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

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-

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  

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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  

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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  

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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  

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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.  

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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  

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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.    

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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  

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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  

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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,  

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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

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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

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