Kumar Singh & Ors Vs. State of Bihar & Ors  INSC 309 (22 November 1991)
A.S. (J) Anand, A.S. (J) Misra, Rangnath (Cj) Ray, G.N. (J)
1992 AIR 407 1991 SCR Supl. (2) 415 1992 SCC (1) 152 JT 1991 (6) 419
of Courts Act, 1971:
order---Mis-interpretation of--Whether amounts to contempt of Court.
Bihar Non--Government Primary
School (Taking over
of Control ) Ordinance, 1976: Para 1 & Para 2:
school teachers--Appointment--Qualifications --Non--availability of trained
teachers--Whether untrained candidates could be appointed.
The Bihar Non-Government Primary
School (Taking over
of Control) Ordinance, 1976 provided by Para
1 and Para 2 that while appointing teachers, I.Sc.
trained will be appointed on the basis of I. Sc trained and only Matric with
Science trained will be appointed on the basis of Matric trained, and where
such candidates were not available the candidates having qualifications more
than these would also be appoint- ed.
were untrained primary school teachers in the State of Bihar. Later on their services were termi-
nated. They filed writ petitions before the High Court which held that their
services had been terminated because of improper and illegal recruitment by the
State for which they were not responsible, and that the termination orders were
violative of principle of natural justice, but did not quash the orders of
termination, and directed the State Government to recruit those dismissed
teachers who satisfied the re- quirements, and to relax the age limit in case
of those who meanwhile became overage.
special leave petitions filed by the petitioners this Court by its order dated
7.2.1991, directed the State Government to carry out the selection process to
take back in the employment the teachers who were found qualified under the
Rules in force at the time of 416 their initial appointment, and to give them
full benefit of continued service irrespective of any break in service on
account of the termination. In the special circumstances of the case arising
out of closure of a number of schools for want of teachers, the Court held that
in the event of non- availability of trained candidates even untrained
candidates could be appointed, and gave time till 30.6.1991 to complete the
selection process in accordance with the directions of the High Court.
there to the Commissioner-cum-Secretary, Human Resources Department, Government
of Bihar made an order determining eligible categories for reappointment out of
the dismissed teachers and hold that under the executive directions/regulations
only trained teachers were eligible for appointment while untrained teachers,
in exceptional circumstance could be appointed against the reserved catego- ries
of Scheduled Castes, Scheduled Tribes, Urdu and San- skrit only, and held that
those untrained teachers who did not belong to any of these categories were not
eligible for appointment.
petitioners filed contempt petitions contending that the Commissioner gave a
completely wrong interpretation to the relevant executive
directions/regulations and had delib- erately contravened this Court's order
dated 7.2.1991. On behalf of the respondents it was contended that the Commis- sioner
had correctly interpreted the executive orders/regu- lations and did not
contravenes this court's order and, therefore, he committed no contempt.
of the contempt petitions, this Court,
1. (1) The directions of the Court provided that even the untrained teachers were
entitled to be selected and appointed not only in the reserved categories but
also in the other categories, provided trained teachers were not available and
the untrained teachers were otherwise quali- fied without putting the bar of
age against them. [p.421D-E]
The interpretation placed by the Commissioner, was not correct and if that
interpretation be accepted, it would efface the very effect of the order of
this Court dated 7.2.1991 and defeat the object of that order which was aimed
at providing that all the schools must have teachers. The Commissioner's order
was not in cOnformity with the direc- tions given by this Court and the High
Court. [p. 421 B-D] 417
appears to be a case of misinterpretation of the executive directions and order
of this Court dated 7.2.1991 and was, therefore, not a fit case in which
contempt pro- ceedings need to proceed any further. It could not conclu- sively
be said that the respondents wilfully or deliberate- ly or contemptuously
flouted or disobeyed the orders of this Court dated 7.2.1991. [p 421 E F]
respondents should properly comply with the orders of this Court dated 7.2.1991
and select and appoint untrained teachers who are otherwise qualified for
appoint- ment in all categories without putting the condition of training or
age bar against them where trained teachers are not available. The process of
fresh selection must be con- cluded expeditiously and, in any case, not later
than three months from the date of the order. [pp 421 G H; 422 A]
APPELLATE JURISDICTION: Contempt Petition Nos.23640/91 & 263/91.
Special Leave Petition Nos. 11699, 11700, 11098, 11654, 10190/90 and 429 of 1988.
the Judgment and Order dated 11.8.1989 of the Patna High Court in C.W.J.C.Nos.
1014, 1013,227,1365 ,red 1363 of 1988.
Bhushan for the Petitioner, P.D. Sharma for the Respondent.
Judgment of the Court was delivered by A.S. ANAND, J. Shorn of details the
circumstances giving rise to the filing of these petitions seeking certain direc-
tions and initiation of contempt proceedings against the respondents are as
petitioners were at the relevant time working as primary school teachers in the
State of Bihar. Services of some of the teachers
were terminated. The orders of termina- tion were' questioned before the High
Court of Patna and a Division Bench of that Court vide judgment dated 11.8.1989
accepted the position that the services of the teachers had been terminated on
account of improper and illegal recruit- ment by the State. The High Court was,
however, of the opinion that the petitioners were not in any way responsible
for the improper recruitment. The Division Bench 418 gave a direction to the
State to screen appropriately the cases of the petitioners and to recruit those
who satisfy the requirements. The Division Bench noticed as follows:
the facts of this case, we observe that persons who are qualified for
appointments deserve a consideration and appointment, accordingly on such posts
for which they are qualified in preference to other candidates who may be
qualified. We, accordingly, direct the respondents to proceed to take up the
appointments of the teachers in the Elementary Schools of Santhal Pargana and Deoghar
by inviting applications from the petitioners and other persons who have been
removed because they were illegally recruited by the District Superintendent of
education and selected if they satisfy the eligibility conditions and appoint
them. In doing so the Respondent State must relax the age limit in case of any of the petitioners
found to have become over age during the period of service on stipend and
removal. The petitioners and/or any other candidate who may be appointed in the
vacancy so created on account of removal of the peti- tioners and other persons
appointed by the District Superintendent of Education shall however not claim
any benefit of the appoint- ment illegally given to them by the District
Superintendent of Education but shall receive emoluments and other benefits by
dint of their selection and appointment in accordance with law." The Court
also found that the orders served on the petitioners were violative of
principles of natural justice.
the Court did not quash the orders of termination but directed that in future
selections, preference would be given to the petitioners. The petitioners filed
special leave petitions seeking quashing of the termination orders.
special leave petitions certain directions came to be issued by this Court on
7.2.1991. The State of Bihar was directed that it should carry out the
selection process for the retention of the services of those teachers who were
qualified at the time of their appointment and that such of the teachers who
were found qualified were to be taken back in the employment and were to be
given full benefit of continued service irrespective of any break in service on
account of the termination of the services. This court also noticed that the
direction of the High Court to the State to hold fresh selections and the
methodology to be adopted therefor had become final against the State in as
much as the State had not called in question the order of the Divi- sion Bench
and those directions of the 419 High Court did not require interference. The
Court gave three months to the State for completion of the selection process in
accordance with the directions of the High Court.
outside limit during which the process was required to be completed was fixed
as 30th June, 1991. The Court ob- served:
considering the suitability for selection the Rules which were in force at the
time the Teachers were recruited should be taken into account and
disqualification shall not be imposed on the basis of any altered Rule. It will
also be open to the State to consider the claim of Teachers who came after the
altered Rules in terms of the Rules in force. The bar of age, we reiterate the
direction of the High Court, shall not be used against the Teachers for their
of the Teachers who have served in the past but there has been a break in
service on account of termination shall have the credit of past service both in
regard to the payment of salary as also seniority and other service
benefits." It transpires that consequent upon the order of this Court
dated 7.2.1991, the Commissioner-cum-Secretary, Human Resources Department,
Government of Bihar, made an order on 28.6.1991 determining the categories out
of the dismissed teachers, who were eligible for reappointment. The Commis- sioner
took the view that under the executive directions/regulations only trained
teachers were eligible for appointment in both the categories while the
untrained teachers, in exceptional circumstances, could be appointed against
the reserved categories of Scheduled Castes, Sched- uled Tribes, Urdu and
Sanskrit only. In other words, the Commissioner concluded that those untrained
teachers who did not belong to any of the aforesaid four categories but
belonged to the general category were not eligible for appointment. Thus, out
of the untrained dismissed teachers numbering about two thousand, only about
eighty-one teach- ers, it is alleged, were found to be qualified and their
services were retained. The petitioners allege that the order of the
Commissioner is completely contrary to the executive directions and is also in
clear contravention of the order of this Court dated 7.2.1991.
Bhushan, learned Senior Advocate, appearing for the petitioners submitted that
the Commissioner had given a completely wrong interpretation to the executive
directions/regulations relating to the appointment of pri- mary and middle
school teachers in the State of Bihar and had deliberately contravened the
orders of this Court dated 7.2.1991.
B.B. Singh, learned counsel appearing for the State of Bihar, in reply submitted
that there had been no contra- vention of the order of this Court dated
7.2.1991 and that the Commissioner had placed a correct interpretation on the
executive directions/regulations and had construed the judgment of this Court
in the light of that interpretation and, therefore, he had committed no
contempt. Learned coun- sel submitted that the interpretation placed by the Commis-
sioner deserved acceptance.
have gone through the executive directions/regula- tions issued in the form of
office letters/orders etc.
the working of The Bihar Non-Government Primary School (Taking over of control)
Ordinance 1976 and, in particular, the directions relating to the
"preparation of waitinglist and appointment of teachers" (para 1) and
"the qualifications of candidate for appointment and waiting- list" (para
2). The directions, inter alia, provide that while appointing the teachers I.Sc.
trained will be appoint- ed on the basis of I.Sc. trained and only matric with
science trained will be appointed on the basis of matric trained. Where
candidates of the aforesaid qualifications are not available in required
number, the candidates having qualifications more than those stated above may
also be appointed. The names of the candidates, in each category, will be
written yearwise in the following manner:- "...first of all matric
trained, then I.A, 1.
trained and thereafter graduate trained, on the basis of marks obtained in
educational and training courses and their appointments will be made accordingly."
Sub-clause (d) of Para 2, however, provides:
the names of trained candidates the names of untrained candidates, of each catego-
ry will be written in sequence of marks ob- tained and qualification."
Sub-Clause (f) of Para 2 reads thus:
candidates of different educational qualification may be appointed in reserved
category under special circumstances when trained candidates are not
available." Sub-Clause (1) of Para 2 reads as follows:
candidates having the qualification of matric or more than it may be appointed
in the preliminary pay scale Matric untrained (Middle-Trained)." 421 A
conjoint reading of the executive orders/directions shows that the untrained
candidates are also capable of being appointed in each category but only when
the trained teachers are not available in the particular category. The trained
teachers in the order of sequence would indeed get preference over the
interpretation placed by the Commissioner, there- fore, is not correct and if
that interpretation is accepted it would efface the very effect of the order of
this Court dated 7.2.1991 and defeat the object of that order which was aimed
at providing that all the schools must have teachers.
Court had taken note of the situation that there was an acute shortage of
teachers in primary schools of Santhal Parganas of Bihar due to which most of
the schools had been closed down and therefore to tide over the situation the
directions extracted above, were given. The Court had reit- erated the
directions of the High Court that while making fresh selections the bar of age
should not be used against the teachers. The order of the Court applied to
untrained teachers for all the categories also. The Commissioner has made an
order which, in our opinion, is not in conformity with the directions given by
this Court and the Division Bench of the High Court. The directions of the
Court, in the peculiar facts and circumstances of the case arising out of
closure of a number of schools for want of teachers, provid- ed inter alia that
even the untrained teachers were entitled to be selected and appointed not only
in the reserved cate- gories but also in the other categories, provided trained
teachers are not available and the untrained teachers are otherwise qualified,
without putting the bar of age against them.
the material on record and after hearing learned counsel for the parties, we
are not satisfied that it is a case in which it can conclusively be said that
the respond- ents have wilfully or deliberately or contemptuously flouted or
disobeyed the orders of this Court dated 7.2.1991. It appears to us to be a
case of misinterpretation of the executive directions and order of this Court
dated 7.2.1991 and is, therefore, not a fit case in which contempt proceed- ings
need to proceed any further. We, accordingly, drop the contempt proceedings and
discharge the Rule issued against the respondents.
the Court has found entitlement of the untrained teachers in all the categories
to appointment provided they are otherwise qualified and trained teachers are
not avail- able, we direct the respondents to properly comply with the orders
of this Court dated 7.2.1991 and select and appoint untrained teachers who are
otherwise qualified for appoint- ment in all categories without putting the
condition of training or age bar against 422 them where trained teachers are
not available. The State must conclude the process of fresh selection in the
light of the observations made in this order expeditiously and, in any case. not
later than three months from today.
petitions are disposed of accordingly.
Petitions dis- posed of.