NAND KISHORE OJHAversusANJANI KUMAR SINGH

                   (2009] 16 (ADDL.) S.C.R. 306


A                    NANO KISHORE OJHA
                                 v.
                     ANJANI KUMAR SINGH
             (Contempt Petition (Civil) No. 297 of 2007)
                        DECEMBER 9, 2009
B
            [ALTAMAS KABIR AND H.L. DATTU, JJ.]

        Contempt of Court:
                                                                        .t

c          Undertaking given to Court - Breach and disobedience
    of - Recruitment of teachers in primary schools in State of
    Bihar - Directions given by High Court in writ petition to
    consider all trained teachers for recruitment - Not
    implemented - SLPs filed in Supreme Court withdrawn by
D   State on an undertaking to comply with court orders -
    Contempt petition as court orders were not complied with -
    HELD: The materials as disclosed before the Court and the
                                                                        .i
    submissions made on behalf of alleged contemnors, leave
    little room for doubt that even if the State had at one time
    intended to give appointment to the trained teachers then
E
    available in the State when the undertakings were given, it has
    subsequently altered its position, with the result that the State
    and its authorities have sought refuge in disinformation for not
    implementing the undertakings given - When undertakings
    were given, they were meant to be implemented - Having
F   given successive undertakings to accommodate trained                 J.

    teachers in the vacant posts, the State Government cannot
    resile from its earlier undertakings and profess a change of
    policy for not giving effect to such undertakings - Furthermore,
    the appointments given to trained teachers, who were eligible
G   at the time when the undertakings were given, were as Shiksha
    Mitras, which appointments were allegedly ad hoc in nature
    and were not contemplated in terms of the said undertakings
    - In order to find a workable solution to the problem which has
    arisen on account of the failure of the Government authorities
H                                    306
                NANO KISHORE OJHA v. ANJANI KUMAR SINGH                 307


              to abide by the undertakings given on its behalf, the A

    •         advertisement for appointment of primary teachers which was
              published in December, 2003 and had been struck down by
              the High Court, was brought to the notice of the Court for
              limited purpose of determining the total amount of vacancies
              which was shown as 234, 540, whereas the estimated number B
              of trained teachers yet to be accommodated was far beyond
              the said figure - In order to put a quietus to the entire issue,
              the figure relating to the vacancies to the posts shown in the
              advertisement are accepted, to meet the claims of the trained
              teachers who were at the relevant point of time available for    c
              being appointed on a regular basis - Accordingly,
              notwithstanding the number. of trained teachers available, it
              is directed that the said available vacancies of 34, 540 shown
              in the advertisement for appointment of primary teachers, be
              filled up with the said number of trained teachers as one-time
                                                                                D
              measure to give effect to the undertakings which had been
              given on 18.1.2006 and 23.1.2006 - Accordingly, without
         I.   issuing a rule of contempt, it is directed that 34, 540 vacancies
              shown as available in the advertisement published in
'             December, 2003, be filled up from amongst the trained
              teachers who are available, in order of seniority - This is to E
              be done on a one-time basis and must not be taken as the
              regular practice to be followed - Let the contempt petition be
              adjourned for a further period of six weeks to enable the State
              Government to implement the order and to submit a report
              on the next date - Bihar Elementary School Teachers F
         ..   Rules,2006 - Service Law - Recruitment of teachers in
              primary schools.

                  Vijay Kumar & Ors. Vs. State of Bihar & Ors. (1998) 9
-             sec 227' referred to.                                            G
                                   Case Law Reference:
                  (1998) s sec 221          referred to           para 3
        ..j

                   CIVIL APPELLATE JURISDICTION : Contempt Petition
              (Civil) No. 297 of 2007.                                         H
    308    SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A                                 IN

          SLP (C) N0.22882 of 2004.

      From the Judgment & Order dated 1.7.2004 of the High
  Court of Judicature at Patna in C.W.J.C. Nos. 13246, 6661 of
8 2003, 1533, 1788, 1789, 1861 and 5053 of 2004.

      G.E. Vahanvati, Attorney General (NP), Ramesh P.Bhatt,
  Uday U. Lalit, (N.P.) L. Nageshwar Roa, Nagendra Rai, Kailash
                   I

  Vasdev, P.K. Shahi, AG, Rakesh Uttamchandra Upadhyay,
C Abhijeet Kakoti, Santosh Kr., Mushtaq Ahmed, D.K. Thakur, D.
  Jha, S.K. Sinha, Seema Kashyap, Mithilesh Kumar Singh,
  Dharmedra Kishor, Ajai Kr. K.N. Roi, S.N. Rai, Ranjit Sharma,
  D. Durga Devi, for E.C. Vidya Sagar, Shashi B. Upadhyay,
  Kumud L. Das, Raj Kumar Tanwar Prakash Kumar Singh,
D Hargovind Jha, Ram Ekbal Roy, Rameshwar Pd. Goyal,
  Sambhu Singh, Asha Upadhya, Brajesh Kumar, Yugal Kishor
  Prasad, Ratan Kumar Choudhary, Akshay Shkula, Dinesh Kr.
  Tiwary, Chandan Kumar, B. Shankar Mishra, Mohit Kr, Shah,
  Ravi, Bhushan, A. K. Mishra, Rajiv Jha, Shashi Bhushan, Amit
E Pawan, Vikas Verma, D. Kr. Pandey, Anilendra Pandey, Priya
  Kashyap, R.K. Ranjan, Dr. Kailash Chand, C.p. Yadav, V.S.
  Mishra, Syed Md. Rafi, R.N. Yadav, AN. Singh, Rajiv Kumar,
  Sushi! Kumar, D.B. Vohra, Ram Swroop Sharma, Firasat Ali
  Siddiqui, lmran K. Burney, Ansul, T. Mahipal, Ravi Kishore,
F Prashant Choudhary, Yunus Malik, Chandra Bhushan Prasad,
  Rajesh Kumar Singh, Vishal Arun, Devednra Kumar Singh,
  Prem Sunder Jha, Vijay Kumar, Pankaj Kumar, Vishwajit Singh,
  R.Upadhyay, Awadhesh Kumar Singh, R.D. Upodhyay,
  Anilendra Pandey, Arup Banerjee, Rajeev Kr., R.K. Dey,
G Rajendra Nath Sinha, Dr. Madan Sharma, Asha Upadhyay,
  Shambhu Prasad Singh, Abhay Kumar, Vishnu Sharma,
  Anupama Sharma, Amarjyoti Sharma, Syed Ali Ahmad, Syed
  Tanweer Ahmad, Mohd. Shahnawaz Hasan, S.S.
  Bandyopadhyay, Mohan Pandeyd, Sanjeev Kumar, Ajit Kr.
H
          NANO KISHORE OJHA v. ANJANI KUMAR SINGH                  309


        Singh, Venkateswara Rao, Anumolu, Barun Kumar Sinha, A
        Pratibha Sinha, B.K. Satija, Rajiv Shankar Dwivedi, M.M. Singh, ·
        Priyaranjan, D.K. Sinha, R.N. Chaudhary, K.K. Jha, Subodh K.
        Pathak, Dharmendra K. Sinha, M.M. Singh, Sunil Singh, Bipin
        Kumar, Rajiv Ranjan Rajesh, Rajan Chourasia, Harish Pandey,
        Yugal Kishore Prasad, Ranjan K. Choursaia, B.S. Rajesh B
        Agrajit, Sunil Kumar Verma, Swetank Shantanu, Satyajit Patra,
        Pratap Shankar, Aniruddha P. Mayee, Shailendra Tiwary,
"1 ·    Kumar Parimal, Prabhat Kumar Kundan Bahadur Singh Kumar
        Parimal, P.V. Yogeshwaran, P. Sureshan, Kamlesh Kumar, Md.
        Shahjahan Islam, Vandana Sharma, Mahmood Alam, Jyoti C
        Saxena, Vipin K. Sharma, Dhruv Kumar Jha, K.K. Jaipurian,
        Ravi, C. Prakash, D.K. Pandey, Aruna Gupta, Mohit Kr. Shah,
        Ravi Bhushan, Susmita Lal, Seema Kashyap, S.K. Sinha,
        Abhay Kumar, Ved Prakash, Neeta Sahni, Rajesh Anand,
        Dhruv Kumar Jha, S.N. Singh, Santosh Kumar, Rajev Katyain, o
        Mushtaq Ahmad, Sachchidanand Singh, Abhay Kumar,
        Devendra Kr. Singh, Prem Sunder Jha, T. Anil Kumar Shalini
       Chandra, Shefali Jain, Rajiv Shankar Dvivedi, Ravi Shankar
       Dvivedi, Vishnu Sharma, Anupam Sharma, Amar Jyoti Sharma,
       Shantanu Sagar, M.M. Singh Dharmendra Kumar Sinha, Priya E
       Ranjan, R.K. Singh, Pratap Shanker, Satyajit Patra, Swetank
       Shantanu, Dhruv Kr. Jha, Ravi Chander Prakash, Bijan Ghosh,
       Shantanu Sagar, Vaibhav Jain, Aabhar Parimal, Sandeep
       Kumar, Ansul, Fanish Kumar Rai, Binay Kumar Jha, Debasis
       Mishra, L.R. Singh, Ravi Kant, Mayank Manish, Sridhar F
       Potaraju, D. Julious Riamei, Gaichangpon Gogmei, Shantanu
       Sagar, Sandeep Kumar, Ansul Raj, Aabhas Parimal·, Ratan
       Kumar Choudhary, Akshay Shukla, Sailendra Narain Singh, Raj
       Kishor Choudhary, Abinash Coomar, A.S. Thakur, Sukumar,
       Jitendra Kumar, Shailendra Narayan Singh, Raj Kishor G
       Choudhary, Mahamood Alam, Vandana Sharma, Jyoti Saxena,
       Shiksha Tyagi, Vipin K. Saxena, Anil Kumar Tandale, N.N. Jha,
       Sukhvinder Kaur, S. Talukdar, Dhirendra Kr. Mishra, Ram Ekbal
       Roy, R.P. Goyal, N.N. Jha, Rakesh Kumar, Sumaran Rajan, N.N.
       Jha, Sukhvinder Kaur. R.K. Sharma, Anil Kumar, Rajeev Kr.
                                                                          H·
     310 SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


 A Jha, Ramjee Prasad Revathy Raghavan, Rakesh Kumar,
   Santosh Kumar, Suwaran Rajan, Ajay Bansal Rajeev Kr. Jha,
   Shekhaprit Jha, AK. Roy, Yugal Kishor Prasad B.S. Rajesh
   Agrajit, V.S. Mishra Shahid Anwar, Anil Kr. Mishra, Bipin Kumar
   Jha, Mushtaq Ahmad Ranjit, Smarhar Singh, Ranjeet Kumar B.
 B Sunita Rao, Ajay Rai, Dr. Prabhat Kumar, Sunil Kumar Verma,
   V.K. Prasad, Vipin Jha, Ankit Bhargava, Ranjit Kr, Jha,
   Abhishek Kr. Singh, Praveen Kumar, Abhijieet Sengupta,
   Keshav Mohan, Ranjan Pandey, S.R. Setia, K.B. Upadhyay,
   Manoj Kr. Rai, S.P. Singh, Anil Kumar Shrivastava, Mohan
.c Pandey, Santosh Kr. Tripathy, Anita Pandey, Dinesh Kr. liwary,
   Chandan Kumar, Shailendra liwary, Subhro Sanyal, Mukesh
   Verma, M.R. Shamshad, Aftab Alam, Yash Pal Dhingra
   Santosh Kumar, Milind Kumar, Mukul Kumar, Soma Patnaik,
   Amit Kumar, P. Chandra, Rajiv Shankar Dvivedi, AS.Pathak,
 0 Meru Sagar, AS. Thakur, Pranay Ranjan, Praneet Ranjan,
   Manish Kumar, Gopal Singh, Pramod Kr. Mishra, Ram Ekbal
   Roy, Harshvardhan Jha, Anurag Singh, Santosh Kr. Tripathi,
   Mahmood Alam, Vandana Sharma, Aruna Gupta, Jyoti Saxena,
   Baban Kr. Sharma, Chandan Ramamurthy, Revathy Raghavan,
 E Sree Narain Jha, Dhruv Kapur, Subramonium, Prasad, Basant
   Kumar Singh, Dhruv Kumar Jha, Ravi Chandra Prakash, Bijan
   Kumar Ghosh, Ajay Kumar Singh, Ajit Kumar, S.K. Sabharwal,
   Debashish Mishra, Jitendra Kr. Jha, R.K. Tomar, Kamalendra
   Mishra, Sumit Kumar, Shreepal Singh, Rahul Singh, K. Sita
   Rama Rao, Prashant Chaudhary, Kundan Bahadur Singh,
 F Kumar Parimal, P.V. Yogeswaran, Syed Ali Ahmad, Syed
   Tanwer Ahmad, S.S. Bandyopadhyay, Mohd. Shahnawaz
   Hasan, Mohan Pan dey, Ambhoj Kumar Sinha, Shekhar Prit
   Jha, Subhro Sanyal, Vishal Arun, Prem Prakash, ~.K. Tripathi,
   Gaurav Agrawal, Kanhaiya Priyadarshi, Puneet Ranjan, Avbiit
 G Sen Gupta, Mithilesh Kumar Singh, Devashish Bharuka, Brij
   Bhushan, Sunil Kumar, Kundan Kr. Mishra, Vijay Kumar, Pankaj
   Kumar for the appearing parties.

         The following Order of the Court was delivered
 H
        NANO KISHORE OJHA v. ANJANI KUMAR SINGH                   311

-                                 ORDER                                  A

           1. 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, by
     this Court in SLP(C)No.22882-22888 of 2004. The breach of           B
     such undertaking and disobedience of the subsequent order
     passed on the basis thereof resulted in the filing of Contempt
"    _Petition No.207 of 2006 which was disposed of by an order
     dated 19th March, 2007, on the basis of yet another
     undertaking that trained teachers would be given priority in        c
     appointment as teachers.

           2. At this stage, it would, therefore, be necessary to look
     into the background facts which resulted in the aforesaid orders
     and the undertakings given on behalf of the State of Bihar.
                                                                      D
 ;
           3. A number of writ petitions were filed against the State
      of Bihar raising issues relating to recruitment of teachers in
      primary schools. Apparently, the said issues had been resolved
      by this Court in its order dated 5th September, 1997 in Ram
      Vijay Kumar & Ors. vs State of Bihar & Ors. ((1998) 9 SCC E
      227]. The directions given therein do not, however., appear to
      have been implemented by the State of Bihar. In fact, it was
     subsequent to a judgment of the Patna High Court dated 26th
..   September, 1996 in Vinod Kumar & Ors. vs State of Bihar &
     Ors. (CWJC No.5765/94), which was affirmed by this Court,
                                                                      F
     that a specific direction was given by this Court to resume the
     recruitment process as directed by the High Court. As would
     be evident from the judgment of the Division Bench of the Patna
     High Court dated 1st July, 2004, the State of Bihar made a
     futile attempt to explain the reasons for not implementing the
                                                                      G
     orders passed by the High Court and this Court relating to
-+   recruitment of teachers in primary schools all over Bihar. Upon
     considering the explanation given, the Division Bench of the
     High Court directed the respondent-State of Bihar and its
     authorities to follow the judgment and directions given by this
     Court in Ram Vijay Kumar's case (supra) and also the H
    312   SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A judgment of the High Court affirmed by this Court in Vinod             •
  Kumar's case (supra).

       4. The subsequent advertisement issued by the State of
  Bihar dated 10th December, 2003, for recruitment of teachers
  was quashed, as were the Bihar Elementary Teachers
B
  Appointment Rules, 2003. A positive direction was given that
  all trained teachers available were to be reckoned and
  considered for recruitment by selection or otherwise, to teach
  the elementary classes, even upon relaxation of age. The               ...
  concessions granted by the National Council for Teachers'
c Education were also quashed and it was indicated that the
  State Government could, by taking into account the totality of
  the circumstances and after reckoning the viability of the trained
  teachers, consider the recruitment of untrained teachers who
  would thereafter be given in-service training, when such an
D occasion arose. All applications made pursuant to the
  advertisement dated 10th December, 2003, were also
  quashed .                                                              '
      . 5. From the various directions given by the Division Bench
E of the Patna High Court, it would be evident that it was the
  intention of the Court that for the execution of a public plan to
  eradicate illiteracy and the larger interests of the children in the
  State, the plan for basic and primary education was required
  to be implemented without any further delay and if in the
F process the circumstances and the exigencies so required,
  untrained teachers could be selected who would be given in-
  service training so that the full strength of teachers was available
  when the recruitment process was finalized. It was also mc;de
  clear that while recruiting all teachers whether trair:.::d .or
  untrained, the State Government should keep in mind the Bihar
G
  Education Code, particularly Chapters 6 and 7 thereof.

       6. While the Special Leave Petitions were pending                     ...
  disposal, an application was filed on behalf of the ~tate of
  Bihar seeking leave to withdraw the Special Leave Petitions
H in view of ttie decision of the State Government to comply with
        NANO KISHORE OJHA v. ANJANI KUMAR SINGH                    313


__,_ the impugned judgment and order of the Patna High Court. In           A
       the said application, the State of Bihar submitted that in its
       agenda for good governance, the Government had prepared
       a policy framework for education in the State. As regards
       school education, it was committed to recruit and fill in the
       vacant posts of teachers on top priority and to take other          B
       measures for teachers' training in order to enhance their
       capability and quality of teaching. The intention of the State of
       Bihar was more specifically indicated in paragraphs 5, 6 and
   'f· 7 of the application, which read as follows :


         "5. That in the meantime, it has been decided that trained        C
         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                D
   ~     decentralized manner, by giving them age relaxation as
         ordered by the High Court.

         6. That Chapters 6 and 7 of the Bihar Education Code
         relating to oriental education and hostels and messes will        E
         be kept in mind, as directed by the Patna High Court, while
         making recruitment of teachers.

         7. 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       F
         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."                                  d'
 _.i.     7. The said application for withdrawal of the Special Leave
   · Petitions was disposed of by this Court on 23rd January, 2006,
     on the basis of the submissions made therein.
                                                                           H
    314 SUPREME COURT REPORTS [2009] 16 (ADDL) S.C.R.


A       8. Inasmuch as, the State of Bihar allegedly failed to abide
  by its commitments and assurances, the petitioner herein, Nand       -~
  Kishore Ojha, filed Contempt Petition No.207 of 2006. Once
  again, the State of Bihar provided various facts and figures,
  which had little bearing to the question of recruitment of trained
B teachers to fill up the vacant posts of primary teachers in Bihar.
  It was also stated on affidavit that the State Government had
  given priority to appointment of trained teachers and only where
  trained teachers were not available in sufficient numbers, the
  cases of untrained teachers were considered by the concerned
c Panchayati Raj· institution. However, on behalf of the State of
  Bihar, a fresh undertaking was given that priority would be given
  to trained teachers for appointment in keeping with its earlier
  stand, as indicated in its application for withdrawal of the
  Special Leave Petitions filed against the common judgment
  dated 1st July, 2007, passed by the Patna High Court. On the
0
  basis of such fresh assurance, the contempt petition 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
E       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 and spirit by appointing
F       the trained teachers on priority basis."

        9. As indicated hereinabove, the present contempt petition
   arises out of the said order dated 19th March, 2007, and the
   earlier undertaking given on 18th January, 2006, as also the
G order dated 23rd January, 2006. On behalf of the petitioners it
  ~i!S been contended that no trained teacher had been
   appointed as Assistant Teacher against the vacant sanctioned
   posts carrying a pay scale, in gross breach of the assurance
   given by the Government in its affidavit dated 18th January,
   2006. It was submitted that the fact that the direction given in
H
           NANO KISHORE OJHA v. ANJANI KUMAR SINGH                    315


         the order of this Court dated 19th March, 2007, have been            A
---      intentionally flouted stood admitted in the affidavit filed by the
         State Government before the Patna High Court wherein it was
         stated that 70,000 trained teachers had been appointed along
         with another 35,000 untrained teachers. It was submitted by Mr.
         Ramesh P. Bhatt, learned senior counsel, that whatever steps         B
         had been taken by the State Government to appoint trained
         teachers along with untrained teachers, were not in keeping with
         the undertaking given on 18th March, 2007, as reflected in the
 1       order of this Court passed on 19th March, 2007, allowing the
         prayers of the State Government to withdraw its SLPs. Several        c
         decisions were cited by Mr. Bhatt in support of his submission
         that the State Government had deliberately and wilfully violated
         its undertaking given not only on the earlier occasion but also
         in its affidavit dated 7th February, 2007, affirmed at the time
         of passing of the order by this Court on 19th March, 2007,           D
         disposing of the earlier contempt application.
    ;~
               10. At this stage it may be mentioned that several
         applications for leave to intervene in the contempt proceedings
         were filed by candidates who were similarly affected as the
         petitioner in the contempt petition. All the said applications       E
         were allowed on 23rd April, 2009, and we have heard Mr. L.
         Nageshwar Rao and Mr. Rakesh U. Upadhyay, learned counsel,
         in a representative capacity on their behalf.

             11. Mr. Nageshwar Rao submitted that the appointments F
 ~
         which had purportedly been made to fill up the vacancies, had
         been made on an ad hoc basis in departure from the
         undertakings given on behalf of the State of Bihar and on the
         basis thereof it was attempted to be shown that the
         undertakings had been complied with. It was submitted that
                                                                        G
         even the challenge to the newly- adopted Rules had not been
         gone into in view of the submissions made on behalf of the
~
         Contemnors that they would not apply to those trained teachers
         who were covered by the undertakings. In addition, Mr.
         Upadhyay submitted that the vacancies in the post of Assistant
                                                                        H
    316   SUPREME COURT REPORTS (2009] 16 (ADDL.) S.C.R.


A TeacheiS in the primary schools were filled up by Shiksha Mitras
  and not the trained teachers, as was contemplated in the
  undertakings given in the two affidavits dated 18th January,
  2006 and 7th February, 2007.

        12. Mr. Upadhyay submitted that the appointment of
8
    Shiksha Mitras was nothing but a ploy on behalf of the State
    Government to avoid the aforesaid undertakings given on its
    behalf.

       13. Appearing for the alleged contemnors, Mr. Kailash
C Vasdev, learned senior counsel, submitted that there had been
  substantial compliance with the undertakings given on behalf
  of the State of Bihar, since out of the total number of vacancies
  more than 60,000 trained teachers, who had applied, were
  appointed against the available vacancies. It was submitted
D that even according to the petitioner, the number of trained
  candidates was less than 70,000.

          14. Mr. Vasdev also attempted to justify the action taken
    by the State of Bihar by contending that after the undertakings
E   had been given and the SLPs had been withdrawn, the State
    of Bihar had framed the Bihar Elementary School Teachers
    Appointment Rules, 2006, hereinafter referred to as "the 2006
    Rules", which came into effect on 1st July, 2006, and were
    amended from time to time. Mr. Vasdev submitted that under
F   the said Rules the entire system relating to appointment of
    primary teachers had been altered. It was urged that the post
    of Assistant Teachers, which was previously filled in at the
    district level by the District Establishment Committee, had been
    discontinued and under the 2006 Rules, as modified, school
    teachers at the primary level were now being appointed by the
G   Panchayati Raj Institutions. According to Mr. Vasdev, teachers
    appointed by the Panchayati Raj Institutions were permanent,
    on fixed scales of pay and entitled to continue in service until
    the age of 62 years. Mr. Vasdev submitted that in view of the
    change in policy all appointments to school teachers at the
H   elementary level after the framing of the 2006 Rules, had been
                   NANO KISHORE OJHA v. ANJANI KUMAR SINGH                 317


                made and would have to be made in future according to the A
         ~
                2006 Rules, as amended from time to time. Mr. Vasdev,
                however, acknowledged the fact that it is quite possible that
                some of the candidates from amongst the trained-teachers may
                have failed to secure appointment on account of having
...             obtained a lower percentage of marks than those who had been B
                appointed, or on account of non-availability of trained
                candidates in a particular category under the roster system. Mr.
                Vasdev submitted that it was also possible that some of the
         i      candidates from amongst the trained teachers did not have
                certificates from recognized institutions or that they had        c
                procured fake certificates alleged to have been issued by
                recognized institutions.

                        15. Mr. Vasdev also submitted that the petitioner had been
                  asked by the Court to submit a list of trained-teachers who are
                  still unemployed so that their cases could be verified, but D
                   unfortunately such information had not been provided on behalf
              > of the petitioner and as a consequence in the absence of
                  particulars, it was not possible for the State of Bihar to
                  effectively respond to the allegations made in this behalf.
                                                                                   E
                        16. Mr. Vasdev submitted that it had never been the
                 .intention of the State of Bihar to wilfully and/or deliberately
                  depart from the undertakings given on its behalf. What it had
                  done was merely to streamline the process of appointments at
             ... the elementary as well as the high school level, having regard F
                  to the 73rd Constitution Amendment by which the management
                  of primary/elementary education had been transferred to
                  Panchayati Raj Institutions under Articles 243-8 to 243-G of the
 .....            Constitution, with effect from 24th Apri), 1993.

                     17. We have carefully considered the explanation given on G
                behalf of the State of Bihar and its authorities for their departure
                from the undertakings given to appoint trained teachers against
         -i--
                the existing vacancies, since the number of vacancies far-
                outstripped the number of trained teachers required to fill the
                vacancies. The first of the said two undertakings was given on H
  ._
    318   SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A 18th January, 2006, whereas as urged by Mr. Vasdev, in
  November 2005, with the change of Government in the State
  of Bihar, the policy relating to primary/elementary education was
  altered in view of the 73rd Constitution Amendment,
  whereunder the management of primary schools was transferred
B to Panchayati Raj Institutions. In addition to the above, the
  National Council for Teachers' Education has given a mandate
  that appointment of teachers should be decentralized and made
  through the Panchayati Raj Institutions.

       18. There appears to have been a change relating to
C appointment of primary teachers in primary schools with the
  advent of the new Government in Bihar in 2006 and the framing
  of the Bihar Elementary School Teachers Rules, 2006, which
  came into force on 1st July, 2006, and has been amended from
  time to time. We, however, see no justification in the defence
D taken on behalf of the State of Bihar that on ar:count of such
  change in policy the trained teachers who were in place at the
  time when the undertakings were given could not be
  accommodated. When such undertakings were given, they were
  meant to be implemented. Having given successive
E undertakings to accommodate trained teachers in the vacant
  posts, without even taking recourse to the selection procedure,
  the State Government cannot resile from its earlier undertakings
  and profess a change of policy for not giving effect to such
  undertakings. Furthermore, as submitted by Mr. Upadhyay, the
F appointments given to trained teachers, who were eligible at the
  time when the undertakings were given, were as Shiksha Mitras,
  which appointments were allegedly ad hoc in nature and were
  not contemplated in terms of the said undertakings.

G        19. In view of the submissions made by Mr. Nageshwar
    Rao and Mr. Upadhyay, that the appointment made to the post
    of Shiksha Mitras was not in accordance with the undertakings
    given on behalf of the State of Bihar and the submissions made
    by Mr. Vasdev that appointments had been offered to the trained
    teachers who had not accepted the same, we had by our order
H
            NANO KISHORE OJHA v. ANJANI KUMAR SINGH                  319


         dated 8th August, 2008, given !iberty to the alleged contemnor A
         to file a chart giving details of trained teachers who had been
         offered appointments but had not accepted the same. Such a
         chart was never filed on behalf of the State of Bihar and its
         authorities during the hearing of the Contempt Petition. The
         submissions made by Mr. Kailash Vasdev, therefore, remained B
         uncorroborated.

              20. Notwithstanding what has been stated hereinabove,
         except for making a general statement that the trained
i        teachers, who were available at the time when the undertakings
         were given, had not been appointed in the manner
                                                                             c
         contemplated in the undertakings given, no proper particulars
         were provided by the petitioner of the trained teachers who had
          not been given appointments in terms of the undertakings.
          Details have also not been provided as to which of the trained
         teachers were appointed as Shiksha Mitras without permanency D
         of service and merely on an ad hoc basis. But, at the same time,
    t    several intervention applications have been filed on behalf of a
         large number of applicants, wherein it has been stated that the
         said applicants were also trained teachers who were similarly
         situated as the petitioner who had been appointed not on a E
         permanent basis, but temporarily on a consolidated salary of
         Rs.5,000/- per month. It is, in fact, in view of the submissions
         made on behalf of the applicants, that we had allowed all the
         applications for intervention since the applicants were covered
         by the undertakings which had been given on 18th January, F
    .    2006 and 7th February, 2007. Unfortunately, except for claiming
         that appointments had been made in terms of the undertakings
         given, though under changed circumstances, no explanation
         was offered by the alleged contemnor with regard to the
         allegations made on behalf of the applicants in the intervention G
         applications.

                 21. The materials as disclosed before this Court and the
-""       submissions made on behalf of the alleged contemnors, leave
        . little room for doubt that even if the State of Bihar had at one
                                                                             H
    320   SUPREME COURT REPORTS [2009] 16 (ADDL.) S.C.R.


A time intended to give appointment to the trained teachers then      ~-
  available in the State of Bihar when the undertakings were
  given, it has subsequently altered its position, with the result
  that the State of Bihar and its authorities have sought refuge
  in disinformation for not implementing the undertakings given.
B 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 the situation
c had become much more complex than was thought at that time.
  The matter was, therefore, adjourned to enable him to consider
  how best the matter could be resolved. Ultimately, however, no
  positive solution could be suggested which could satisfy the
  undertaking and at the same time, cause the minimum amount
D of disruption in implementing the same.

       22. In order to find a workable solution to the problem
  which has arisen on account of the failure of the Government
  authorities to abide by the undertakings given on its behalf, the
  advertisement for appointment of primary teachers which was
E published in December, 2003 and had been struck down by
  the High Court, was brought to our notice for the limited purpose
  of determining the total amount of vacancies 1Nhich was shown
  as 34,540, whereas the estimated number of trained teachers
  yet to be accommodated was far beyond the aforesaid figure.
F In order to put a quietus to the entire issue, we have decided
  to accept the figures 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,
G notwithstanding the number of trained teachers available, we
  direct that the said available vacancies of 34,540, shown in the
  advertisement for appointment of primary teachers, be filled up
  with the said number of trained teachers as a one-time measure
  to give effect to the undertakings which had been given on 18th
H January, 2006 and 23rd January, 2006.
  NAND KISHORE OJHA v. ANJANI KUMAR SINGH               321


     23. Accordingly, without issuing a Rule of Contempt, we A
direct that the 34,540 vacancies shown as available in the
advertisement published in December, 2003, be filled up from
am'1ngst the trained teachers who are available, in order of
seniority. As indicated above, this is to be done on a one-time
basis and must not be taken as the regular practice to be B
followed.

     24. Let the Contempt Petition be adjourned for a further
period of six weeks to enable the State Government to
implement this order and to submit a report on the next date
as to the result of the discussions held between the petitioner C
and the concerned authorities

R.P.                           Contempt petition adjourned.