Nand Kishore Ojha vs Anjani Kumar Singh

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.

2. 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.

3. A number of writ petitions were filed against

the State of Bihar raising issues relating to

recruitment of teachers in primary schools.

Apparently, 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 (supra).

4. 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.

5. 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.

6. 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 :

"5. 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.

6. 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 7

High Court, while making recruitment of teachers.

7. 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."

7. 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.

8. 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.

Once 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 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 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."

9. 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.

10. 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.

11. 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

February, 2007.

12. 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.

13. 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.

13

14. 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.

Mr. 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. 14

Mr. 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. 15

15. 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.

16. 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.

17. 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, whereunder 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.

18. 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 implemented. 18

Having 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.

19. 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.

20. 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. 20

Details 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.

Unfortunately, except for claiming that

appointments had been made in terms of the

undertakings given, though under changed

circumstances, no explanation was offered by the 21

alleged contemnor with regard to the allegations

made on behalf of the applicants in the

intervention applications.

21. 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.

22. 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.

23. 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 of 24

seniority. 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.

24. 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) New Delhi Dated: December 09, 2009.