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PETITIONER: KAPILDEO PRASAD SAH & ORS.

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT:       25/08/1999

BENCH: D.P.Wadhwa, S.Saghir Ahmad.

JUDGMENT:

D.P. Wadhwa, J.

       Leave granted.

     On  refusal  of  the  Patna  High  Court  to  initiate proceedings  for  contempt  against   the  respondents,  the appellants have come to this court.

     The  appellants were working as Assistant Teachers  in different  elementary schools in Godda district in the State of  Bihar.  They are in the category of untrained  teachers. Their  services  were  terminated.   Some  of  the  teachers similarly  placed  filed  writ petitions in the  High  Court against  their termination and the matter ultimately reached this  Court.   It  is not necessary to go into  the  various stages  of the litigation except to note that this Court  by order  dated November 30, 1992 in Birendra Kumar & Ors.  vs. State of Bihar (CA 1 of 1992) directed as under :

     "We,  therefore,  direct once again that if there  are vacancies  and  if there are not trained teachers  available the  untrained  teachers who were employed prior to the  new rule  came into operation, would be reinstated in service if after  subjecting  them  to the selection process  they  are found  suitable.   If there are no vacancies, they would  be empanelled  according  to  their   seniority  and  would  be appointed  according  to  their seniority in  the  vacancies arising  in future.  Unless this panel is exhausted, no  new appointment of untrained teachers will be made from outside. It  is understood that those eligible for being so appointed will be the ones who were appointed before the new rule came into operation.

     While  making the appointments of those who were so in service  prior  to  the  date   of  appointment,  the  State Government will relax the age limit, if necessary.

     We  are  informed that the appellants involved in  the present  case  were paid salaries till 30th June, 1991.   We also  understand  from  Mr.  B.B.  Singh,  learned  advocate appearing  for  the State that all the vacancies  have  been filled  in  till 1.1.1992.  If there were vacancies and  yet the appellants were not appointed in the said vacancies such

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of  the appellants who were eligible to be appointed and yet were  not  appointed  in spite of the  vacancies,  would  be entitled  to  the  salaries from 1st July, 1992  till  their appointment.   However,  if there were no vacancies and  all the  appellants or some of them have to be appointed in  the new  vacancies  which may be available hereafter, they  will not  be  entitled to the salaries from 1st July, 1992,  till the  date  of  their appointment.  However,  when  they  are appointed  the period of break in service not exceeding  one year  will  be taken into consideration for  benefits  other than salary.

     The appeal is disposed of accordingly with no order as to costs."

     Appellants  and  some  other teachers  like  them  got similar  orders from the High Court in their respective writ petitions.  The main order passed by the High Court is dated January  20, 1993 in CWJC No.7000/92.  In this judgment  the High  Court noticed the appointments made in some  districts and  the number of existing vacancies.  State had  contended that  only one regular vacancy existed when according to the petitioners,  there  were  not less  than  2,000  vacancies. Counter affidavit filed by the State did not indicate if all the 2,000 vacancies had been filled up.  With the consent of the  counsel  for the petitioners and the  Advocate  General that these petitions may also be disposed of in the light of the  aforementioned direction of the Supreme Court the  High Court  directed it accordingly.  High Court said :  "We  may however,  direct the State to fill up posts in terms of  the aforementioned  direction  of the Supreme Court with  utmost expedition and preferably within two months from the date of receipt of a copy of this order." Similar orders were passed in other writ petitions filed by untrained teachers as well.

     Under the orders of the Supreme Court and those of the High  Court which followed, the State Government was to fill up  the  existing  vacancies,  if  any,  by  appointing  the appellants and other untrained teachers who were eligible to be  appointed against those vacancies and in case  vacancies did  exist  as on January 1, 1992 the teachers so  appointed against  those  vacancies would be entitled to  salary  from July  1,  1992  till  their appointment.   This  was  so  as salaries  had been disbursed up to June 30, 1991.  If  there were  no  vacancies,  these  untrained teachers  had  to  be appointed  in  the  new vacancies which might  be  available thereafter and in that case they were not be entitled to the salary   from  1st  July  1992   till  the  date  of   their appointment.

     Appellants were appointed on October 4, 1994 pursuance to the directions of the High Court on October 4, 1994 by an order  issued  by the District Superintendent of  Education, Godda.   Appellants  are  receiving  their  salaries  w.e.f. October  4,  1994.   They  claimed   that  it  was  case  of reappointment  under the orders of the Court and that  since they  were  appointed  against vacancies existing  prior  to January  1, 1992, they were entitled to salary from July  1, 1992  till  October 3, 1994.  They made their claim for  the arrears  of salary and since there was no response from  the State  Government,  they  filed petition for  initiation  of contempt  proceedings  against  the  State as  well  as  its functionaries being the Director, Primary Education;  Deputy Commissioner-cum-Chairman  of  the   District  Establishment

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Committee, Godda;  and District Superintendent of Education, Godda  district.   Since it was the case of the  respondents that  no vacancy existed in the Godda District as on January 1, 1992, High Court by the impugned order dated July 8, 1998 dismissed  the  contempt proceedings.  High Court said  that there was no violation of the order passed by the High Court and  if  the  appellants alleged that any direction  of  the Supreme  Court  had been violated, then it was not  for  the High Court to initiate any contempt proceedings.  Aggrieved, appellants have come to this Court.

     Here  again the stand of the respondent has been  that there has not been any violation of any order either of this Court  or  of  the High Court.  They are specific  in  their stand  that  no available vacancy existed before January  1, 1992  and  as such the appellants were not entitled  to  the arrears of salary.  Respondents have also contended that the orders appointing the appellants did not show that they were appointed  against  any  vacancy existed before  January  1, 1992.   Appellants have also not stated before us as to  how they  claim that any vacancy existed as on January 1,  1992. Yet  they  state that there has been deliberate inaction  on the  part  of the respondents which showed that they had  no regard  and  respect  for  Court’s   orders  and  that   the respondents  were  wilfully  and deliberately  flouting  the orders and direction of the courts.

     Once  the respondents take the stand that there was no vacancy existing as on January 1, 1992 in the Godda District and  in  the  absence of any evidence to  the  contrary,  it cannot  be  said  that the orders of the  courts  have  been contravened.

     For   holding  the  respondents   to  have   committed contempt,  civil  contempt at that, it has to be shown  that there  has been wilful disobedience of the judgment or order of  the  court.   Power  to punish for  contempt  is  to  be resorted  to  when there is clear violation of  the  court’s order.  Since notice of contempt and punishment for contempt is  of  far  reaching consequence, these  powers  should  be invoked only when a clear case of wilful disobedience of the court’s  order  has been made out.  Whether disobedience  is wilful  in  a  particular  case depends  on  the  facts  and circumstances  of  that  case.  Judicial orders  are  to  be properly  understood  and  complied.   Even  negligence  and carelessness  can  amount to disobedience particularly  when attention  of the person is drawn to the court’s orders  and its  implication.  Disobedience of court’s order strikes  at the  very  root  of  rule  of law on  which  our  system  of governance  is  based.   Power  to punish  for  contempt  is necessary for the maintenance of effective legal system.  It is exercised to prevent perversion of the course of justice.

     In  his  famous  passage,  Lord  Diplock  in  Attorney General  vs.  Times Newspapers Ltd.  [(1973) 3 All.E.R.  54] said  that  there  is also "an element of public  policy  in punishing  civil  contempt, since administration of  justice would  be undermined if the order of any court of law  could be  disregarded with impunity".  Jurisdiction to punish  for contempt  exists  to provide ultimate sanction  against  the person  who refuses to comply with the order of the court or disregards  the order continuously.  Initiation of  contempt proceedings  is  not a substitute for execution  proceedings though at times that purpose may also be achieved.

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     No  person  can  defy  court’s  order.   Wilful  would exclude casual, accidental bonafide or unintentional acts or genuine  inability to comply with the terms of the order.  A petitioner who complains breach of court’s order must allege deliberate  or  contumacious  disobedience  of  the  court’s order.

     Nothing  has  been  shown  that   the  claim  of   the respondents  that appellants have not been appointed against any  vacancy existing on January 1, 1992 is not true or that the  respondents are intentionally or deliberately advancing this  plea  to deprive the appellants of their right to  the arrears  of the salary for some ulterior motive.  That being so,  it was not a case where proceedings for contempt  could have  been initiated against the respondents.  High Court is right  in dismissing the contempt petition.  However,  since there  is  a serious dispute whether any vacancy existed  or not as on January 1, 1992 against which appellants or anyone of them could have been appointed the matter certainly needs examination  but  perhaps  only by way of  an  interlocutory application in the writ petition and not by way of contempt. Thus,  though upholding the order of the High Court, we send the matter back to the High Court to go into the question if any  vacancy existed as on January 1, 1992 and, if so,  pass appropriate orders.

     With  these observations, this appeal stands  disposed of.