Orissa High Court
Sanjaya Kumar Panda vs State Of Odisha on 24 February, 2023
IN THE HIGH COURT OF ORISSA : CUTTACK.
WPC(OAPC) No. 168 of 2014
(An Application under Articles 226 and 227
of the Constitution of India, 1950)
1. Sanjaya Kumar Panda
2. Ramesh Kumar Behera
3. Sankarsan Behera
4. Kabita Ghadai
5. Padmanava Prasad Dash
6. Sudhir Kumar Panda
7. Yatshnarani Paikaray
8. Geetanjali Mishra
9. Purna Chandra Dalai
10. Brahmachari Jena
11. Pratap Kumar Mahapatra
12. Bidyadhar Pattajoshi
13. Bijaya Kumar Behera
14. Mandakini Dash
15. Bipin Kumar Das
16. Sunita Dei
17. Prasanta Kumar Mishra ... Petitioners
VERSUS
State of Odisha
and Others ... Opposite parties
Advocates appeared in the case:
For the Petitioners : Mr. Budhadev Routray,
Senior Advocate
with M/s. Subhadutta Routray and
Jagdish Biswal, Advocates
For the Opposite Parties : Mr. Ramanath Acharya,
Standing Counsel
(School & Mass Education)
WPC (OAPC) No.168 of 2014 Page 1 of 50
CORAM:
JUSTICE MURAHARI SRI RAMAN
Date of Hearing: 03.02.2023 :: Date of Judgment: 24.02.2023
JUDGMENT
MURAHARI SRI RAMAN, J.--
1. The petitioners, working as Assistant Teachers in respective
Schools in the District of Khordha, approached the learned
Odisha Administrative Tribunal, Cuttack Bench, Cuttack by
way of Original Application, which was registered bearing
Provisional No.168 (C) of 2014, under Section 19 of the
Administrative Tribunals Act, 1985, for grant of following
relief:
"*** direct the respondents to extend the benefits of Odisha
Civil Services (Pension) Rules, 1992 and the extension of
General Provident Fund (Odisha) Rules and further the
respondents be directed to deduct the GPF from the
monthly salary of the present applicants in accordance with
the General Provident Fund (Odisha) Rules, 1938 within a
reasonable time to be fixed by this Hon'ble Tribunal."
1.1. The learned Odisha Administrative Tribunal vide Order
dated 18.08.2014, passed the following order:
"4. 18.08.2014 P. No.168(C)/2014
*** Issue notice on the question of admission as to
why this case shall not be disposed of at the stage of
admission. Counter be filed within four weeks and
rejoinder, if any, be filed within two weeks thereafter.
List this case after six weeks."
1.2. After abolition of the Odisha Administrative Tribunal by
virtue of Ministry of Personnel, Public Grievances and
Pensions (Department of Personnel and Training)
Notification F. No. A-11014/10/2015-AT [G.S.R.552(E).],
dated 2nd August, 2019, said Original Application has been
converted to Writ Petition and renumbered as WPC
(OAPC) No.168 of 2014 and counter-affidavit of the
opposite party No.3-Director of Elementary Education,
Odisha has come to be filed on 27th July, 2022.
Fact of the case:
2. As adumbrated by the petitioner, it is revealed from the
petition that the petitioners in 17 numbers, in response to an
Advertisement dated 24.12.2000 for the post of
"SWECHHASEVI SIKSHYA SAHAYAK" ("SSS", for short) in
the Primary Schools and the Upper Primary Schools issued
by the Director, Primary School Directorate, Odisha, having
offered for engagement, were selected as SSS, later on
renamed as "SIKSHYA SAHAYAK", in view of Government
of Odisha, Department of School and Mass Education
Resolution No. II-SME/LMC-150/06-673/SME., dated
10.01.2008, which reads thus:
"2. That, henceforth all the Swechhasevi Sikshya
Sahayaks (SSS) including the existing one and the
new recruits shall be called as Sikshya Sahayaks
(SS)."
2.1. A Chart enclosed to the petition as Annexure-3 indicates
that date of engagement of the petitioner Nos.1 to 15 was
12th July, 2001, whereas the petitioner Nos.16 and 17 were
stated to be engaged on 19th July, 2001 and 26th July, 2003
respectively. However, while the petitioner Nos.1 to 16
have joined the duty on different dates during July, 2001,
the petitioner No.17 joined on 28th July, 2003. While the
petitioner Nos.1 to 16 became Junior Teacher with effect
from 01.12.2007, the petitioner Nos.16 and 17 became
Junior Teachers from 23.10.2007 and 11.09.2007
respectively. Subsequently, they became regular Primary
School Teachers [the petitioner Nos.1 to 16 on 01.04.2008,
the petitioner No.16 on 01.11.2009 and the petitioner No.17
on 21.09.2009].
2.2. It is the claim of the petitioners that since their date of
engagement as "SS" was prior to 01.01.2005, i.e., the date
on which the Odisha Civil Services (Pension) Amendment
Rules, 2005 (for brevity referred to as "Rules, 2005") has
come into force, they are entitled to the regular pension as
per the pre-amended provisions of the Odisha Civil Services
(Pension) Rules, 1992 (for convenience referred to as
"Rules, 1992"). They also claim to be entitled to similar
treatment as has been extended by the Government by
virtue of Finance Department Resolution dated 04.04.2007,
whereby the provisions of the Rules, 1992 are made
applicable to the persons, appointed under work-charged
and job-contract establishments prior to 01.01.2005, but
brought over to the regular establishments on or after
01.01.2005.
Question raised in the present writ petition:
3. Whether the Odisha Civil Service (Pension) Rules, 1992 as
amended by virtue of the Odisha Civil Service (Pension)
Amendment Rules, 2005, came into force with effect from
01.01.2005, would be applicable to the petitioners, initially
engaged as SSS/SS in the year 2001/2003 on annual
contract basis and treated as Junior Teachers in the year
2007 and subsequently became Regular Primary School
Teachers in the year 2008/2009?
Arguments advanced by the counsel for the petitioners:
4. Sri Budhadev Routray, learned senior counsel referring to
Office Order dated 05.05.2008 issued by Collector-cum-
CEO, Zilla Parisad, Khordha vide Annexure-6 series,
submitted that pursuant to Resolution No.673/SME, dated
10.01.2008 of the Government of Odisha in School and
Mass Education Department read with Instruction of the
Government in Letter No.4823, dated 03.03.2008 and Letter
No.5475, dated 14.03.2008 and 1Odisha Primary Education
Programme Authority Memo No.2104, dated 13.03.2008,
all the eligible "Junior Teachers of Khordha District who
Odisha Primary Education Programme Authority (OPEPA) came in to existence as a registered
society on 30th January 1996. The School & Mass Education (S&ME) Department in the
Government of Odisha has the responsibility to achieve the goals of Universal Elementary
Education (UEE). The S&ME Deptt. operates through two agencies namely Directorate of
Elementary Education (DEE) and Odisha Primary Education Programme Authority (OPEPA) to
realize the goals of UEE. While DEE manages the entire manpower of teachers, inspectors &
administrators, OPEPA implements the flagship program of SSA in the entire State. ***
: http://opepa.odisha.gov.in/website/
successfully completed six years of satisfactory engagement
as per engagement verification reports received from
concerned BDOs, were appointed as "REGULAR PRIMARY
SCHOOL TEACHERS" under Zilla Parisad in the scale of pay
of Rs.3,600/- --100-- 5,600/- with all admissible
allowances thereon as applicable to the regular teachers in
Level-V of the Elementary Cadre with effect from
01.04.2008".
4.1. Even though the instant petitioners have been given the
status of "Junior Teacher" in the year 2007 and became
Regular Primary School Teacher during the year
2008/2009, they are eligible to pensionary benefits as
envisaged in the pre-amended provisions contained in
Rules, 1992 and the changed circumstance as per the
Odisha Civil Services (Pension) Amendment Rules, 2005
shall have no application to their case inasmuch as they
were engaged in the year 2001 and 2003, as the case may
be.
4.2. Drawing parity with the case of one Sri Ashis Kumar
Mahanty, Trained Graduate Teacher-Assistant Teacher of
Government High School, Kotpad in the District of
Koraput, while working on contractual basis, has been
accorded pension in terms of pre-amended Rules, 1992,
after his regularization post-01.01.2005, the learned senior
counsel urged that the present petitioners are also entitled to
claim pension in the same terms.
4.3. It is the further case of the petitioners that by virtue of
Government of Odisha in Finance Department Letter dated
4th April, 2007, the persons who were appointed under job-
contract and work-charged establishment prior to
01.01.2005 and brought over to regular establishment on or
after said date, are not covered under the provisions of the
Odisha Civil Services (Pension) Amendment Rules, 2005,
but are governed in terms of pre-amended Rules, 1992 read
with existing provisions contained in the General Provident
Fund (Odisha) Rules, 1938. In tune with above letter, the
Directorate of Health Services vide Letter dated 20.09.2011
extended similar benefit to the persons appointed on
contractual basis. Hence, Sri Budhadev Routray, learned
Senior Advocate for the petitioners urged that the State
Government is not justified in discriminating the
petitioners-teachers who joined on contractual basis as SSS
in 2001/2003.
Arguments advanced by the learned Standing Counsel for the
School and Mass Education Department:
5. Sri Ramanath Acharya, learned Standing Counsel submitted
that the petitioners were engaged under a scheme to
function as SSS on execution of agreement in 2001/2003 in
terms of Department of School and Mass Education
Resolution No.27021/SME, dated 03.10.2000.
5.1. It is submitted that it has been stipulated in Clause 10 of the
Resolution dated 10.01.2008 that SS after completion of
three years of continuous satisfactory engagement will be
eligible for appointment as Junior Teacher by the Zilla
Parishad on contractual basis with consolidated
remuneration of Rs.3,500/- per month with effect from 1st
December, 2007. However, as per Clause 12.1 ibid. with
certain conditions the Junior Teachers after completion of
three years of continuous satisfactory engagement as such
under Zilla Parishads will be eligible for appointment as
Regular Primary School Teachers by the Zilla Parishads
with effect from 1st April, 2008 on the basis of the number
of vacancies to be transferred from the existing District
Cadre to the Zilla Parishad Cadre. Essentially, it is
submitted on behalf of the opposite parties that SSS is
voluntary service on the basis of annual contract under a
scheme which does not contemplate treating them to have
been "appointed" prior to 01.01.2005 so that pensionary
benefit can be extended as per extant Rules, 1992.
5.2. Since the petitioners joined respective schools in 2001/2003
as SSS on "annual" contract basis and became Regular
Primary School Teacher in the year 2008/09, i.e., after
01.01.2005, cannot claim identical treatment inasmuch as
the School and Mass Education Department has not framed
any policy in this regard. Rather the Office Order vide
Annexure-6 shows that the petitioners are "appointed as
Regular Primary School Teachers under Zilla Parishad"
which in unambiguous terms envisages fresh appointment
without treating the period served as contractual teacher in
continuation of said appointment.
5.3. It is vehemently objected to that the petitioners under no
stretch of imagination be treated to be covered under the
Rules, 1992 as it existed prior to 01.01.2005. The Chart vide
Annexure-3 to the writ petition as prepared by the
petitioners would go to show that they have become Junior
Teachers in 2007 which is after the Rules, 2005 came into
force and referred to following sub-rule (4) of Rule 3 as
inserted to the Rules, 1992 by way of amendment:
"1. ***
(2) They shall be deemed to have come into force with
effect from the 1st day of January, 2005.
2. In the Odisha Civil Services (Pension) Rules, 1992,
after sub-rule (3) of Rule 3 the following sub-rule
shall be added namely--
'(4) Notwithstanding anything contained in these
rules, all persons appointed under the
Government of Odisha with effect from 1st day
of January 2005 shall not be eligible for
Pension as defined under sub-rule (1) of Rule 3
of the said rules but shall be covered by the
defined contribution Pension Scheme as
specified below:
(i) The monthly contribution would be 10%
of the salary and Dearness allowance to
be paid by the employee and the
Government would also provide a
matching contribution. The contribution
so made would be deported in a non-
withdrawable pension tier-I account.
Such funds will be invested by pension
fund managers as approved by Pension
Fund Regulatory and Development
Authority (PFRDA) under different
categories of scheme which would be a
mix of debt and equity. The fund
managers would give out easily
understood information about the
performance of different investment
schemes so that individual Government
employee would be able to make
informed choices about which scheme to
choose.
(ii) In addition to the above provision, each
individual may also have a voluntary
tier-II account at his option. This option
is provided as General Provident Fund
will be withdrawn for employees
recruited to the State Government
Service with effect from 1st January,
2005, Government will make no
contribution into this account. In tier-II
system, the individual may subscribe
10% of his salary and these assets would
be managed through exactly the above
procedure. However, the employee
would be free to withdraw part or all of
second tier of his money at any time.
This withdrawable account does not
constitute pension investment and would
attract no social tax treatment.
(iii) At the time of retirement, Government
servant will receive the lump sum
amount of 60% deposited in pension
tier-I account as pension wealth and it is
mandatory to the Government servant to
invest remaining 40% of his pension
wealth to purchase as annuity from an
Insurance Regulatory and Development
Authority-- regulated life insurance
company. The annuity shall provide for
pension for the life time of the employee
and his dependent parents and his
spouse at the time of retirement. The
individual would receive lump-sum of
the remaining pension wealth, which he
would be free to utilise in any manner.
Individuals would have the flexibility to
leave the pension system prior to age of
58 years or 60 years as the case may be.
In such case the mandatory
annuitisation would be 80% of the
pension wealth.' "
5.4. Referring to Resolution dated 10th January, 2008 of the
Department of School and Mass Education, Sri Acharya,
learned Standing Counsel further went on to submit that in
view of Clause 10 of said Resolution that "the Sikshya
Sahayak (SS) after completion of three years of continuous
satisfactory engagement will be eligible for appointment as
Junior Teacher by the Zilla Parishad on contractual basis
with consolidated remuneration of Rs.3,500/- per month
with effect from 1st December 2007", the petitioners have
been engaged as "Junior Teachers" as is apparent from the
Chart prepared by the petitioners vide Annexure-3 to the
Writ Petition. It is admitted position that the petitioners
were found eligible for appointment as "Regular Primary
School Teacher" after "completion of 6 years of continuous
satisfactory engagement as Sikshya Sahayak and Junior
Teacher, taken together, as on 1st April, 2008" in terms of
Clause 12.2 of said Resolution dated 10.01.2008. Ergo, the
Chart vide Annexure-3 shows that the petitioners having
completed six years since the date of "engagement" (contra-
distinct with the term "appointment") in the year
2001/2003 as SSS/SS and subsequently in 2007 as Junior
Teacher, they were appointed as "Regular Primary School
Teacher" in the year 2008/2009. As the appointment as
"Regular Primary School Teacher was after the date of
insertion of sub-rule (4) of Rule 3 in the Odisha Civil
Services (Pension) Rules, 1992, i.e., 01.01.2005, the claim
in the Writ Petition that the petitioners would be covered
under the Rules, 1992 as it existed prior to said effective
date is misconceived.
5.5. In furtherance of what is submitted, Sri Ramanath Acharya,
learned Standing Counsel advanced argument that the
Letter dated 04.04.2007 and Letter dated 20.09.2011 under
Annexure-4 and Annexure-5 respectively being related to
job-contract/work-charged persons, the benefit of said
letters cannot be made available to the case of present
petitioners.
5.6. In absence of complete details with regard to manner and
context of engagement/appointment of Sri Ashish Kumar
Mahanty, Assistant Teacher of Government High School,
Kotpad in the District of Koraput in the pleading, the
petitioners cannot be allowed to claim the benefit.
5.7. Under such premises, the learned Standing Counsel for the
School and Mass Education Department has requested for
dismissal of the Writ Petition.
Consideration of pleadings, contentions and arguments of
respective parties:
6. The petitioners claimed to have responded to Advertisement
dated 24th December, 2000 purportedly floated pursuant to
Resolution bearing No.27021/S&ME, dated 3rd October,
2000 of the Government of Odisha in Department of School
and Mass Education, and applied for being SSS (which was
subsequently named as SS) and joined as SSS on annual
contract basis.
6.1. Clauses of said Resolution dated 03.10.2000 so far as
relevant for the present purpose are extracted hereunder:
"3. Keeping all these in view and with the limited
resources of the State, a scheme of 10,023 para-
teachers (3rd teachers in U.P. school) is mooted. 3
Such para-teachers would be responsible for
ensuring enrolment of school going children of the
designated locality. It shall be their duty to interact
with the parents/guardians for regular attendance of
their wards. In order to increase retention and check
dropout rate, they shall function as a link between the
educational institution to which they are attached
and the concerned community. Further, they may be
called upon to assist the teachers in imparting
education in primary/upper primary schools. In
consideration of all these factors, the State Govt.
have been pleased to introduce a scheme of
'Swechhasevi Sikhya Sahayak' with the following
terms and conditions.
4. Engagement.
4.1. The Swechhasevi Sikhya Sahayak (SSS) is a scheme
for volunteers and that those who accept the terms
and conditions and offer to render Voluntary service
could be engaged as such. When the engagement of
the volunteers is no longer required or when central
assistance for the purpose is discontinued, they
shall be disengaged. The State Govt. have the option
of down sizing the strength of Swechhasevi Sikhya
Sahayak if on account of resource constraint, it is
unable to retain that number. Swechhasevi Sikhya
Sahayak will be engaged in each education district
separately by a Committee to be headed by the
Collector-cum-Chief Executive Officer, Zilla
Parishad as Chairman CI of Schools, DI of schools,
District Employment officer and the District Welfare
Officer as members in the Committee.
***
8. Assignment
The Swechhasevi Sikhya Sahayak (S.S.S.) shall
motivate the parents/guardians of the village in
which Primary Schools is situated for enrolment of
children within the age of group of 6-14 years. It
shall be his duty to contact parents/guardians in
case children fail to a attend classes regularly and
get back such children to the classes. Wherever
applicable, he will work under the administrative
control of the Head Pandit/Head Master or Head
Pandit in charge of school to which he is assigned
and shall be entrusted with the teaching of primary
school students upto Class-VII and may be assigned
any other work in furtherance of the objective of
universal primary education as decided by Govt. in
School & Mass Education Deptt. and C.E.O., Zilla
Parishad from time to time.
8.1. ***
8.2. The Swechhasevi Sikhya Sahayak will be paid
Rs.1500/- (Rupees one thousand five hundred only)
per month as consolidated honorarium.
8.3. ***
8.4. The engagement would be on the basis of annual
contract.
8.5. The agreement between the Collector-Cum-C.E.O.,
Zilla Parishad and Swechhasevi Sikhya Sahayak is to
be signed on stamped paper besides the engagement
order.
8.6. ***
8.7. Funds as required for honorarium of Swechhasevi
Sikhya Sahayak for each district will be placed with
the respective Zilla Parishad who shall pay to the
Sikhya Sahayaks on certification of regular
attendance by the Head Pandit/Head Master."
6.2. Resolution No.11676-IISME-LM-214/05(pt)/SME, dated
31.05.2006 provides:
"9. The Sikshya Sahayak (SS) after completion of 4 years
of continuous satisfactory engagement will be
eligible for appointment as Junior Teacher by the
Zilla Parishad on contractual basis with consolidated
remuneration of Rs.3000/- per month.
The following conditions must be fulfilled by the
Sikhya Sahayak for appointment as Junior Teachers
by the Zilla Parishad, namely:
i) The Sikshya Sahayak (SS) must have rendered
4 years of continuous service satisfactorily
from the date of engagement;
ii) The Sikshya Sahayak (SS), must have ensured
90% attendance of children in respective
schools in all classes;
iii) The Village Education Committee must have
given positive certificates about attendance
and performance of the SS in the schools for
the last 4 years;
iv) The Sikshya Sahayak (SS) must not have any
adverse reports during last 4 years of service
in the school as SS. They must have ensured
Minimum Level of Learning (MLL) for the
students as prescribed by the competent
authority; and
v) The Sikshya Sahayak (SS) must have reduced
the drop-out of Primary and Upper Primary
School to below 10%.
9.1. Candidates not fulfilling the criteria contained in
para-9 above shall not be considered for appointment
as junior teachers by the Zilla Parishad.
9.2. The eligibility conditions specified in para-9 shall not
apply to 7,855 numbers of SSS engaged during the
year 2001.
11. The vacancies out of the sanctioned posts in primary
and upper primary schools will be filled up by
appointment of regular primary school teachers by
the Zilla Parishad from among the junior teachers.
The above vacancies The above vacancies against
which regular primary school teachers would be
appointed will be transferred to the Zilla Parishad
cadre from the existing district cadre as per 73rd
Amendment of the Constitution of India, as all the
schools would henceforth in phases be transferred to
Panchayati Raj bodies as to be decided by the Govt.
12. The junior teachers after completion of 5 years of
continuous satisfactory engagement as such under
Zilla Parishads will be eligible for appointment as
regular primary school teachers by the Zilla
Parishads on the basis of the number of vacancies to
be transferred from the existing District Cadre to the
Zilla Parishad cadre and subject to the fulfilment of
following conditions:
(i) The Junior teachers must have rendered at
least 5 years of service as such satisfactorily
with an unblemished records.
(ii) They must have ensured 90% attendance of
Children in their respective schools in all
classes.
(iii) They must have been given positive certificate
by the VEC about regular attendance and
satisfactory teaching. They must have ensured
Minimum Level of Learning (MLL) for the
students as prescribed by the competent
authority.
(iv) They must have reduced the dropout of
children on the schools below 10%."
6.3. Resolution No.II-SME-LMC-150/06-673/SME, dated
10.01.2008 provides:
"4.4 Orders of engagement shall be issued by the Zilla
Parishad through its Chief Executive Officer-Cum-
Collector of the District. The engagement will be on
an annual contract basis. Contract will be renewed in
subsequent years depending on the performance of
the candidate. While renewing the contract of the
Sikshya Sahayaks (SSs), the Zilla Parishad /
Collector-cum-CEO, Zilla Parishad must see that the
Village Education Committee of the concerned
school has given positive certificate in his/her favour
about regular attendance and satisfactory teaching.
The Sikshya Sahayak (SS) can be removed from
engagement with 30 days prior notice, if she/he
violates the conditions of the contract or is
considered unsuitable later on by the authorities or
on the basis of adverse report of the Village
Education Committee.
***
9.1 The Sikshya Sahayaks (SS) will get remuneration of
Rs.3000/- per month with effect from 1st December
2007.
***
9.3 The engagement would be on the basis of annual
contract.
***
10. The Sikshya Sahayak (SS) after completion of 3 years
of continuous satisfactory engagement will be
eligible for appointment as Junior Teacher by the
Zilla Parishad on contractual basis with consolidated
remuneration of Rs.3500/- per month with effect from
1st December 2007.
The following conditions must be fulfilled by the
Sikhya Sahayak for appointment as Junior Teachers
by the Zilla Parishad, namely:
i) The Sikshya Sahayak (SS) must have rendered
3 years of continuous service satisfactorily
from the date of engagement;
ii) The Sikshya Sahayak (SS), must have ensured
90% attendance of children in respective
schools in all classes;
iii) The Village Education Committee must have
given positive certificates about attendance
and performance of the SS in the schools for
the last 3 years;
iv) The Sikshya Sahayak (SS) must not have any
adverse reports during last 3 years of service
in the school as SS. They must have ensured
Minimum Level of Learning (MLL) for the
students as prescribed by the competent
authority; and
v) The Sikshya Sahayak (SS) must have reduced
the drop out of children of Primary and Upper
Primary School to below 10%.
10.2 The eligibility conditions specified in para-10 shall
not apply to 7855 numbers of SSS engaged during the
year 2001.
11. The vacancies out of the sanctioned posts in
primary and upper primary schools will be filled up
by appointment of regular primary school teachers
by the Zilla Parishad from among the Sikshya
Sahayaks. The above vacancies against which
regular primary school teachers would be appointed
will be transferred to the Zilla Parishad cadre from
the existing district cadre as all the schools would in
phases be transferred to Panchayati Raj bodies as to
be decided by the Government.
12.1 The Junior Teachers after completion of 3 years of
continuous satisfactory engagement as such under
Zilla Parishads will be eligible for appointment as
regular primary school teachers by the Zilla
Parishads with effect from 1st April 2008 on the basis
of the number of vacancies to be transferred from the
existing District Cadre to the Zilla Parishad cadre
and subject to the fulfilment of following conditions.
(i) The Junior Teachers must have rendered at
least 3 years of service as such satisfactorily
with an unblemished records.
(ii) They must have ensured 90% attendance of
Children in their respective schools in all
classes.
(iii) They must have been given positive certificate
by the Village Education Committee about
regular attendance and satisfactory teaching.
They must have ensured Minimum Level of
Learning (MLL) for the students as prescribed
by the competent authority.
(iv) They must have reduced the dropout of
children on the schools below 10%.
12.2 Notwithstanding anything to the contrary in Para-
12.1, a Sikhya Sahayak after completion of 6 years
of continuous satisfactory engagement as Sikhya
Sahayak and Junior Teacher, taken together, as on
1st April, 2008, shall be eligible for appointment as
Regular Primary School Teacher.
13. The Junior Teachers of Zilla Parishads on rendering
satisfactorily service as reviewed every 3 years can
continue in service but not beyond 58 years of age."
6.4. Resolutions afore-quoted unequivocally speak that SSS/SS
is required to assist the teachers and the engagement is
under a scheme with certain terms and conditions. Such
engagement is based on "annual contract" between the
Collector-cum-Zilla Parishad and the SSS. The SSS/SS is to
offer voluntary service and is entitled to receive
consolidated "honorarium" from the funds of the Zilla
Parishad.
6.5. The engagement of SS on contractual basis is purely
temporary and for specific periods only to meet the
exigency of work, and as such, filled up only on contract
basis. The term 'contract' and the limited period stipulated
in the terms of engagement is one year.
6.6. As is apparent from the Chart in Annexure-3 to the Writ
Petition, in consonance with Clause 12.2 of Resolution
dated 10.01.2008, the petitioners have been appointed as
"Regular Primary School Teachers" taking six years
continuous engagement as SS and Junior Teacher taken
together as on 01.04.2008. It has been clarified in Clause 11
thereof that the vacancies out of the sanctioned posts in
Primary and Upper Primary Schools will be filled up by
"appointment" of Regular Primary School Teachers by the
Zilla Parishad from among the Sikshya Sahayaks.
6.7. It is apt to notice following provisions contained in the
Odisha Education Act, 1969 and the Odisha Elementary
Education (Method of Recruitment and Conditions of
Service of Teachers and Officers) Rules, 1997.
THE ODISHA EDUCTION ACT, 1969:
"3. Definitions.--
(l) UPPER PRIMARY SCHOOL means an educational
institution imparting instructions in standards of
Class VI and VII and may have the standards of
Primary School attached to it.
(m) PRESCRIBED means prescribed by rules.
(n) PRIMARY SCHOOL means any educational institution
imparting elementary standard of education
comprised in Standards of Classes I to V."
THE ODISHA SUBORDINATE EDUCATION (METHOD OF
RECRUITMENT AND CONDITIONS OF SERVICE) RULES, 1997:
"2. Definitions.--
(1) In these rules, unless the context otherwise
requires--
(f) POST shall mean and include the posts of Assistant
Teachers, Headmasters/Headmistresses, Junior and
Senior Co-ordinators (Non-Formal Education), Sub-
Inspector of Schools, Deputy Inspector of Schools,
District Inspector of Schools and such other post as
may be notified by Government from time to time.
(g) PRIMARY SCHOOLS means the schools having classes
from Class I to Class V.
(i) SERVICE means the Odisha Elementary Education
Service.
(k) TEACHER means an employee whose work is to impart
teaching.
(l) UPPER PRIMARY SCHOOL means the school having
classes up to VII.
(2) All other words and expressions used and not defined
in these rules, unless the context otherwise requires,
shall have the same meaning as respectively assigned
to them in the Odisha Service Code.
3. Constitution of Service.--
(1) The Service shall comprise of the following levels,
namely--
(i) The Odisha Elementary Education Service, Level-V;
(ii) The Odisha Elementary Education Service, Level-IV;
(iii) The Odisha Elementary Education Service, Level-III;
(iv) The Odisha Elementary Education Service, Level-II;
(v) The Odisha Elementary Education Service, Level-I.
(2) (i) The Odisha Elementary Education Service,
Level-V shall consist of the Posts of Assistant
Teachers of Government Primary Schools
and Assistant Teachers of Government Upper
Primary Schools.
(ii) The Odisha Elementary Education Service,
Level-IV shall consist of the Posts of
Headmasters/Headmistresses of Government
Primary Schools.
(iii) The Odisha Elementary Education Service,
Level-III shall consist of the following
categories of posts namely--
(a) Headmasters/Headmistresses of
Government Upper Primary Schools;
(b) Junior Co-ordinators (Non-Formal
Education);
(c) Sub-Inspector of Schools; and
(d) Such other posts as Government may
from time to time determine.
(iv) The Odisha Elementary Education Service,
Level-II shall consist of the following
categories of posts, namely--
(a) Deputy Inspector of Schools;
(b) Senior Co-ordinators (Non-Formal
Education and
(c) Such other posts as Government may
from time to time determine.
(v) The Odisha Elementary Education Service,
Level-I shall consist of posts of District
Inspector of Schools and such other posts as
Government may from time to time determine.
(3) Level-I and Level-II of the service shall separately
constitute State cadre and all other levels of Service
shall separately from the district cadre.
6. Recruitment.--
(a) Vacancies in the posts belonging to Level-V
of the service shall be filled up by way of
direct recruitment.
(b) Vacancies in the post belonging to Levels-IV,
III, II and I shall be filled up by promotion.
7. Eligibility for direct recruitment.--
In order to be eligible for direct recruitment to the
posts belonging to Level-V of the service a candidate
must satisfy the following conditions, namely:
(a) He/She must be a citizen of India;
(b) He/She shall be under 32 years of age and over
18 years of age as on the first day of August of
the year of recruitment:
Provided that the maximum age limit may be
relaxed by 5 years in case of inservice
candidates, candidates belonging to Scheduled
Castes or Scheduled Tribes, candidates with
approved Military Service and Women
candidates and by 3 years in case of
candidates belonging to Socially and
Educationally Backward Class;
(c) He/She Must be of good moral character;
NOTE.-- He/She shall have to submit
certificate to that effect from two
responsible Gazetted Officers (not being
his/her relations);
(d) He/She, if married, must not be having more
than one spouse living; (e) He/She must have
passed High School Certificate Examination or
an equivalent Examination and must have
completed Secondary Teacher's
Training/Certified Teachers Course from a
recognised Board or University;
NOTE.-- Person already in the service of
Government shall have to apply through
proper channel for direct recruitment to the
service subject to his being within the
prescribed age-limit and being otherwise
eligible and subject further to his/her
application being received through proper
channel within scheduled times as may be
determined by the Committee:
Provided that the Committee may entertain
advance copies of application on the
condition that original copies together with
"No objection" Certificate from the
competent authority is received within such
times as may be determined by the
Committee.
15. Seniority and gradation list.--
(1) (a) The District Inspector of Schools of the
concerned Education Districts, shall maintain
gradation list separately for the post belonging
to Level-V, Level-IV and Level-III of the
service strictly on the basis of seniority.
(5) The seniority of teachers and officers appointed to
different posts belonging to different levels of the
service in any year shall be regulated in the following
manner, namely:
(a) Teachers appointed to the Level-V, IV, III and
II and officers appointed to the Level-I of the
service shall be ranked inter se in the order in
which their names are arranged by the
respective committee constituted for the
purpose;
***"
THE ODISHA SERVICE CODE:
"11. CADRE means the strength of a service or part of a
service sanctioned as a separate unit."
Legal position:
7. Conjoint reading of aforesaid provisions makes it clear that
the term "service" as mentioned in the Odisha Subordinate
Education (Method of Recruitment and Conditions of
Service) Rules, 1997 would be encompassed within the
meaning of "CADRE" as defined in the Odisha Service Code.
None of the "SERVICE" comprising "LEVEL" contained in the
aforesaid Act and rules does mention about SSS/SS so as
that the same would be embraced within connotation of
"CADRE". Rather SSS/SS involves voluntary element and
the job requirement is basically to motivate the
parents/guardians of the village in which Primary School is
situated for enrolment of children within the age of group of
6-14 years and it is the duty of SSS/SS to contact
parents/guardians. The nature of job requirement qua
SSS/SS suggests that it is to render assistance to the teacher
and SSS/SS himself is not a "teacher". It is significant to
note that the engagement of SSS/SS is contractual subject to
renewal annually.
7.1. It is explicit from aforesaid provisions that strength of
service as contemplated in the definition of the term
"CADRE" is the service which commences at "THE ODISHA
ELEMENTARY EDUCATION SERVICE, LEVEL-V" which
consists of the Posts of Assistant Teachers of Government
Primary Schools and Assistant Teachers of Government
Upper Primary Schools as per Rule 3(2)(i) of the Odisha
Elementary Education (Method of Recruitment and
Conditions of Service of Teachers and Officers) Rules,
1997. While Rule 6 prescribes for filling up of the Odisha
Elementary Education Service, Level-V by way of direct
recruitment, as per Rule 7 the eligibility for direct
recruitment inter alia required that a candidate must have
passed "High School Certificate Examination or an
equivalent Examination and must have completed
Secondary Teacher's Training/Certified Teachers Course
from a recognized Board or University".
7.2. Since the petitioners have claimed to have been appointed
as "Regular Primary School Teacher" in the years 2008 and
2009, they for the first time, thus, entered into the "service"
as defined under Rule 2(1)(i) of the Rules, 1997, read with
concerned Resolution(s) which can be construed to be
within the meaning of "CADRE" in terms of the Odisha
Service Code. Therefore, it is fallacious to claim that the
period of contractual engagement (annually) of the
petitioners is to be taken into consideration as "service" so
as to claim pension as per provision existed prior to
effective date on which the Odisha Civil Service (Pension)
Amendment Rules, 2005 came into force.
7.3. It has been well-settled that if it is a contractual
engagement, the engagement comes to an end on the date
stipulated in the contract, and if it were an engagement or
appointment on daily wages or casual basis, the same would
come to an end when it is discontinued. Similarly, a
temporary employee could not claim to be made permanent
on the expiry of his term of appointment. All appointments
made by the Government, having its origin in contracts, do
not result in acquisition of a status by the appointees.
7.4. In State of Haryana Vrs. Charanjit Singh & Others, (2006)
9 SCC 321 it has been laid down that:
"22. Where a person is employed under a contract, it is
the contract which will govern the terms and
conditions of service. In State of Haryana Vrs.
Surinder Kumar, (1997) 3 SCC 633 person employed
on contract basis claimed equal pay as regular
workers on the footing that their posts were
interchangeable. It was held that these persons had
no right to the regular posts until they are duly
selected and appointed. It was held that they were not
entitled to the same pay as regular employees by
claiming that they are discharging the same duties. It
was held that the very object of selection is to test the
eligibility and then to make appointment in
accordance with the rules. It was held that the
respondents had not been recruited in accordance
with the rules prescribed for recruitment.
23. In Union of India Vrs. K.V. Baby, (1998) 9 SCC 252
the question was whether commission-
bearers/vendors are entitled to the same salary as
regular employees. It was held that their
appointment and mode of selection, their
qualifications cannot be compared with regular
employees. It was held that by their very nature of
employment they cannot be equated with regular
employees. It was held that recruitment rules and
service conditions do not apply to such persons. It
was held that their responsibilities cannot be equated
with those of regular employees."
7.5. In the case of Dr. K.M. Sharma and Others Vrs. State of
Chhatisgarh and Others, 2022 LiveLaw (SC) 512 = (2022)
11 SCC 436 it has been observed as follows:
"Heavy reliance is placed on Rule 7 and it is the case on
behalf of the appellants that after completion of the
probation period as mentioned in Rule 7, Shiksha Karmis
will have to be paid the pay equivalent to the pay-scale of
the Municipal teachers. The aforesaid submission has no
substance. On a fair reading of Rule 7, it is clear that on
completion of the probation period, the Shiksha Karmis
shall be confirmed as Shiksha Karmis only and they shall be
put in the regular pay-scale of the Municipality as Shiksha
Karmis and not as the Municipal teachers. As observed
hereinabove, Municipal teachers are appointed under the
Rules, 1968. As per Rule 4 of the Shiksha Karmis Rules,
1998, Shiksha Karmis shall have to be paid the scales of
pay as given in the Schedule I to the aforesaid Rules. The
respective Shiksha Karmis are paid the pay scales as per
Schedule I of Rule 4. Therefore, when the Municipal
teachers and the Shiksha Karmis are appointed under
different Rules and there are different methods of
selection and recruitment, a Shiksha Karmi cannot claim
parity in pay-scale with that of Municipal teachers on the
principle of equal pay for equal work. Therefore, it is
observed and held that Shiksha Karmis, who are governed
by the Shiksha Karmis Rules, 1998 under which they were
appointed, are entitled to pay-scales under the Shiksha
Karmis Rules, 1998 only, which are being paid to them."
7.6. Thus, the engagement of SSS under a scheme being not part
of "CADRE" as defined in Rule 11 of the Odisha Service
Code, nor was it in a pay scale or was the engagement
under sanctioned strength of "SERVICE" as envisaged under
Rule 3 of the Odisha Elementary Education (Method of
Recruitment and Conditions of Service of Teachers and
Officers) Rules, 1997, in the absence of any specific rule
granting pensionary benefit to the SSS/SS, on their being
appointed as regular primary school teachers subsequently,
it is difficult to direct the opposite parties to extend such
benefit to the SSS engaged on annual contract basis.
7.7. The Hon'ble Supreme Court of India in Dhyan Singh &
Others Vrs. State of Haryana & Others, (2002) 10 SCC 656
has been pleased to make the following observation:
"These appeals and the writ petition raised a common
question as to whether the services rendered as an Adult
Education Supervisor under a Non-formal Education
Scheme evolved by the State of Haryana can be counted for
the purpose of granting pensionary benefits as well as for
the purpose of fixation of his pay, when such an employee is
recruited to a regular post under the State Government
either with or without break of service. Needless to mention
that these appellants after having served for a number of
years under the Rural Education Literacy Project/State
Adult Education Programme the Scheme itself under which
they had been discharging their duties stood abolished, and
consequently the appellants ceased to be employees. They
had approached this Court in a writ petition, which was
registered as Writ Petition No. 1040 of 1990 seeking a
mandamus to the State Government for their absorption in
any regular cadre of the State Government. In the said case,
the counsel appearing for the State of Haryana fairly stated
that the Government is prepared to absorb the applicants in
the State's service as and when vacancies in the cadre of
Social Studies Teachers and Masters are available, and on
the basis of the said statement made by the counsel
appearing for the State of Haryana the writ petition was
disposed of with the direction that the Government should
utilise the past experience of these persons by absorbing
them suitably as and when vacancies would occur in the
post, as already stated. Pursuant to the said direction of this
Court, the appellants were recruited to the post of Teachers
on different dates in the year 1993, and they were taken in
as fresh recruits. Their salary having been fixed at the
initial stage of the scale of pay for the post in question, the
appellants, therefore, approached the High Court seeking
relief that their pay in the scale of pay should be fixed up
taking the past services into account, and that their past
services rendered under the Scheme should also be taken
into account for the purpose of deciding their pension. The
High Court relying upon the circular issued by the
Government on 13.11.1995 came to the conclusion that no
part of the services rendered by the appellants as
Supervisors in the Adult Education Scheme can be
considered either for the purpose of determining the initial
amount of salary which they would get on their regular
absorption nor can the same be taken into account for
deciding the pensionary benefits, ultimately, which the
appellants would receive on superannuation from the
regular services. It is this judgment of the High Court,
which is the subject-matter of challenge in these appeals.
Mr Pankaj Kalra, appearing for the appellants strenuously
contended that by judgment of this Court the appellants
having been given the regular pay scale while continuing as
Adult Education Supervisors under the Scheme on the basis
that they were discharging full-time duties, there is no
rationale to deny the relief sought for by the appellants in
the writ petition. Mr Kalra also contended that the High
Court was totally in error by coming to the conclusion that
the appellants had rendered service as part-time
Supervisors, which is belied by the earlier decision of this
Court. He further contended that since under the
government rules and regulations the temporary employees,
the ad hoc employees and the work-charged employees are
entitled to count their services for the purposes of getting
the pensionary benefits, it would not be fair to discriminate
against this particular group of employees, though
undoubtedly, they had served the period under a particular
scheme. Having considered the two contentions made, and
having applied our mind to the rules and regulations that
were shown to us, we are not in a position to accept either
of the contentions raised by Mr Kalra. The
continuance/engagement of the appellants under the
specific scheme cannot be held to be an employment under
any establishment of the Government. Such schemes are
taken up for certain contingencies when money for the same
is provided either by the Central Government or at times by
some foreign countries. But the employment under such
scheme not being a part of the formal cadre of the State
Government, it is difficult to hold that the period for
which an employee rendered service under such scheme
can be counted either for the purposes of deciding their
pensionary benefits or even for fixing of their salary in the
scale of pay once they are regularly absorbed. The
judgment of this Court pursuant to which the appellants
were absorbed as against regular posts in the Government
itself would indicate that the Court had taken a
compassionate view, and not on any rights which flowed
from the past services rendered by the appellants under the
Scheme in question, and that also under the concession of
the counsel appearing for the State Government. We have
not been shown any rules or regulations of the State,
which even confer pensionary benefits for such services
rendered by the appellants. In this view of the matter, it is
difficult for us to find any infirmity with the impugned
judgment of the High Court. We, therefore, see no merits
in these appeals and the writ petition, which are
accordingly dismissed, but in the circumstances, there will
be no order as to costs."
7.8. In Chandra Shekar Sahoo Vrs. State of Odisha & Others,
W.P. (C) No. 17023 of 2012, vide Order dated 07.04.2022,
the Division Bench of this Court held as follows:
"7. The apex Court in Dhyan Singh (supra), the apex
Court held that the continuance/engagement of the
appellants therein under a specific scheme cannot be
construed to be an employment under any
establishment of the Government. Such schemes are
taken up for certain contingencies when money for
the same is provided either by the Central
Government or at times by some foreign countries,
but the employment under such scheme not being a
part of the formal cadre of the State Government, it is
difficult to hold that the period for which an
employee rendered service under such scheme can be
counted either for the purposes of deciding their
pensionary benefits or even for fixing of their salary
in the scale of pay once they are regularly absorbed.
It is also further mentioned that no rule or
regulations have been shown which even confer
pensionary benefits for the past service rendered by
the appellants under the scheme. Benefit of past
service under the scheme is therefore not admissible.
The similar view has also been taken by this Court in
W.P.(C) No. 14961 of 2012 [State of Odisha Vrs.
Santanu Kumar Dash, disposed of on 22.03.2022]."
7.9. Sri Budhadev Routray, learned senior counsel having not
brought to notice any provision acknowledging date of
engagement as SSS/SS under Scheme is reckoned as the
date of joining in the "SERVICE" [defined under Rule 2(1)(i)
of the Odisha Elementary Education (Method of
Recruitment and Conditions of Service of Teachers and
Officers) Rules, 1997] within the meaning of "CADRE"
[defined under Rule 11 of the Odisha Service Code] so as to
entail the petitioners to claim pensionary benefit as
envisaged under the pre-amended provisions of the Odisha
Civil Services (Pension) Rules, 1992, the contention of the
petitioners cannot be acceded to.
7.10. Sri Budhadev Routray, learned senior counsel placed
reliance on the Judgment of the Hon'ble Punjab and
Haryana High Court in the case of Harbans Lal Vrs. State
of Punjab and Others, 2010 SCC OnLine P&H 8181,
Petition(s) for Special Leave to Appeal being CC No.
17901/2011 against said Judgment got dismissed on
30.07.2012 by the Hon'ble Supreme Court. Further, the
Review against such dismissal, being Review Petition (C)
No.2038 of 2013, was also not entertained by the Apex
Court vide Order dated 4th November, 2015. Taking cue
from the view expressed in the said Judgment by the
Hon'ble Punjab and Haryana High Court that the "entire
daily wage service of petitioner" "till the date of his
regularization is to be counted as qualifying service for the
purpose of pension", it is, therefore, submitted that the
period of service rendered by the SSS/SS is required to be
taken into consideration so as to enable him to be covered
under the pre-amended scheme of pension as provided
under the Rules, 1992. Per contra, it is opposed by Sri
Ramanath Acharya, learned Standing Counsel that the said
case is distinguishable not only on facts but also in law
inasmuch as the statutory provisions contained in the
Punjab Civil Services Rules vis-à-vis pensionary benefits
extended thereby.
7.11. Before considering applicability of ratio of the Judgment
relied on by the counsel, it is relevant to refer to Union of
India Vrs. Arulmozhi Iniarasu, (2011) 9 SCR 1 = (2011) 7
SCC 397, wherein it has been laid down as follows:
"Before examining the first limb of the question, formulated
above, it would be instructive to note, as a preface, the well-
settled principle of law in the matter of applying precedents
that the Court should not place reliance on decisions
without discussing as to how the fact situation of the case
before it fits in with the fact situation of the decision on
which reliance is placed. The observations of the courts are
neither to be read as Euclid's theorems nor as provisions of
statute and that too taken out of their context. These
observations must be read in the context in which they
appear to have been stated. Disposal of cases by blindly
placing reliance on a decision is not proper because one
additional or different fact may make a world of difference
between conclusions in two cases. [Ref.: Bharat Petroleum
Corpn. Ltd. Vrs. N.R. Vairamani, (2004) 8 SCC 579; Sarva
Shramik Sanghatana (KV), Mumbai Vrs. State of
Maharashtra, (2008) 1 SCC 494; and Bhuwalka Steel
Industries Limited Vrs. Bombay Iron & Steel Labour Board,
(2010) 2 SCC 273]."
7.12. As per clause (r) of Rule 2 of the Odisha Civil Services
(Pension) Rules, 1992, the 'QUALIFYING SERVICE' has been
defined to mean the service rendered by a Government
servant, which shall be taken into account for the purpose of
pension and gratuity admissible under these rules.
7.13. Rule 14 of the said Rules, 1992 prescribes as follows:
"14. Counting of service on contract.--
(1) A person who is initially engaged by the Government
on a contract basis for a specified period and is
subsequently appointed to the same or another post
in a temporary or substantive capacity in a
pensionable establishment without interruption of
duty, may opt either--
(a) to retain the Government contribution in the
contributory provident fund with interest
thereon including any other compensation for
that service; or
(b) to agree to refund to the Government the
monetary benefits referred to in clause (a) or
to forgo the same if they have not been paid to
him and count in lieu thereof the service for
which the aforesaid monetary benefits paid or
have become payable.
(2) The option under sub-rule (1) shall be communicated
to the Appointing Authority under intimation to the
Accounts officer within a period of three months from
the date of issue of the order of transfer to
pensionable service or if the Government servant is
on leave on that day, within three months of his
return from leave.
(3) If no communication is received by the Appointing
Authority within the period referred to in sub-rule
(2), the Government servant shall be deemed to have
opted for the retention of the monetary benefits
payable or paid to him on account of service
rendered on contract."
7.14. Nothing is placed on record to demonstrate that the period
of service rendered as daily wage employee being taken
into consideration with reference to provisions of the
Punjab Civil Services Rules is akin to service rendered by
the SSS/SS and payments made over to the petitioners
herein qualifies for consideration as stipulated under Rule
18 of the Odisha Civil Services (Pension) Rules. While
Chapter-III ibid. has provided for certain periods to be
counted for the purpose of pension, it inter alia prescribed
under Rule 18 the following:
"18. Conditions subject to which service qualifies--
(1) Service does not qualify for pension unless it is
rendered in a pensionable establishment/post.
(2) The entire continuous temporary or officiating
service under Government without interruption in the
same post or any other post, shall count for the
purpose of pension in respect of all categories of
Government servants except in the following cases,
namely:
(i) Period of service in a non-pensionable
establishment;
(ii) Period of service in the work-charged
establishment;
(iii) Period of service paid from contingencies;
(iv) Where the employee concerned resigns and is
not again appointed to service under
Government or is removed/dismissed from
public service;
(v) A probationer who is discharged from service
for failure to pass the prescribed test or
examination;
(vi) Re-employed .pensioner, Government servants
engaged on contract and Government servants
not in whole time employment of Government;
(vii) Service paid from Local Fund or Trust Fund;
(viii) Service in an office paid by fees whether levied
by law or under authority of the Government
or by Commission; and
(ix) Service paid out of the grant in accordance
with Law or Custom.
(3) Notwithstanding anything contained in clauses (i)
and (ii) of sub-rule (2) a person who is initially
appointed by the Government in a work-charged
establishment for a period of five years or more and
is subsequently appointed to the same or another post
in a temporary or substantive capacity in a
pensionable establishment without interruption of
duty, the period of service so rendered in work-
charged establishment shall qualify for pension
under this rule.
(4) Notwithstanding anything contained in sub-rule (1)
Government, may, by general or special order,
prescribe any class of service or post which were
previously borne under work-charged establishment
or paid from contingencies to be pensionable.
(5) Notwithstanding anything contained in sub-rules (1)
and (2) in case of a Government servant belonging to
Government of India or other State Government on
his permanent transfer to the State Government the
continuous service rendered by him under
pensionable establishment of Government of India or
any other State Government, as the case may be,
shall count as qualifying service for pension.
(6) Notwithstanding anything contained in clause (i) &
(iii) of sub-rule (2), a person who is initially
appointed in a job-contract establishment and is
subsequently brought over to the post created under
regular/pensionable establishment, so much of his
job contract service period shall be added to the
period of his qualifying service in regular
establishment and would render him eligible for
pensionary benefits. (Vide Finance Department
Notification No.45865/F., dt.01.09.2001)"
7.15. Rule 11 of the Rules, 1992 also lays down the conditions of
qualifying service in the following terms:
"11. Conditions of qualifying service.--
Subject to the provisions hereinafter contained, the
service of a Government servant shall qualify for
pension if it conforms to the following three
conditions, namely:
(1) The service must be under Government,
(2) The employment must be in a pensionable
establishment/post, and
(3) The service must be paid by Government."
7.16. Rule 10 of Rules, 1992 provides for commencement of
qualifying service in the following terms:
"10. Commencement of qualifying service.--
Subject to the provisions of these rules, qualifying
service of a Government servant shall commence
from the date he takes charge of the post to which he
is first appointed either substantively or in an
officiating or temporary capacity:
Provided that except for compensation gratuity, a
Government servant's service does not qualify for
pension till he has completed eighteen years of age:
Provided further that nothing contained in this rule
shall apply to the persons who were in service on the
8th September, 1962 and in whose case a lower age-
limit had been prescribed."
7.17. The term "Government servant" has been defined in Rule
2(b) of the Odisha Government Servants' Conduct Rules,
1959, as follows:
"GOVERNMENT SERVANT means any person appointed to
serve in connection with the affairs of the State, in respect
of whom the Government of Odisha is empowered to make
rules under Article 309 of the Constitution of India, whether
for the time being such person serving in connection with
the affairs of the Government of India or of any State, or is
on Foreign Service, or on leave;"
7.18. Provision of Rule 2(1)(e) of the Rules,1992 defines
"EMOLUMENTS" to mean the basic pay as defined under
Rule 33(a)(i) of the Odisha Service Code. The provisions of
Rule 33(a)(i) of the Odisha Service Code provides
definition of "PAY" which is being quoted herein below:
"PAY means the amount drawn monthly by a Government
servant as--
(i) the pay other than special pay or pay granted in view
of his personal qualifications, which has been
sanctioned for a post held by him substantively or in
an officiating capacity or to which he is entitled by
reason of his position in the cadre."
7.19. It is, thus, evident from the definition of 'PAY' as per the
provision made in Rule 33(a)(i) of the Odisha Service Code
that the amount drawn monthly by a Government servant as
the pay other than special pay or pay granted in view of his
personal qualifications, which has been sanctioned for a
post held by him substantively or in an officiating capacity
or to which he is entitled by reason of his position in the
cadre. So an employee has to be in the cadre by virtue of the
order passed by the competent authority. A person would be
entitled to get pension on the basis of the pay attached to the
post.
7.20. When the period of assignment of the petitioners as SSS/SS
is taken into consideration vis-à-vis aforesaid rules, none of
the rules which specified qualifying service does fit into so
as to entitle them to urge that the period of service rendered
in the capacity of SSS/SS would be reckoned for the
purpose of determination of date of initial appointment even
as they are borne in the Odisha Elementary Education
Service, Level-V Cadre in 2008/09.
7.21. Reference as made by the learned senior counsel appearing
for the petitioners to Letter dated 04.04.2007 of the
Government of Odisha in Finance Department clarifying
that "the persons who are appointed under job-contract and
work-charged establishment prior to 01.01.2005 and
brought over to the regular establishment on or after
01.01.2005 are not to come under the coverage of the OCS
(Pension) Amendment Rules, 2005 as notified in Finance
Department Notification No.44451/F., dated 17.09.2005"
has no application to the instant case for the simple reason
that the petitioners-SSS/SS are treated to be neither job-
contract nor work-charged employees.
7.22. In identical fact situation, the learned Odisha
Administrative Tribunal had the occasion to consider the
effect and impact of said Letter dated 04.04.2007 in respect
of engagement of Applicants-Sikshya Sahayaks prior to
01.01.2005 in a batch of matters being Mayadhar Pradhan
and Others Vrs. State of Odisha and Others, O.A. Nos. 3345
(C) to 3352 (C) of 2012 and repelling the claim of the
Applicants in the said Original Applications, vide Order
dated 28.09.2012, said Tribunal observed and held as
follows:
"*** The applicants who were earlier engaged as Sikshya
Sahayak and later became Junior Teacher and thereafter
engaged as regular Teacher under the administrative
control of Zilla Parishad, have filed these Original
Applications with a prayer for a direction to the
respondents to enroll/cover them under Odisha Civil
Services (Pension) Rules, 1992 and General Provident
Fund (Odisha) Rules.
***
Mr. Behera, learned counsel for the applicants submits that
the applicants, who were engaged as Sikshya Sahayak with
a consolidated remuneration of Rs.4,000/- per month and
three years thereafter Rs.4,500/- per month on becoming
Junior Teacher and also three years thereafter as regular
Teacher under Zilla Parishad in the regular scale of pay of
Rs.3,600/- -- 5,600/-, have filed these cases with a prayer to
enroll/cover them under Odisha Civil Services (Pension)
Rules, 1992 and General Provident Fund (Odisha) Rules.
Even though the pension in respect of the Government
Departments has been abolished on introduction of
Contribution Pension Scheme in the State Government
Service with effect from 01.01.2005, since the applicants
were engaged in Sikshya Sahayak much prior to the
abolition of Pension Scheme, treating them as job-
contract/work-charged employee working in different
projects, they shall also be covered by the Pension Rules by
virtue of the Letter of Clarification issued by the
Government of Odisha in Finance Department dated
04.04.2007 (Annexure-3), but not under Contribution
Pension Scheme.
Considering the submissions made by the learned counsel
for both the parties and keeping in view the fact that the
applicants in all these cases, who were appointed initially
as Sikhya Sahayak with consolidated remuneration and
three years thereafter as Junior Teacher with higher
consolidated remuneration and also three years thereafter
as regular Teacher with regular scale of pay, are
continuing under the administrative control of Zilla
Parishad and the Letter of Clarification issued by the
Government of Odisha in Finance Department dated
04.04.2007 (Annexure-3) is only relating to the job-
contract/work-charged employees and since the applicants
have never been engaged as job-contract or work-charged
employees, the said Clarification/Letter of instruction shall
not be applicable in the case of the applicants who were
engaged as Sikshya Sahayak, Junior Teacher and regular
Teacher under the Zilla Parishad.
In view of the above, we are not inclined to entertain the
relief as has been sought for by the applicants in these
Original Applications.
All these cases are accordingly disposed of."
7.23. This Court does not find any plausible ground to vary with
aforesaid view expressed by the learned Odisha
Administrative Tribunal in the case of Mayadhar Pradhan
(supra). Concurring with such view, this Court is, therefore,
inclined to say that the present petitioners, who were
engaged as Sikshya Sahayaks in the year 2001/2003 and
subsequent thereto became Junior Teacher and ultimately
appointed as Regular Primary School Teachers in the year
2008/2009, are not entitled to the benefit of Rules, 1992,
but being borne in the Odisha Elementary Education
Service, Level-V Cadre in 2008/09, the position of law as
existing in the said year(s), i.e., the Odisha Civil Services
(Pension) Amendment Rules, 2005, which came into force
with effect from 01.01.2005, would apply.
7.24. Further reference to Letter dated 20.09.2011 issued by the
Director of Health Services, Odisha with reference to
aforesaid Letter dated 04.04.2007 of the Finance
Department, by the petitioners is also misplaced inasmuch
as the "incumbents" in health services appointed prior to
01.01.2005 are brought over on "regular basis" after
01.01.2005 "as such". Under such backdrop they were
stated to be covered under the Rules, 1992 and the General
Provident Fund (Odisha) Rules, 1938.
7.25. In the case of Vibhuti Shankar Pandey Vrs. The State of
Madhya Pradesh & Ors., 2023 LiveLaw (SC) 91 = 2023
SCC OnLine SC 114 the Hon'ble Supreme Court in the
context of regularization of the daily rated employees laid
down the principles as follows:
"3. *** The learned Single Judge while allowing the writ
petition gave directions for regularization of the
appellant from the date on which his juniors were
regularized. This order was challenged by the State
Government before a Division Bench which allowed
the appeal of the State Government. The Division
Bench rightly held that the learned Single Judge has
not followed the principle of law as given by this
Court in Secretary, State of Karnataka and Ors. Vrs.
Umadevi and Ors., (2006) 4 SCC 1, as initial
appointment must be done by the competent
authority and there must be a sanctioned post on
which the daily rated employee must be working.
These two conditions were clearly missing in the
case of the present appellant. The Division Bench of
the High Court therefore has to our mind rightly
allowed the appeal and set aside the order dated
27.06.2019.
4. In view of the law laid down by the Constitution
Bench of this Court in Uma Devi (supra), the
appellant had no case for regularization. There is no
scope, hence, for our interference with the order of
the Division Bench of the Madhya Pradesh High
Court. Appeal is dismissed."
7.26. In Parmeshwar Nanda Vrs. State of Jharkhand, (2020) 12
SCC 131 it has been considered qua appointees who served
in Project as follows:
"23. The case of Baliram Singh Vrs. State of Bihar, 2016
SCC OnLine Pat 9958 arises out of the policy of the
State of Bihar wherein the past service has been
specifically ordered to be considered for pension.
Since in the State of Jharkhand, the policy decision is
to treat them as fresh appointments without any
benefit of seniority and pay protection, therefore, to
count the period when the appellants were working
under a Project as pensionable service is beyond
comprehension. The appellants have been appointed
as fresh candidates and, therefore, their period of
service for pension has to be calculated from the
date of their regular appointment and therefore they
cannot get any benefit of past service rendered by
them."
7.27. The case of the petitioners is not embraced in any of the
valid grounds envisaged in the provisions nor in the legal
proposition as enunciated by the Hon'ble Courts. There is
nothing on record to suggest that the engagement of SSS/SS
on annual contractual basis is against any sanctioned post
within the meaning of "CADRE" as defined under the Odisha
Service Code. Under the aforesaid premise, this Court does
not find any scope to countenance the contentions of Sri
Budhadev Routray, learned Senior Advocate that the
petitioners, being engaged in 2001/2003, i.e., prior to
01.01.2005, are entitled to claim pension in terms of the
Odisha Civil Services (Pension) Rules, 1992, as it stood
prior to 01.01.2005, i.e., date on which the Odisha Civil
Service (Pension) Amendment Rules, 2005 came into force.
7.28. In view of provisions of Rule 4 of the General Provident
Fund (Odisha) Rules, 1938, that "all temporary Government
servants after a continuous service of one year, and all
permanent Government servants shall subscribe to the
Fund" read with proviso thereto as added by virtue of
Notification SRO No.490/2007, dated 31.08.2007
stipulating that "these rules shall not apply to Government
servants appointed on or after the 1st January 2005 to
services and posts in connection with the affairs of the
State, either temporarily or permanently", SSS/SS being not
"Government servants", the prayer for a direction to the
opposite parties to deduct GPF from monthly salary cannot
be allowed. Copy of Advertisement dated 24.12.2000 vide
Annexure-2 pursuant to which the petitioners claimed to
have made application(s) for engagement of SWECHHASEVI
SIKSHYA SAHAYAK, clearly stipulated that they would get
"engagement" in Primary/Upper Primary Schools on the
basis of "annual contract" under the Zilla Parishad. There is
no ambiguity that it is the stage of their appointment as
"Regular Primary School Teacher" in the year 2008/2009 is
considered to be "the Odisha Elementary Education
Service, Level-V", the petitioners have been taken as
Government servants.
8. Further argument of Sri Budhadev Routray, learned Senior
Advocate appearing for the petitioners is that parity ought
to have been maintained inasmuch as Sri Ashish Kumar
Mahanty, Assistant Teacher of Government High School,
Kotpad in the District of Koraput, having qualification of
Trained Graduate Teacher, who was serving as contract
teacher, albeit regularized in the service on 08.03.2010, has
been extended the pensionary benefit as per extant
provisions contained prior to the effective date of the
Odisha Civil Service (Pension) Amendment Rules, 2005.
8.1. Sri Routray vehemently contended that since no objection is
raised by the opposite parties in the counter, the case of the
petitioners deserves to be considered and they cannot be
discriminated.
8.2. It is to be mentioned that except document showing
"Application for admission in Provident Fund", nothing is
on record to show that the circumstances and context under
which his case is considered by the competent authority.
8.3. Such argument of Sri Routray appears to be attractive, but
on the face of Division Bench decision of the learned
Odisha Administrative Tribunal, Cuttack Bench, Cuttack
having refused similar relief claimed in Mayadhar Pradhan
and Others (supra), this Court does not find force in said
argument.
8.4. Nevertheless, it may be pointed out that provisions of Rules
114 and 115 of the Odisha Civil Services (Pension) Rules,
1992, can be invoked by the competent authority in the
Government.
8.5. Rules 114 and 115 stand as follows:
"114. Power to relax.--
Where Governor is satisfied that the operation of any
of the provisions of these rules causes undue
hardship in any particular case, he may, by order, for
reasons to be recorded in writing, dispense with or
relax the requirements of the said provision to such
extent and subject to such conditions as he may
consider necessary for dealing with the case in a just
and equitable manner:
Provided that no such order of relaxation shall be
made with the prior consultation of the Finance
Department.
115. Interpretation.--
Where any doubt arises as to the interpretation of
these Rules, it shall be referred to the Government in
the Finance Department for decision."
8.6. It may beneficial to extract the following passages from Dr.
G. Sadasivan Nair Vrs. Cochin University of Science and
Technology represented by its Registrar and Others, (2022)
4 SCC 404:
"32. While we accept the settled position of law that the
rule applicable in matters of determination of
pension is that which exists at the time of retirement,
we are unable to find any legal basis in the action of
the respondent University of selectively allowing the
benefit of Rule 25(a). The law, as recognized by this
Court in Deoki Nandan Prasad Vrs. State of Bihar -
AIR 1971 SC 1409 and Syed Yousuddin Ahmed
Government of Andhra Pradesh & Ors. Vrs. Syed
Yousuddin Ahmed, (1997) 7 SCC 241 unequivocally
states that the pension payable to an employee on
retirement shall be determined on the rules existing
at the time of retirement. However, the law does not
allow the employer to apply the rules differently in
relation to persons who are similarly situated.
33. Therefore, we are of the view that if the respondent
University sought to deny the benefit of Rule 25(a), in
light of the proviso which was subsequently inserted
thereby limiting the benefit of the Rule, it ought to
have done so uniformly. The proviso could have been
made applicable in relation to all employees who
retired from service of the respondent University
following the introduction of the proviso, i.e. after
12th February 1985. However, the action of the
respondent University of selectively applying the
proviso to Rule 25(a) in relation to the appellant,
while not applying the said proviso in relation to
similarly situated persons, is arbitrary and therefore
illegal. Such discrimination, which is not based on
any reasonable classification, is violative of all
canons of equality which are enshrined in the
Constitution of India."
8.7. Extending benefit of pension to the categories of
persons/employees under the relevant rules requires policy
decision to be taken by the appropriate Government. Thus,
the petitioners are at liberty to seek appropriate remedy as
available in law.
8.8. If the Authorities concerned find that the case of Sri Ashish
Kumar Mahanty, Assistant Teacher of Government High
School, Kotpad in the District of Koraput has semblance of
the case of the petitioners, in comparison to that of the
petitioners/applicants in Mayadhar Pradhan and Others
(supra), the denial of the benefit to the petitioners would be
arbitrary and not in accordance with law.
Conclusion:
9. In view of aforesaid analysis of facts, position of law as
discussed supra and reasons ascribed in the foregoing
paragraphs, in the result, while holding that the date of
engagement as SWECHHASEVI SIKSHYA SAHAYAK cannot be
reckoned as the date for the purpose of determining
application of the Odisha Civil Services (Pension) Rules,
1992 (as it existed prior to amendment vide the Odisha Civil
Services (Pension) Amendment, 2005 came into force), the
prayer of the petitioners to issue writ of mandamus to the
opposite parties to extend the benefits of the Odisha Civil
Services (Pension) Rules, 1992 and the General Provident
Fund (Odisha) Rules, 1938 is hereby refused.
9.1. The writ petition is disposed of with the liberty granted to
the petitioners to seek appropriate remedy as pointed out
above.
9.2. In the circumstances, there is no order as to costs.
(MURAHARI SRI RAMAN)
JUDGE
Orissa High Court
24th February, 2023
AKS/MRS/Laxmikant
