Shibaji Pradhan Vs State of Odisha

IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) Nos. 6607, 4359, 6608, 6736, 6737 and 8372 of 2017, W.P.(C) Nos. 14329 and 15325 of 2016, W.P.(C) No. 2430 of 2018 and W.P.(C) No. 21072 of 2022.

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Applications under Articles 226 and 227 of Constitution of India.

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W.P. (C) No. 6607 of 2017
Durga Prasad Tripathy & Others -versus-	….	Petitioners
State of Odisha & Others	….	Opp. Parties
W.P.(C) No. 14329 of 2016
Shantilata Nayak & Others	….	Petitioners
-versus-
State of Odisha & Others	….	Opp. Parties
W.P.(C) No. 15325 of 2016
Khirod Kumar Panda & Others	….	Petitioners
-versus-
State of Odisha & Others	….	Opp. Parties
W.P.(C) No. 4359 of 2017
Duryodhan Das & Others	….	Petitioners
-versus-
State of Odisha & Others	….	Opp. Parties

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W.P.(C) No. 6608 of 2017
Chhabindra Behera & Others…. Petitioners -versus-
State of Odisha & Others …. Opp. Parties
W.P.(C) No. 6736 of 2017
Jagannath Prusti and Others …. Petitioners -versus-
State of Odisha & Others …. Opp. Parties
W.P.(C) No. 6737 of 2017
Santosh Kumar Biswal & Others…. Petitioners -versus-
State of Odisha & Others …. Opp. Parties
W.P.(C) No. 8372 of 2017
Parthasarathi Mohapatra & Others….Petitioners -versus-
State of Odisha & Others …. Opp. Parties
W.P.(C) No. 2430 of 2018
Shibaji Pradhan ….Petitioner

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-versus-

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State of Odisha & Others ….

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Opp. Parties

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W.P.(C) No. 21072 of 2022

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Dr. Debendra Kumar Nayak & Others …. Petitioners

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-versus-

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State of Odisha & Others …. Opp. Parties

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Advocate(s) appeared in these cases:-

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_______________________________________________________ For Petitioners : Mr. B. Routray, Sr. Advocate M/s. B. Satapathy, K.K. Panda & B.N. Parida, Advocates

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Vs.

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For Opp. Parties : Mr. S.N. Patnaik, (Additional Government Advocate) [ in W.P.(C) No. 6607 of 2017 ]

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For Petitioners : Mr. B. Routray, Sr. Advocate M/s. S. Das, B. Singh, R.P. Dalai, K. Mohanty, S. Jena & S.K. Samal Advocates

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Vs.

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For Opp. Parties : Mr. S.N. Patnaik, (Additional Government Advocate)

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Mr. C. Pradhan,

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[Central Government Counsel] [ in W.P.(C) No. 14329 of 2016 ]

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For Petitioners : Mr. B. Routray, Sr. Advocate M/s. L.K. Mohanty & B.K. Jena, Advocates.

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Vs.

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For Opp. Parties : Mr. S.N. Patnaik, (Additional Government Advocate) [ in W.P.(C) No. 15325 of 2016 ]

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For Petitioners : Mr. B. Routray, Sr. Advocate M/s. B. Satapathy, K.K. Panda & B.N. Parida & P.K. Dasmohapatra, Advocates.

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Vs.

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For Opp. Parties : Mr. S.N. Patnaik, (Additional Government Advocate) [ in W.P.(C) No. 4359 of 2017 ] For Petitioners : Mr. B. Routray, Sr. Advocate M/s. B. Satapathy, B.N. Parida, & K.K. Panda, Advocates

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Vs.

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For Opp. Parties : Mr. S.N. Patnaik, (Additional Government Advocate) [ in W.P.(C) No. 6608 of 2017 ]

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For Petitioners : Mr. B. Routray, Sr. Advocate M/s. B. Satapathy, B.N. Parida & K.K. Panda, P.D. Mohapatra, Advocates

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Vs.

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For Opp. Parties : Mr. S.N. Patnaik, (Additional Government Advocate) [ in W.P.(C) No. 6736 of 2017 ] For Petitioners : Mr. B. Routray, Sr. Advocate M/s. B. Satapathy, B.N. Parida & K.K. Panda, Advocates Vs.

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For Opp. Parties : Mr. S.N. Patnaik, (Additional Government Advocate) [ in W.P.(C) No. 6737 of 2017 ]

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For Petitioners : Mr. B. Routray, Sr. Advocate M/s. B. Satapathy, K.K. Panda, and B.N. Parida, Advocate

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Vs.

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For Opp. Parties : Mr. S. K. Mishra, (Additional Standing Counsel) [ in W P.(C) No. 8372 of 2017] For Petitioner : Mr. B. Routray, Sr. Advocate M/s. H.P. Rath & A.K. Behera, Advocates. Vs. For Opp. Party : Mr. S.N. Patnaik, (Additional Government Advocate) [ in W.P.(C) No. 2430 of 2018 ] For Petitioners : Mr. B. Routray, Sr. Advocate M/s. S.K. Samal, S.P. Nath, S. Routray, S. Sekhar

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J. Biswal & A.K. Das, Advocates

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Vs.

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For Opp. Parties : Mr. S.N. Patnaik, (Additional Government Advocate) [ in W.P.(C) No. 21072 of 2022 ]

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__________________________________________________________ CORAM:

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JUSTICE SASHIKANTA MISHRA

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JUDGMENT 12.02.2025

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SASHIKANTA MISHRA, J.

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These writ petitions involve common facts and

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questions of law and were therefore, heard together and disposed of by this common judgment.

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For the sake of convenience, the facts of W.P.(C) No. 6607 of 2017 are considered.

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The petitioners were engaged as Shikshya Sahayaks being duly selected and having trained graduate qualification. Such engagement was under the centrally sponsored scheme on primary education, namely, ‘Sarva Shikshya Abhijan’ and on consolidated monthly honorarium after executing agreement with the appointing authority. Their grievance is that after coming into force of

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the Right of Children to Free and Compulsory Education Act, 2009 (for short ‘the Act, 2009’) (in consonance with the provision under Articles 21-A of the Constitution) and the Odisha Right of Children to Free and Compulsory Education Rules, 2010 (for short, ‘the Rules, 2010’), they are entitled to same scale of pay and allowances etc. as prescribed for teachers under relevant State rules since they are trained graduates and performing the same nature of work as regular teachers. Not giving the such benefit amounts to gross discrimination besides being in violation of the Act and Rules. As such, it is stated that the execution of the agreement particularly, paragparhs-5 to 9 thereof, are nonest in the eye of law. It is stated that the petitioners applied for the post of Shikshya Sahayak pursuant to advertisement dated 21.01.2011 in respect of trained graduate post (Arts and Science) having requisite qualification and eligibility and have been discharging their duties as trained graduate teachers and therefore, they cannot be denied the scale of pay given to the regular teachers. It is also stated that under the Odisha Elementary Education (Method of Recruitment and

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Conditions of Service of Teachers and Officers) Rules, 1997 (for short, the Rules, 1997), there was provision for filling up 60% vacancies of the post of Level-V teachers by way of direct recruitment from candidates having passed High School Certificate Examination/Higher Secondary Examination with C.T. training course and the remaining 40% vacancies to be filled up by candidates having Bachelors Degree in Arts or Science or Commerce or examination equivalent to Bachelor Degree in Education. As such, there was no bar or any impediment in allowing

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trained graduate scale to them at the time of initial engagement. On such facts and grounds the petitioners have filed these writ petitions with prayer to allow them trained graduate scale with all other benefits in terms of Rule-18 of the 2010 Rules as also for quashing paragraphs- 5 to 9 of the agreements executed by them.

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Stand of the State is that the petitioners’ had applied for the post of Shikshya Sahayak pursuant to advertisement dated 21.01.2011 published in daily newspapers. It was clearly mentioned in column No.8 of

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said advertisement that Shikshya Sahayaks will get Rs.4000/- towards honorarium per month. Being fully aware of the terms and conditions, the petitioners applied for engagement and being selected, were engaged. It is also the stand of the State that in Resolution dated 06.08.2013 issued by the Government laying down guidelines for recruitment of Shikshya Sahayaks for the year 2013-2014, it is mentioned under Point No.1 that Shikshya Sahayaks (trained and untrained) will get consolidated monthly remuneration as decided by the Government from time to time. The petitioners being selected received engagement order and joined as such after duly executing agreements with the Chief Executive Officer, Zilla Parishad. In paragraph-6 of the agreement, it is clearly mentioned that they shall not claim service benefit as admissible to the State Government employees and under Paragraph-7 it is provided that they shall not be eligible to get any other allowance nor claim any other dues except the honorarium as per paragraph-5. Further, as per Resolutions dated 09.11.2009 and 01.08.2011, the petitioners after completion of six years of satisfactory service as Shikshya

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Sahayak and Junior Teacher are entitled to be appointed as regular Primary School Teacher in the scale of pay as applicable to Level-V of elementary cadre teachers.

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Heard Mr. Budhadev Routray, learned Senior Counsel in all the writ petitions assisted by Mr. B. Satpathy, Mr. L.K. Mohanty, Mr. H.P. Rath and Mr. S.K.Samal for the petitioners and Mr. S.N. Patnaik, learned Addl. Government Advocate for the State.

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Learned Senior Counsel, Mr. Routray first draws attention of this Court to Section-23 of the 2009 Act to submit that Sub-section-3 thereof provides that the salary and allowances payable to and the terms and conditions of service of teacher shall be such as may be prescribed. Further, as per rule making power under Section-38(2)(l), the appropriate Government has been empowered to make rules with regard to salary and allowances etc. Accordingly, the Central Government framed the Right of Children to Free and Compulsory Education Rules, 2010 of which Rule-20(3) provides for parity in scale of pay and allowances etc. for similar qualification, work and

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experience. Mr. Routray further argues that in exercise of the power conferred by Section-38 of the 2009 Act, the State of Odisha has also framed in 2010 Rules of which Rule-19 provides for parity in the scale of pay and allowances etc. of teachers with similar qualification, work and experience prescribed for the teachers under relevant State rules. Referring to the Orissa Education (Recruitment and Conditions of Service of Teachers and Members of the Staff of Aided Educational Institutions) Rules, 1974 (for short, the Rules, 1974), Mr. Routray invites attention of the Court to Rule-9 thereof, which provides that every employee of an aided institution shall draw the same pay, dearness allowance and subsistence allowance as admissible to his counterpart in the Government educational institutions. Mr. Routray would then argue that the mandate of law is to provide equal pay to persons doing equal work. In the case at hand, the petitioners were though appointed as Shikshya Sahayaks, were performing the duties of trained graduate teachers. Therefore, they cannot be discriminated in the matter of payment of salary and other allowances with their counterparts in the regular

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establishment as the same would be in violation of Article 14 of the Constitution of India.

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Per Contra, Mr. S.N. Patnaik, learned State

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Counsel questioning the maintainability of the writ petition argues that the law of estoppel would apply to the petitioners in full force inasmuch as having fully understood the nature of engagement as indicated in the advertisement and having accepted the specific terms and conditions of such engagement as per the agreement duly executed by them before joining as Shikshya Sahayaks, it

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is no longer open to the petitioners to question the correctness of the said terms and conditions at this belated stage. On merits of the claim, Mr. Patnaik would argue that all the statutory provisions referred to by the Senior Counsel would be applicable to persons employed as teachers on regular basis but not to Shikshya Sahayaks, since their engagement is purely schematic and tenurebased being subject to renewal from year to year depending on performance. Moreover, Shikshya Sahayak cannot be

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equated with the regular teacher. Therefore, by no stretch

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of imagination, the petitioners can be held entitled to the regular scale admissible to the trained graduate teachers.

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It is not disputed that the petitioners in (W.P.(C) No. 6607 of 2017) had applied for engagement as Shikshya Sahayak pursuant to advertisement issued on 21.01.2011 for filling up 553 posts of Shikshya Sahayaks in the Revenue District of Dhenkanal. The advertisement was for engagement of trained graduate and trained +2 teacher in Science and Arts. The claim of the petitioners that they had BSc., BEd. qualification is admitted by the State in its counter. Reference to the advertisement, copy of which is enclosed as Annexure-A/7 to the counter filed by the State, reveals that the engagement was to be on yearly agreement basis and that the trained Shikshya Sahayaks shall be entitled to Rs.4000/- as consolidated monthly honorarium. The advertisement appears to have been issued in pursuance of the guidelines issued by the Government in School and Mass Education Department Resolution dated 10.01.2011 of which paragraph-9.1 mentions that the Shikshya Sahayak (trained and untrained) will get

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consolidated monthly remuneration as decided by the Government from time to time. It is undisputed that the petitioners being selected executed an agreement, a sample of which is enclosed in the writ petition as Annexure-3. Paragraphs-5 to 9 of the agreement read as follows:-

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“5. That the Second Party shall be paid Rs…………(Rupees…………) only per month as consolidated honorarium.

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6. That, the Second Party shall not claim the service benefits as admissible to the State Government employees.

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7. That, the Second party shall not be eligible to get any other allowance and shall not claim any other dues except the honorarium as mentioned in Clause(5) above.

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8. That, the Second Party shall not be eligible subject to exigency of Public Service for casual leave of 12 days during academic year.

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9. ‘That, the Second Party shall not be entitled for any other kind of authorised absence beyond authorised leave. If he/she remains absent with permission and he/she does not have any authorised leave at his/her credit the proportionate amount from/his/her consolidated remuneration shall be deducted.”

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9 . It is thus crystal clear that the petitioners being fully aware of the terms and conditions of the engagement

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had applied for engagement and being selected were also engaged as such after executing agreement with terms and

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conditions referred above. Such engagement was in the year 2011-12. By such time, the 2009 Act as well as 2010 Rules were already in operation. Nothing has been stated in the writ petition as to why the claim which is being raised now was not raised when the advertisement was published. So, having willfully accepted the terms and conditions of the engagement as notified in the advertisement, the agreement and the order of engagement, it is obviously not open to the person concerned to turn around at such belated stage and question the terms and conditions of his engagement. This Court is therefore, of the considered view that the law of estoppel would apply in full force.

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Having held as above, this Court would still proceed to examine the claim of the petitioners on merits in view of the argument of learned Senior Counsel that there can be no estoppel against law. Before doing so, this Court would like to keep in perspective certain fundamental principles of law governing the field.

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11. It is well settled that the policy decision of the Government regarding recruitment is not amenable to

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judicial review unless the same is arbitrary as was held by the Supreme Court in the case of State of Odisha and Others v. Bhikari Charan Khuntia and Others 2003¹ . In this context, reference to the Resolution dated 10.01.2011 would reveal that Government, taking note of the 2009 Act and the 2010 Rules decided to engage Shikshya Sahayaks in the manner prescribed. Thus, it is the Resolution dated 10.01.2011, which resulted in publication of the advertisement. Significantly, the Resolution itself has not been challenged. It has been however argued that the Resolution as well as the advertisement are not in consonance with the provisions of 2009 Act and 2010 Rules. In other words, it is contended that there is no reasonable nexus between the advertisement and the object sought to be achieved thereby.

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It has been argued at length that both the 2009 Act as well 2010 Rules unequivocally provide that the State is obliged to maintain parity in scales of pay and allowances etc. for similar qualification, work and

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1 10 SCC 144

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experience prescribed for teachers under relevant rules.

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Rule-9 of the 1974 Rules has also been relied upon in this

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regard. Section-23 of the 2009 Act reads as follows:-

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“ 23. Qualifications for appointment and terms and conditions of service of teachers .-(1) Any person possessing such minimum qualifications, as laid down by an academic authority, authorised by the Central Government, by notification, shall be eligible for appointment as a teacher.

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(2) Where a State does not have adequate institutions offering courses or training in teacher education, or teachers possessing minimum qualifications as laid down under sub-section (1) are not available in sufficient numbers, the Central Government may, if it deems necessary, by notification, relax the minimum qualifications required for appointment as a teacher, for such period, not exceeding five years, as may be specified in that notification:

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Provided that a teacher who, at the commencement of this Act, does not possess minimum qualifications as laid down under subsection (1), shall acquire such minimum qualifications within a period of five years:

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(3) The salary and allowances payable to, and the terms and conditions of service of, teachers shall be such as may be prescribed.”

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Part-VI of the Central Rules, 2010 relates to teacher in which Section-17 relates to minimum qualification, while Section-20 deals with salary and

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allowances and conditions of service of teachers. Similar provisions are available in 2010, State Rules. Rule-9 of the 1974 Rules refers to employee of an aided educational institution.

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As against the above, Shikshya Sahayak is a person engaged under a scheme on specific terms and conditions upon executing a contract. In the case of Sri Susanta Kumar Sethi v. State of Odisha and Others (in W.A. No. 86 of 2018), a Division Bench of this Court while deciding a matter in the context of applicability of the provisions of Odisha Reservation of Vacancies bin Posts and Services (for Scheduled Castes and Scheduled

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Tribes) Act, 1975 held that the nature of engagement of a Shikshya Sahayak being contractual the said Act will not apply. It is not the case of the petitioners that as Shikshya Sahayaks they were occupying ‘any post’ under the State Government akin to regular teacher or even equal to teachers employed by the aided educational institutions. In fact, from the very nature of the engagement, it is clear that Shikshya Sahayaks, though essentially performing the

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duties of teaching actually form a class of their own . At this stage, it is argued that neither the 2009 Act nor the 2010 Rules makes any distinction with regard to the nature of engagement and therefore, the principle of parity envisaged therein cannot be given a go bye. In other words, the principle of equal pay for equal work has been harped upon by invoking the principle of equality under Article 14 of the Constitution.

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In this context, it would be profitable to refer to the constitution Bench judgment of the Supreme Court in the case of Kishori Mohanlal Bakshi vs. Union of India and Others ,² where a claim of equal pay for equal work was rejected. Explaining the principle enunciated in Kishori (supra) a three Judge Bench of the Supreme Court in the case of Randhir Singh & another vs. Union of India & Others,³ held as follows :-

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“Kishori Mohanlal Bakshi v. Union of India is not itself of any real assistance to us since what was decided there was that there could be different scales of pay for different grades of a service. It is well known that there can be and there are different

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2 AIR 1962 SC 1139

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3 (1982) 1 SCC 618

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grades in a service, with varying qualification for entry into a particular grade, the higher grade often being a promotional avenue for officers of the lower grade. The higher qualification for the higher grade, which may be either academic qualifications or experience based on 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.”

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It was also held as follows:-

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“Construing Articles 14 and 16 in the light of the Preamble and Article 39 (d) we are of the view that the principle ‘Equal Pay for Equal work’ is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though these drawing the different scales of pay do identical work under the same employer.”

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Again in the case of Supreme Court Employees Welfare Association etc. vs. Union of India and

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another ,⁴ the Supreme Court held as follows:-

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“In other words, where unequal pay has brought about 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 & reasonable & 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

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4 AIR 1990 SC 334

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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.”

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In the case of Andhra Pradesh, Special Teachers vs. State of A.P .⁵ , the Supreme Court rejected the claim of equal pay for equal work of special teachers appointed under a special scheme as nature of the job was not the same as those of regular school teachers. In the

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case of State of Madhya Pradesh & Others vs. Ramesh

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Chandra Bajpai⁶ , the Supreme Court held as follows:-

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“ It is well settled that the doctrine of equal pay for equal work can be invoked only when the employees are similarly situated. Similarity in the designation or nature or quantum of work is not determinative of equality in the matter of pay scales. The Court has to consider the factors like the source and mode of recruitment/appointment, qualifications, the nature of work, the value thereof, responsibilities, reliability, experience, confidentiality, functional need, etc. In other words, the equality clause can be invoked in the matter of pay scales only when there is wholesale identity between the holders of two posts.”

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Thus, what emerges from a conspectus of the

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law as it has evolved regarding the doctrine of equal pay for

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5 JT 1988 (3) SC 5

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6 2009(13) SCC 635

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equal work is that the same can be invoked only when there is wholesale identity between the holders of two posts.

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Viewed on the touchstone of the above propositions of law there can be no gainsaying that a Shikshya Sahayak being essentially a contractual engagee under a scheme can hardly be compared to a regular teacher governed by the relevant statutory rules framed by the State. To amplify a person engaged as per the provisions of the Rules, 1997 is governed by the said Rules from the date of his appointment onwards. On the other hand, a Shikshya Sahayak has to complete three years of satisfactory service to be eligible to become junior teacher and only after completion of three years of satisfactory service as a junior teacher, in all amounting to six years, will he be entitled to be a regular teacher in the post of Level-V of the elementary grade. He thus attains parity with person appointed otherwise as per the provision of 1997 Rules only after six years. Therefore, by no stretch of imagination can a Shikshya Sahayak be treated as being

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equal to a regular teacher appointed under the Rules notwithstanding the fact that, he may be performing similar service as the latter.

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19 . Thus, from a conspectus of the analysis of facts and law as made above, this Court is of the considered view that the pay scales applicable to regular teachers cannot be applied to the Shikshya Sahayaks. There is no wholesale identity between the regular teachers and Shikshya Sahayaks, so as to treat them as equals. As such, their claim of equal pay for equal work cannot be treated as valid and justified.

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