NANO KISHORE OJHAversusANJANI KUMAR SINGH

                     [2010] 6 S.C.R. 161


                   NANO KISHORE OJHA                            A
                              V.
                 ANJANI KUMAR SINGH
         (Contempt Petition (C) No.297 of 2007)
                             IN
       Special Leave Petition (C) No.22882 of 2004              B
                       MAY 12, 2010
        [ALTAMAS KABIR AND H.L. DATIU, JJ.]

    Contempt of Court:                                          C
      Breach of undertaking given before Court - Orders dated
23.1.2006 and 9.12.2009 passed by Supreme Court on. the.
basis of undertaking given by State of Bihar to fill up the
vacancies of Primary School Teachers by appointing trained 0
teachers available in the State - Contempt petition filed
alleging breach of. the undertaking - Stand of the state that
Rules have been framed to give effect to the undertaking
given by the State and the orders passed by Supreme Court
- Held: It was never the intention of the Court that the E
conditions of the advertisement itself, which had been struck
down by the High Court, were to be followed by the State
Government - The advertisement was referred to only for the
purpose of determining the number of vacancies which would
be required to be filled up from amongst the trained teachers F
- It was made clear that all the 34, 450 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 the Court on
9. 12. 2009 - What was intended was that, after the number of G
candidates from the reserved category had been
accommodated, the rest of the posts were to be filled up from
amongst the candidates from the general category- It is once
again directed that the said 34,540 posts, which have been ·
                               161                               H
    162      SUPREME COURT REPORTS                [2010] 6 S.C.R.


A 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 earlier orders as also mentioned in the
  additional affidavit affirmed on behalf of the State
B Government - Matter adjourned for filing of compliance report
  - Bihar Special Elementary Teachers' Recruitment Rules,
  2010 - Service Law - Appointment of Primary School
  Teachers.

C       CIVIL APPELLATE JURISDICTION : Contempt Petition
    (C) No. 297 of 2007.
                                  IN
          SLP (C) No. 22882 of 2004.

D       From the Judgment & Order dated 01.07.2004 of the High
    Court of Judicature at Patna in CWJC Nos. 13246, 6661 of
    2003, 1533, 1788, 1789, 1861 & 5053 of 2004.

        Paramjeet Singh Patwalia, Ramesh P. Bhatt, Rakesh
    Uttamchandra Upadhyay, Abhijeet Kakoti, Ankur Panda, Brij
E   Bhusan, Sunil Kumar, Chandan Ramamurti, Dharam Bir Raj
    Vohra, K.N. Rai, D. Kishor, S.N. Roy, K.Kumar, Lakshmi
    Raman Singh, M.P. Jha, Ram Ekbal Roy, Harshvardhan Jha,
    Syed Ali Ahmad, Syed Tanweer Ahmed, Mohd. Shahnawaz
    Hasan, S.S. Bandyopadhyay, Mohan Pandey, S.K. Sabharwal,
F   Shree Pal Singh, M.K. Michael, Amukesh Verma, Aftab Alam,
    Pawan Shukla, Yash Pal Dhingra, Revathy Raghavan, Ramjee
    Prasad, E.C. Vidya Sagar, D.K. Thakur, D. Jha, Debasis Misra,
    Barun Kr. Sinha, Pratibha Sinha, B.K. Satija, Prashant
    Chaudhary, Subhro Sanyal, Kumud Lata Das, Ambhoj Kumar
G   Sinha, Shekhar Prit Jha, Abhijit Sengupta, Kanhaiya Priyadarsi,
    Ajay Kumar, Sanjeev Kumar, Jitender Pandey, Venkateswara
    Rao Anumolu, P.V. Yogeswaran, Praneet Ranjan, Shashi
    Bhushan Kumar, Gaurav Agrawal Jitendra Kumar, Amit Pawan,
    Vikash Verma, Devashish Bharuka, Santosh Kumar, Milind
H   Kumar, Santosh Kumar Tripathi, Arup Banerjee, Rajeev Kumar,
   NANO KISHORE OJHA v. ANJANI KUMAR SINGH                      163


 R.K. Prasad, Abhishek Atrey, Mithilesh Kumar Singh,                   A
 Dharmendra Kishor, Mohit Kumar Shah, Chandan Kumar, G.V.
 Rao, Ashok Kr. Upadhyay, P.N. Jha, Umesh Kumar, lmran
 Khan, Firasat AH, Ram Swarup Sharma for the petitioner.

       P.K. Shahi, Gopal Singh, Manish Kumar, L. Nageshwar 8
  Rao, Santosh Kumar, Rajeev Katiyan, Sachida Nand Singh,
  Mushtaq Ahmad, R.K. Ranjan, Anilendra Pandey, Priya
  Kashyap, Dr. Kailash Chand, Prem Sunder Jha, S.K. Sinha,
  In-Person, Dhruv Kumar Jha, Bijan Kumar Ghosh, Shalini
  Chandra, Swati Chandra, Anil Ku~ar Tandale, Subramonium C
  Prasad, Vishwajit Singh Ratan Kumar Choudhuri, Akshay
  Shukla, Dinesh Kr. nwari, C.P.Yadav, Syed Md.--Rafi,_\l.S~-
. Mishra, N.N. Jha, Monika Kalra, Ram Ekbal Roy, Rameshwar
  Prasad Goyal, T. Mahipal, Pratap Shanker, Swetank Shantanu,
  Aniruddha P. Mayee, M.M. Singh Dharmendra Kumar Sinha,
  Vishnu Sharma, Anupama Sharma, Amarjyoti Sharma, D
  Prakash Kumar Singh, Sunil Kumar Verma, Yugul Kishor
  Prasad, Bipin Kumar Jha, B.S. Rajesh Agrajit, Sridhar Potaraju,
  D.Julius Riamei, Gaichangpau Gangmei, Abhay Kumar, Aruna
  Gupta, Rajiv Shankar Dvivedi for the Respondent.
                                                                  E
       The Order of the Court was delivered by
                           ORDER
     ALTAMAS KABIR, J. 1. As indicated in our order dated
9th December, 2009, this Contempt Petition has a backgr~und            F
of alleged breach of an undertaking given on 18th Janaary,
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            G
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 H
    "

        164      SUPREME COURT REPORTS                   [2010) 6 S.C.R.

A             Appointment Rules, 2003 having been quashed by the
              Patna Hlgt, 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.
B
                     That Chapters 6 and 7 of the Bihar Education Code
              relating to QriQnlal education and hostels and messes will
              be kept in mind, as directed by the Patna High Court, while
              making recryitment of teachers.
c                    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
D             recruitment of trained teachers may not be necessary, and
              the order of this Hon'ble Court .-nd of the Patna High Court
              in this rElgarq may "e    modified"
              ~· The said applicatien made for withdrawal of the Special
        ~eave Petiti.on was disposed of b~ this Court on 23rd January,
E ~006 QA t~e basis of the submissions made therein.
        3. &Yl:!§equently, 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
F 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
              appointwent and also the clarification made in paragraphs
              19 to 22 of the aforesaid affidavit dated 7.2.2007, we
G             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 and spirit by appointing
              the trained teachers on priority basis."

H             4. Once again on the failure of the State Government to
     NANO KISHORE OJHA v. ANJANI KUMAR SINGH                    165
               . [ALTAMAS KABIR, J.]
   appoint trained teachers as Assistant Teachers in the vacant A
   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
  macie in the Contempt Petition by the trained teachers similarly
  situated, for being impleaded as parties to the proceedings. B
  i:Jl!l'11ately, the learned Attorney General appea~ed before us
  on 25th Augu§t! ?Q09 ~r.~ ~ssured us that it was not the
  intention of the State of Bihar to res'ile 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          c
  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 amount of disruption in
  implementing the same, this Court took note of an 0
  ~9¥~rti§.f3m~m for appointment of Primary Teachers, which was
  p!-!~li~h@~ !r. f?,~~~m!:>er, ~00~ ~n~ h~d. been struck down by
  the Hi§h 601m. f~f !h~ lfrn!!S8 BHff8~e ef p~termining the total
  number of vacancies which were showr.i as 34,540. In prder to
  put a quietus to the entire issue, we accepted the figure relating E
  to the vasanr;ie& io tne ppsts s,~qwn jn th~ f!dverti§~rnent ~g
  meet the Glaims of 01e train~d ieachers who were, at the
  relevant point of tirne, avail~ble for being appointed on a regular
  basis. Accordingly, notwithstanding the number of trained
  teachers available, this Court directed that the available 34,540
  yacancies shown in the advertisement for appoint of Prlmary F
  Tea~ners to be filled up with the said number of trained teachers
     a'
  as one-time~measure to give effect to the undertaking which
  had been given on 18th January, 2006 and 23rd January, 2006.
  This Court ~lso adjourned the Contempt Petition for
  implementation of the said ·order passed by us and for a report G
  ~R lm ~l:ll?ml~t~~ on !he next date as to the result of the
  discussieAs hg!g ~~!w.~~fl ~!le petitioner and the concerned
  authorities.                        ·                     ·

          5. Pursuant to the above directions, the matter was taken   H
    166     SUPREME COURT REPORTS                  [2010) 6 S.C.R.


A   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
s   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
c   on 2nd February, 2010. 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
D 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 pass~d by this Court from time to time. The learned
E 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
F 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 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
G state of affairs in view of the framing of the 2010 Rules which
  were in breach and n.ot 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
H effectively debarred those trained teachers who passed training
  NANO KISHORE OJHA v. ANJANI KUMAR SINGH                      167
             [ALTAMAS KABIR, J.]
ther~after and were intended to be covered by the order of 6th        A
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", a~ provided in Rule 2(iv),
although they too were to be covered b'y the order passed on          s
6th May, 2010, and the earlier orders.

      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         C
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        D
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 1indefinite delay in paying the
salaries of the persons appointe~(
                                I                                     E
     9. Some of the other learned Advocates appearing for the
other Petitioners and those candidates who had been
permitted to intervene in these 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       F
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 G
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.
                                                                 H
    168     SUPREME COURT REPORTS                  [2010] 6 S.C.R.

A      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 it was never our intention that the conditions
  of the advertisement itself, which had been struck down by the
a 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
c 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-av:.ilability 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
0
  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, the rest of the posts were
  to be filled up from amongst the candidates from the general
E 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
F 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
G that these directions should be complied with within 31st
  August, 2010, without further delay. Let this matter stand
  adjourned till 8th September, 2010 at 3.30 p.m. for filing of
  compliance report.

H R.P.                                            Matter adjourned.