Nand Kishore Ojha Vs.
Anjani Kumar Singh [2010] INSC 718 (8 September 2010)
Judgment
IN THE SUPREME 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
ALTAMAS KABIR, J.
1.
As
indicated in our order dated 9th December, 2009, 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 in
SLP(C)Nos.22882- 2 22888 of 2004. The said undertaking related to the
commitment made by the State of Bihar to recruit and fill in the vacant posts
of teachers in Primary Schools with trained teachers. The undertaking given by
the State of Bihar is in that context and reads 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.
That 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 High Court, while making
recruitment of teachers.
That 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 3
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"
2.
The
said application made for withdrawal of the Special Leave Petition was disposed
of by this Court on 23rd January, 2006 on the basis of the submissions made
therein.
3.
Subsequently,
when the State of Bihar failed to abide by its commitments and assurances, the
petitioner herein, Nand Kishore Ojha, filed Contempt Petition 297 of 2006,
which was disposed of on 19th March, 2007 by the following order :
"In 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 Bihar earlier and also now by
the present affidavit dated 7.2.2007 in letter 4 and spirit by appointing the
trained teachers on priority basis."
4.
Once
again on the failure of the State Government to appoint trained teachers as
Assistant Teachers in the vacant sanctioned posts carrying a pay-scale, in
breach of the undertaking and the assurances given by the Government, the
present Contempt Petition was filed. Many applications were made in the
Contempt Petition by the trained teachers similarly situated, for being
impleaded as parties to the proceedings. 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
undertaking had been given and had become much more complex than was thought of
at that point of time.
Since no workable
solution could be suggested which could satisfy the undertaking given by the
State Government and, at the same time, to cause minimum 5 amount of
disruption in implementing the same, this Court took note of an advertisement
for appointment of Primary Teachers, which was published in December, 2003 and
had been struck down by the High Court, for the limited purpose of determining
the total number of vacancies which were shown as 34,540. In order to put a
quietus to the entire issue, we accepted the figure 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, this Court directed that the available 34,540 vacancies shown in the
advertisement for appoint of Primary Teachers to be filled up with the said
number of trained teachers as a one-time- measure to give effect to the
undertaking which had been given on 18th January, 2006 and 23rd January, 2006.
This Court also adjourned the Contempt 6 Petition for implementation of the
said order passed by us and for a report to be submitted on the next date as to
the result of the discussions held between the petitioner and the concerned
authorities.
5.
Pursuant
to the above directions, the matter was taken up on 6th May, 2010, when an
Additional Affidavit affirmed by the Contemnor, Shri Anjani Kumar Singh, was
shown to us. The deponent indicated that he was the Principal Secretary, Human
Resource Development Department, Government of Bihar, and it was mentioned in
paragraph 4 of the said Affidavit that 34,540 posts of Assistant Teachers had
been created as a one-time-measure for appointment in Elementary Schools of the
State of Bihar and to facilitate the process of recruitment, the Bihar Special
Elementary Teachers' Recruitment Rules, 2010, had been prepared and had been
approved by the State Cabinet on 2nd February, 2010.
7 On the said basis,
it was averred that by creating 34,540 posts of Assistant Teachers, the State
of Bihar had complied with the directions given by this Court on 9th December,
2009 as a one-time- measure.
6.
Mr.
P.K. Shahi, learned Advocate General for the State of Bihar, took us to the
Bihar Special Elementary Teachers' Recruitment Rules, 2010, hereinafter
referred to as "the 2010 Rules", and pointed out that the same had
been framed to give effect to the undertakings given by the State of Bihar and
the orders passed by this Court from time to time. The learned Advocate General,
therefore, submitted that in view of such compliance, the contempt proceedings
were liable to be dropped.
7.
Appearing
for the Petitioners in Contempt Petition No.297 of 2007, Mr. R.P. Bhatt,
learned Senior Advocate, submitted that although apparently it would appear
that by the creation of 34,540 8 posts, the undertakings given on behalf of
the State of Bihar and the orders passed by this Court had been duly complied
with, in real fact, the same did not reflect the true state of affairs in view
of the framing of the 2010 Rules which were in breach and not in compliance
with the said undertakings. In particular, it was pointed out that Rule 4 of
the said Rules provided that only those candidates who had passed training upto
1st December, 2003, could apply, which effectively debarred those trained
teachers who passed training thereafter and were intended to be covered by the
order of 6th May, 2010, for appointment as primary teachers. It was also
submitted by Mr. Bhatt that teachers who had completed physical education
training had not been included in the definition of the expression
"training", as provided in Rule 2(iv), although they too were to be
covered by the order passed on 6th May, 2010, and the earlier orders.
8.
Mr.
L. Nageshwar Rao, learned Advocate, who appeared for some of the Special Leave
Petitioners, submitted that the provision for reservation in Rule 6 of the
aforesaid Rules would also result in the exclusion of a large number of trained
teachers from the general category, since it was not expected that the total
number of posts reserved would be filled from amongst trained teachers
belonging to the reserved category. Mr. Rao also pointed out that the provision
of Rule 9 were also prejudicial to the Petitioners, who even after their
appointment would not be paid their salaries unless their certificates were
found to be correct.
Mr. Rao Submitted
that such a condition could result in an indefinite delay in paying the
salaries of the persons appointed.
9.
Some
of the other learned Advocates appearing for the other Petitioners and those
candidates who had been permitted to intervene in these 1 proceedings on the
basis of their various applications, echoed the submissions made by Mr. Bhatt
and Mr. Rao. All of them in one voice have reiterated the submission that all
the 34,540 posts which have been created would have to be filled up without
leaving any vacancies on the plea of reservation, as had been undertaken by the
learned Advocate General for the State of Bihar, Mr. Shahi.
10.
We
have carefully considered the submissions made on behalf of the respective
parties with regard to the affidavit of compliance filed on behalf of the State
of Bihar and have also considered the submissions of the learned Advocate
General for the State of Bihar with regard to the 2010 Rules.
11.
While
we appreciate the fact that the number of posts shown in the advertisement
published in 2003 amounting to 34,540 have been created to be filled up by
trained teachers, it must be said that it was never our intention that the
conditions of the advertisement itself, which had been struck down by the High
Court, were to be followed by the Bihar State Government. We had made it very
clear in our order that we had referred to the advertisement only for the purpose
of determining the number of vacancies which would be required to be filled up
from amongst the trained teachers. It was very clearly our intention that all
the 34,540 posts were to be filled up with trained teachers who were waiting
for appointment, in order of seniority. The question of keeping some of the
posts vacant on account of non-availability of reserved candidates was never
the criterion in the order passed by us on 9th December, 2009. We must add that
we are not for a moment suggesting that candidates from the reserved category
should not be accommodated as per the reservation policy. What we intended was
that after the number of candidates from the reserved category had been
accommodated, 1 the rest of the posts were to be filled up from amongst the
candidates from the general category.
12.
Having
regard to the above, we once again direct that the said 34,540 posts, which
have been created, be filled up from amongst the trained teachers in order of
seniority after providing for appointment of candidates belonging to the
reserved category as a one-time measure as indicated in our earlier orders and
as also mentioned in the additional affidavit affirmed on behalf of the State
of Bihar.
13.
We
would like it to be appreciated by the State of Bihar that these directions
should be complied with within 31st August, 2010, without further delay. Let
this matter stand adjourned till 8th September, 2010 at 3.30 p.m. for filing of
compliance report.
................................................J.
(ALTAMAS KABIR)
................................................J.
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