and it was duly implemented
by the District Magistrate and Collector of the District and District Settlement
Officer of the Districts. Therefore, it was submitted that the Amins were
never in the Scale No. 5. It was pointed out that prior to 2003, Amins of
the Land Acquisition Offices and Land RefoliJTIS Circles under the Land, & C
Land Reforms Department were recruited by the Government orders and/
or policy under Special Recruitment Rules so framed by the Government
of West Bengal for such appointment prior to framing of recruitment Rules
in 2003. It was contended that prior to framing of Recruitment Rules, Amins
were recruited with qualification of pass certificate in School Final/ D
Madhyamik Examination of the West Bengal Board of Secondary Education
and it is contended thatthere is no question ofup-gradation of the qualification
of the Amins. It is also mentioned that the career advancement scale was
given to the employees and they will be entitled to scale No.7 after completion
of I 0 years of service; and after completion of 20 years of service to scale
No.8 and after completion of 25 years of service to scale No. 9. E

It was pointed out that now the respondents are fitted into the pay scale
lower than scale No.9 with effect from April l, 1981 which will result in
stagnation and scale No.9 under the ROPA Rules cannot be taken away
because of res judicata as a result of the earlier decisions of the Court. It F
was pointed out that most of Amins joined the service during the period of
1973-1980 and they have already completed 25-30 years of service. Any
new pay scale determined for them be notionally fixed from their date of
joining the service while protecting the benefits which had already been
received by them under pay scale No.9 and no recoveries should be effected.
It was pointed out that pay scale No.9 enjoyed by the Amins pursuant to G
earlier 36 judgments of the High Court should be maintained.

Now, in this background, the first question which is framed by us
whether the qualifications, the duties discharged by the Surveyors and
Amins are same and identical so as to treat the Amins at par with that of H
568 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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 Bane1jee 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
B functions and duties of the Am ins 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 &
c .
Amins. This circular also does not in any way treats the Surveyors and
Amins on the same footing. It only lays norms for discharge of duties of
various categories of the posts namely, Surveyors, Amins, Calculators and
Moharrirs. That does not treat the Amins equivalent to that of the Surveyors.
It is only the norms and standardization of work which has been laid down
D for each category of persons i.e. Amins, Surveyors, Calculators and Moharrirs.
Similarly, order dated February 26, 1964 issued by the Additional District
Magistrate, Burdwan relating to standardization of work of Surveyors or
Amins. That also does not'treat the Amins and the Surveyors as equivalent
to each other. That would not change the duties performed by the Amins
and the Surveyors. Similarly, by communication dated April 25, 1975 views
E were sought with reference to the representation made by the Amins attached
to different L.R. Circle Officers in the Burdwan district for allowing them
the pay scales attached to the post of Surveyors. That communication was
sent by the Deputy Commissioner, Jalpaiguri for Commissioner, Jalpaiguri
in whic]J. an opinion was expressed by the Deputy Commissioner, Jalpaiguri
F that identical duties are being performed by the Surveyors and Amins This
opinion was of the Deputy Commissioner, Jalpaiguri. That does not change
the ground realities of the functions and duties discharged by Surveyors &
Amins. This communication was made the basis in the firstjudgment.ofthe
High Court in Anwarul Haque's case without making any further probe and
no affidavit was filed by the State Government. Therefore, the learned
G Single Judge relied on this communication and proceeded to decide the
matter. We will deal with this communication at appropriate time when we
.will deal with the effect of various orders passed by learned Single Judge
of the High Court from time to time. Similar is the instructions issued on
October 29, 1980 regarding standardization of work relating to the Amins,
H Surveyors, Calculators and Muharriors. Likewise is the memo dated February
DEB NARAYAN SHY AM v. STATE [MATHUR, J.] 569

5, 1983 of the Special Land Acquisition Officer, Purulia showing the action A
to be taken for completion of land acquisition cases. This material does not
in any case take the case of the Amins far to show that they can be treated
as equivalent to the Surveyors. Number of orders passed by the High Court
of Calcutta has been filed to show that the Amins and Surveyors have been
treated equally but those judgments/orders will be dealt with separately but B
that cannot be the basis to show that the Amins and Surveyors should be
treated as equivalent to each other as the validity of those orders is in doubt
as the subsequent Division Bench presided over by Justice Banerjee has
already taken a view that no affidavit was filed by the State and also some
of the appeals which have been filed by the State were not pressed. All these
materials cannot be taken to be the guideline to decide the issue that the C
'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 D
passed by the Division Bench in pursuance of the direction given by this
Court on September 28, 2001 to show that the posts of Am ins 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 E
and have kept a distinction in the pay scales. In the Second Pay Commission
report, the proposed pay scale which has been prescribed is as under:

" Land Acquisition Office, Calcutta.

Post Proposed scale
F

Surveyor & Valuer 11

Amin, Grade II 5

District Collectorate including Calcutta Collectorate G
Amin 5

Refugee Relief & Rehabilitation Deptt.

Amin 5." H
570 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R,.

A As against this, the pay scale recommended for the Surveyors is No.9.

The recommendation of the 4th Pay Commission reads as under:

"3.3.10: The posts of Amin are filled up by direct recruitment
to the exte,ht of 75% and balance 25% are filled up by promotion
B >
from qualified Group 'D' employees. The recruitment qualification
for the post of Amin is Madhyamik or equivalent. Knowledge of
Survey works/diploma or Certificate in survey from a recognized
Institution is only desirable but not an essential qualification.

c The post of Amin is borne in scale no.6 (1040-1920) as basic
grade. A section of the Aniins is now enjoying scale no.9 by Court's
order.

Representations have been made demanding that Amin should
D be treated on a par with Surveyors and should be allotted scale no.9. '
It has been contended that the Amins perform same and similar
functions like Surveyors.

We have considered the demand from all perspective. We find -
that the recruitment qualification for appointment as Surveyor is
E Madhyamik or equivalent with Trade Certificate from Industrial
Training Institutes or Senior Survey Certificate from the Survey
Institutes, Bandel. Having regard to the duties and responsibilities
attached to the post of Amin and those attached to the post
of Surveyor and also the essential recruitment qualification
F of these two categories of posts, we are of the view that the
post of Amin cannot be equated with that of Surveyor, both in
respect of qualification as well as in respect of duties and
responsibilities.

In our view the scale of pay of Rs.1040-1920 (Scale No. 6)
G as allocated to the post of Amin is just and proper. We accordingly,
recommend revised scale no.6 for the post of Amin."

The Fourth Pay Commission recommended the pay scale for Amins
as scale No.6 and after carefully examining the matter they recorded that
H the demand of the Amins for being equated with the Surveyors cannot be
DEB NARAYAN SHYAM v. STATE [MATHUR, J.] 571

. accepted as recruitment qualification for appointment as Amin is Madhyamik A
or equivalent with trade certificate from Industrial Training Institute or
Senior Survey Certificate from the Survey Institute and have further observed
that having regard to the duties and responsibilities attached to the post of
Amin and those attached to the post of Surveyor and also the essential
recruitment qualification of these two categories of posts, the Amins cannot
B
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.
c
CHART SHOWING THE PAY SCALE OF AMIN AND SURVEYORS
SINCE INDEPENDENCE

POST 1950-51 1961 1970 1981 1989 1990 1998 Scale
No.

AMIN: D
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 E
Management Wing under
L &L.R.Deptt..Amin 50-80 100-140 180-350 280-617) Abolished by None None 5
Amin Grade I 340-750 } Integration 7

Integrated set up introduced in Not yet Not yet Not yet Not yet Integrated
1989 vide Govt.Order dated created created created created set up
18.2.89 by integrating created
settlement aWing and with the
Management Wing of L.& L.R
Dept!. Have following
following
pay scale
F
classes of Amins:

Amin having non-S.F.
Qualification 280-617 980-1755 3150-5680 5

Amin Grade·! (Non-S.F.) 340-750 1140-2160 3600-7050 7

Amin with S.F.Qualification
(Scale allowed in 1995 with
effect from 1.4.81)
300-685 1040-1920 3350-6325 6 G
Amin Grade 1 (S.F.Qualification) 360-815 1200-2360 3800-7775 8

Amin who did not opt for
Integrated set up and remained
Under District Collectors None None None None 280·617 980-1755 3150-5680 5

Amin Grade I 340-750 1140-2160 3600-7050 7
H
572 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A SURVEYOR:

i) With qualification of Overseer 125-250 200-400 300-600 380-910 No change 1260-2610 4000-8850 9
(Engineering Diploma) igher initial
-300

ii) With Sub~Overseer 100-225 175-325 300-600 380-910 No change 1260-2610 4000-8850 9
qualification since
·abolished and replaced
by certificate from IT!
B or Survey Institute, Bandel.

iii) Certificate from Survey 80-180 150-250 230-425 340-750 No change 1140-2160 3600-7050 7
School igher initial

-275

iv) School Final with Practical

.C experience None 125-200 230-425 340-750 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.

D 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 o'ot being
recruited since 1981. That shows that the Surveyors with certificate from
Survey School, school final with Practical experience and with practical
E 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 qualjfication of these posts are almost equivalent to the Amins,
therefore, they should be given the pay scale No.7, was not justified.
However, we will advert to this aspect subsequently. All these materials
F
which have been placed by both the sides and which have been reproduced
above, would show the contentions of the rival parties. Therefore, the·
materials which are on record categorically show the distinction has already
been brought between the posts of Amins and Surveyors and their nature
of duties and functions are also separate. The Technical Rules and Instructions
G relating to survey work indicate that Surveyors use more sophisticated
equipment involving superior training and skills than Amins. ,Surveyors use
Theodolite for conducting traverse survey requiring knowledge of
trigonometry and they are also trained in the use of equipment for the.
measurement of automatic levels and electronic distance measurement. The
H Surveyors have to undergo a two- year specialized training in different kinds
DEB NARAYAN SHYAM v. STATE [MATHUR, J.] 573

, . of surveying such as Topographic and Hydrographic surveying and Mine A
surveying, and are also trained in mechanics and drawing. On the other
hand, the Amins are given training in simple survey work and in the use
of relatively simple equipment such as Guntur's chain, plane table, optical
square. It is true that both Surveyors and Amins undertake the survey work
but the nature of duties discharged by both of them are different The B
Surveyors are technical persons and the Amins are non-technical persons.
The Surveyors are fully qualified in the engineering surveys whereas the
Amins are not supposed to be so qualified. Therefore, looking to the nature
of duties which is being discharged and the instructions which have been
issued go to show that the Amins and Surveyors are not discharging identical
duties. Therefore, from the nature of duties and the qualifications required C
for both the posts, it is absolutely clear that they are separate and it is not
wrong when it was submitted that the work of Amins starts after the work
of Surveyors ends. The Technical Rules and Instructions of the Settlement
Department as mentioned above, clearly show that the work and duties
which are being discharged by the Surveyors are of technical nature by use D
of sophisticated instruments as against the Amins who do the job with the
aid of relatively simple equipment as they are not equated with that of the
Surveyors. The qualifications prescribed for the Surveyors and Amins are
also different. The Surveyor is supposed to be a technically trained person
and as against this, the Amin need not be. The Amins have to undergo related
course of a duration of six months or so, as against the Surveyors' two years E
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 F
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 G
for their recruitment. From the above discussion, it is clear that neither the

..
duties nor functions are identical nor the recruitment for the posts of Amins
and Surveyors is identical as the qualification for recruitment for both the
posts is different. Large number of decisions have been cited before us with
regard to the principle of 'equal pay for equal work' by both sides. We need H
574 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A not deal with the said decisions to overburden this judgment. Suffice it to
say that the principle is settled that if the two categories of posts perform
the same duties and function and carry the same qualification, then there
should not be any distinction in pay scale between the two categories of
posts similarly situated. But when they are different and perform different
B duties and qualifications for recruitment being different, then they cannot
be said to be equated so as to qualify for equal pay for equal work. In this
connection reference has been made to the following decisions.

1. [1989] 1 sec 121:
State of UP. & Ors. v. JP.Chaurasia & Ors.
c
2. [1993] Supp. (1) sec 153:
Secretary, Finance Department & Ors. v.
West Bengal Registration Service Association & Ors.

D 3. [1994] 2 sec 521:
Shyam Babu Verma & Ors. v. Union of India & Ors.

4. [1994] 4 sec 78:
State of WB. & Ors. v. Hari Narayan Bhowal & Ors.

E 5. [1998] 2 sec 589:
Union of India & Ors. Ram Gopal Agarwal & Ors.

6. [2000] 8 SCC 580: Union of India & Ors. v. Pradip
Kumar Dey
F
1. [2004J 1 sec 347:
Government of WB. v. Tarun K Roy & Ors.

We need not deal with the aforesaid cases on the subject of the
principle of equal pay for equal work as it is more than clear that the post
G of Amin is different from that of the Surveyor as the Amins do not discharge ...
the same duties as that of the Surveyors and as such they are not entitled
to claim equal pay for equal work. All these cases which have been referred
to above are only for the purpose of showing that in each case there are some
peculiar reasons which have persuaded the Court to grant benefit in some
H cases and decline to grant benefit in other cases. In the present case, there
DEB NARAYAN SHYAM v. STATE [MATHUR, J.] (1 575

are categorical finding that both the categories of posts discharge different A
functions and duties and there is no question of granting equal pay on the
principle of 'equal pay for equal work.'

Now, coming to the next question that what is the effect of various
decisions/orders passed by the learned Single Judge in 36 writ petitions from B
1986 to 1993. It is unfortunate that in all these 36 writ petitions the State
Government did not file any affidavit and the Courts were not properly
assisted to come to a correct conclusion. In 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 C
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
Am ins that they Jischarge similar functions and duties. On the basis of that D
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 E
to that petition and observed as follows:

" The petitioners have also relied on annexure 'C' to the
petition where the Commissioner of Jalpaiguri Range came to the
conclusion after scrutiny and analysis of the work and performance F
of the Amins that the works performed by the Amins and the
Surveyors are identical and the Amins had been deprived of the
benefit of the scale of pay attained to the post of surveyor."

In fact, this opinion given by the Deputy Commissioner for Commissioner,
Jalpaiguri Range was a single document and without further examining the G
matter, the learned Single Judge came to the conclusion that the Amins

..
discharge the duties similar to that of the Surveyors. But the fact of the
matter is that the posts of Surveyors are far distinct and superior to that of
the Amins as mentioned above. Therefore, the two categories of posts i.e .
Surveyors and the Amins by no stretch of imagination be treated equivalent H
576 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A to each other from the functional point of view and from the qualification
point of view also. But unfortunately there is complete failure on the part
of the State Government that they did not take proper steps in the matter ·
to represent the case before learned Single Judge. Apart from that this case
was proceeded as a model case and all other remaining cases were decided
B in the line of this case alone. In such situation, some times reference of
Md.Anwarul Haque's case and sometimes Abdul Bari's case was made in
subsequent judgments and sometime no reference was made and it was
assumed that the posts of Amins and Surveyors are similar and the High
Court proceeded to give directions to give the pay scales of the Surveyors.
The State Government filed Letters Patent appeals in some of the cases
c before the Division Bench and there also the State Government did not
pursue those appeals. Some of them were withdrawn and some other were
dismissed in default, so much so that even the Finance Department had to
comply with the direction issued by the learned Single Judge and pointed
out that it will involve additional burden ofRs.3 crore. No steps were taken
D for challenging the orders of the Court before the Division Bench properly
or before this Court and State Government passed orders giving the benefit
to the petitioners therein. In one of the matters which was taken up to this
Court, there also the State Government withdrew the Special Leave Petition.
This only shows the total lack of application of mind while dealing with
these cases and the net result of this is that the State Government had to
E 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
F 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
G were treated to be per incuriam. Again, most surprising feature is that when
a contempt petition was filed as the decisions given in Md.Anwarul Haque
and Abdul Bari's case was not implemented by the State Government, while
disposing of the contempt petition learned Single Judge, Justice Sub has Sen
(as he then was) in his order dated August 16, 1989 clarified that the order
H passed today will not be a precedent for any other cases and the other cases
DEB NARAYAN SHYAM v. STATE [MATHUR, J.] 577

may be fought by the State Government by filing affidavit. Even this A
observation made by learned Single Judge was not brought to the notice of
subsequent Benches. We can express our anguish the way in which the cases
were conducted by the State Government.

Salmond on Jurisprudence (12th Edition) , Prof. P.J. Fitzgerald has B
explained the concept of sub silentio as under :

"A decision passes sub silientio, in the technical sense that has
come to be attached to that phrase, when the particular point oflaw
involved in the decision is not perceived by the court or present to
its mind. The court may consciously decide in favour of one party c
because of point A, which it considers and pronounces upon. It may
be shown, however, that logically the court should not have decided
in favour of the particular party unless it also decided point B in
his favour; but point B was not argued or considered by the court.
In such circumstances, although point B was logically involved in D
the facts and although the case had a specific outcome, the decision
is not an authority on point B. Point B is said to pass sub silentio.

In Gerardv. Worth ofParis, Ltd. (k) the only point argued was
on the question of the priority of the claimant's debt, and, on this
argument being heard, the Court of Appeal granted the order. No E
consideration was given to the question whe.ther a garnishee order
could properly be made on an account standing in the name of the
liquidator. When, therefore, this very point was argued in a
subsequent case before the Court of Appeal, the court held itself
not bound by its previous decision. Sir Wilfrid Greene, M.R., said F
that he could not help thinking that the point now raised had been
deliberately passed sub silentio by counsel in order that the point
of substance might be decided. He went on to say that the point had
to be decided by the earlier court before it could make the order
which it did; nevertheless, since it was decided "without argument,
without reference to the crucial words of the rule, and without any G
citation ofauthority", it was not binding and would not be followed."

Similarly it was further observed as follows:

"The rule that a precedent sub silentio is not authoritative goes back H
578 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A at least to I 661, 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
B Kumar Dubey reported in AIR (1976) SC I 766 has observed as follows:

"It is the rule deducible from the application oflaw 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
c 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
,D examined by the learned Single Judge that what were the exact duties of the
Amins and of the Surveyors. The only communication by the Deputy
Commissioner, Jalpaiguri Range was based as the decisive factor to come
to the conclusion that the duties discharged by the Amins and Surveyors are
identical. Thereafter, learned Single Judge while disposing of the contempt
petition has observed that this order passed today will not be treated as
E precedent. But unfortunately, this judgment has been followea by the High
Court in remaining 36 cases and to the utter negligence of the State
Government, letter patent appeals filed were withdrawn. However,
subsequently the Division Bench put the matter in proper prospective holding
that earlier judgment cannot be treated as precedent and it cannot decide the
F rights of the parties. More so, the effect of these judgments was neutralized
when beneficiary of these judgments filed Special Leave Petition before this
Court aggrieved against the judgment passed by Justice Banerjee on the
ground that all these writ petitioners in all these 36 cases were not heard
by the Division Bench and their rights are going to be adversely affected.
This Court set aside the judgment of the Division Bench and remitted the
G matter back to the Division Bench of Calcutta High Court to decide the
matter after hearing these writ petitioners, this amounts to reviewing the
whole issue and petitioners cannot bank upon the principle of res judicata
or issue estoppel. Dr.Rajeev Dhawan appearing for some of the respondents
rightly admitted that technically it may not amount to res judicata but it
H certainly operates as estoppel. Therefore, it is not open to make grievance
DEB NARAYAN SHYAM v. STATE [MATHUR, J.] 579

for these writ petitioners that by virtue of res judicata or issue estoppel the A
benefit enjoyed by them cannot be withdrawn. When the whole matter has
been rip open by this Court while remitting back to the Division Bench of
Calcutta High Court at their instance.

Similarly, Mr.R.Venkataramani, learned Senior counsel has invited B
our attention to a decision of the Australian High Court in the case of Thoday
v Thoday reported in [1964] All E R 341 on the question of distinction
between issue estoppel and res judicata. So far as the principle of law is
concerned, there is no dispute.

In the case of Raja Sri Sailendra Narayan Bhanja Deo v. The State C
of Orissa, reported in [1956] S.C.R. 72 it was observed that a judgment by
consent is as effective in creating an estoppel between the parties as a
judgment on contest and the test is whether the judgment in the previous
case could have been passed without the determination of the question
which is put in issue in the subsequent case where the plea of estoppel is D
raised. Similarly in the case of Sarguja Transport Service v. State Transport
Appellate Tribunal, MP., Gwalior, & Ors. reported in (1987] I SCC 5, 1t
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 E
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 p
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."
G

Jn 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 H
~-

'
580 SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A it raises an estoppel as much as a decree passed in invitum.

But the fact of the matter is that if all these 36 judgments are allowed
to remain which were passed without reference to the material which ought
to have been taken into consideration, it is going to cause great anomalous
B situation. It will create two groups i.e. one in whose favour orders have been
passed by Court and the others without any order and they will be governed
by the existing Rules. This will create an anomalous position in same cadte.
Some Amins are getting scale No. 9 and some in Scale No. 6 or 7. How
can persons similarly situated be discriminated? This will create disharmony
and discrimination amongst the same class. Therefore, two options are
C available i.e. the Amins who are not getting the benefit of scale No. 9 should
be given same as is being given to Amins under order of Court i.e. Scale
No. 9 or all should be brought on par without overburdening the State
exchequer, and a uniform pay scale be enforced in the whole State. This
anomalous situation has to be rectified and the whole matter has to be put
.D in proper perspective.

In this connection, learned Senior Counsel Shri Dipankar Gupta, ·
appearing for the State of West Bengal submitted that in fact there is no gain
saying that there has been negligence on the part .of the State Government
in not prosecuting the cases properly but by that the State exchequer should
F
E not be unnecessarily overburdened by giving the remaining thousands of
Amins the pay scale No.9 which will have a cascading effect on the whole
State and this will create disparity amongst other pay scales of the employees
in the entire State. The submissions of Mr. Gupta appears to be justified.
We cannot close our mind to the fact that the decisions in all these 36 cases
p emanating from the decision rendered in Md .. Anwarul Haque & Abdul Bari
has created the confusion. The decision in Md. Anwarul Hague's case was
rendered without any affidavit being filed by the State Government and
relevant material was not placed before the Court and simply one letter
issued by the Deputy Commissioner, Jalpaiguri Range for Commissioner,
Jalpaiguri has been made the basis for grant of the relief. That cannot
G be sustained. Notwithstanding the fact that the learned Single Judge
has himself clarified that the decision rendered in Md. Anwarul
Haque's case shall not be treated as precedent but rightly or wrongly this
fact was not brought to the notice of the subsequent Benches which
decided the remaining writ petitions and that order has been taken to be final
·H order.
DEB NARA YAN SHY AM v. STATE [MATHUR, J.] 581

Mr. Gupta, learned senior counsel strenuously urged before us that the A
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 controve.rsy 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. v. Union of India & Ors. reported in (2001] 2 sec B
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 C
to the cut-off date. The controversy in its very nature is one which
applies to all such employees of the Railways; it is not a controversy
which is confined to some individual employees or a section of the
employees. If the judgment of CAT which had taken a view contrary
to the ratio laid down by judgment of the Supreme Court in D
M.Bhaskar case was allowed to stand then the resultant position
would have been that some Traffic Apprentices who were parties
in those cases would have gained an unfair and undeserved advantage
over other employees who are or were holding the same post. Such
an enviable position would not only have been per se discriminatory
but could have resulted in a situation which would be undesirable E
for a cadre of large number of employees in a big establishment
like that of the Indian Railways. To avoid such a situation the
Supreme Court made the observations in para 17 of the judgment.
The appellants' argument on the merits of the directions of the
Supreme Court is not an impressing one. If some employees were F
unjustly and improperly granted a higher scale of pay and on that
basis were given promotion to a higher post then the basis of such
promotion being non-existent; the superstructure built on such
foundation should not be allowed to stand. This is absolutely
necessary for the sake of maintaining equality and fair play with
the order similarly-placed employees. However, it will be just and G
fair to clarify that any amount drawn by such employees either in
the basic post (Traffic Apprentice) or in a promotional post will not
be required to be refunded by the employee concerned as a
consequence of the judgment herein. This position also follows as
a necessary corollary from the observations made in para 18 of the H
582 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.
"'
A judgment in M. Bhaskar case."

Their Lordships referred to the decision rendered in the case of Union
of India v. M. Bhaskar reported in [ 1996] 4 SCC 416. Therefore, in order
to do complete justice to the parties, it is a fit case where we need to invoke
our inherent power under Article 142 of the Constitution oflndia. Learned
B
Senior counsel appearing for the State of West Bengal has made a categorical
submission that all the Amins irrespective of their qualifications will be
entitled to pay scale No.6 and no money which has been drawn by the Amins
in the 36 writ petitions will be recovered from them prior to October 1, 200 I
as directed by the Division Bench of the High Court. Therefore, we direct
c that all the Amins irrespective of their qualification in the minimum scale
of pay will be given scale No. 6 and they will be entitled to promotion as
per Rules in the scale Nos. 7 & 8 as the case may be. Though the Division
Bench has directed that no recovery shall be made from the Amins drawing
higher pay scale for the period prior to October I, 200 I but since the law
D 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 prote:cted in the respective pay scales. This
is being done because 0f the fact that the State Government is responsible
for creating such anomalous situation. Had the State Government contested
E 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.
F
Now, coming to State of West Bengal appeal, State Government has
challenged the part of finding of the Division Bench of the High Court
directing the State Government to give pay scale No.7 to the Amins. In fact,
the Division Bench has already held that on comparison of the qu.alification,
training and expertise and the work performed by the Amins and Surveyors,
G that the same cannot be equated and the two posts cannot be treated as equal.
It was observed that the responsibilities shouldered by the Surveyors and
Amins do not bear comparison yet the Division Bench directed to give pay
scale No. 7 to the Amins which, in our opinion, is not correct. Once it is
found that the Amins and Surveyors discharge different functions and their
H qualifications are not the same, then we see no reason to give the Amins
DEB NARAYAN SHYAM v. STATE [MATHUR, J.] 583

the same pay scale. The Division Bench has gone wrong while making A
observation that the surveyors with only a school pass or Madhyamik
qualification and practical experience were given scale No.7, Same being
the position with Amins, as the qualification for the Amins is same therefore
they may be given same pay scale No.7. This observation, in our view, is
not correct. This amounts to contradiction. Once it is held that the Amins B
perform different duties and different functions then how can we go back
and say that because the qualification of the Surveyors is school final pass
or Madhyamik with practical experience, they are given pay scale No.7,
similar pay scale No.7 be given to Amins as they are also required to have
same qualification is not correct. It appears that it was not brought to the
notice of the Division Bench of the High Court that for three categories of C
Surveyors i.e. persons having .certificate from Survey School, School Final
with Practical experience and with practical experience only no recruitment
has been made since 1981. While dealing with the comparative pay scales
of Amins and Surveyors as reproduced above since independence there is
note given below that recruitment with this qualification has been abandoned D
since 1981. It appears this fact was not brought to the notice of the Division
Bench of the High Court . .In order to clarify the matter, we may reproduce
the note appended below Surveyors' post which reads as under :

,, "SURVEYOR:
E
xx xx

(iii) Certificate from Survey School

(iv) School Final with Practical experience
F
(v) With practical experience only

,N.B. The last categories of qualification mentioned in (iii), (iv) and (v)
are not being recruited since 1981."
G
The attention of the Division Bench was not invited to this note. In fact
recruitment to the posts of Surveyors with these qualifications has already
been stopped since 1981. As such the Division Bench while dealing with
the Amins with these qualifications has granted the pay scale No.7 which,
in our opinion appears to be totally incorrect appreciation of fact. The order H
584 SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A 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.
B
As a result of our above discussion, we allow the appeals 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
C recovery shall be made till the date of this judgment and all these Am ins
should be given the pay scale Nos. 6, 7 & 8 as per the qualifications and
their pay shall be fixed at the appropriate stage in these pay scales and they
will be entitled to further career advancement scheme. The.re will be no order
...
as to costs.
D
NJ. Appeals dismissed.