Thursday, September 16, 2010

Nand Kishore Ojha V/S Anjani Kumar Singh CONTEMPT PETITION (CIVIL) NO. 297 OF 2007 - 8-09-2010





Nand Kishore Ojha ...


Anjani Kumar Singh ...



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-

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

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

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

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

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


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.

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-


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

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


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

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,

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.


New Delhi
Dated : 12.05.2010

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