Contempt Petition Nos2364091  26391
IN Special Leave Petition Nos 11699 11700 11098 11654 1019090 and 429 of 1988
From the Judgment and Order dated 1181989 of the Patna High Court in CWJCNos
1014 10132271365 red 1363 of 1988
Prashant Bhushan for the Petitioner PD Sharma for the Respondent
The Judgment of the Court was delivered by AS 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 1181989 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 andor 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 721991
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 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 721991 the Commissioner cum Secretary Human Resources Department Government of Bihar made an order on 2861991 determining the categories out of the dismissed teachers who were eligible for reappointment
The Commis sioner took the view that under the executive directionsregulations 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 721991
Shri Shanti Bhushan learned Senior Advocate appearing for the petitioners submitted that the Commissioner had given a completely wrong interpretation to the executive directionsregulations 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 721991
420 Shri BB 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 721991 and that the Commissioner had placed a correct interpretation on the executive directionsregulations and had construed the judgment of this Court in the light of that interpretation and therefore he had committed no contempt
Learned coun sel submitted that the interpretation placed by the Commis sioner deserved acceptance
We have gone through the executive directionsregula tions issued in the form of office lettersorders 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 ISc
trained will be appoint ed on the basis of ISc
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 IA 1
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 ordersdirections 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 721991 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 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 721991
It appears to us to be a case of misinterpretation of the executive directions and order of this Court dated 721991 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 721991 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
RP Petitions dis posed of


Summary:
The respondents Diploma holder Junior Engineers in the Public Works Department pondicherry approached the Central Administrative Tribunal with the plea that the period of service rendered by them before they obtained the Degree should be included for reckoning the period of three years  service prescribed in the Recruitment Rules for promotion to the post of Assistant Engineer in the category of those possessing Degree with three years  service and if the earlier period was so included they would be eligible for promotion
However Degree holders opposed the respondents  plea contending that the period of three years prescribed in the Rules was subsequent to the date of obtaining the De gree
The Tribunal upheld the respondents  claim and directed that they should be considered for promotion on par with the other Degree holder Junior Engineers taking due note of their total length of service rendered in the grade of Junior Engineer
Hence the appeal by the Special Leave by the Degree hold ers
Allowing the appeal this Court HELD11 The rules must be construed to mean that the three years  service in the grade of a Degree holder for the purpose of Rule 11 of the Recruitment Rules for promotion to the post of Assistant Engineer in the Public Works De partment Pondicherry is 424 three years from the date of obtaining the Degree by a Diplomaholder
This is in conformity with the past practice followed consistently
The Tribunal was not justified in taking the contrary view and unsettling the settled practice in the Department
427 D 12 Rule 7 of the Recruitment Rules lays down the quali fications for direct recruitment from the two sources namely Degreeholders and Diploma holders with three years  professional experience
Thus a Degree is equated to Diplo ma with three years  professional experience
Rule 11 pro vides for recruitment by promotion from the grade of Section Officers now called Junior Engineers
There are two catego ries provided therein viz 1 Degreeholder Junior Engi neers with three years  service in the grade and 2 Diplo ma holder Junior Engineers with six years  service in the grade the provision being for 50 from each category
This matches with Rule 7 wherein a Degree is equated with Diploma with three years  professional experience
In the first category meant for Degree holders it is also provided that if Degree holders with three years  service in the grade are not available in sufficient number then Diploma holders with six years  service in the grade may be considered in the category of Degree holders also for the 50 vacancies meant for them
The entire scheme therefore does indicate that the period of three years  service in the grade re quired for Degree holders according to Rule 11 as the quali fication for promotion in that category must mean three years  service in the grade as a Degree holder and there fore that period of three years can commence only from the date of obtaining the Degree and not earlier
The service in the grade as a Diploma holder prior to obtaining the Degree cannot be counted as service in the grade with a Degree for the purpose of three years  service as a Degree holder
427 G H 428 A C