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PETITIONER:

KAPILDEO PRASAD SAH & ORS.

Vs.

RESPONDENT:

STATE OF BIHAR & ORS.

DATE OF JUDGMENT: 25/08/1999

BENCH:

D.P.Wadhwa, S.Saghir Ahmad.

JUDGMENT:

D.P. Wadhwa, J.

Leave granted.

On refusal of the Patna High Court to initiate

proceedings for contempt against the respondents, the

appellants have come to this court.

The appellants were working as Assistant Teachers in

different elementary schools in Godda district in the State

of Bihar. They are in the category of untrained teachers.

Their services were terminated. Some of the teachers

similarly placed filed writ petitions in the High Court

against their termination and the matter ultimately reached

this Court. It is not necessary to go into the various

stages of the litigation except to note that this Court by

order dated November 30, 1992 in Birendra Kumar & Ors. vs.

State of Bihar (CA 1 of 1992) directed as under :

"We, therefore, direct once again that if there are

vacancies and if there are not trained teachers available

the untrained teachers who were employed prior to the new

rule came into operation, would be reinstated in service if

after subjecting them to the selection process they are

found suitable. If there are no vacancies, they would be

empanelled according to their seniority and would be

appointed according to their seniority in the vacancies

arising in future. Unless this panel is exhausted, no new

appointment of untrained teachers will be made from outside.

It is understood that those eligible for being so appointed

will be the ones who were appointed before the new rule came

into operation.

While making the appointments of those who were so in

service prior to the date of appointment, the State

Government will relax the age limit, if necessary.

We are informed that the appellants involved in the

present case were paid salaries till 30th June, 1991. We

also understand from Mr. B.B. Singh, learned advocate

appearing for the State that all the vacancies have been

filled in till 1.1.1992. If there were vacancies and yet

the appellants were not appointed in the said vacancies such

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of the appellants who were eligible to be appointed and yet

were not appointed in spite of the vacancies, would be

entitled to the salaries from 1st July, 1992 till their

appointment. However, if there were no vacancies and all

the appellants or some of them have to be appointed in the

new vacancies which may be available hereafter, they will

not be entitled to the salaries from 1st July, 1992, till

the date of their appointment. However, when they are

appointed the period of break in service not exceeding one

year will be taken into consideration for benefits other

than salary.

The appeal is disposed of accordingly with no order as

to costs."

Appellants and some other teachers like them got

similar orders from the High Court in their respective writ

petitions. The main order passed by the High Court is dated

January 20, 1993 in CWJC No.7000/92. In this judgment the

High Court noticed the appointments made in some districts

and the number of existing vacancies. State had contended

that only one regular vacancy existed when according to the

petitioners, there were not less than 2,000 vacancies.

Counter affidavit filed by the State did not indicate if all

the 2,000 vacancies had been filled up. With the consent of

the counsel for the petitioners and the Advocate General

that these petitions may also be disposed of in the light of

the aforementioned direction of the Supreme Court the High

Court directed it accordingly. High Court said : "We may

however, direct the State to fill up posts in terms of the

aforementioned direction of the Supreme Court with utmost

expedition and preferably within two months from the date of

receipt of a copy of this order." Similar orders were passed

in other writ petitions filed by untrained teachers as well.

Under the orders of the Supreme Court and those of the

High Court which followed, the State Government was to fill

up the existing vacancies, if any, by appointing the

appellants and other untrained teachers who were eligible to

be appointed against those vacancies and in case vacancies

did exist as on January 1, 1992 the teachers so appointed

against those vacancies would be entitled to salary from

July 1, 1992 till their appointment. This was so as

salaries had been disbursed up to June 30, 1991. If there

were no vacancies, these untrained teachers had to be

appointed in the new vacancies which might be available

thereafter and in that case they were not be entitled to the

salary from 1st July 1992 till the date of their

appointment.

Appellants were appointed on October 4, 1994 pursuance

to the directions of the High Court on October 4, 1994 by an

order issued by the District Superintendent of Education,

Godda. Appellants are receiving their salaries w.e.f.

October 4, 1994. They claimed that it was case of

reappointment under the orders of the Court and that since

they were appointed against vacancies existing prior to

January 1, 1992, they were entitled to salary from July 1,

1992 till October 3, 1994. They made their claim for the

arrears of salary and since there was no response from the

State Government, they filed petition for initiation of

contempt proceedings against the State as well as its

functionaries being the Director, Primary Education; Deputy

Commissioner-cum-Chairman of the District Establishment

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Committee, Godda; and District Superintendent of Education,

Godda district. Since it was the case of the respondents

that no vacancy existed in the Godda District as on January

1, 1992, High Court by the impugned order dated July 8, 1998

dismissed the contempt proceedings. High Court said that

there was no violation of the order passed by the High Court

and if the appellants alleged that any direction of the

Supreme Court had been violated, then it was not for the

High Court to initiate any contempt proceedings. Aggrieved,

appellants have come to this Court.

Here again the stand of the respondent has been that

there has not been any violation of any order either of this

Court or of the High Court. They are specific in their

stand that no available vacancy existed before January 1,

1992 and as such the appellants were not entitled to the

arrears of salary. Respondents have also contended that the

orders appointing the appellants did not show that they were

appointed against any vacancy existed before January 1,

1992. Appellants have also not stated before us as to how

they claim that any vacancy existed as on January 1, 1992.

Yet they state that there has been deliberate inaction on

the part of the respondents which showed that they had no

regard and respect for Court's orders and that the

respondents were wilfully and deliberately flouting the

orders and direction of the courts.

Once the respondents take the stand that there was no

vacancy existing as on January 1, 1992 in the Godda District

and in the absence of any evidence to the contrary, it

cannot be said that the orders of the courts have been

contravened.

For holding the respondents to have committed

contempt, civil contempt at that, it has to be shown that

there has been wilful disobedience of the judgment or order

of the court. Power to punish for contempt is to be

resorted to when there is clear violation of the court's

order. Since notice of contempt and punishment for contempt

is of far reaching consequence, these powers should be

invoked only when a clear case of wilful disobedience of the

court's order has been made out. Whether disobedience is

wilful in a particular case depends on the facts and

circumstances of that case. Judicial orders are to be

properly understood and complied. Even negligence and

carelessness can amount to disobedience particularly when

attention of the person is drawn to the court's orders and

its implication. Disobedience of court's order strikes at

the very root of rule of law on which our system of

governance is based. Power to punish for contempt is

necessary for the maintenance of effective legal system. It

is exercised to prevent perversion of the course of justice.

In his famous passage, Lord Diplock in Attorney

General vs. Times Newspapers Ltd. [(1973) 3 All.E.R. 54]

said that there is also "an element of public policy in

punishing civil contempt, since administration of justice

would be undermined if the order of any court of law could

be disregarded with impunity". Jurisdiction to punish for

contempt exists to provide ultimate sanction against the

person who refuses to comply with the order of the court or

disregards the order continuously. Initiation of contempt

proceedings is not a substitute for execution proceedings

though at times that purpose may also be achieved.

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No person can defy court's order. Wilful would

exclude casual, accidental bonafide or unintentional acts or

genuine inability to comply with the terms of the order. A

petitioner who complains breach of court's order must allege

deliberate or contumacious disobedience of the court's

order.

Nothing has been shown that the claim of the

respondents that appellants have not been appointed against

any vacancy existing on January 1, 1992 is not true or that

the respondents are intentionally or deliberately advancing

this plea to deprive the appellants of their right to the

arrears of the salary for some ulterior motive. That being

so, it was not a case where proceedings for contempt could

have been initiated against the respondents. High Court is

right in dismissing the contempt petition. However, since

there is a serious dispute whether any vacancy existed or

not as on January 1, 1992 against which appellants or anyone

of them could have been appointed the matter certainly needs

examination but perhaps only by way of an interlocutory

application in the writ petition and not by way of contempt.

Thus, though upholding the order of the High Court, we send

the matter back to the High Court to go into the question if

any vacancy existed as on January 1, 1992 and, if so, pass

appropriate orders.

With these observations, this appeal stands disposed

of.