TaxTMI 
TaxTMI 
2004 (12) TMI 691
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.... 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 A....
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....of 1982 same scale of pay as that of Surveyors. But at the same time it was clarified that the order passed in the contempt petition on August 16, 1989 will not be a precedent for any other cases and the other cases will be fought by the State Government by filing affidavits. It is unfortunate that against this order no appeal was preferred and subsequently all 36 cases which were filed by different persons same order was passed. The net result is that all these persons were given the same pay scale as that of the Surveyors. In some cases appeals were filed but the same were not pressed, in some cases appeals were dismissed and in some cases the appeals were allowed to be withdrawn. So much so that a Special Leave Petition was filed in this Court which was withdrawn. It is also unfortunate that in the State Government nobody examined the matter and they totally ignored the rules on the subject and the duties performed by the Amins and Surveyors and the Government allowed them the benefits of the pay scales of the Surveyors. Number of decisions were given by the High Court of Calcutta following the decision in Md.Anwarul Haque's case though in the said case it was clearly mentio....
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....ing drawing, topographic and hydro- graphic surveying, mine surveying, quantity surveying and costing etc. So far as the Amins are concerned, their basic qualifications are Madhyamik or equal. The post of Amin can be filled up from peons who are group 'D' employees, whereas the surveyors are appointed by direct recruitment. The amins are merely given simple and rudimentary survey equipments like Guntur's chain and optical square and other related accessories. The value of survey equipments used by the Amins ranges between Rs. 100/- and Rs. 150/-. The methodology used by the Amins for doing their job is absolutely simple. They are given training for office work for about 3-4 months when they are given first posting in erstwhile settlement camps or any other offices. It is alleged that the job of Amin begins where the job of Surveyor ends. From this the learned Single Judge inferred that the nature of duties of Surveyors and Amins are absolutely distinct and separate. Learned Judge examined and found that the Surveyors and Amins are placed in different scales of pay throughout from the report of the Second Pay Commission. Those Surveyors with qualification of Overseer wer....
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....s: "in view of the diverse submissions, the question for consideration is what the pay scale the respondents would be entitled to in view of the mandamus issued by the learned Single Judge on June 8,1987. It is not disputed that under ROPA Rules different scale of pay exist for Surveyors having different qualifications. It is not the case of the respondents that they possess the qualification for being absorbed as Overseer. On the other hand, they possess the qualification of School Final or its equivalent with practical experience. That being the position, it is unexceptionable that only scale of pay which the respondents would be entitled to pursuance to the mandamus issued by the learned Single Judge of Calcutta High Court by its order dated June 8,1987 is the scale of Rs. 340-750/- and in fact the State Government by its order dated August 25,1993 rightly granted that scale of pay. We, therefore, do not find any justification in holding the respondents guilty of contempt nor there was any justification for the Division Bench of the Calcutta High Court to order that they would get higher pay scale of Rs. 380-910/-. The aforesaid direction of the Division Bench directing....
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....Md. Anwarul Haque & Ors. (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 that the decisions in the aforesaid Civil Rule petitions were given by the Single Judge of the High Court without there being any affidavit filed by the State Government and without examining the duties and responsibilities performed by Amins and Surveyors and even no attention was paid to the order of the learned Single Judge, Justice Subhas Sen ( as he then was) while disposing of the matter it was observed that this order will not be treated as precedent. Matters were disposed of by one after the another Bench without the affidavit of the State Government, it is equally a sad state of affairs that appeals filed by the State Government against the order of the learned Single Judge were allowed to be withdrawn or were dismissed. The Division Bench examined the matter and found that the Amins and Surveyors primarily undertake survey work but the duties performed by them are essentially different. It was found that the method of recruitment and the required qualifi....
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....and their duties are not comparable and therefore, they cannot be treated at par with each other. Notwithstanding that the Division Bench observed as follows: " In fact, since surveyors with only a School Final Pass or Madhyamik qualification and practical experience were given Scale No.7, in our view, it will only be fair to give Amins having the same qualification and expertise and performing similar functions the same scale." Though the Division Bench held that the Amins stand on a different footing therefore, they cannot get the same scale of pay as that of the Surveyors but still looking to the qualification of the Surveyors with only a School Final Pass or Madhyamik qualification and practical experience they were given the pay scale No.7 & directed the State Government to give pay scale No.7 to the Amins. Aggrieved against this direction the State Government has filed Special Leave and aggrieved by the other part of order the private parties have filed Special Leave. Therefore, all these Appeals which were clubbed together are being disposed of by this common order. 4. The final direction issued by the Division Bench reads as under: "We, therefore, an....
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....ide the statutory provisions like the recommendations of the Pay Commissions, the ground realities are that the qualification, training of the Surveyors and that of the Amins are separate and therefore there is no question of the Amins being treated at par with that of the Surveyors as both are not comparable. In this connection, various documents have been filed by the State Government. It was also contended by the State Government that the Division Bench has gone wrong in giving direction for pay scale No.7 to the Amins. It was submitted that the Courts cannot give pay scale as the pay scales are given on the basis of the recommendations of the Expert Committee like Pay Commission which examines the nature of duties and qualifications for each post and if the Court started directing for giving pay scales then it will have cascading effect on the part of the other pay scales and specially in the case of Amins when Division Bench on one hand has found that both posts are not identical. Yet the Court has given Amins pay Scale No.7 which is not proper. Therefore, learned counsel submitted that the order passed by the High Court for giving pay scale No.7 on the basis of the qualificat....
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....ment scheme under ROPA Rules, 1998. All posts of Amin Grade-I, 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 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 directed by the Hon'ble Division Bench. " He further states, " Amins who have retired or expired prior to the introduction of ROPA Rules, 1998( i.e. up to 31.12.1985) will be allowed to have their retiral benefit or family pension on the basis of last pay drawn pursuant to the Court's order in scale nio.7 or 9 (unrevised) without creating any precedence." 8. 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 an....
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....e. 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 earlier 36 judgments of the High Court should be maintained. 10. 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 the Surveyors may be taken up for consideration. In support of this, lot of materials have been placed by the Amins before the Division Bench at Calcutta presided over by Justice Banerjee as well as the subsequent Division Bench presided over by Justice Altamas Kabir. Both the Division Benches have considered exhaustively all the materials placed with regard to the functions and duties of the Amins and their qualifications and have recorded a categorical finding that both Amins and Surveyors are discharging different duties as well as there is different qualifications for recruitment. In this connection, our atte....
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.... 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 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 Surveyors and the Amins are equivalent to each other. As against this, the State has relied upon the decision of the learned Single Judge (Justice Sinha, as he then was) on February 16,1995; the order passed by the Division Bench on April 6, 1998 and the order passed by this Court on November 28,2000 remitting the matter before the Division Bench and lastly, the order passed by the Division Bench in pursuance of the di....
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.... (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." 13. The Fourth Pay Commission recommended the pay scale for Amins as scale No.6 and after carefully examining the matter they recorded that the demand of the Amins for being equated with the Surveyors cannot be accepted as recruitment qualification for appointment as Amin is Madhyamik 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 be equated with that of Surveyors. A comparative chart showing the pay scales of Amins and Surveyors since Independence has also been produced before us which will give us the synoptic picture of the pay scales which have been granted from time to time reflecting the pay scales of both the posts. The same is reproduced as under. CHART SHOWING THE PAY SCALE OF AMIN AND SURVEYORS SINCE INDEPEN....
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....tructions 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 fun....
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....o 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 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.' 17. 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 nei....
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.... pay scales of the Surveyors. The State Government filed Letters Patent appeals in some of the cases 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 of Rs. 3 crore. No steps were taken 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 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 ....
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....rnishee 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 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 citation of authority", 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 at least to 1661, when counsel said: " An hundred precedents sub silentio are not material"; and Twisden, J., agreed :" Precedents sub silentio and without argument are of no moment". This Court also in the case of The Regional Manager & Anr. v. Pawan Kumar Dubey reported in AIR 1976 SC 1766 has observed as follows: ....
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....this Court while remitting back to the Division Bench of Calcutta High Court at their instance. 19. Similarly, Mr. R. Venkataramani, learned Senior counsel has invited our attention to a decision of the Australian High Court in the case of Thoday v Thoday reported in [1964] A 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. 20. In the case of Raja Sri Sailendra Narayan Bhanja Deo vs. The State 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 raised. Similarly in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P., Gwalior, & Ors. reported in (1987) 1 SCC 5, it was observed as follows : "Where a petitioner withdraws a petition filed by him in the High Court under Article 226/227 without permission to institute a fresh petition, reme....
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.... 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 emanating from the decision rendered in Md. Anwarul Haque & Abdul Bari has created the confusion. The decision in Md. Anwarul Haque'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 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 order. 24. Mr. Gupta, learned senior counsel strenuously urged before us that the whole house may be put in order and this Court may exercise its inherent jurisdiction conferred under Article 142 of th....
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....dships 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 of India. Learned 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, 2001 as directed by the Division Bench of the High Court. Therefore, we direct 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 1,2001 but since the law has now been declared by this Court, we extend that period till this date i.e. no recovery shall be effected from all these Amins in 36 writ petitions and they sha....
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.... 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, we may reproduce the note appended below Surveyors' post which reads as under : " SURVEYOR: xx xx (iii) Certificate from Survey School (iv) School Final with Practical experience (v) With practical experience only N.B. The last categories of qualification mentioned in (iii), (iv) and (v) are not being recruited since 1981." 27. 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....