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

1. 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, by this Court in  

SLP(C)No.22882-22888 of 2004.  The breach of such  

undertaking  and  disobedience  of  the  subsequent  

order passed on the basis thereof resulted in the  

filing of Contempt Petition No.207 of 2006 which  

was  disposed  of  by  an  order  dated  19th March,  

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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),  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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.

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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.  

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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.

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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  

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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  

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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.  

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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  

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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.  

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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  

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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  

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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  

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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  

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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.  

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