Full Judgment Text
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PETITIONER:
ASHOK KUMAR SINGH AND ORS.
Vs.
RESPONDENT:
STATE OF BIHAR AND ORS.
DATE OF JUDGMENT22/11/1991
BENCH:
ANAND, A.S. (J)
BENCH:
ANAND, A.S. (J)
MISRA, RANGNATH (CJ)
RAY, G.N. (J)
CITATION:
1992 AIR 407 1991 SCR Supl. (2) 415
1992 SCC (1) 152 JT 1991 (6) 419
ACT:
Contempt of Courts Act, 1971:
Court’s order---Mis-interpretation of--Whether amounts to
contempt of Court.
Bihar Non--Government Primary School (Taking over of
Control ) Ordinance, 1976: Para 1 & Para 2:
Primary school teachers--Appointment--Qualifications
--Non--availability of trained teachers--Whether untrained
candidates could be appointed.
HEADNOTE:
The Bihar Non-Government Primary School (Taking over of
Control) Ordinance, 1976 provided by Para 1 and Para 2 that
while appointing teachers, I.Sc. trained will be appointed
on the basis of I. Sc trained and only Matric with Science
trained will be appointed on the basis of Matric trained,
and where such candidates were not available the candidates
having qualifications more than these would also be appoint-
ed.
The petitioners were untrained primary school teachers
in the State of Bihar. Later on their services were termi-
nated. They filed writ petitions before the High Court which
held that their services had been terminated because of
improper and illegal recruitment by the State for which they
were not responsible, and that the termination orders were
violative of principle of natural justice, but did not quash
the orders of termination, and directed the State Government
to recruit those dismissed teachers who satisfied the re-
quirements, and to relax the age limit in case of those who
meanwhile became overage.
On the special leave petitions filed by the petitioners
this Court by its order dated 7.2.1991, directed the State
Government to carry out the selection process to take back
in the employment the teachers who were found qualified
under the Rules in force at the time of
416
their initial appointment, and to give them full benefit of
continued service irrespective of any break in service on
account of the termination. In the special circumstances of
the case arising out of closure of a number of schools for
want of teachers, the Court held that in the event of non-
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availability of trained candidates even untrained candidates
could be appointed, and gave time till 30.6.1991 to complete
the selection process in accordance with the directions of
the High Court.
Consequent there to the Commissioner-cum-Secretary,
Human Resources Department, Government of Bihar made an
order determining eligible categories for reappointment out
of the dismissed teachers and hold that under the executive
directions/regulations only trained teachers were eligible
for appointment while untrained teachers, in exceptional
circumstance could be appointed against the reserved catego-
ries of Scheduled Castes, Scheduled Tribes, Urdu and San-
skrit only, and held that those untrained teachers who did
not belong to any of these categories were not eligible for
appointment.
The petitioners filed contempt petitions contending that
the Commissioner gave a completely wrong interpretation to
the relevant executive directions/regulations and had delib-
erately contravened this Court’s order dated 7.2.1991. On
behalf of the respondents it was contended that the Commis-
sioner had correctly interpreted the executive orders/regu-
lations and did not contravenes this court’s order and,
therefore, he committed no contempt.
Disposing of the contempt petitions, this Court,
HELD: 1. (1) The directions of the Court provided that
even the untrained teachers were entitled to be selected and
appointed not only in the reserved categories but also in
the other categories, provided trained teachers were not
available and the untrained teachers were otherwise quali-
fied without putting the bar of age against them. [p.421D-E]
1.2 The interpretation placed by the Commissioner, was
not correct and if that interpretation be accepted, it would
efface the very effect of the order of this Court dated
7.2.1991 and defeat the object of that order which was aimed
at providing that all the schools must have teachers. The
Commissioner’s order was not in cOnformity with the direc-
tions given by this Court and the High Court. [p. 421 B-D]
417
2. It appears to be a case of misinterpretation of the
executive directions and order of this Court dated 7.2.1991
and was, therefore, not a fit case in which contempt pro-
ceedings need to proceed any further. It could not conclu-
sively be said that the respondents wilfully or deliberate-
ly or contemptuously flouted or disobeyed the orders of this
Court dated 7.2.1991. [p 421 E F]
3. The respondents should properly comply with the
orders of this Court dated 7.2.1991 and select and appoint
untrained teachers who are otherwise qualified for appoint-
ment in all categories without putting the condition of
training or age bar against them where trained teachers are
not available. The process of fresh selection must be con-
cluded expeditiously and, in any case, not later than three
months from the date of the order. [pp 421 G H; 422 A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Contempt Petition
Nos.23640/91 & 263/91.
IN
Special Leave Petition Nos. 11699, 11700, 11098, 11654,
10190/90 and 429 of 1988.
From the Judgment and Order dated 11.8.1989 of the Patna
High Court in C.W.J.C.Nos. 1014, 1013,227,1365 ,red 1363 of
1988.
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Prashant Bhushan for the Petitioner,
P.D. Sharma for the Respondent.
The Judgment of the Court was delivered by
A.S. ANAND, J. Shorn of details the circumstances giving
rise to the filing of these petitions seeking certain direc-
tions and initiation of contempt proceedings against the
respondents are as follows:
The petitioners were at the relevant time working as
primary school teachers in the State of Bihar. Services of
some of the teachers were terminated. The orders of termina-
tion were’ questioned before the High Court of Patna and a
Division Bench of that Court vide judgment dated 11.8.1989
accepted the position that the services of the teachers had
been terminated on account of improper and illegal recruit-
ment by the State. The High Court was, however, of the
opinion that the petitioners were not in any way responsible
for the improper recruitment. The Division Bench
418
gave a direction to the State to screen appropriately the
cases of the petitioners and to recruit those who satisfy
the requirements. The Division Bench noticed as follows:
"On the facts of this case, we observe that
persons who are qualified for appointments
deserve a consideration and appointment,
accordingly on such posts for which they are
qualified in preference to other candidates
who may be qualified. We, accordingly, direct
the respondents to proceed to take up the
appointments of the teachers in the Elementary
Schools of Santhal Pargana and Deoghar by
inviting applications from the petitioners and
other persons who have been removed because
they were illegally recruited by the District
Superintendent of education and selected if
they satisfy the eligibility conditions and
appoint them. In doing so the Respondent State
must relax the age limit in case of any of the
petitioners found to have become over age
during the period of service on stipend and
removal. The petitioners and/or any other
candidate who may be appointed in the vacancy
so created on account of removal of the peti-
tioners and other persons appointed by the
District Superintendent of Education shall
however not claim any benefit of the appoint-
ment illegally given to them by the District
Superintendent of Education but shall receive
emoluments and other benefits by dint of their
selection and appointment in accordance with
law."
The Court also found that the orders served on the
petitioners were violative of principles of natural justice.
However, the Court did not quash the orders of termination
but directed that in future selections, preference would be
given to the petitioners. The petitioners filed special
leave petitions seeking quashing of the termination orders.
In the special leave petitions certain directions came
to be issued by this Court on 7.2.1991. The State of Bihar
was directed that it should carry out the selection process
for the retention of the services of those teachers who were
qualified at the time of their appointment and that such of
the teachers who were found qualified were to be taken back
in the employment and were to be given full benefit of
continued service irrespective of any break in service on
account of the termination of the services. This court also
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noticed that the direction of the High Court to the State to
hold fresh selections and the methodology to be adopted
therefor had become final against the State in as much as
the State had not called in question the order of the Divi-
sion Bench and those directions of the
419
High Court did not require interference. The Court gave
three months to the State for completion of the selection
process in accordance with the directions of the High Court.
The outside limit during which the process was required to
be completed was fixed as 30th June, 1991. The Court ob-
served:
"In considering the suitability for selection
the Rules which were in force at the time the
Teachers were recruited should be taken into
account and disqualification shall not be
imposed on the basis of any altered Rule. It
will also be open to the State to consider the
claim of Teachers who came after the altered
Rules in terms of the Rules in force. The bar
of age, we reiterate the direction of the High
Court, shall not be used against the Teachers
for their selection.
Those of the Teachers who have served in the
past but there has been a break in service on
account of termination shall have the credit
of past service both in regard to the payment
of salary as also seniority and other service
benefits."
It transpires that consequent upon the order of this
Court dated 7.2.1991, the Commissioner-cum-Secretary, Human
Resources Department, Government of Bihar, made an order on
28.6.1991 determining the categories out of the dismissed
teachers, who were eligible for reappointment. The Commis-
sioner took the view that under the executive
directions/regulations only trained teachers were eligible
for appointment in both the categories while the untrained
teachers, in exceptional circumstances, could be appointed
against the reserved categories of Scheduled Castes, Sched-
uled Tribes, Urdu and Sanskrit only. In other words, the
Commissioner concluded that those untrained teachers who did
not belong to any of the aforesaid four categories but
belonged to the general category were not eligible for
appointment. Thus, out of the untrained dismissed teachers
numbering about two thousand, only about eighty-one teach-
ers, it is alleged, were found to be qualified and their
services were retained. The petitioners allege that the
order of the Commissioner is completely contrary to the
executive directions and is also in clear contravention of
the order of this Court dated 7.2.1991.
Shri Shanti Bhushan, learned Senior Advocate, appearing
for the petitioners submitted that the Commissioner had
given a completely wrong interpretation to the executive
directions/regulations relating to the appointment of pri-
mary and middle school teachers in the State of Bihar and
had deliberately contravened the orders of this Court dated
7.2.1991.
420
Shri B.B. Singh, learned counsel appearing for the State
of Bihar, in reply submitted that there had been no contra-
vention of the order of this Court dated 7.2.1991 and that
the Commissioner had placed a correct interpretation on the
executive directions/regulations and had construed the
judgment of this Court in the light of that interpretation
and, therefore, he had committed no contempt. Learned coun-
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sel submitted that the interpretation placed by the Commis-
sioner deserved acceptance.
We have gone through the executive directions/regula-
tions issued in the form of office letters/orders etc.
concerning the working of The Bihar Non-Government Primary
School (Taking over of control) Ordinance 1976 and, in
particular, the directions relating to the "preparation of
waitinglist and appointment of teachers" (para 1) and "the
qualifications of candidate for appointment and waiting-
list" (para 2). The directions, inter alia, provide that
while appointing the teachers I.Sc. trained will be appoint-
ed on the basis of I.Sc. trained and only matric with
science trained will be appointed on the basis of matric
trained. Where candidates of the aforesaid qualifications
are not available in required number, the candidates having
qualifications more than those stated above may also be
appointed. The names of the candidates, in each category,
will be written yearwise in the following manner:-
"...first of all matric trained, then I.A, 1.
Sc. trained and thereafter graduate trained,
on the basis of marks obtained in educational
and training courses and their appointments
will be made accordingly."
Sub-clause (d) of Para 2, however, provides:
"After the names of trained candidates the
names of untrained candidates, of each catego-
ry will be written in sequence of marks ob-
tained and qualification."
Sub-Clause (f) of Para 2 reads thus:
"Untrained candidates of different educational
qualification may be appointed in reserved
category under special circumstances when
trained candidates are not available."
Sub-Clause (1) of Para 2 reads as follows:
"Untrained candidates having the qualification
of matric or more than it may be appointed in
the preliminary pay scale Matric untrained
(Middle-Trained)."
421
A conjoint reading of the executive orders/directions
shows that the untrained candidates are also capable of
being appointed in each category but only when the trained
teachers are not available in the particular category. The
trained teachers in the order of sequence would indeed get
preference over the untrained teachers.
The interpretation placed by the Commissioner, there-
fore, is not correct and if that interpretation is accepted
it would efface the very effect of the order of this Court
dated 7.2.1991 and defeat the object of that order which was
aimed at providing that all the schools must have teachers.
The Court had taken note of the situation that there was an
acute shortage of teachers in primary schools of Santhal
Parganas of Bihar due to which most of the schools had been
closed down and therefore to tide over the situation the
directions extracted above, were given. The Court had reit-
erated the directions of the High Court that while making
fresh selections the bar of age should not be used against
the teachers. The order of the Court applied to untrained
teachers for all the categories also. The Commissioner has
made an order which, in our opinion, is not in conformity
with the directions given by this Court and the Division
Bench of the High Court. The directions of the Court, in the
peculiar facts and circumstances of the case arising out of
closure of a number of schools for want of teachers, provid-
ed inter alia that even the untrained teachers were entitled
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to be selected and appointed not only in the reserved cate-
gories but also in the other categories, provided trained
teachers are not available and the untrained teachers are
otherwise qualified, without putting the bar of age against
them.
From the material on record and after hearing learned
counsel for the parties, we are not satisfied that it is a
case in which it can conclusively be said that the respond-
ents have wilfully or deliberately or contemptuously flouted
or disobeyed the orders of this Court dated 7.2.1991. It
appears to us to be a case of misinterpretation of the
executive directions and order of this Court dated 7.2.1991
and is, therefore, not a fit case in which contempt proceed-
ings need to proceed any further. We, accordingly, drop the
contempt proceedings and discharge the Rule issued against
the respondents.
Since the Court has found entitlement of the untrained
teachers in all the categories to appointment provided they
are otherwise qualified and trained teachers are not avail-
able, we direct the respondents to properly comply with the
orders of this Court dated 7.2.1991 and select and appoint
untrained teachers who are otherwise qualified for appoint-
ment in all categories without putting the condition of
training or age bar against
422
them where trained teachers are not available. The State
must conclude the process of fresh selection in the light of
the observations made in this order expeditiously and, in
any case. not later than three months from today.
The petitions are disposed of accordingly.
R.P. Petitions dis-
posed of.
423