Holding

The Court held that the Commissioner’s interpretation was incorrect; untrained teachers are eligible for appointment in all categories where trained teachers are unavailable, and consequently the contempt proceedings were dismissed.

Summary

The petitioners, former primary school teachers in Bihar, had their services terminated and sought reinstatement. The High Court directed the State to re‑appoint qualified teachers, including untrained ones where trained candidates were unavailable, and the Supreme Court, on 7 February 1991, reiterated this direction. The Commissioner‑cum‑Secretary issued an order limiting re‑appointment of untrained teachers to reserved categories only, which the petitioners alleged contravened the Supreme Court’s order. The Supreme Court examined the executive directions under the Bihar Non‑Government Primary School (Taking over of Control) Ordinance, 1976 and held that untrained teachers could be appointed in all categories when trained teachers were not available. Finding the Commissioner’s interpretation erroneous but not willful contempt, the Court dismissed the contempt proceedings and directed compliance with its earlier order within three months.

Issues considered

Whether the Commissioner’s interpretation of the executive directions/regulations contravened the Supreme Court’s order dated 7 February 1991.
Whether the Commissioner’s order amounted to contempt of court.
Whether untrained teachers could be appointed only in reserved categories or in all categories where trained teachers are unavailable.
Whether contempt proceedings should continue against the respondents.

Legislation cited

Subjects

contempt of courtappointment of teachersuntrained teachersinterpretation of executive directionsnatural justicespecial leave petitionreappointmentBiharprimary educationcourt order compliance

Judgment

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

NOVEMBER 22, 1991

[RANGANATH MISRA, CJ., G.N. RAY AND DR. A.S. ANAND, JJ.] B

Contempt of Courts Act, 19 71:

Court's order-Mis-interpretation of-Whether amounts to contempt
of Court. . . ·
c
Bihar Non--Govemment Primary School (Taking over of Control)
Ordinance, 1976: Para 1 & Para 2:

Primary school teachers-Appointment-Qualifications -Non-avail-
ability of trained teachers-Whether untrained candidates could be ap-
pointed. D

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 t~e basis of Matric trained, and where such candidates were not E
available the candidates having qualifications more than these would
also be appointed.

The petitioners were untrained primary school teachers in the
State of Bihar. Later on their services were terminated. They filed
writ petitions before the High Court which held that their services F
had been terminated because of improper and illegal recruitment
by the State for which they were not responsible, and that the ter-
mination 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
requirements, and to relax the age limit in case of those who mean- G
while 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 teach-
ers who were found qualified under the Rules in force at the time of H

415
416 SUPREME COURT REPORTS [1991] SUPP. 2 S.C.R.

A their initial appointment, and to give them full benefit of continued
service irrespective of iJny break in service on account of the termi-
nation. In the special circumstances of the case arising out of clo-
sure of a number of school_s for want. of teachers; the Court held
that in the event of non-availability of trained candidates even un-
trained candidates could be appointed, and gave time till 30.6.1991
B to complete the selection process in accordance with the directions
of the High Court.

Consequent there to the Commissioner-cum-Secretary, Human
Resources Departmen~, Government of Bihar made an order deter-
mining eligible categories for reappointment out of the dismissed ·
C 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 categories of Scheduled Castes, Scheduled Tribes, Urdu
and Sanskrit only, and held that those untrained. teachers who did
not belong to any of these categories were not eligible for. appoint-
D ment.

The petitioners filed contempt petitions contending that the
Commissioner gave a completely wrong interpretation to the rel-
evant executive directions/regulations and had deliberately contra-
vened this Court's order dated 7.2.1991. On behalf of the respond-
E ents it was contended that the Commissioner had correctly inter-
preted the executive orders/regulations and did not contravenes this
court's order and, therefore, be committed no contempt.

Disposing of the contempt petitions, this Court,

HELD: 1. (1) The directions of the Court provided that even
F the untrained teachers were entitled to be selected and appointed
not only in the reserved categories but also in the other categor.es,
provided trained teachers were not available and the untrained teachers
were otherwise qualified without putting the bar of age against them'.
[p. 421 D..:.E]
G 1.2 The interpretation ~placed by the Commissioner, was not
correct and if that interpretation pe 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 th~t all the schools.
must have teachers. The Commissioner's order was not in conform-
ity with the directions given by this Court and the High Court.·
H [p. 421 B-D] .
ASHOKKUMAR v. STATE [ANAND, J.) 417

l. It appears to be a case of misinterpretation of the execu- A
tive directions and order of this Court dated 7.2.1991 and was,
therefore, not a fit case in which contempt proceedings need to
proceed any further. It could not conclusively be said that the re-
spondents wilfully or deliberately or contemptuously flouted or
disobeyed the orders of this Court dated 7.2.1991. [p 421 E F]
B
3. The respondents should properly comply with the orders
of this Cou~t dated 7.2.1991 and select and appoint untrained teach-
ers who are otherwise qualified for appointment in all categories
without putting the condition of training or age bar against them
where trained teachers are not available. The process of fresh selec-
tion must be concluded expeditiously and, in any case, not later C
than three months from the date of the order. [pp 421 G H; 422 A]

CIVIL APPELLATE JURISDICTION: Contempt Petition Nos.236-
40/91 & 263/91.

IN D

Special Leave Petition Nos. 11699, 11700, 11698, llt\54, 10190/90
and429of1988.
From the Judgment and Order dated 11.8.1989 of the Patna High
Court in C.W.J.C.Nos. 1014, 1013,227,1365 and 1363of1988.
E
Prashant Bhushan for the Petitioner.

P.O. Sharma for the Respondent.

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
418 SUPREME COURT REPORTS [1991) SUPP. 2 S.C.R.

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
D 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
E 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
G 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
H 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 B
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 C
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
420 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

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
F 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
G 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
H 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 A
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 B
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
422 SUPREME COURT REPORTS (1991) SUPP. 2 S.C.R.

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.

I
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