Dipak Bose vs State of West Bengal

Basudeva Panigrahi, J.—In the above three writ petitions there being common question of law and facts were heard together and are disposed of under a common order. The Petitioners in all the three above-mentioned writ petitions filed application under Article 226 of the Constitution of India a writ in the nature of mandamus against the opposite parties directing them to keep the same scale of pay in par with the Surveyors working in different departments.

These Petitioners joined service between 1974 and 1985 after being recruited as Amins on different dates. They are now attached to different District Land and Land Reforms Offices in Midnapore, Hooghly and South/ North 24-Parganas. It is further case of the Petitioners that they were appointed on the basis of certificates obtained from the Survey Training Institute possessing the qualification to be appointed as Surveyors and Amins. Previous to these writ petitions there were number of cases filed by the different groups of Amins claiming parity in the scale of pay with the Surveyors. The Surveyors Association moved an application under Article 226 of the Constitution of India in C.R. 518(W)/65, and during the pendency of the said Rule the Government issued a notification vide No. 5212F dated December 30, 1990. The Amins those who worked during the period of 1961 were allowed to draw the scale of pay of Rs. 100-140. In a previous litigation it appears that the Single Judge of this Court Hon''ble D. Basu J. as His Lordship then was, directed to remove the anomaly in the scale of pay between the Amins and Surveyors. Pursuant to the said direction the discrepancy whatever existed between the scale of pay of Amins and the Surveyors was removed. In obedience to the direction of the Court in C.R. 518(W)/65 the Government, inter alia, passed an order giving the same salary to the Petitioners in the above case as that of the Surveyor, in another C.R. 193(W)/74 the same order was passed. So far as these Petitioners are concerned, such discrepancy still existed and no step was taken by the Respondents for rationalization of their scale with the scale of pay of the Surveyors. Therefore, they challenged in these writ applications that the action of the Respondents in not giving same salary as that of the Surveyor is unreasonable, capricious and irrational. The Government should not have allowed such discrimination to exist in the scale of pay of both the categories of employees.

In another writ application, i.e. C.R. 6053(W)/78 and C.R. 6593(W)/78 His Lordship Sabyasachi Mukherjee J., as His Lordship then was, even allowed the special allowance to the Petitioners of that case as that was admissible to the Surveyors. When the Respondents did not rise from their slumber and had refused in giving the same scale of pay as admissible to the Surveyors, these Petitioners were constrained to file the above-mentioned writs. The Respondents Nos. 1 to 5 filed their affidavit-in-opposition where they have claimed that the qualification of the Amin is entirely different than that of Surveyor. In case of Amin a candidate has to pass School Final or its equivalent by the Board of Education, West Bengal. For recruitment to the post of Amin the knowledge of survey has not been described as prerequisites while in case of the Surveyors essential qualification includes that a candidate should possess his proficiency in survey knowledge and a pass certificate in the Senior Survey Course conducted by the West Bengal Survey Institute or a National Trade certificate, it is further claimed that the nature of duties as performed by the Amin is not identical to that of the Surveyor. The responsibility in case of a Surveyor is onerous than that of an Amin. The Amins are required to be acquainted with plain table gunter''s chain, optical square etc., whereas the Surveyors are to perform with sight vane, theologize, prismatic compass and other complicated and intricate and hazardous nature of job which requires super-technical knowledge.

In para. 4 of the affidavit-in-opposition of the Surveyors and the Amins and their scale of pay have been quoted in extenso. Since different types of jobs are being performed by Amins and Surveyors, principle of equal pay for equal work is not applicable. Surveyors are included as members of the Subordinate Engineering Service, whereas in the case of Amins for their lack of proficiency in survey have not been included in that category. Therefore, their performance of service being dissimilar than that of the Surveyors they cannot claim any financial benefit as is admissible to the Surveyors. The Government has to pay the salary in par with the Surveyors to some other Petitioners in the afore-mentioned writ cases under the threat of contempt proceeding. Therefore, in such circumstances the Petitioners cannot claim as precedents for getting the similar scale as admissible to the Surveyors.

The learned Counsel for the Petitioners Mr. Murari Mohan Das highlighted in course of hearing by placing Xerox copies of judgments passed in C.R.6066(W)/89, F.M.A.T. 3448/91 and C.R. 5748(W)/84 that some of the Amins working at different stations even their association filed a batch of writ petitions claiming the similar scale of pay as that is admissible to the Surveyors. He also indicated that the Government has worked out a direction issued by the Court and the pay scale as admissible to the Surveyors was allowed to those Petitioners. Strong reliance was placed on the affidavit-in-opposition filed on behalf of the Respondents in C.R. 6239(W)/86 and the learned Counsel vehemently argued that the same stand, as is presently 1 ken had also been placed before the Court, and this Court after hearing the parties at length passed a rule in C.R. No. 5748(W)/84 directing the Respondent State Government to give the scale of pay of Rs. 380-910 with effect from April 1, 1981.

The Petitioners filed a copy of the application purported to have been filed by the then Finance Secretary in C.R. 6444(W)/82 for modification of the order. It has been stated in the affidavit-in-opposition in pare 4 �

The Petitioner states that under the recommendation of the 2nd Pay Commission as also in terms of the order passed by this Hon''ble Court in some cases the Petitioners Amims have been allowed Surveyor''s Pay scale of Rs. 380-910 under the ROPA Rules, 1981, but the special pay, special allowance etc. have not been sanctioned to them.

In the payer it is also stated:

a) The order dated 9.9.87 passed by the Hon�ble Mr. Justice Mohitosh Majumdar be suitably modified or clarified by direction that the writ Petitioners be paid the same scale of pay as that of the Surveyors under the ROPA Rules, 1981.

Mr. Das took an inexorable plea that these Petitioners did not ask for more than that was admitted by the Government in the application filed by the then Finance Secretary. It is further argued that when a large number of Amins had already got such benefits by filing bunch of writ applications, and sequel to these cases Government has already permitted them to draw the scale of pay as admissible to the Surveyors, then why these Petitioners and other Amins those who could not file writ application, be deprived from such benefit.

Mrs. Monjuri Gupta, learned Counsel appearing for the State, urged with strong intensity of conviction that the Petitioners without satisfying the requirements of equal pay for equal work cannot lay their claim only on the basis of the previous-judgment. She stated in her argument that the Surveyors were to perform high technical skill while carrying out survey by handling super-technical instrument like sight vane, theologize, prismatic compass etc. and they were required to take complicated mathematical calculation on the basis of field data for accurately plotting the position of the control points. Whereas Amins are required only to carry out plain-sheet survey and general survey. The nature of duties assigned to the Surveyors not being identical and similar to that of the Amins, the later cannot claim the same salary as admissible to the Surveyors. In Surveyors grade different cadres have been created such as passed LCE, passed Surveyor-overseer, passed surveyorship from Survey School, Matriculate or School Final with practical experience or promotion from Amin. Non-Metric with practical experience, i.e. on promotion from Amin. It being a promotional post from Amins the Petitioners cannot claim such higher scale. These points though raised in the previous writ petition having not been answered the Respondents are not estopped from agitating the same stand in this writ petition. She has also placed reliance on the following decisions, reported in AIR 1989 S.C.19, 1994(1) S.C.750 (U.C.). 1994 (1) (U.C.) S.C. 797.

It is further contended by the State that a separate body was constituted to look to the grievance of different category of employees and to decide questions relating to their salary and other benefits, if any. Since the Pay Commission has given separate scale of pay to Surveyors and Amins, therefore, it is not for the Court to deal with the decision of Pay Commission and to allow the same scale of pay to the Petitioners. The learned Counsel for the Respondents placed reliance on the Xerox copy of the judgment in F.M.A. 73 of 1987, dated August 27'', 1990, passed by Mr. Ganendra Narayan Ray J., as His Lordship then was. But on a close reading of the judgment it appears that the aforementioned case has no application to the present case inasmuch as that was a writ application filed by the Petitioner who was working- as a Surveyor and had claimed parity in the scale of pay with the draftsman. The Division Bench held that the selection of two categories of employees was separate having different educational qualification and professional expertise knowledge. Therefore, the Petitioner in that case could not have claimed parity in the scale of pay with the draftsman. The said case is inapplicable to the present one. In the case of Randhir Singh Vs. Union of India (UOI) and Others, the Court fixing the guideline under which the parity between two categories of employees could be maintained. It has been held, construing Articles 14 and 16 in the light of the preamble and Article 39(d), it is clear that the principle ''Equal pay for Equal work'' is deducible form those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.

It is true that equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for Courts but where all things are equal, that is, where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter or their pay merely because they belong to different departments. Of course, if officers of the same rank perform dissimilar functions and the powers, duties and responsibilities of the posts held by them vary, such officers may not be heard to complain of dissimilar pay merely because the posts are of the same rank and the nomenclature is the same.

It is well-known that there can be and there are different grades in a service, with varying qualifications for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualifications for the higher grade which may be either qualifications or experience based on the length of service, reasonably sustain the classification of the officers into two grades with different scales of pay. The principle of equal pay for equal work would be an abstract doctrine not attracting Article 14 if sought to be applied to them.

It cannot be said that the Court has no jurisdiction and the employees have no remedy, if they are unjustly treated by the arbitrary action of the State. The Supreme Court in the case of State of Madhya Pradesh and Anr. v. Pramod Bharttya and Ors. 1993 (1) S.A.C.539 has laid down the law as stated below:

Equal pay for equal work is implicit in the doctrine of equality enshrined in Article 14, it flows from it. Because Clause (d) of Article 39 spoke of "equal pay for equal work for both men and women" it did not cease to be a part of Article 14. To say that the said rule having been stated as a Directive Principle of State Policy is not enforceable in a Court of law is to indulge in sophistry. Parts IV and III of the Constitution are not supposed to be exclusionary or each other. They are complementary to each other. e rule is as much a part of Article 14 as it is of use (1) of Article 16. Equality of opportunity guaranteed by Article 16(1) necessarily means and involves equal pay for equal work. It means equally that it is neither a mechanical rule nor does it mean geometrical equality. The concept of reasonable classification and all other rules evolved with respect to Articles, 14 and 16(1) come into play wherever complaint of infraction of this rule falls for consideration.

In the aforementioned case the Supreme Court relied upon an earlier Bench decision in the Supreme Court, in Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, where it has been held:

It follows from the above decisions that although the doctrine of ''equal pay for equal work'' does not come within Article 14 of the Constitution as an abstract doctrine, but if any classification is made relating to the pay scales and such classification is unreasonable and/or if unequal pay is based on no classification then Article 14 will at once be attracted and such classification should be set at naught and equal pay may be directed to be given for equal work, in other words, where unequal pay has brought about a discrimination within the meaning of Article 14 of the Constitution, it will be a case of ''equal pay for equal work'' as envisaged by Article 14 of the Constitution. If the classification is proper and reasonable and has a nexus to the object sought to be achieved the doctrine of ''equal pay for equal work'' will not have any application even though the persons doing the same work are not getting the same pay. In short, so long as it is not a case of discrimination under Article 14 of the Constitution, the abstract doctrine of ''equal pay for equal work'', as envisaged by Article 39(d) of the Constitution, has no manner of application, nor is it enforceable in view of Article 37 of the Constitution. Dhirendra Chamoli v. State of U.P. is a case of ''equal pay for equal work'', as envisaged by Article 14, and not of the abstract doctrine of ''equal pay for equal work''.

Therefore, keeping the aforesaid principle in mind let me now examine how far the claim of the Petitioner is justified for the parity in the scale of pay of the Surveyor. The learned Counsel for the Petitioner has taken me through the affidavit-in-opposition filed by the Respondents Nos. 1 to 5. In CO. 14/11 (W)/91 the Respondents filed an affidavit-in-opposition where they mentioned the scale of pay at different times and respective qualifications. Prior to 1981 ROPA Rules there were four grades of Surveyors with different scale of pay. But in the last ROPA Rules, 1981, such distinction was done away and uniform scale of pay was given to all the four categories of Surveyors fixing Rs. 380-910. The 5th categories of Surveyors those who were getting promotions from the Amins were given the scale of Rs. 180-350 and now their scale of pay is fixed at Rs. 380-910. The Amins were getting Rs. 180-350 prior to this 1981 Pay Revision, but now their scale is fixed at Rs. 300-685. Therefore, the Respondents while fixing the scale of pay of these Petitioners adopted different standard which is said to be arbitrary, illogical and discriminatory.

It is to be considered whether the Petitioners are performing the same or similar duties with equal skill, effort and responsibility. The equality of work may vary from post to post. It may also vary from institution to institution. We cannot ignore or overlook this reality. In this case, the State has taken the stand that the Surveyors are having better skill than the Petitioners who are performing as Amins. In this connection the learned Counsel for the State has invited my attention to para. 3 of the affidavit-in-opposition which is quoted hereunder:

With reference to the statements made in paras. 2 and 3 of the writ petition, I deny and dispute each and every allegation made therein. I state that recruitment qualifications of Amins and Surveyors are not and were not the same. Pre-1973 Amins required no qualification. They were recruited as per terms and conditions imposed by the Board of Revenue, West Bengal. From 1973, minimum qualification of Amins has been prescribed as School Final or its equivalent by the Board of Revenue, West Bengal. For recruitment in the post of Amin knowledge of survey work has not been prescribed as an essential qualifications, while essential recruitment qualification for Surveyors include inter alia a pass certificate in the senior survey course conducted by the West Bengal Survey Institute or a National Trade Certificate in the Trade of Surveyors conducted by the Institute of Industrial Training. I state that the Amins do not need to have any technical qualification before their entry to service as those of Surveyors. I state that nobody is considered as a candidate to appear at the competitive examination for recruitment to the post of Surveyors without acquiring a Senior Surveyorship Certificate from the above institute, but anybody may be considered as a candidate to appear at the competitive examination for recruitment to the post of Amins only by passing the School Final or Madhyamik Examination without having any technical qualification such as Senior Surveyorship Certificate. I state that both the cadres are recruited differently by different advertisement and tests. So it may be stated that the recruitment rules of Surveyors are different from those of Amins and the claims of the Petitioners are not justified.

I further state that it is not a fact that the work of the Surveyors and Amins are identical and same. The nature of duties, responsibilities and skill of Surveyors are higher than those of Amins. The duties, responsibilities and function of Amins in the erstwhile Settlement Officer and the Surveyors of the Directorate of Land Records and Surveys are not the same and identical in nature. For examples Surveyors belong to a different cadre under the Directorate of Land Records and Surveys, work with the dolomite, steel and chains, substance bar and observe astronomical bodies during rights and other instruments required for surveyor control points, whereas the Amins are in no way entitled to use and handle aforesaid sophisticated instruments. I state that the Surveyors are to do measurement of angles and distance and observation of celestial bodies for determination of true north direction, i.e. direct north axis, all with the aim of determining the relative geographical positions of a few points scattered over the area under survey, and this particular job of Surveyors are needless to mention, I state that the Amins are in no way entitled to perform or equipped with these bodies. Surveyors are to do complicated mathematical calculations on the basis of these field data, for accurately plotting the position of the control points on a plain sheet of mapping paper. I state that the Amins work with the working sheets prepared by Surveyors. That is to say that the Amins start where the Surveyors leave. Amins have no role in the initial complicated purely technical job of finding of control points over the area to be surveyed and plotting of those points on plain paper through complicated mathematical process. Amins are not .� d to use sight vane, theologize, prismatic compass etc. which are equipment of Surveyors. Amins work with plain table, G�nter chain, optical square etc. which are very simple apparatus. Actually the Surveyors are to do more complicated part of the jobs as are broadly mentioned in Memorandum No. 15834 (14) - LA. dated the 18th September. 1956. Each item of the job mentioned in this communication is divided and sub-divided in several parts. The Surveyors are to do more complicated portions of the jobs requiring technical skill and knowledge, while Amins are to do the less complicated portions of the job for which no technical knowledge is essential.

The learned Counsel for the Petitioner has, however, strongly urged that the Government has been taking the similar stand previously in other writ petitions and such stand has been discarded. He has filed the copies of the affidavit in C.R. No. 6239(W)/86 ; in para. 3 the same type of objection had been taken. The learned Single Judge taking such averment made in the affidavit-in-opposition into consideration rejected the plea of the State and allowed the prayer of the Petitioners in that case that they were entitled to the salary and all other benefits that were available to the Surveyors. The State Government has abided by the result of the writ application and allowed the Petitioners of that case the same scale as that of the Surveyors and issued notification dated October 14, 1993, vide Memo No. 115442/1(11). In another writ application a group of Amins filed a writ petition claiming parity in the scale of pay with the Surveyors. Mahitosh Majumdar J., as His Lordship then was, after carefully considering the contentions of the Respondent State rejected its plea and allowed the Petitioner in that case the same scale as that was admissible to the Surveyors. In the said decision it has been held:

The main job of Amins is of a technical nature. They are engaged in cadastral survey, that is, the preparation of mouza maps. They have to correct maps and to ink them up as the first step towards final printing. They also have to make final enquiries regarding the alignment of land when they are so directed by a recording of a mapping. They also have to identify plots on the field for the purpose of survey and settlement as well� as for other purposes including the distribution of land among eligible categories. In brief, they do all the technical work in connection with the preparation of maps except traverse work and final preparations and printing of maps. At the point of recruitment, their qualification is added the training given to them while in service. During the lean season, they also to work in connection with the preparation of records. There is also no denying that the job of an Amin is responsible, laborious and sometimes complicated. The work of designated draftsman and surveyor is, however, different from that of Amins, though all of them do technical work and partake in the exercise of map making. Regarding their demands for being recognised and resigned as Surveyors and for drawing incidental benefits, it is not known if this point was agitated before or considered "by the last Pay Commission. The Amins are employed for the greater part of their career in arduous field work. This means separation from their families for long spell and also hard physical labour, often this involves keeping double establishments. Besides, Amins have to undertake extensive journeys to fields where no public transport may be available. As such, practically all of them have to keep cycles. On these grounds Kanungos have been granted by-cycle allowance by Government. The designated Surveyors also get field allowance for the same reasons. For these reasons, Kanungos have been also granted special pay. In the opinion of the undersigned, same financial compensation may be given to the Amins who work under the same condition. For by-cycle allowance, proposal have already been initiated by the Directorate to the Board of Revenue. The same recommendation is made herewith in respect of special or field allowance also. This may be sympathetically considered. It is not understood as to how and why Amins are to come to Court for similar benefits.

The learned Counsel for the State again placed reliance on the decision in Secretary, Finance Department and others Vs. West Bengal Registration Service Association and others, and Shyambabu Verma v. Union of India 1994 (1) U.J.S.C. 979. On a close reading of the above decisions i found the facts in those decisions were entirely different. So far the principle is concerned that there can be hardly any quarrel. Therefore, those decisions, in fact, are inapplicable to the present case.

The Amins are hardly required to take any training in survey before their appointment, whereas the Surveyors'' knowledge in survey is a prerequisite qualification. But after selection of Amins they are bound to undergo a training for acquiring proficiency in survey knowledge and they are posted as such. I do not find that the Surveyors are having more knowledge in hypertechnical skill so as to claim themselves superior to the Amins. Both perform the same type of work with equal responsibilities. They evidently work in different office. But that does not debar the Amins to claim same salary with the Surveyors. If such distinction is, however, maintained, then it would be a breeding ground for discontentment, browbeating and rancor. Therefore, to avoid such anomaly the previous, writ application had been allowed directing the Government to give the same salary to the Amins as that is admissible to the Surveyors. In different batches separate group of Amins have filed writ applications and obtained relief by getting parity in the scale of pay with the Surveyors. To maintain the same standard it should have been apposite for the State Government to allow the same salary as has been given to other Amins, but instead the State Government has turned volte-face and rejected their prayer. Thus, the refusal of the Respondents giving the same scale of pay in parity with the Surveyor cannot be approved as legal, proper and valid.

In the result, I allow the writ petitions. The Respondents are directed to give the scale of pay to the Petitioners in parity with the Surveyors in the scale of pay of Rs. 380-910 with effect from April 1, 1981.

There will be no order as to costs. .

The learned Counsel for the Respondent moves for stay of operation of the order. I do not find any justification to grant any. Accordingly, the prayer for stay is refused. If certified copy of applied for the office is directed to deliver the same immediately.