ASHOK KUMAR SINGH AND ORS. v. STATE OF BIHAR AND ORS.

The Judgment of the Court was delivered by F A.S. ANAND, .J. Shorn of details the circumstances giving rise to the filing of these petitions seeking certain directions 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 G terminated. The orders of termination 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 recruitment 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 H

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A 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 appoint- B ment, accordingly on such posts for which they are qualified in preference to other candidates who may be qualified. We, ac- cordingly, 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 c they were illegally recruited by the District Superintendent of education and selected if they satisfy the eligibility conditions and app.>int_ 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!emoval -of the petitioners and other persons appointed by the District Superintendent of Education shall however not claim any ben- efit of the appointment 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 peti- F tions 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 irre- spective of any break in service on account of the termination of the services. This court also noticed that the direction of the High Court to the State to hold fresh selecti_ons 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 Di vision Bench and those directions of the

ASHOK KUMAR v. STATE (ANAND, J.) 419

High Court did not require interference. The Court gave three months to A .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 observed:

"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 .,ar of age, we reiter- ate 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." D 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 oti 28.6. 199 I determining the cat- egories out of the dismissed teachers, who were eligible for reappoint~ ment. The Commissioner took the view that under the executive direc- E tions/regulations only trained teachers .were eligible for appointment in both the categories while the untrained teachers, in exceptional circum~ stances, could be appointed against. the reserved categories of Scheduled Castes, Scheduled 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 cat- F egory were not eligible for appointment. Thus, out of the untrained dis- missed teachers numbering about two thousand, only about eighty-one teachers, it is alleged, were fouud 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 contra- vention of the order of this Court dated 7 .2.1991. G 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 ap- pointment of primary and middle school teachers in the State ofBihar and }ad deliberately contravened the orders of this Court dated 7 .2 .1991. H

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A Shri B.B. Singh, learned counsel appearing for the State ofBihar, in reply submitted that there had been no contravention 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 counsel submitted that the inter- B pretation placed by the Commissioner deserved acceptance.

We have gone through the executive directions/regulations issued in the fonn 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 waiting- C list and appointment of teachers" (para I) and "the qualifications of candi- date for appointment and waiting-list" (para 2). The directions, inter alia, provide that while appointing the teachers I.Sc. trained will be appointed on the basis of I.Sc. trained and only matric with science trained will be ,ai)pointed on the basis of matric trained. Where candidates of the afore- 1said qualifications are not available in required number, the candidates D 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, I.Sc. trained and there- after graduate trained, on the basis of marks obtained in educa- E tional 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 category will be written in sequence of marks obtained and qualification."

Sub-Clause (t) 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 {I) 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)."

ASHOK KUMAR v. STATE [ANAND, J.) 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, therefore, is not correct and ifthat 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 teach- ers. Tue· 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 c over the situation the directions extracted above, were given. The Court had reiterated 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, provided inter alia 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 are not available and the Untrained teachers are otherwise qualified, without putting the bar E 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 conclu- sively be said that the respondents have wilfully .or deliberately or con- temptuously flouted or diso~yed the orders of this .C.ourt dated 7 .2.1991. F It appears to us to be a case of misinterpretation of the executive direc- tions and order of this Court dated 7.2.1991 and is, therefore, not a fit case in which contempt proceedings need to proceed any further. We, accord- ingly, drop the contempt proceedings Mid discharge the Rule issued against the respondents. ·• G I Since the Coun bas found entitlement of the untrained teachers in all the categories to appointment provided they are otherwise qualified and trai~ed teachers are not available, we direct the respondents to prop- erly co~pl,y with the orders of this Court dated 7.2.1991 and select and appoint~ained teachers who are otherwise qualified for appointment in all categories without putting the condition of training or age bar against H

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A 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 disposed of.