REPORTABLE
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
Vs.
Anjani Kumar Singh ...
Respondent
O R D E R
"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.
9
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
1
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
1
till 8th September, 2010 at 3.30 p.m. for filing of
compliance report.
................................................J.
(ALTAMAS KABIR)
................................................J.
(H.L. DATTU)
New Delhi
Dated : 12.05.2010
1
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.
9
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
1
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
1
till 8th September, 2010 at 3.30 p.m. for filing of
compliance report.
................................................J.
(ALTAMAS KABIR)
................................................J.
(H.L. DATTU)
New Delhi
Dated : 12.05.2010
1
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