IN THE HIGH COURT OF ORISSA AT CUTTACK

W.P.(C) Nos. 6607, 4359, 6608, 6736, 6737 and 8372

of 2017, W.P.(C) Nos. 14329 and 15325 of 2016, W.P.(C)
No. 2430 of 2018 and W.P.(C) No. 21072 of 2022.

Applications under Articles 226 and 227 of Constitution of

India.
---------------
W.P. (C) No. 6607 of 2017

Durga Prasad Tripathy & Others …. Petitioners

-versus-

State of Odisha & Others …. Opp. Parties

W.P.(C) No. 14329 of 2016

Shantilata Nayak & Others …. Petitioners

-versus-

State of Odisha & Others …. Opp. Parties

W.P.(C) No. 15325 of 2016

Khirod Kumar Panda & Others …. Petitioners

-versus-

State of Odisha & Others …. Opp. Parties

W.P.(C) No. 4359 of 2017

Duryodhan Das & Others …. Petitioners

-versus-

State of Odisha & Others …. Opp. Parties

Page 1 of 23
W.P.(C) No. 6608 of 2017

Chhabindra Behera & Others …. Petitioners

-versus-

State of Odisha & Others …. Opp. Parties

W.P.(C) No. 6736 of 2017

Jagannath Prusti and Others …. Petitioners

-versus-

State of Odisha & Others …. Opp. Parties

W.P.(C) No. 6737 of 2017

Santosh Kumar Biswal & Others …. Petitioners

-versus-

State of Odisha & Others …. Opp. Parties

W.P.(C) No. 8372 of 2017

Parthasarathi Mohapatra & Others …. Petitioners

-versus-

State of Odisha & Others …. Opp. Parties

W.P.(C) No. 2430 of 2018

Shibaji Pradhan …. Petitioner

Page 2 of 23
 -versus-

State of Odisha & Others …. Opp. Parties

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

Dr. Debendra Kumar Nayak & Others …. Petitioners

-versus-

State of Odisha & Others …. Opp. Parties

Advocate(s) appeared in these cases:-

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

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

For Petitioners : Mr. B. Routray, Sr. Advocate

M/s. S. Das, B. Singh, R.P. Dalai,
K. Mohanty, S. Jena & S.K. Samal
Advocates

Vs.

For Opp. Parties : Mr. S.N. Patnaik,

(Additional Government Advocate)

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

Page 3 of 23
For Petitioners : Mr. B. Routray, Sr. Advocate
M/s. L.K. Mohanty &
B.K. Jena, Advocates.

Vs.

For Opp. Parties : Mr. S.N. Patnaik,

(Additional Government Advocate)
[ in W.P.(C) No. 15325 of 2016]

For Petitioners : Mr. B. Routray, Sr. Advocate

M/s. B. Satapathy, K.K. Panda
& B.N. Parida & P.K. Dasmohapatra,
Advocates.

Vs.

For Opp. Parties : Mr. S.N. Patnaik,

(Additional Government Advocate)
[ in W.P.(C) No. 4359 of 2017]

For Petitioners : Mr. B. Routray, Sr. Advocate

M/s. B. Satapathy, B.N. Parida,
& K.K. Panda,
Advocates

Vs.

For Opp. Parties : Mr. S.N. Patnaik,

(Additional Government Advocate)
[ in W.P.(C) No. 6608 of 2017]

For Petitioners : Mr. B. Routray, Sr. Advocate

M/s. B. Satapathy, B.N. Parida
& K.K. Panda, P.D. Mohapatra,
Advocates

Vs.

Page 4 of 23
For Opp. Parties : Mr. S.N. Patnaik,
(Additional Government Advocate)
[ in W.P.(C) No. 6736 of 2017]

For Petitioners : Mr. B. Routray, Sr. Advocate

M/s. B. Satapathy, B.N. Parida
& K.K. Panda, Advocates

Vs.

For Opp. Parties : Mr. S.N. Patnaik,

(Additional Government Advocate)
[ in W.P.(C) No. 6737 of 2017]

For Petitioners : Mr. B. Routray, Sr. Advocate

M/s. B. Satapathy, K.K. Panda,
and B.N. Parida, Advocate

Vs.

For Opp. Parties : Mr. S. K. Mishra,

(Additional Standing Counsel)
[ in W P.(C) No. 8372 of 2017]

For Petitioner : Mr. B. Routray, Sr. Advocate

M/s. H.P. Rath & A.K. Behera,
Advocates.

Vs.

For Opp. Party : Mr. S.N. Patnaik,

(Additional Government Advocate)
[ in W.P.(C) No. 2430 of 2018]

For Petitioners : Mr. B. Routray, Sr. Advocate

M/s. S.K. Samal, S.P. Nath,
S. Routray, S. Sekhar

Page 5 of 23
 J. Biswal & A.K. Das,
Advocates

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

JUDGMENT
12.02.2025

SASHIKANTA MISHRA, J.

These writ petitions involve common facts and

questions of law and were therefore, heard together and

disposed of by this common judgment.

2. For the sake of convenience, the facts of W.P.(C)

No. 6607 of 2017 are considered.

3. The petitioners were engaged as Shikshya

Sahayaks being duly selected and having trained graduate

qualification. Such engagement was under the centrally

sponsored scheme on primary education, namely, ‘Sarva

Shikshya Abhijan’ and on consolidated monthly

honorarium after executing agreement with the appointing

authority. Their grievance is that after coming into force of

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the Right of Children to Free and Compulsory Education

Act, 2009 (for short ‘the Act, 2009’) (in consonance with the

provision under Articles 21-A of the Constitution) and the

Odisha Right of Children to Free and Compulsory

Education Rules, 2010 (for short, ‘the Rules, 2010’), they

are entitled to same scale of pay and allowances etc. as

prescribed for teachers under relevant State rules since

they are trained graduates and performing the same nature

of work as regular teachers. Not giving the such benefit

amounts to gross discrimination besides being in violation

of the Act and Rules. As such, it is stated that the

execution of the agreement particularly, paragparhs-5 to 9

thereof, are nonest in the eye of law. It is stated that the

petitioners applied for the post of Shikshya Sahayak

pursuant to advertisement dated 21.01.2011 in respect of

trained graduate post (Arts and Science) having requisite

qualification and eligibility and have been discharging their

duties as trained graduate teachers and therefore, they

cannot be denied the scale of pay given to the regular

teachers. It is also stated that under the Odisha

Elementary Education (Method of Recruitment and

Page 7 of 23
Conditions of Service of Teachers and Officers) Rules, 1997

(for short, the Rules, 1997), there was provision for filling

up 60% vacancies of the post of Level-V teachers by way of

direct recruitment from candidates having passed High

School Certificate Examination/Higher Secondary

Examination with C.T. training course and the remaining

40% vacancies to be filled up by candidates having

Bachelors Degree in Arts or Science or Commerce or

examination equivalent to Bachelor Degree in Education.

As such, there was no bar or any impediment in allowing

trained graduate scale to them at the time of initial

engagement. On such facts and grounds the petitioners

have filed these writ petitions with prayer to allow them

trained graduate scale with all other benefits in terms of

Rule-18 of the 2010 Rules as also for quashing

paragraphs- 5 to 9 of the agreements executed by them.

4. Stand of the State is that the petitioners’ had

applied for the post of Shikshya Sahayak pursuant to

advertisement dated 21.01.2011 published in daily

newspapers. It was clearly mentioned in column No.8 of

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said advertisement that Shikshya Sahayaks will get

Rs.4000/- towards honorarium per month. Being fully

aware of the terms and conditions, the petitioners applied

for engagement and being selected, were engaged. It is also

the stand of the State that in Resolution dated 06.08.2013

issued by the Government laying down guidelines for

recruitment of Shikshya Sahayaks for the year 2013-2014,

it is mentioned under Point No.1 that Shikshya Sahayaks

(trained and untrained) will get consolidated monthly

remuneration as decided by the Government from time to

time. The petitioners being selected received engagement

order and joined as such after duly executing agreements

with the Chief Executive Officer, Zilla Parishad. In

paragraph-6 of the agreement, it is clearly mentioned that

they shall not claim service benefit as admissible to the

State Government employees and under Paragraph-7 it is

provided that they shall not be eligible to get any other

allowance nor claim any other dues except the honorarium

as per paragraph-5. Further, as per Resolutions dated

09.11.2009 and 01.08.2011, the petitioners after

completion of six years of satisfactory service as Shikshya

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Sahayak and Junior Teacher are entitled to be appointed

as regular Primary School Teacher in the scale of pay as

applicable to Level-V of elementary cadre teachers.

5. Heard Mr. Budhadev Routray, learned Senior

Counsel in all the writ petitions assisted by Mr. B.

Satpathy, Mr. L.K. Mohanty, Mr. H.P. Rath and Mr.

S.K.Samal for the petitioners and Mr. S.N. Patnaik, learned

Addl. Government Advocate for the State.

6. Learned Senior Counsel, Mr. Routray first draws

attention of this Court to Section-23 of the 2009 Act to

submit that Sub-section-3 thereof provides that the salary

and allowances payable to and the terms and conditions of

service of teacher shall be such as may be prescribed.

Further, as per rule making power under Section-38(2)(l),

the appropriate Government has been empowered to make

rules with regard to salary and allowances etc. Accordingly,

the Central Government framed the Right of Children to

Free and Compulsory Education Rules, 2010 of which

Rule-20(3) provides for parity in scale of pay and

allowances etc. for similar qualification, work and

Page 10 of 23
experience. Mr. Routray further argues that in exercise of

the power conferred by Section-38 of the 2009 Act, the

State of Odisha has also framed in 2010 Rules of which

Rule-19 provides for parity in the scale of pay and

allowances etc. of teachers with similar qualification, work

and experience prescribed for the teachers under relevant

State rules. Referring to the Orissa Education (Recruitment

and Conditions of Service of Teachers and Members of the

Staff of Aided Educational Institutions) Rules, 1974 (for

short, the Rules, 1974), Mr. Routray invites attention of the

Court to Rule-9 thereof, which provides that every

employee of an aided institution shall draw the same pay,

dearness allowance and subsistence allowance as

admissible to his counterpart in the Government

educational institutions. Mr. Routray would then argue

that the mandate of law is to provide equal pay to persons

doing equal work. In the case at hand, the petitioners were

though appointed as Shikshya Sahayaks, were performing

the duties of trained graduate teachers. Therefore, they

cannot be discriminated in the matter of payment of salary

and other allowances with their counterparts in the regular

Page 11 of 23
establishment as the same would be in violation of Article

14 of the Constitution of India.

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

Counsel questioning the maintainability of the writ petition

argues that the law of estoppel would apply to the

petitioners in full force inasmuch as having fully

understood the nature of engagement as indicated in the

advertisement and having accepted the specific terms and

conditions of such engagement as per the agreement duly

executed by them before joining as Shikshya Sahayaks, it

is no longer open to the petitioners to question the

correctness of the said terms and conditions at this belated

stage. On merits of the claim, Mr. Patnaik would argue that

all the statutory provisions referred to by the Senior

Counsel would be applicable to persons employed as

teachers on regular basis but not to Shikshya Sahayaks,

since their engagement is purely schematic and tenure-

based being subject to renewal from year to year depending

on performance. Moreover, Shikshya Sahayak cannot be

equated with the regular teacher. Therefore, by no stretch

Page 12 of 23
of imagination, the petitioners can be held entitled to the

regular scale admissible to the trained graduate teachers.

8. It is not disputed that the petitioners in (W.P.(C)

No. 6607 of 2017) had applied for engagement as Shikshya

Sahayak pursuant to advertisement issued on 21.01.2011

for filling up 553 posts of Shikshya Sahayaks in the

Revenue District of Dhenkanal. The advertisement was for

engagement of trained graduate and trained +2 teacher in

Science and Arts. The claim of the petitioners that they had

BSc., BEd. qualification is admitted by the State in its

counter. Reference to the advertisement, copy of which is

enclosed as Annexure-A/7 to the counter filed by the State,

reveals that the engagement was to be on yearly agreement

basis and that the trained Shikshya Sahayaks shall be

entitled to Rs.4000/- as consolidated monthly honorarium.

The advertisement appears to have been issued in

pursuance of the guidelines issued by the Government in

School and Mass Education Department Resolution dated

10.01.2011 of which paragraph-9.1 mentions that the

Shikshya Sahayak (trained and untrained) will get

Page 13 of 23
consolidated monthly remuneration as decided by the

Government from time to time. It is undisputed that the

petitioners being selected executed an agreement, a sample

of which is enclosed in the writ petition as Annexure-3.

Paragraphs-5 to 9 of the agreement read as follows:-

“5. That the Second Party shall be paid

Rs…………(Rupees…………) only per month as
consolidated honorarium.

6. That, the Second Party shall not claim the service

benefits as admissible to the State Government
employees.

7. That, the Second party shall not be eligible to get

any other allowance and shall not claim any other
dues except the honorarium as mentioned in Clause(5)
above.

8. That, the Second Party shall not be eligible subject

to exigency of Public Service for casual leave of 12
days during academic year.

9. ‘That, the Second Party shall not be entitled for any

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

9. It is thus crystal clear that the petitioners being

fully aware of the terms and conditions of the engagement

had applied for engagement and being selected were also

engaged as such after executing agreement with terms and

Page 14 of 23
conditions referred above. Such engagement was in the

year 2011-12. By such time, the 2009 Act as well as 2010

Rules were already in operation. Nothing has been stated in

the writ petition as to why the claim which is being raised

now was not raised when the advertisement was published.

So, having willfully accepted the terms and conditions of

the engagement as notified in the advertisement, the

agreement and the order of engagement, it is obviously not

open to the person concerned to turn around at such

belated stage and question the terms and conditions of his

engagement. This Court is therefore, of the considered view

that the law of estoppel would apply in full force.

10. Having held as above, this Court would still

proceed to examine the claim of the petitioners on merits in

view of the argument of learned Senior Counsel that there

can be no estoppel against law. Before doing so, this Court

would like to keep in perspective certain fundamental

principles of law governing the field.

11. It is well settled that the policy decision of the

Government regarding recruitment is not amenable to

Page 15 of 23
judicial review unless the same is arbitrary as was held by

the Supreme Court in the case of State of Odisha and

Others v. Bhikari Charan Khuntia and Others 20031.

In this context, reference to the Resolution dated

10.01.2011 would reveal that Government, taking note of

the 2009 Act and the 2010 Rules decided to engage

Shikshya Sahayaks in the manner prescribed. Thus, it is

the Resolution dated 10.01.2011, which resulted in

publication of the advertisement. Significantly, the

Resolution itself has not been challenged. It has been

however argued that the Resolution as well as the

advertisement are not in consonance with the provisions of

2009 Act and 2010 Rules. In other words, it is contended

that there is no reasonable nexus between the

advertisement and the object sought to be achieved

thereby.

12. It has been argued at length that both the 2009

Act as well 2010 Rules unequivocally provide that the State

is obliged to maintain parity in scales of pay and

allowances etc. for similar qualification, work and

1
10 SCC 144

Page 16 of 23
experience prescribed for teachers under relevant rules.

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

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

“23. Qualifications for appointment and

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

(2) Where a State does not have adequate

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

Provided that a teacher who, at the

commencement of this Act, does not possess
minimum qualifications as laid down under sub-
section (1), shall acquire such minimum
qualifications within a period of five years:

(3) The salary and allowances payable to,

and the terms and conditions of service of, teachers
shall be such as may be prescribed.”

13. Part-VI of the Central Rules, 2010 relates to

teacher in which Section-17 relates to minimum

qualification, while Section-20 deals with salary and

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allowances and conditions of service of teachers. Similar

provisions are available in 2010, State Rules. Rule-9 of the

1974 Rules refers to employee of an aided educational

institution.

14. As against the above, Shikshya Sahayak is a

person engaged under a scheme on specific terms and

conditions upon executing a contract. In the case of

Sri Susanta Kumar Sethi v. State of Odisha and

Others (in W.A. No. 86 of 2018), a Division Bench of this

Court while deciding a matter in the context of applicability

of the provisions of Odisha Reservation of Vacancies bin

Posts and Services (for Scheduled Castes and Scheduled

Tribes) Act, 1975 held that the nature of engagement of a

Shikshya Sahayak being contractual the said Act will not

apply. It is not the case of the petitioners that as Shikshya

Sahayaks they were occupying ‘any post’ under the State

Government akin to regular teacher or even equal to

teachers employed by the aided educational institutions. In

fact, from the very nature of the engagement, it is clear that

Shikshya Sahayaks, though essentially performing the

Page 18 of 23
duties of teaching actually form a class of their own. At this

stage, it is argued that neither the 2009 Act nor the 2010

Rules makes any distinction with regard to the nature of

engagement and therefore, the principle of parity envisaged

therein cannot be given a go bye. In other words, the

principle of equal pay for equal work has been harped upon

by invoking the principle of equality under Article 14 of the

Constitution.

15. In this context, it would be profitable to refer to

the constitution Bench judgment of the Supreme Court in

the case of Kishori Mohanlal Bakshi vs. Union of India

and Others,2 where a claim of equal pay for equal work

was rejected. Explaining the principle enunciated in

Kishori (supra) a three Judge Bench of the Supreme

Court in the case of Randhir Singh & another vs. Union

of India & Others, 3 held as follows :-

“Kishori Mohanlal Bakshi v. Union of India is

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

2
AIR 1962 SC 1139
3
(1982) 1 SCC 618

Page 19 of 23
 grades in a service, with varying qualification for
entry into a particular grade, the higher grade often
being a promotional avenue for officers of the lower
grade. The higher qualification for the higher grade,
which may be either academic qualifications or
experience based on length of service, reasonably
sustain the classification of the officers into two
grades with different scales of pay. The principle of
equal pay for equal work would be an abstract
doctrine not attracting Article 14 if sought to be
applied to them.”

It was also held as follows:-

“Construing Articles 14 and 16 in the light of

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

Again in the case of Supreme Court Employees

Welfare Association etc. vs. Union of India and

another,4 the Supreme Court held as follows:-

“In other words, where unequal pay has

brought about discrimination within the meaning of
Article 14 of the Constitution, it will be a case of
‘equal pay for equal work’, as envisaged by Article
14 of the constitution if the classification is proper &
reasonable & has a nexus to the object sought to be
achieved, the doctrine of ‘equal pay for equal work’
will not have any application even though the
persons doing the same work are not getting the
same pay. In short, so long as it is not a case of
4
AIR 1990 SC 334

Page 20 of 23
 discrimination under Article 14 of the Constitution,
the abstract doctrine of ‘equal pay for equal work’,
as envisaged by Article 39(d) of the Constitution has
no manner of application, nor is it enforceable in
view of Article 37 of the Constitution.”

16. In the case of Andhra Pradesh, Special

Teachers vs. State of A.P.5, the Supreme Court rejected

the claim of equal pay for equal work of special teachers

appointed under a special scheme as nature of the job was

not the same as those of regular school teachers. In the

case of State of Madhya Pradesh & Others vs. Ramesh

Chandra Bajpai6, the Supreme Court held as follows:-

“It is well settled that the doctrine of equal pay for

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

17. Thus, what emerges from a conspectus of the

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

5
JT 1988 (3) SC 5
6
2009(13) SCC 635

Page 21 of 23
equal work is that the same can be invoked only when

there is wholesale identity between the holders of two

posts.

18. Viewed on the touchstone of the above

propositions of law there can be no gainsaying that a

Shikshya Sahayak being essentially a contractual engagee

under a scheme can hardly be compared to a regular

teacher governed by the relevant statutory rules framed by

the State. To amplify a person engaged as per the

provisions of the Rules, 1997 is governed by the said Rules

from the date of his appointment onwards. On the other

hand, a Shikshya Sahayak has to complete three years of

satisfactory service to be eligible to become junior teacher

and only after completion of three years of satisfactory

service as a junior teacher, in all amounting to six years,

will he be entitled to be a regular teacher in the post of

Level-V of the elementary grade. He thus attains parity with

person appointed otherwise as per the provision of 1997

Rules only after six years. Therefore, by no stretch of

imagination can a Shikshya Sahayak be treated as being

Page 22 of 23
 equal to a regular teacher appointed under the Rules

notwithstanding the fact that, he may be performing

similar service as the latter.

19. Thus, from a conspectus of the analysis of facts

and law as made above, this Court is of the considered view

that the pay scales applicable to regular teachers cannot be

applied to the Shikshya Sahayaks. There is no wholesale

identity between the regular teachers and Shikshya

Sahayaks, so as to treat them as equals. As such, their

claim of equal pay for equal work cannot be treated as valid

and justified.

20. For the foregoing reasons therefore, the writ

petitions, being devoid of merit, are dismissed.

..……..…………………..
Sashikanta Mishra,
Judge

Signature Not
Orissa High Verified
Court, Cuttack,
The 12 February, 2025/ B.C. Tudu, Sr.Steno
th
Digitally Signed
Signed by: BHIGAL CHANDRA TUDU
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 13-Feb-2025 10:29:27

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