IMPORTANT POINT
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, there is no question of giving them the equal pay for the equal work.

Headnote:SERVICE LAW-West Bengal Service (Revision of Pay and Allowance) Rules, 1961-Doctrine of Equal Pay for Equal Work-Posts of Amins and Surveyors in Land Acquisition Office-Whether Amins and Surveyors discharge similar duties so that Amins should be treated equivalent to the Surveyors-(No)-Post of Amin is different from that of Surveyor-Both the categories of posts discharge different functions and duties-No question of granting equal pay on the principle of equal pay for equal work -By virtue of a notification issued by the Department of Finance, Government of West Bengal, different scales of pay were prescribed for Surveyors and Amins working in different Departments under Government of West Bengal-There is no question of granting equal pay on the principle of equal pay for equal work -What is the effect of various decisions/orders passed by Single Judge in 36 writ petitions from 1986 to 1993.
       Held : 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 relating to survey work indicate that Surveyors use more sophisticated equipment involving superior training and skills than Amins. Surveyors use Theodolite for conducting traverse survey requiring knowledge of trigonometry and they are also trained in the use of equipment for the measurement of automatic levels and electronic distance measurement. The Surveyors have to undergo a two-year specialized training in different kinds of surveying such as Topographic and Hydrographic surveying and Mine surveying, and are also trained in mechanics and drawing. On the other hand, the Amins are given training in simple survey work and in the use of relatively simple equipment such as Guntur s chain, plane table, optical square. It is true that both Surveyors and Amins undertake the survey work but the nature of duties discharged by both of them are different. The Surveyors are technical persons and the Amins are non-technical persons. The Surveyors are fully qualified in the engineering surveys whereas the Amins are not supposed to 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 for both the posts, it is absolutely clear that they are separate and it is not wrong when it was submitted that the work of Amins starts after the work of Surveyors ends. The Technical Rules and Instructions of the Settlement Department as mentioned above, clearly show that the work and duties which are being discharged by the Surveyors are of technical nature by use of sophisticated instruments as against the Amins who do the job with the aid of relatively simple equipment as they are not equated with that of the Surveyors. The qualifications prescribed for the Surveyors and Amins are also different. The Surveyor is supposed to be a technically trained person and as against this, the Amin need not be. The Amins have to undergo related course of a duration of six months or so, as against the Surveyors two years certificate course. Therefore, from the survey of this discussion we are of opinion that the Surveyors stand on superior footing than that of the Amins and they cannot be equated from the functional point of view as well as qualification point of view. Therefore, we are of opinion that the view taken by the Division Bench of the High Court that the Amins cannot be equated with the Surveyors is correct. While the work and duties performed by the Amins and Surveyors are not identical, there is no question of giving them the equal pay for the equal work. The principle of equal pay for equal work depends upon the nature of duties performed by a particular category of posts and the qualifications for their recruitment. From the above discussion, it is clear that neither the duties nor functions are identical nor the recruitment for the posts of Amins and Surveyors is identical as the qualification for recruitment for both the posts is different. (Paras 14 and 15)
       It is more than clear that the post of Amin is different from that of the Surveyor as the Amins do not discharge the same duties as that of the Surveyors and as such they are not entitled to claim equal pay for equal work. All these case 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 cases and decline to grant benefit in other cases. In the present case, there are categorical finding that both the categories of posts discharge different functions and duties and there is no question of granting equal pay on the principle of equal pay for equal work. (Para 16)
       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 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 has been filed and no material has been placed by the State before the Court and neither learned Single Judge examined the detailed functions of the Amins and that of the Surveyors but only relied on an opinion expressed by the Deputy Commissioner, Jalpaiguri on a representation filed by the Amins that they discharge similar functions and duties. On the basis of that opinion alone, the Court inferred that the Amins discharge the same functions as that of the Surveyors. In fact that communication was only of a Deputy Commissioner on the representations filed by the Amins and that did not reflect the correct position. (Para 17)
       It is unfortunate that the first case which was decided by the learned Single Judge in Md. Anwarul Haque & Abdul Bari, no material was examined by the learned Single Judge that what were the exact duties of the Amins and of the Surveyors. The only communication by the Deputy Commissioner, Jalpaiguri Range was based as the decisive factor to come to the conclusion that the duties 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 precedent. But unfortunately, this judgment has been followed 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 rights of the parties. More so, the effect of these judgments was neutralized when beneficiary of these judgments filed Special Leave Petition before this Court aggrieved against the judgment passed by Justice Banerjee on the ground that all these writ petitioners in all these 36 cases were not heard by the Division Bench and their rights are going to be adversely affected. This Court set aside the judgment of the Division Bench and remitted the matter back to the Division Bench of Calcutta High Court to decide the matter after hearing these writ petitioners, this amounts to reviewing the whole issue and petitioners cannot bank upon the principle of res judicata or issue estoppel. Dr. Rajeev Dhawan appearing for some of the respondents rightly admitted that technically it may not amount to res judicata but it certainly operates as estoppel. Therefore, it is not open to make grievance for these writ petitioners that by virtue of res judicata or issue estoppel the benefit enjoyed by them cannot be withdrawn. When the whole matter has been rip open by this Court while remitting back to the Division Bench of Calcutta High Court at their instance. (Para 18)
       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 qualifications are not the same, then we see no reason to give the Amins the same pay scale. The Division Bench has gone wrong while making observation that the surveyors with only a school pass or Madhyamik qualification and practical experience were given scale No.7, Same being the position with Amins, as the qualification for the Amins is same therefore they may be given same pay scale No.7. This observation, in our view, is not correct. This amounts to contradiction. Once it is held that the Amins perform different duties and different functions then how can we go back and say that because the qualification of the Surveyors is school final pass or Madhyamik with practical experience, they are given pay scale No.7, similar pay scale No.7 be given to Amins as they are also required to have same qualification is not correct. It appears that it was not brought to the notice of the Division Bench of the High Court that for three categories of Surveyors i.e. persons having certificate from Survey School, School Final with Practical experience and with practical experience only no recruitment has been made since 1981. While dealing with 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 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. (Para 26)
       We dismiss all the appeals filed by the private appellants but direct that the benefits which have been accrued to the Amins of all those 36 writ petitions, no recovery shall be made till the date of this judgment and all these Amins should be given the pay scale Nos. 6, 7 & 8 as per the qualifications and their pay shall be fixed at the appropriate stage in these pay scales and they will be entitled to further career advancement scheme. (Para 28)

JUDGMENT

A.K. Mathur, J.-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.

3. 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 & others being Civil Rule No. 3469(W) of 1982 and the other by Abdul Bari & others being Civil Rule No. 3470 (W) of 1982, which were disposed of by order dated June 6, 1985 by learned Single Judge, Justice Subhas Chandra Sen (as he then was). The case of the petitioners in those civil rules was that they were recruited as Amins under the Land Records and Surveyors, Directorate, Government of West Bengal. It was alleged that the work of Surveyors and Amins are identical. It was also contended that the qualifications for recruitment are almost identical. Therefore, there was no difference between the surveyors and Amins in the matter of qualifications and also in the matter of work that they discharge. But by virtue of a notification issued by the Department of Finance, Government of West Bengal being Notification No 5472-F dated December 27, 1961 published in the Calcutta Gazette Extraordinary on January 2, 1962 in Part I to the West Bengal Service (Revision of Pay and Allowance) Rules, 1961, different scales of pay were prescribed for Surveyors and Amins working in different Departments under Government of West Bengal. 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,

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2004 Supreme(SC) 41

IMPORTANT POINTSurveyors 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, there is no question of giving them the equal pay for the equal work.

Cases Referred (12)

IMPORTANT POINT
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, there is no question of giving them the equal pay for the equal work.