Kishore Ojha Vs. Anjani Kumar Singh  INSC 1795 (9 December 2009)
COURT OF INDIA CIVIL ORIGINAL JURISDICTION CONTEMPT PETITION (CIVIL) NO. 297 OF
2007 IN SPECIAL LEAVE PETITION (C) NO.22882 OF 2004 NAND KISHORE OJHA ...
Petitioner ANJANI KUMAR SINGH ... Respondent
O R D E R
This contempt petition has a background of alleged breach of an
undertaking given on 18th January, 2006 and the order passed on the basis
thereof on 23rd January, 2006, by this Court in SLP(C)No.22882-22888 of 2004.
The breach of such undertaking and disobedience of the subsequent order passed
on the basis thereof resulted in the filing of Contempt Petition No.207 of 2006
which was disposed of by an order dated 19th March, 2 2007, on the basis of yet
another undertaking that trained teachers would be given priority in
appointment as teachers.
At this stage, it would, therefore, be necessary to look into the
background facts which resulted in the aforesaid orders and the undertakings
given on behalf of the State of Bihar.
A number of writ petitions were filed against the State of Bihar
raising issues relating to recruitment of teachers in primary schools.
the said issues had been resolved by this Court in its order dated 5th
September, 1997 in Ram Vijay Kumar & Ors. vs State of Bihar & Ors.
[(1998) 9 SCC 227]. The directions given therein do not, however, appear to
have been implemented by the State of Bihar. In fact, it was subsequent to a
judgment of the Patna High Court dated 26th September, 1996 in Vinod Kumar
& Ors. vs State of Bihar & Ors. (CWJC No.5765/94), 3 which was affirmed
by this Court, that a specific direction was given by this Court to resume the
recruitment process as directed by the High Court. As would be evident from the
judgment of the Division Bench of the Patna High Court dated 1st July, 2004,
the State of Bihar made a futile attempt to explain the reasons for not
implementing the orders passed by the High Court and this Court relating to
recruitment of teachers in primary schools all over Bihar. Upon considering the
explanation given, the Division Bench of the High Court directed the
respondent- State of Bihar and its authorities to follow the judgment and
directions given by this Court in Ram Vijay Kumar's case (supra) and also the
judgment of the High Court affirmed by this Court in Vinod Kumar's case
The subsequent advertisement issued by the State of Bihar dated
10th December, 2003, for recruitment of teachers was quashed, as were the 4
Bihar Elementary Teachers Appointment Rules, 2003. A positive direction was
given that all trained teachers available were to be reckoned and considered
for recruitment by selection or otherwise, to teach the elementary classes,
even upon relaxation of age. The concessions granted by the National Council
for Teachers' Education were also quashed and it was indicated that the State
Government could, by taking into account the totality of the circumstances and
after reckoning the viability of the trained teachers, consider the recruitment
of untrained teachers who would thereafter be given in-service training, when
such an occasion arose. All applications made pursuant to the advertisement
dated 10th December, 2003, were also quashed.
From the various directions given by the Division Bench of the
Patna High Court, it would be evident that it was the intention of the Court
that for the execution of a public plan to 5 eradicate illiteracy and the
larger interests of the children in the State, the plan for basic and primary
education was required to be implemented without any further delay and if in
the process the circumstances and the exigencies so required, untrained
teachers could be selected who would be given in-service training so that the
full strength of teachers was available when the recruitment process was
finalized. It was also made clear that while recruiting all teachers whether
trained or untrained, the State Government should keep in mind the Bihar
Education Code, particularly Chapters 6 and 7 thereof.
While the Special Leave Petitions were pending disposal, an
application was filed on behalf of the State of Bihar seeking leave to withdraw
the Special Leave Petitions in view of the decision of the State Government to
comply with the impugned judgment and order of the Patna 6 High Court. In the
said application, the State of Bihar submitted that in its agenda for good
governance, the Government had prepared a policy framework for education in the
State. As regards school education, it was committed to recruit and fill in the
vacant posts of teachers on top priority and to take other measures for
teachers' training in order to enhance their capability and quality of
teaching. The intention of the State of Bihar was more specifically indicated
in paragraphs 5, 6 and 7 of the application, which read as follows :
That in the meantime, it has been decided that trained teachers be recruited on
the vacant posts available in the State of Bihar. The Bihar Elementary Teachers
Appointment Rules, 2003 having been quashed by the Patna High Court, new
recruitment rules are contemplated to facilitate recruitment of trained
teachers in a decentralized manner, by giving them age relaxation as ordered by
the High Court.
Chapters 6 and 7 of the Bihar Education Code relating to oriental education and
hostels and messes will be kept in mind, as directed by the Patna 7 High Court,
while making recruitment of teachers.
it is respectfully submitted that since the number of available trained
teachers in the State is expected to be less than the available vacancies, no
test for selection is required to that extent, a reference to this Bihar Public
Service Commission for initiating the process of recruitment of trained
teachers may not be necessary, and the order of this Hon'ble Court and of the
Patna High Court in this regard may be modified."
The said application for withdrawal of the Special Leave Petitions
was disposed of by this Court on 23rd January, 2006, on the basis of the
submissions made therein.
Inasmuch as, the State of Bihar allegedly failed to abide by its
commitments and assurances, the petitioner herein, Nand Kishore Ojha, filed
Contempt Petition No.207 of 2006.
again, the State of Bihar provided various facts and figures, which had little
bearing to the question of recruitment of trained teachers to fill up the
vacant posts of primary teachers 8 in Bihar. It was also stated on affidavit
that the State Government had given priority to appointment of trained teachers
and only where trained teachers were not available in sufficient numbers, the
cases of untrained teachers were considered by the concerned Panchayati Raj
institution. However, on behalf of the State of Bihar, a fresh undertaking was
given that priority would be given to trained teachers for appointment in
keeping with its earlier stand, as indicated in its application for withdrawal
of the Special Leave Petitions filed against the common judgment dated 1st
July, 2007, passed by the Patna High Court. On the basis of such fresh
assurance, the contempt petition was disposed of on 19th March, 2007, by the
view of the categorical statement now made that the priority will be given to
the trained teachers in appointment and also the clarification made in
paragraphs 19 to 22 of the aforesaid affidavit dated 7.2.2007, we direct the
State of Bihar to implement the undertaking given by the State of 9 Bihar
earlier and also now by the present affidavit dated 7.2.2007 in letter and
spirit by appointing the trained teachers on priority basis."
As indicated hereinabove, the present contempt petition arises out
of the said order dated 19th March, 2007, and the earlier undertaking given on
18th January, 2006, as also the order dated 23rd January, 2006. On behalf of
the petitioners it has been contended that no trained teacher had been
appointed as Assistant Teacher against the vacant sanctioned posts carrying a
pay scale, in gross breach of the assurance given by the Government in its
affidavit dated 18th January, 2006. It was submitted that the fact that the
direction given in the order of this Court dated 19th March, 2007, have been
intentionally flouted stood admitted in the affidavit filed by the State
Government before the Patna High Court wherein it was stated that 70,000
trained teachers had been appointed along with another 35,000 untrained
teachers. It 10 was submitted by Mr. Ramesh P. Bhatt, learned senior counsel,
that whatever steps had been taken by the State Government to appoint trained
teachers along with untrained teachers, were not in keeping with the
undertaking given on 18th March, 2007, as reflected in the order of this Court
passed on 19th March, 2007, allowing the prayers of the State Government to
withdraw its SLPs. Several decisions were cited by Mr. Bhatt in support of his
submission that the State Government had deliberately and wilfully violated its
undertaking given not only on the earlier occasion but also in its affidavit
dated 7th February, 2007, affirmed at the time of passing of the order by this
Court on 19th March, 2007, disposing of the earlier contempt application.
At this stage it may be mentioned that several applications for
leave to intervene in the contempt proceedings were filed by candidates who
were similarly affected as the petitioner in 11 the contempt petition. All the
said applications were allowed on 23rd April, 2009, and we have heard Mr. L.
Nageshwar Rao and Mr. Rakesh U. Upadhyay, learned counsel, in a representative
capacity on their behalf.
Mr. Nageshwar Rao submitted that the appointments which had
purportedly been made to fill up the vacancies, had been made on an ad hoc
basis in departure from the undertakings given on behalf of the State of Bihar
and on the basis thereof it was attempted to be shown that the undertakings had
been complied with. It was submitted that even the challenge to the newly-
adopted Rules had not been gone into in view of the submissions made on behalf
of the Contemnors that they would not apply to those trained teachers who were
covered by the undertakings. In addition, Mr. Upadhyay submitted that the
vacancies in the post of Assistant Teachers in the primary schools were filled
up by Shiksha 12 Mitras and not the trained teachers, as was contemplated in
the undertakings given in the two affidavits dated 18th January, 2006 and 7th
Mr. Upadhyay submitted that the appointment of Shiksha Mitras was
nothing but a ploy on behalf of the State Government to avoid the aforesaid
undertakings given on its behalf.
Appearing for the alleged contemnors, Mr. Kailash Vasdev, learned
senior counsel, submitted that there had been substantial compliance with the
undertakings given on behalf of the State of Bihar, since out of the total
number of vacancies more than 60,000 trained teachers, who had applied, were appointed
against the available vacancies. It was submitted that even according to the
petitioner, the number of trained candidates was less than 70,000.
Mr. Vasdev also attempted to justify the action taken by the State
of Bihar by contending that after the undertakings had been given and the SLPs
had been withdrawn, the State of Bihar had framed the Bihar Elementary School
Teachers Appointment Rules, 2006, hereinafter referred to as "the 2006
Rules", which came into effect on 1st July, 2006, and were amended from
time to time.
Vasdev submitted that under the said Rules the entire system relating to
appointment of primary teachers had been altered. It was urged that the post of
Assistant Teachers, which was previously filled in at the district level by the
District Establishment Committee, had been discontinued and under the 2006
Rules, as modified, school teachers at the primary level were now being
appointed by the Panchayati Raj Institutions. According to Mr. Vasdev, teachers
appointed by the Panchayati Raj Institutions were permanent, on fixed scales of
pay and entitled to continue in service until the age of 62 years.
Vasdev submitted that in view of the change in policy all appointments to
school teachers at the elementary level after the framing of the 2006 Rules,
had been made and would have to be made in future according to the 2006 Rules,
as amended from time to time. Mr. Vasdev, however, acknowledged the fact that
it is quite possible that some of the candidates from amongst the trained-teachers
may have failed to secure appointment on account of having obtained a lower
percentage of marks than those who had been appointed, or on account of
non-availability of trained candidates in a particular category under the
roster system. Mr. Vasdev submitted that it was also possible that some of the
candidates from amongst the trained teachers did not have certificates from
recognized institutions or that they had procured fake certificates alleged to
have been issued by recognized institutions.
Mr. Vasdev also submitted that the petitioner had been asked by
the Court to submit a list of trained-teachers who are still unemployed so that
their cases could be verified, but unfortunately such information had not been
provided on behalf of the petitioner and as a consequence in the absence of
particulars, it was not possible for the State of Bihar to effectively respond
to the allegations made in this behalf.
Mr. Vasdev submitted that it had never been the intention of the
State of Bihar to wilfully and/or deliberately depart from the undertakings
given on its behalf. What it had done was merely to streamline the process of
appointments at the elementary as well as the high school level, having regard
to the 73rd Constitution Amendment by which the management of
primary/elementary 16 education had been transferred to Panchayati Raj
Institutions under Articles 243-B to 243-G of the Constitution, with effect
from 24th April, 1993.
We have carefully considered the explanation given on behalf of
the State of Bihar and its authorities for their departure from the
undertakings given to appoint trained teachers against the existing vacancies,
since the number of vacancies far- outstripped the number of trained teachers
required to fill the vacancies. The first of the said two undertakings was
given on 18th January, 2006, whereas as urged by Mr. Vasdev, in November 2005,
with the change of Government in the State of Bihar, the policy relating to
primary/elementary education was altered in view of the 73rd Constitution
Amendment, where under the management of primary schools was transferred to 17
Panchayati Raj Institutions. In addition to the above, the National Council for
Teachers' Education has given a mandate that appointment of teachers should be
decentralized and made through the Panchayati Raj Institutions.
There appears to have been a change relating to appointment of
primary teachers in primary schools with the advent of the new Government in
Bihar in 2006 and the framing of the Bihar Elementary School Teachers Rules,
2006, which came into force on 1st July, 2006, and has been amended from time
to time. We, however, see no justification in the defence taken on behalf of
the State of Bihar that on account of such change in policy the trained
teachers who were in place at the time when the undertakings were given could
not be accommodated. When such undertakings were given, they were meant to be
given successive undertakings to accommodate trained teachers in the vacant
posts, without even taking recourse to the selection procedure, the State
Government cannot resile from its earlier undertakings and profess a change of
policy for not giving effect to such undertakings. Furthermore, as submitted by
Mr. Upadhyay, the appointments given to trained teachers, who were eligible at
the time when the undertakings were given, were as Shiksha Mitras, which
appointments were allegedly ad hoc in nature and were not contemplated in terms
of the said undertakings.
In view of the submissions made by Mr. Nageshwar Rao and Mr.
Upadhyay, that the appointment made to the post of Shiksha Mitras was not in
accordance with the undertakings given on behalf of the State of Bihar and the
submissions made by Mr. Vasdev that appointments 19 had been offered to the
trained teachers who had not accepted the same, we had by our order dated 8th
August, 2008, given liberty to the alleged contemnor to file a chart giving
details of trained teachers who had been offered appointments but had not
accepted the same. Such a chart was never filed on behalf of the State of Bihar
and its authorities during the hearing of the Contempt Petition. The
submissions made by Mr. Kailash Vasdev, therefore, remained uncorroborated.
Notwithstanding what has been stated hereinabove, except for
making a general statement that the trained teachers, who were available at the
time when the undertakings were given, had not been appointed in the manner
contemplated in the undertakings given, no proper particulars were provided by
the petitioner of the trained teachers who had not been given appointments in
terms of the undertakings.
have also not been provided as to which of the trained teachers were appointed
as Shiksha Mitras without permanency of service and merely on an ad hoc basis.
But, at the same time, several intervention applications have been filed on
behalf of a large number of applicants, wherein it has been stated that the
said applicants were also trained teachers who were similarly situated as the
petitioner who had been appointed not on a permanent basis, but temporarily on
a consolidated salary of Rs.5,000/- per month. It is, in fact, in view of the
submissions made on behalf of the applicants, that we had allowed all the
applications for intervention since the applicants were covered by the
undertakings which had been given on 18th January, 2006 and 7th February, 2007.
except for claiming that appointments had been made in terms of the
undertakings given, though under changed circumstances, no explanation was
offered by the alleged contemnor with regard to the allegations made on behalf
of the applicants in the intervention applications.
The materials as disclosed before this Court and the submissions
made on behalf of the alleged contemnors, leave little room for doubt that even
if the State of Bihar had at one time intended to give appointment to the
trained teachers then available in the State of Bihar when the undertakings
were given, it has subsequently altered its position, with the result that the
State of Bihar and its authorities have sought refuge in disinformation for not
implementing the undertakings given. Ultimately, the learned Attorney General
appeared before us on 25th August, 2009 and assured us that it was not the
intention of the State of Bihar to resile from the undertaking given on its
behalf, but that the situation had changed over the years since the 22
undertaking had been given and the situation had become much more complex than
was thought at that time. The matter was, therefore, adjourned to enable him to
consider how best the matter could be resolved. Ultimately, however, no
positive solution could be suggested which could satisfy the undertaking and at
the same time, cause the minimum amount of disruption in implementing the same.
In order to find a workable solution to the problem which has
arisen on account of the failure of the Government authorities to abide by the
undertakings given on its behalf, the advertisement for appointment of primary
teachers which was published in December, 2003 and had been struck down by the
High Court, was brought to our notice for the limited purpose of determining
the total amount of vacancies which was shown as 34,540, whereas the estimated
number of trained teachers yet to be accommodated was 23 far beyond the
aforesaid figure. In order to put a quietus to the entire issue, we have
decided to accept the figures relating to the vacancies to the posts shown in
the advertisement, to meet the claims of the trained teachers who were at the
relevant point of time available for being appointed on a regular basis.
Accordingly, notwithstanding the number of trained teachers available, we
direct that the said available vacancies of 34,540, shown in the advertisement
for appointment of primary teachers, be filled up with the said number of
trained teachers as a one-time measure to give effect to the undertakings which
had been given on 18th January, 2006 and 23rd January, 2006.
Accordingly, without issuing a Rule of Contempt, we direct that
the 34,540 vacancies shown as available in the advertisement published in
December, 2003, be filled up from amongst the trained teachers who are
available, in order ofseniority. As indicated above, this is to be done on a
one-time basis and must not be taken as the regular practice to be followed.
Let the Contempt Petition be adjourned for a further period of six
weeks to enable the State Government to implement this order and to submit a
report on the next date as to the result of the discussions held between the
petitioner and the concerned authorities.
______________J. (ALTAMAS KABIR)
______________J. (H.L. DATTU)
December 09, 2009.