G.N. Ray, J.@mdashThis appeal is directed against the judgment dated September 24, 1986 passed by the learned trial Judge in Civil Rule No.
5131(W) of 1981. By the said judgment, the learned trial Judge allowed the writ application and issued direction to treat the Process Servers who
are the writ petitioners at part with the Seal Bailiffs servings in the City Civil and Sessions Court at Calcutta as well as the Presidency small Causes
Court at Calcutta and to give the writ petitioners, the same pay scale, which was being enjoyed by the Seal Bailiffs with effect from April 1, 1981.
The learned trial Judge also gave direction to pay arrear dues to the writ petitioners on re-fixation of their pay scales within a period of 60 days of
the re-fixation of the pay scales Being aggrieved by the said judgement, the State of West Bengal and the Secretary, Finance Department,
Government of West Bengal have preferred the instant appeal.
2. The writ petitioners were the West Bengal Process Server Central Association represented by its General Secretary and also some of the
Process Servers serving at different stations, in West Bengal. The Writ petitioners contended that the main duty of the process servers is the
execution of orders passed by the Civil and Criminal Courts, statutory Tribunals and other Judicial and/or quasi-judicial Institutions. The process
servers execute the orders, decrees or warrants issued by different Courts and Tribunals including District Courts and Courts of the Sub-ordinate
Judges, Munsifs, Judicial Magistrates and other statutory Tribunals and Revenue Courts. It has been contended that in course of executing the
orders of the Revenue officers, the Process Servers are required to realise the revenue of the defaulters and deposit the same is different
Nationalised Banks. There is no limitation on the amount for such a realisation in execution of decree. It has been contended that the process
Servers discharge a very responsible duty even at the cost of personal safety and security in protecting and securing large amount of money to be
deposited at a later date. In course of such execution of decree the Process Servers also act like a Receiving Officer and issue proper and valid
receipts on behalf of the Government of West Bengal. In Paragraphs 11 and 11(a) of the writ petition, the duties discharged by the Process
Servers have been enumerated. It has been further stated by the writ petitioners that as the Process Servers are entrusted with the job of the
realisation of decretal amount or revenue in execution of decrees and certificates issued by the appropriate authorities, the Process Servers are
required to furnish a cash security for Rs. 2500/- and a fidelity bond for Rs. 700/- and a guarantee for Rs. 1500/-. The writ petitioners have
contended that the duties to be discharged by the Seal Bailiffs attached to the City Civil and Sessions Court at Calcutta and Presidency Small
Causes Court, Calcutta are similar to the duties performed by the Process Server''s attached in other Courts or Tribunals. The Process Servers
and the Seal Bailiffs perform similar onerous duties and there is no difference in the quantitative and qualitative nature of duties being performed by
both the said employees of the Government. It has been contended that unfortunately, although Process Servers and the said Seal Bailiffs perform
similar duties, they have not been treated similarly in the matter of scales of pay and higher scale of pay has been offered to the Seal Bailiffs. Such
discrimination according to the writ petitioners, is without my basis whatsoever and offends Articles 14 and 16 of the Constitution of India. It has
been contended in the writ petition that despite representations and demands made by the process Servers Central Association to remove the
discrimination in the matter of pay scales and to fix the pay scale of the Process Servers at par with the Seal Bailiffs, the Government of West
Bengal failed and neglected to undo the discrimination E meted out to the process Servers.
3. The learned trial Judge has inter alia, held that there was no materials to establish that the Process Servers and the Seal Baliffs were not similarly
circumstanced and they had not been performing identical nature of duties. Accordingly on the principles of ""Equal Pay for Equal Work"", which is
a well-settled doctrine of law, and a solemn assurance in the Constitution, the Process Servers must get pay scale equal to the pay scale given to
the Seal Bailiffs. The learned trial Judge has also held that simply because the Seal Bailiffs submit their returns in English and the Process Servers
submit their returns in regional language, there is no difference in the nature of the duties being performed by them. The learned trial Judge has
come to the finding that any discrimination in the matter of pay scales given to the Seal Bailiff''s and to the Process Servers is totally arbitary and
without any basis. In that view of the matter, the learned trial Judge allowed the writ petition and passed the direction as indicated hereinbefore.
4. Mr. Motilal, the learned Counsel appearing for the appellants has very strongly contended that the Seal Bailiffs and the Process Servers are not
similarly circumstanced. Because of the intricate nature of duties required to be performed by the Seal Bailiffs, the minimum educational
qualification for the Seal Bailiffs is higher than that of Process Servers. He has submitted that even if it may apparently appear that the Process
Servers and the Seal Bailiffs are performing signature of duties, there may be real distinction in the qualitative aspect of the duties being performed
by the two sets of employees. He has submitted that various factors are required to be taken into consideration for determining the exact nature of
duties being performed by a particular group of employees. Such exercise should not be made by the Court of law must be left to the expert
bodies, who have the expertise to evaluate the nature of duties being performed by the concerned employees Mr. Motilal has submitted that the
Pay Commission has taken into consideration of the representations made by the Process Servers for getting equal scale of pay but has not
accepted such demand. The Supreme Court has held that the Pay Commission is an Expert Body competent to evaluate the nature of duties being
performed by different groups of employees. He has submitted that the Pay Commission is composed of persons have expertise in different fields.
Such Pay Commission on consideration has not come to any conclusion that the duties being performed by the Process Servers are similar both
quantitatively and qualitatively with the duties being performed by the Seal Bailiffs. Precisely for the said reasons, the Pay Commission has not
recommended the same scale of pay to the Process Servers. He has submitted that the question of ""equal pay for equal work"" has often troubled
the High Court and Supreme Court and various decisions have been made. If a reference is made to such decisions it will be quite apparent that
the High Courts and the Supreme Court have laid down that there may be differences in the quantitative output of the work of the concerned
employees and on such consideration, the employees can be treated differently m the matter of giving different scales of pay. Educational
qualification has been accepted to be a basis for different scales of pay in appropriate cases, on the footing that persons having better educational
standard are likely to have better quanlitative work. In this connection, Mr. Motilal has referred to a very recent decision of the Supreme Court
made in the case of AIR 1989 29 (SC) In-the said case, the duties being performed by Technicians Gr.-II and Gr.-III were taken into
consideration and it has been held that although apparently the duties being performed by the said two groups of Technicians may appear to be the
same but there is qualitative differences in the output of the work. He has also referred to another decision of the Supreme Court made in the case
of Federation of All India Customs and Central Excise Stenographers (Recognised) and others Vs. Union of India and others, . In the such
decision, question of scales of pay amongst the Stenographer in Customs and Excise Departments and Stenographers in Central Secretariat were
taken into consideration but it has been held by the Supreme Court that there may be different in the quality of the work and the responsibility
inquired to be maintained amongst the different groups of Stenographers and for that reason different scale of pay may be given without offending
the rule of equality guaranteed by the Constitution of India. He has also referred to another very recent decision of the Supreme Court made in the
case of Supreme Court Employees'' Welfare Association and Others Vs. Union of India (UOI) and Another, . Similar view has been expressed by
the Supreme Court in the said decision. Mr. Motilal has also preferred to another decision of the Supreme Court made in the case of State of Uttar
Pradesh v. J.B. Chowrasia reported in AIR 1989, S.C. 19 where also a similar view has been taken by the Supreme Court. Mr. Motilal has
therefore, submitted that the Seal Bailiffs attached to City Civil and Sessions Court at Calcutta and the Presidency Small Causes Court at Calcutta,
where complicated cases are decided and in execution of various orders passed by such courts the Seal Bailiffs are to discharge more onerous
duties and responsibilities Such duties and responsibilities are not always required to be performed by the Process Servers, who are attached to
different Court and Tribunals. As more onerous duties are required to be performed by the Seal Bailiffs, the minimum educational standard for
recruitment to the post of Seal Bailiff''s is higher. Mr. Motilal has submitted that unfortunately, the learned trial judge has tried to be evaluate the
duties and responsibilities being performed by the Seal Bailiffs and the Process Servers and on the basis of his own assessment of such evaluation,
the impugned judgement has been passed by the learned trial judge. Mr. Motilal has submitted that if on the basis of the materials produced in the
writ proceedings, the learned trial judge was not satisfied that sufficient materials have been placed before the Court to establish that there was no
difference either quantitatively or the qualitatively in the duties performed by the said two groups of employees, the learned trial Judge should have
referred the matter for assessment by an Expert Body.
5. It may be stated in this connection that the matter was taken up for hearing and the matter was adjourned on the prayer of Mr. Motilal to enable
the appellants to furnish the materials alleged to have been placed before the Pay Commission was to establish that the relevant materials for
evaluating the nature of duties by the said two groups of employees had been taken into consideration by the Pay Commission. But despite
adjournment taken, such records have not been placed before the Court.
6. Mr. Moitra, the learned Counsel appearing for the writ petitioners-respondents, in his fairness has submitted that there may be a case when
apparently the nature and duties being performed by the two sets of employees may appear to he similar but on closer scrutiny, it may transpire
that there is qualitative difference in the nature of duties and for such qualitative difference in the nature and duties, a different scale of pay may by
given to a group of employees performing onerous duties. Mr. Moitra has however submitted that the law is well settled by the High Courts and
the Supreme Court of India that on the basis of higher academic qualification and/or professional expertise and length of experience an employee is
capable of rendering the duties in a better way and the qualitative output of such duties may be different from the duties performed by other group
of employees lacking in such educational qualification, professional training or other expertise and experience. In such circumstances, it will not be
unjust to give different scales of pay to the employees performing duties and responsibilities, which though apparently appear to be similar, are
basically dissimilar, either on quantitative aspect or on qualitative aspect of the matter. But Mr. Moitra has submitted that a bald statement to the
effect that the duties and responsibilities are dissimilar, cannot be accepted by a Court of law. The writ petitioners have enumerated the nature of
duties being performed by the Seal Bailiffs which reveal that the duties are similar. It was the bounden duty of the respondents in the writ
proceeding, who are the appellants in this appeal to establish by placing relevant materials before this Court that the nature of duties are difference
and such difference has been evaluated by the Expert Body.
7. Simply because the Pay Commission has pot recommended for similar scale of pay, it cannot be held as a matter of course that the Pay
Commission being-in-Expert Body has considered the relevant materials and on proper evaluation of the nature and duties of the Process Servers
and Seal Bailiff, has recommended different scales of pay. Mr. Moitra has submitted that in the writ proceeding before the learned trial judge,
proper materials should have been placed but for reasons best known to the State Government, such materials have not been placed before the
learned trial judge. Although, normally, the court of appeal should not give the liberty to improve the case by placing relevant materials at the stage
of hearing this appeal, such opportunity has been given on the prayer of Mr. Motilal. But no material has been placed even before the Court of
appeal to substantiate that there are relevant factors for holding that the duties and functions of the said two sets of employees are dissimilar and
any Expert Body, including the Pay Commission, has considered such relevant materials. He has, therefore, submitted that in the facts of this case,
no interference is called far in this appeal
8. After considering the respective contentions of the learned Counsels appearing for the parties, it appears to us that the position in law relating to
different scales of pay to different groups of employees, who apparently perform similar duties and functions have been correctly placed by the
learned Council for the parties. There is no manner of doubt that evaluation of difference in duties and functions require an indepth study of such
duties and functions by an Expert Body having expertise for such evaluation and Court, should not embark upon such evaluation. But if no material
is placed before the Court to indicate that there are differences in the nature of duties performed by the two groups of employees, either
quantitatively or qualitatively and it is also not established that an Expert Body.has considered the relevant materials and has evaluated the nature of
duties and on such evaluation has held that the duties and functions though apparently similar are not similar, the Court will not be unjustified in
holding that there is no material warranting to hold that the duties and functions are dissimilar. A bald statement by the concerned authority that the
duties are dissimilar, cannot always be accepted as correct. In the instant case, it appears to us that the appellants have failed and neglected to
place relevant materials before the learned trial judge and also before the Court of appeal to substantiate that the nature an duties of the Process
Servers and the Seal Bailiffs are different. In the circumstances, we do not think that the learned trial judge was wrong in holding that the scale of
pay of the Process Servers should be the same as has been offered to the Seal Bailiffs with effect from April, 1981.
9. We, therefore, find no reason to interfere in this appeal and the appeal is accordingly dismissed without any order as to costs. We, however,
give liberty to the appellants to give effect to the judgement passed by the learned trial judge within a period of 4 months from today.
S.K. Hazari, J.
10. I agree.
