(An Application under Articles 226 and 227 of the Constitution of India, 1950) 1 v. … Opposite parties Advocates appe
Case Details
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 State of Odisha and Others VERSUS … Opposite parties Advocates appeared in the case: For the Petitioners : For the Opposite Parties : Mr. Budhadev Routray, Senior Advocate with M/s. Subhadutta Routray and Jagdish Biswal, Advocates 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.” WPC (OAPC) No.168 of 2014 Page 2 of 50 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 WPC (OAPC) No.168 of 2014 Page 3 of 50 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. WPC (OAPC) No.168 of 2014 Page 4 of 50 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.
Legal Reasoning
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 1 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/ WPC (OAPC) No.168 of 2014 Page 5 of 50 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. WPC (OAPC) No.168 of 2014 Page 6 of 50 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 WPC (OAPC) No.168 of 2014 Page 7 of 50 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 WPC (OAPC) No.168 of 2014 Page 8 of 50 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) 2. They shall be deemed to have come into force with effect from the 1st day of January, 2005. 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 employee and The monthly contribution would be 10% of the salary and Dearness allowance to be paid by the Government would also provide a matching contribution. The contribution so made would be deported in a non- withdrawable pension tier-I account. WPC (OAPC) No.168 of 2014 Page 9 of 50 (ii) 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 fund mix of debt and equity. The easily managers would give out understood the investment performance of different schemes so that individual Government employee would be able to make informed choices about which scheme to choose. information about to 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 for employees will be withdrawn recruited 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. the (iii) At the time of retirement, Government lump sum servant will receive 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 insurance Authority— regulated life WPC (OAPC) No.168 of 2014 Page 10 of 50 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 the mandatory annuitisation would be 80% of the pension wealth.’ ” such case 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 WPC (OAPC) No.168 of 2014 Page 11 of 50 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
Decision
dismissal of the Writ Petition. WPC (OAPC) No.168 of 2014 Page 12 of 50 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 WPC (OAPC) No.168 of 2014 Page 13 of 50 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 Zilla Parishad as Chairman CI of Schools, DI of schools, District Employment officer and the District Welfare Officer as members in the Committee. Executive Officer, *** 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. *** WPC (OAPC) No.168 of 2014 Page 14 of 50 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) ii) The Sikshya Sahayak (SS) must have rendered 4 years of continuous service satisfactorily from the date of engagement; 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; WPC (OAPC) No.168 of 2014 Page 15 of 50 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 the Zilla regular primary school 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: teachers by (i) The Junior teachers must have rendered at least 5 years of service as such satisfactorily with an unblemished records. WPC (OAPC) No.168 of 2014 Page 16 of 50 (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 the competent students as prescribed by 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), / 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 is violates considered unsuitable later on by the authorities or on the basis of adverse report of the Village Education Committee. the Zilla Parishad the conditions of the contract or *** 9.1 The Sikshya Sahayaks (SS) will get remuneration of Rs.3000/- per month with effect from 1st December 2007. *** WPC (OAPC) No.168 of 2014 Page 17 of 50 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) ii) The Sikshya Sahayak (SS) must have rendered 3 years of continuous service satisfactorily from the date of engagement; 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. WPC (OAPC) No.168 of 2014 Page 18 of 50 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 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. teachers by (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 WPC (OAPC) No.168 of 2014 Page 19 of 50 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 WPC (OAPC) No.168 of 2014 Page 20 of 50 “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 education imparting comprised in Standards of Classes I to V.” standard of elementary THE ODISHA SUBORDINATE EDUCATION RECRUITMENT AND CONDITIONS OF SERVICE) RULES, 1997: (METHOD OF “2. Definitions.— (1) (f) these rules, unless In requires— the context otherwise 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. WPC (OAPC) No.168 of 2014 Page 21 of 50 (i) (k) SERVICE means the Odisha Elementary Education Service. 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, the Posts of Level-IV shall consist of Headmasters/Headmistresses of Government Primary Schools. (iii) The Odisha Elementary Education Service, following the Level-III shall consist of categories of posts namely— WPC (OAPC) No.168 of 2014 Page 22 of 50 (a) Headmasters/Headmistresses of Government Upper Primary Schools; (b) Junior Co-ordinators Education); (Non-Formal (c) Sub-Inspector of Schools; and (d) Such other posts as Government may from time to time determine. (iv) The Odisha Elementary Education Service, following shall consist of Level-II categories of posts, namely— the (a) Deputy Inspector of Schools; (b) (c) Senior Co-ordinators Education and (Non-Formal 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.— WPC (OAPC) No.168 of 2014 Page 23 of 50 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 in case of candidates and by 3 years candidates and Educationally Backward Class; belonging Socially to (c) He/She Must be of good moral character; NOTE.— He/She shall have effect that to submit two certificate from responsible Gazetted Officers (not being his/her relations); to (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 Teacher’s Secondary 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 to his/her application being received through proper channel within scheduled times as may be determined by the Committee: further WPC (OAPC) No.168 of 2014 Page 24 of 50 Provided that the Committee may entertain advance copies of application on the condition that original copies together with “No objection” Certificate the competent authority is received within such the times as may be determined by Committee. from 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 the which the respective committee constituted purpose; their names are arranged by for ***” 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 WPC (OAPC) No.168 of 2014 Page 25 of 50 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 WPC (OAPC) No.168 of 2014 Page 26 of 50 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. WPC (OAPC) No.168 of 2014 Page 27 of 50 7.4. In State of Haryana Vrs. Charanjit Singh & Others, (2006) 9 SCC 321 it has been laid down that: the that footing “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 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 in accordance with the rules. It was held that the respondents had not been recruited in accordance with the rules prescribed for recruitment. to make appointment then 23. was whether question It was held In Union of India Vrs. K.V. Baby, (1998) 9 SCC 252 the commission- bearers/vendors are entitled to the same salary as their regular employees. appointment and mode of 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.” that selection, 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 WPC (OAPC) No.168 of 2014 Page 28 of 50 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. WPC (OAPC) No.168 of 2014 Page 29 of 50 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 WPC (OAPC) No.168 of 2014 Page 30 of 50 in 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 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 the Court. He 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 though this particular group of employees, 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 raised by Mr Kalra. The of continuance/engagement of the the appellants under 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 further contended that since under contentions the WPC (OAPC) No.168 of 2014 Page 31 of 50 that indicate the Court had 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 taken a itself would 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 the writ petition, which are accordingly dismissed, but in the circumstances, there will be no order as to costs.” these appeals and 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 to be an employment under any construed establishment of the Government. Such schemes are taken up for certain contingencies when money for the Central is provided either by the same 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 WPC (OAPC) No.168 of 2014 Page 32 of 50 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 WPC (OAPC) No.168 of 2014 Page 33 of 50 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 WPC (OAPC) No.168 of 2014 Page 34 of 50