Nand Kishore Ojha and Others vs The State of Bihar and Others

Ravi S. Dhavan, C.J.—These cases began with only one question asked by the Court: Why was the judgment of the Supreme Court in re Ram Vijay Kumar v. State of Bihar and Ors. not followed by the state government all these years. The judgment of the Supreme Court was given on 5 September, 1997. (1998) 9 SCC 441 (Sic�227?) [1997 (1) PLJR (SC) 108]

The issue stands resolved by the judgment of the Supreme Court in re. Ram Vijay Kumar v. State of Bihar and Ors. (supra). The Supreme Court held in the concluding part of its judgment "The selection for which preliminary examination was held in December, 1996 shall be made by the Commission in accordance with the law laid down by the High Court..."

These cases have raised issues after the government of Bihar resorted to the recruitment of teachers to teach primary schools. The mess and confusion have been created by the State government itself. There is no reason for the State government to take issues in the matter relating to the appointment of primary school teachers. The Government of Bihar set about to appoint teachers after 14 years. It has landed itself into an unnecessary controversy. It has no other person to blame but itself for creating controversy when none existed.

The judgment of the High Court in C.W.J.C. No. 5765 of 1994 Vinod Kumar and Ors. v. The State of Bihar and Ors. 1997 B.B.C.J. 441 was affirmed by the Supreme Court. This judgment is dated 26 September, 1996 delivered by Hon''ble D.P. Wadhwa, C.J. and Hon''ble S.J. Mukhopadhayay, J. Since the judgment of the High Court was affirmed by the Supreme Court any answer which has to be sought is from these two cases. The Supreme Court affirmed the judgment of the High Court with a specific direction that the recruitment process should resume as directed by the High Court. This direction of the Supreme Court is the law which has to be followed by all civil authorities. Article 144.

Has this matter proceeded in accordance with the judgment of the Supreme Court in re Ram Vijay Kumar (supra)? The answer is No. The State of Bihar let the judgment rust by putting it in the deep freeze. Has any factor changed in the State of Bihar by which the State government could avoid the judgment of the Supreme Court? The answer is No. Avoiding the judgment of the Supreme Court thus is not only disrespect but also contempt. The State was cautioned by the Governor of Bihar on this very subject.

The Court indicated this to the State government. The Court heard these matters on 2 December, 2003, 15 January, 2004, 29 January, 2004, 4 February, 2004, 11 February, 2004, 12 February, 2004, 17 February, 2004, 26 February, 2004, 12 March, 2004, 15 March, 2004, 18 March, 2004,19 March, 2004, 23 March, 2004, 31 March, 2004, 12 May, 2004, 14 May, 2004, 17 May, 2004, 18 May, 2004, 24 May, 2004 (special session during summer vacation), 21 June, 2004, 22 June, 2004, 23 June, 2004, 24 June, 2004 and 25 June, 2004. The orders passed by this Court on 2 December, 2003, 29 January, 2004, 4 February, 2004, 17 February, 2004, 12 March, 2004, 15 March, 2004, 18 March, 2004, 23 March, 2004, 12 May, 2004, 14 May, 2004, day, 2004, 24 May, 2004 are relevant.

It was indicated to the Court that the State government will fall in line with the judgment of the Supreme Court. For his adjournment after adjournment was taken. The impression the High Court gets (sic) that the State government is avoiding (sic) judgment of the Supreme Court by purchasing time.

This Court cannot write another judgment by ignoring the orders of the Supreme Court. This Court cannot re-write judgment of the High Court which was affirmed by the Supreme Court. This is the judgment dated 26 September 1996.

The ideal situation should have been that the matter should have been kept simple by following the judgment of the High Court which the Supreme Court affirmed. In that case, no complication would have arisen. But now, the State government has complicated the issues. For 14 years it has not recruited teachers or elementary schools. The last recruitment was done in 1991. This fact is available from the judgment of the High Court dated 26 September, 1996 and the judgment of the Supreme Court in re. Ram Viay Kumar v. State of Bihar and Ors. (supra). The facts as noticed in the judgments are as were given to the Courts when seized of the matters. Suppression will not make the decision on suppressed (sic).

Primary schools are lying empty for want of teachers. Those who were five years old in 1991 today are 20 years of (sic). Bihar has gathered a generation of illiterates and the education department is not bothered. The interest is not in basic education, but on how to recruit the teachers. Someone lurking within the government is more interested in recruitment than executing the plan for primary education. One legal advice after another has been taken after the judgment of the Supreme Court as a useless pursuit, how not to implement the judgment of the Supreme Court, to pass time and escape reality that without primary school teachers illiterates will abound and their numbers will increase everyday. The Bihar government has created a human rights problem in denying a generation its right to basic education. What is the solution? It is simple. Follow the judgment of the Supreme Court from where the circumstances had been left off.

The government of Bihar had no intention of implementing the judgment of the Supreme Court. In the counter affidavit the Secretary offers no valid reason why the judgment of the Supreme Court will be avoided. Till today no explanation has been given to the Court in fact, when the Supreme Court judgment was cited for compliance the Education Secretary''s stance was one of belligerence and confrontation. He virtually conveyed to the Court that to avoid the Supreme Court judgment, is the discretion and the power of the State Government. The Chief Secretary apologised in Chambers.

What may be the real reason? One thing needs to be placed on record at the very out set that the case is not so much about the appointment of teachers at the matter is examined deeply. It is about politics. Dirty politics. The present government does not desire to recognise teachers for elementary schools as may have been recruited by the previous regime. Given an occasion it would like to tear up the records of teachers recruited by the previous regime. Who suffers? Little children.

To frustrate or for that matter, demolish primary education is an irresponsible act. Adding more illiterates to the army of illiterates already available is violation of the basic rights of man. In is defence, the State government has not been cooperative with the High Court. The State government has hidden official material from the High Court, even published reports.

In 1999 the Governor of Bihar was making inquiries from the State government as to why the judgment of the Supreme Court was not being followed. No satisfactory answer was forthcoming from the State government. The communication from the Raj Bhawan dated September 6, 1999 (annexure 4 to the writ petition) to the State government on record is reproduced:

M. Kumar I.A.S. Secretary to Governor, Bihar Raj Bhawan, Patna September 6, 1999

D. O. No. 287/GS

Dear Madam,

Subject: Appointment of Assistant teachers--Supreme Court judgment of 5.9.97 in SLP (Civil) No. 23187 of 1996.

On subject above, I am directed to say that three salient features which emerge out of the above referred Supreme Court judgment are as follows:

The Hon''ble High Court had been pleased to quash the entire selection and appointment of about 19,272 Assistant Teachers made in pursuance to the advertisement issued in October, 1991. Only 1991 out of 19,272 were trained teachers and the rest 17,281 were untrained. This was modified to the extent that the State Government was directed to take immediate steps to devise a compact syllabus of teacher''s training course of the one year and commence training of the untrained teachers, who have been already appointed, October 1, 1997 onwards. All the above said untrained teachers were to be trained within two years. The appointment of the above 17,281 teachers was saved subject to their being trained for the job within two years from October 1, 1997.

That, the selections for which preliminary examination was held in December. 1996, shall be made by the commission in accordance with the law laid down by the High Court in its judgment which was the subject matter of the SLP @ No. 23187 of 1996 (Re: The Patna High Court judgment in Ram Vinay Kumar''s case).

There is clear cut interdiction on the State Government to appoint such untrained teachers, who do not possess valid teacher''s training qualifications, to the remainder vacancies of about 6000 posts. The B.P.S.C. is under a mandate to devise and conduct a special selection process for appointment to the unfilled posts in the manner indicated in the judgment from amongst only the trained teachers. This process was to be completed by December. 1997.

The fall-out of the above Supreme Court judgment is that in the event of the State Government failing to implement the above directions in the summarized manner and the time-frame prescribed, the impact would be three-fold.

(1) There will be contempt of Court if the directions regarding the training of the 17, 281 untrained Assistant Teachers have not been implemented. The State authorities were not only required to devise special training course for them, but also to complete the process by October, 1999.

(2) The appointment of the untrained teachers was saved only subject to their being given the necessary teacher''s training. It was one of the principal grounds of challenge to their appointment that they were not only duly trained to be teachers. In the event of their not being trained in the manner and within the time stipulated by the Court, their appointment must go. The Supreme Court had, in clear terms made it known that only trained teachers would remain in and be appointed to the post of Assistant teachers.

(3) There will be a further contempt Court if the State Government transgresses the imperative interdiction, no fresh appointment to be made from amongst persons who do not hold valid teacher''s Training qualifications. And if any appointment is to be done, it should be done in the manner laid down by the High Court. There is no ambiguity about the directions given by the Supreme Court in this regard.

(2) I am desired by H.E. the Governor-cum-Chancellor to request you to post this Secretariat with the latest portion in regard to:

(1) Assistant Teachers appointed in pursuance to the advertisement of October, 1991.

(2) Selections, if any, for which preliminary examination was held in December, 1996; and

(3) Filling UP of remainder vacancies of about 6000 for which B.P.S.C. lad to devise and conduct a special election process.

(3) Ex-facie, it appears that selection are still being made through the B.P.S.C. without compliance with the order of the Hon''ble Supreme Court. Moreover, several adverse reports regarding conducting of these examinations by the B.P.S.C. also have been brought out by the news media in the recent past.

(4) On the subject above, you may kindly recall the discussions attached with H.E. The Governor on 29.8.99. This meeting was also attended by Chairman, N.C.T.E., Dr. J.S. Rajput. H.E. desires that the reply from the Department should be placed for his kind perusal latest by 9th of September, 1999. In case you feel that the issues above could be explained in a better manner by presentation in by person, you may kindly do so.

With kind regards.

It will be noticed that the Governor of Bihar was questioning the State Government and had, in fact, cautioned that not to comply with the orders, of the Supreme Court will be a contemptuous situation. The best answer could have come from the State government on what exactly was the follow up action. The Secretary, Primary education has evaded this record conveniently in his counter affidavit. The State government has no valid explanation to offer as to why the judgment of the Supreme Court was not being followed. Thus, both the Governor of the State and the High Court are ignored by the State Government in answering one question. Why has the judgment of the Supreme Court not been followed?

If the Supreme Court had certified in its judgment that me attitude of the State of Bihar was lackadaisical approach in the matter of appointment of elementary school teachers, the situation continue even till today.

What the Bihar government was doing was to pass time so that persons who are affected, that is those who were to receive the benefit of the judgment of the Supreme Court, with the passage of time, are put into retirement as if this will solve a problem or work a public plan. The Other engineered complication was to create a situation so that persons applying as teachers after the last recruitment in 1991 get over age.

If the judgment which was affirmed by the Supreme Court will be noticed it will be seen that in paragraph 1 itself the Hon''ble Division their Lordships Hon''ble D.P. Wadhwa, C.J. and Hon''ble S.J. Mukhopadhayay, J. noticed the legislation which governs primary education in Bihar. The Court is not going to repeat the contents of the judgment of the High Court dated 26 September, 1996. But a rearing of it makes it absolutely clear that Bihar is in a very advantageous position compared to other States, as being part of Bengal once, primary education as a field was already covered by legislation when other States were still drawing up legislation. Primary education, as the judgment in Vinod Kumar v. State of Bihar and Ors. (supra), notices is basically governed by three legislations. These are (a) Bihar and Orissa Local Self government Act, 1885, (b) Bihar and Orissa Primary Education Act, 1919 and (c) the Rules framed under the last enactment specially the Bihar Primary Education and Middle Education Rules 1961. The only thing which this Court contributed is that whereas 73rd and 74th amendments to the Constitution of India have made primary and secondary education the subject of institutions prescribed in Part IXA and Part IXB, the Panchayats and Municipalities, the subject of primary education is mentioned in ELEVENTH SCHEDULE, Item 17. Thus, it can be said that nothing need to be done to existing legislation even after coming of the 73rd and 74th amendments because primary education in any case is decentralised by a legislation as a subject which has been relegated to the Panchayat. The Bihar Panchayati Raj Act, 1993 refers to the primary education in Section 22(xiii). The Bihar Primary Education and Middle Education Rules 1961, aforesaid, are more detailed and if these wore followed strictly there is no problem in the recruitment of teachers particularly primary school teachers. It is not understood why the State government was avoiding the judgment of the Supreme Court when it had been put under a direction that the recruitment of teachers which was at that time midway as a process undertaken by the Bihar Public Service Commission should continue, as settled law. In as simple terms as the Supreme Court had spelled out that recruitment of teachers should be done by the Bihar Public Service Commission, affirming the judgment of the High Court, to change the modality is changing the facts and circumstances as were spelled out by the Supreme Court. No valid explanation has been given as to why in 2003, new rules were being prescribed. The Bihar government even forgot that rules had been framed in 1961. The rules had been framed under the Bihar and Orissa Primary Education Act, 1919. The field of primary education was covered by an Act of legislature. Why was Bihar government resorting to framing fresh rules? This issue has been evaded in the counter affidavit.

The government of Bihar had no satisfactory updated information to offer to the Court as to how many trained teachers are available so as to cover up the short fall by picking up untrained teachers, if required. Today, it is acknowledged that this compilation was never made. This data was not compiled because the State government was evading the trained teachers as may be available having been recruited prior to 1991. This much is acknowledged that trained teachers are available.

It is thus, that the Court required, when the State government was not coming out with the details, the Law Secretary to submit a report. The report of the Law Secretary is reproduced:

In compliance of the order dated 23.3.2004 passed in C.W.J.C. No. 13246 of 2003 Nand Kishore Ojha v. The State of Bihar and others with analogous cases I submit the preliminary Report to start the programme of Elementary Education in Bihar, as follows:

Before the Bihar non-Governmental Elementary Schools (Taking Over Control) Act 1976 came into force the primary Schools in Bihar were non-Governmental Schools and were run by the Zila Parishads and the Municipal Corporations and Managing Committees. The Teachers in those schools used to be appointed by the Managing Committee of the respective agencies as per the provisions of Bihar and Orissa Primary Education Act 1919 and the rules framed thereunder and the Bihar Primary and Middle Education Rules 1961. The Bihar Non-Governmental Elementary Schools (Taking Over Control) Act 1976 (Act 30 of 1976) came into force on 6.2.1976 to provide for the taking over of non-governmental Elementary Schools under the State control for better organisation and development of Elementary Education in Bihar. With the enforcement of the said Act (Act 30 of 1976) all provisions relating to non-governmental Elementary Schools under the Bihar and Orissa, Local Self Government Act 1885, the Bihar and Orissa Municipal Act 1922, the Patna Municipal Corporation Act 1951, Bihar Panchayat Samities and Zila Parisad Act 1961 (Bihar Act VI of 1962) end such enactments stood repealed. After enforcement of Taking Over of Control Act 1976 the appointment of teachers in Elementary Schools continued to be made by the respective District Establishment Committees on the basis of the executive instructions and circulars issued which were similar to the provisions of appointment prescribed in the Bihar Primary and Middle Education Rules 1961. Each District prepared district wise panel on the basis of the marks obtained in the Matriculation examination and the training examination, both conducted by the Bihar School Examination Board. The apparent demerit in the system was that the appointment instructions provided that new panel could be prepared only when the earlier panel was exhausted completely as the result of which some of the candidates had to wait for 10 to 15 years for their appointment. The appointment on the aforesaid procedure continued to be made till the year 1985-86.

In 1986 some persons filed a writ bearing No. 5490/86 before the Hon''ble High Court, Patna in which it was ordered that preparation of panel District wise was violative of Article 16 of the Constitution and it was held that the appointment should be made from State-wise panel. This rendered the earlier instructions of appointment as invalid. The State Government with a view to streamline the administration took a decision in cabinet meeting to introduce a competitive examination for making selection of the candidates for teacher''s post in the Elementary School level. Accordingly, a Committee in 1988 was setup to prepare the syllabus for the competitive examination. The Committee''s recommendation was to allow trained as well as untrained candidates to appear at the competitive examination. The trained persons who received more than 60% marks in training examination were to be given the weightage of 3 marks while the trained persons having received 60% or below in training examination were to be given weightage of 2 marks over the untrained persons. The committee recommended that in case a trained candidate competed (sic) or she shall be appointed and posted with pay scale prescribed for trained teachers while the untrained candidate on being recommended by the examination body for appointment shall be appointed in the pay scale of untrained teachers and as soon as the training session started in July shall be deputed for one year condensed short term course in the Government Primary Teacher''s Education Colleges. Thereafter the candidate had to appear at the examination conducted by the Bihar School Examination Board and on coming out with success was to be given pay-scale of trained teachers.

In the year 1991 New Recruitment rules were framed. It was for the first time that the rules under the proviso to Article 309 of the Constitution of India were framed for appointment to the post of the teachers in the Primary Elementary Schools in Bihar. It was published vide Notification No. 2055 dated 30th September 1991 and was called Bihar Primary Schools Appointment rules 1991. The Provisions of this Rule were almost the same as recommended by the Committee setup in 1988.

The Government Published an advertisement on 8th October, 1991 for filling up about 25,000 posts of Assistant teachers which were lying vacant in different Primary and Elementary Schools of Bihar. A large Number of trained as well as untrained persons applied for the posts. The matter of appointment remained pending for about one and half year. In the year 1993 the Government of Bihar made another notification dated 5th May, 1993 under Proviso to Article 309 of the Constitution of India which was the amendment to the Bihar Primary Schools Appointment Rules, 1991. In Bihar Primary Schools Appointment Rules 1991 the appointments were to be made by the District Education Establishment Committee but as per amended Rule 8 of 1991 rules the examination was to be conducted by the Bihar Public Service Commission. Besides that according to amended Rule 9 the provision for preliminary test also made. According to amended Rule 10 the trained candidates having more than 50% in Training Examination were to get 3 marks and those having 50% or less marks in training examination were to get 2 marks in addition and the same was to be added to the marks obtained in main examination for preparing merit list.

In pursuance to the directions of the Hon''ble High Court, Patna in C.W.J.C. Nos. 5490/1982 and 3882/88 it was decided by the State Government vide letter dated 7th August, 1993 to give opportunity to such candidates whose names were appearing in the earlier panel which was cancelled in the year 1989 but could not apply in pursuance of 1991 advertisement being over-age by relaxing their age. In the meantime B.P.S.C. took up the matter of Selection for appointment came out with a notice dated 20th September, 1993 and the date of preliminary test was fixed 9th October, 1993 and the preliminary test was conducted on that date. In pursuance to the letter dated 7th August, 1993 supplementary preliminary competitive Examination was held on 1st December, 1993.The result of both the preliminary examinations was published district wise in March-April, 1994. The Candidates who were successful in preliminary test appeared in main examination on 29th May, 1994. The result of main examination was published since 28th June, 1994. The selection was made for about 25,000 posts. On the said result a total number of 19,700 candidates were selected and recommended for appointment but 19272 candidates including 1991 trained Assistant Teachers were appointed. C.W.J.C. No. 5765 of 1994 was filed to assail the selection and appointments. The said '' C.W.J.C. was dismissed by the Hon''ble High Court vide order dated 26th September, 1996. Against the said order SLP(C) No. 23187 of 1996 was preferred before the Hon''ble Apex Court.

SLP (C) No. 23187 of 1996 was disposed of on 5th September 1997 with the following directions:

(i) The Commission shall conduct a special selection for the purpose of appointment on those unfilled posts from among the Applicants who had submitted their applications.

(ii) The selection shall be confined to Applicants possessing teacher''s training qualification obtained from Government/private Teacher''s Training Institutions.

(iii) The selection shall be made by holding a preliminary test and Written examination of the candidates who qualify in the preliminary test.

(iv) In case the number of persons found suitable for appointment in such special selection exceeds the number of posts for which recruitment was to be made on the basis of the advertisement dated 8.10.1991, the surplus number of candidates who have been found suitable for appointment would be adjusted against posts to be filled on the basis of subsequent selection.

(v) The Special selection which is to be conducted in pursuance of these directions shall be completed by the Commission by 31.12.1997.

It appears from the letter No. 312 dated the 20th February. 2004 of Bihar Public Service Commission (Photo Copy attached Annexure 1) that in Compliance to the said direction of the Hon''ble Supreme Court Special Selection Examination for trained primary Teachers was held in which 75 thousand candidates made applications out of which 65. 000 candidates appeared but 544 and 504 total 1048 candidates only were successful.

It may be mentioned here that NCTE Act and NCTE (National Council for Teacher''s Education) Rules came into force in the year 1995 in which there was statutory binding for making appointment only of such persons having training qualifications. NCTE Regulation 2001 made significant provisions that the teachers of Primary schools must have Intermediate qualifications and they must have training qualification also. The Government of Bihar in compliance of NTCE (Determination of Minimum Qualification for Appointment of Teachers) Regulation 2001 formulated Bihar Elementary Teachers Appointment Rules 2003. The said rules have been supplemented by a notification to clarify the position that the candidates selected in a competitive examination who possesses teachers training qualifications as per the norms of N.C.T.E. shall be appointed immediately. Those selected candidates who are not trained from before will have to acquire training qualifications as per NCTE norms within a prescribed period and then they will be appointed as primary school teachers and if they fail to acquire training qualifications within prescribed period their selection shall be cancelled and they shall have no claim for appointment.

The Government of Bihar vide letter No. 137 dated 20.1.2004 of the Secretary, Secondary, Primary and Adult Education and the Chief Secretary''s, letter No. 269 dated 20.1.2004 made request to NCTE for approval of Bihar Elementary Teachers Appointment Rules 2003 and also for one time relaxation in appointment Rules. The NCTE vide its Fax dated 28.1.2004 granted the relaxation subject to the following conditions:

(i) That a competitive examination may be organized under the Bihar Elementary Teachers Appointment Rules, 2003 and trained teachers available from Institutions recognized by NCTE and qualified under the examination would first be given the offers of appointment. The remaining vacancies may, thereafter, be filled up from amongst the candidates who do not possess the essential requirement of pre-service training at elementary school Teacher but they shall not be regularised or confirmed till a proper training programme approved by NCTE for this purpose have been organized and they have been declared successful in the same.

(ii) That the Bihar Government will take necessary steps within next six months to revitalize all the DIETs and other teachers training institutions recognized by the NCTE and organize pre-Service training programmes for eligible persons in sufficient numbers under Intimation to the NCTE.

(iii) Bihar Government shall also take steps to encourage the institutions that were already recognised for conducting B. Ed. Training programmes to take up pre-service training for eligible persons for Diploma in Education, essential requirement for elementary School.

(iv) Bihar Government shall, also encourage suitable educational and voluntary institutions to take up the programme for Diploma in Education in line with the NCTE Notification No. 53/3/2003-NCTE (N & S) dated 1.1.2004. published in the Gazette on 5.1.2004.

(v) Bihar Government shall also take steps to amend their recruitment Rules for Elementary School Teachers So as to provide the necessary Pre-service training as an essential qualification in line with the NCTE Notification latest by 31th December, 2004.

Taking into account the above mentioned facts I recommend the following:

i) Before coming Bihar Primary Schools Appointment Rules 1991 into force (on 30th September, 1991) the trained teachers were appointed from the panel prepared on the basis of the marks obtained in the matriculation examination and the training exam, without any test or pre-test. Such available trained teachers should not be debarred from being appointed for no fault of their own. Accordingly, it is recommended that trained teachers prior to coming Bihar Primary Schools Appointment Rules 1991 into force should be appointed first on relaxation of their age without any test or pretest of course after verification of the genuineness of their training certificate.

For the purpose of agoresaid i.e. putting the available trained teachers of the period 1985 to 1993 the following plan is proposed:

Period Total Vacancy Availability of Trained teachers

1985 to 1993 roughly between 22 thousand to 25 thousand About 65, 000 as per the examination held in 1997 by the B.RS.C.

Out of 65,000 1991 + 1048 Total 3039 Absorbed 65,000-3039=61961 left

Many of them must have been engaged in other jobs within the State or elsewhere. So roughly about 50,000 trained teachers are available. How many of them are Intermediate are not known.

The aforesaid matiers are to be calculated by the Education Department and the figures available may be implemented as per the aforesaid plan.

ii)The remaining vacancies thereafter, be filled up from amongst the candidates who have at least intermediate qualification but do not possess the qualification of training as Elementary School Teachers. They shall be regularized or confirmed only after a proper training programme approved by NCTE for this purpose has been organized and they have been declared successful in the same within a period to be specified by the Government.

iii) Since the selection of the teachers should be made by the B.RS.C. the Staff Selection Commission, Bihar should be attached to B.RS.C. and be made part of the same for that purpose.

iv) The trained teachers already appointed and but are not being paid their salary should be paid their salary.

v) In place of the executive instructions and circulars governing appointment Rules should be framed.

vi) So far the Physical Trained Teachers are concerned the Government may consider their appointment as per the existing rules. In case such teachers having Intermediate qualification appear for selection as fresh candidates, the Government may consider to give weightage to their training qualification in selection as Primary School Teachers.

Submitted.

Sd/Law Secretary Bihar, Patna 7 May, 2004

A bare reading of the report of the Law Secretary shows how the State government has suppressed basic facts to avoid the judgment of the Supreme Court. When the court asked the State Counsel as to why modalities were being changed when even the Supreme Court had observed that the Bihar Public Service Commission had been required to complete the process of the recruitment of teachers, the answer was very strange. The State Counsel, the Additional Advocate General II, replied that the Bihar Public Service Commission had never (the submission was made with emphasis on never, thus, undefined by the court) made the recruitment. Perhaps, the State Counsel had not studied his brief or, perhaps, he forgot the record. In so for as the Secretary, Primary Education, was concerned, he had concealed facts from the High Court. There was no necessity to seek the recruitment to be done by another agency to avoid the Bihar Public Service Commission. The State Public Service Commissions are constitutional bodies. Any recruitment done by them keeps the State Governments away from allegations of taking any interest in the recruitment process. The Law Secretary has given a composite report after collecting all the facts and circumstances as made available to him. His facts have been gathered from the record. His suggestion and advice is based on the two judgments. One of the High Court and other of the Supreme Court affirming the decision of the High Court. It is in these very matters of the recruitment of Primary School Teachers. Even the Law Secretary comments that the data has not been compiled nor up-to-date information is available.

The State government did not find the report of the Law Secretary palatable. In effect, the State government is yet taking a stand with the High Court that it would like to avoid the judgment of the Supreme Court.

Why avoid the Bihar Public Service Commission? No answer has been given to the court. Already, the State government is facing issues that the concessions which it had obtained, in effect, from National Council For Teachers Education (NCTE), a Central Government Organization, could not be granted. The assertion on behalf of the Petitioners is, to the effect, that all these details had not been provided to the NCTE before obtaining concessions in lowering the qualifications of teachers and further without providing details as to whether the teachers training institutes were, in fact, functional or not. Even today the State government cannot inform the High Court as to how many trained teachers are available. The court will revert to this aspect latter.

The contention on behalf of the Petitioners is that the concessions which the NCTE may grant are for a particular teacher or a particular school. The circumstances have to be seen before concessions are granted in objectivity. If a particular teacher may lack qualification the NCTE may examine the matter whether an unqualified teacher may be recruited pending clothing himself with qualifications. Further, if a school does not have the requisite standards or stipulated criteria, it may be permitted to function till the paraphernalia is provided within a time bound schedule. The contention is that this power of concession was not meant to be used en masse, as a mass scale concession which might affect the quality of education. This is not concession, but the politics of hiding what was not done even after the judgment of the Supreme Court.

The Standing Counsel to the Central Government was asked whether the details given by the Law Secretary were provided to the NCTE before the concessions were granted, only after the 2003 rules had been framed. He submitted on instructions that these details were not provided. The rules of 2003 laid down a criteria for the teachers with qualifications. Several concessions were being sought by the State Government piece meal after the rules had been framed and even during the pendency of these cases. The rules of 2003 had been eroded in any case with concessions which the State government was seeking and readily being provided by the NCTE. The rules have been weakened to suffer teachers who will function without qualifications but under concessions. Concessions are exceptionally considered for individual and identified aberrations on a case to case basis. In this case bureaucrats in Bihar may have arranged with the bureaucrats in NCTE not to make public how primary education has been derailed in the State. The concessions were only an acknowledgement that Bihar has ill-equipped teachers, training institutes and the teachers which the State requires to recruit will first need to be trained. What happened to the trained teachers, who are available? What happened to the untrained teachers? How many and whom and in which district?

The following aspects need to be taken into account before acting to recruit teachers trained or untrained. A policy has to be drawn up which is faithful to facts and reality and acknowledges the past inaction and defaults. Even the recruitment of trained teachers will be dependant upon the availability of trained teachers who were recruited but are idling for want of assignment of a school.

The court asked the following questions but received no satisfactory answer from the State counsel. On behalf of the Petitioners the Reverened K.M. Joseph (he is a priest) provided the answers. The Court asked when the last recruitment was made? This answer is available from the Law Secretary''s report dated 7.5.04 at page 5. The advertisement was on 8 October 1991. This was for the recruitment of 25000 primary teachers. In pursuance of this advertisement 19,272 teachers were recruited. After 14 August 1997 1,054 teachers were recruited. The advertisement for the recruitment of teachers dated 8 October 1991 is the same advertisement which was under consideration by the Supreme Court in re. Ram Binay Singh v. The State of Bihar and Ors. (supra). The number of teachers recruited was 20,320 teachers, recruited between 1991 till to-date (over a period of 13 years). What is the number of vacancies date wise? No data is available as none has been supplied by the State government. Assuming that in the year, 1991 the total existing vacancies were notified, then as in the year 1991, on this analogy, the vacancies should be zero. Retirement of teachers may have added to the vacancies in the intervening period. In the impugned notification dated 10.12.2003 by the Bihar Staff Selection Commission, 34,540 has been indicated as existing vacancies. This figure is available from the advertisement which is annexed along with the Interlocutory Application No. 5605 of 2003. But from the public record, a State publication, "Elementary Education In the State of Bihar, 1996-97" at page 8 the vacancies as on 30 September 1993 of undivided Bihar totalled 2,09,981 of which 1,54,751 were working in Bihar. Again in the same publication according to the figures given at page 27,18,481 teachers were expected to retire over the 3 years period 1997, 1998 and 1999. Of these 6,160 per annum were in the unbifurcated State of Bihar, and approximately 4,867 were from the present State of Bihar. The projected vacancies due to retirements over a period of 13 years thus could be approximated to about 63,000.

What is the criteria of recruitment as of now? On teachers training institutions available in paragraph 15 of the second supplementary counter affidavit filed on 4.2.2004 by the Secretary, Primary Education, it is stated 60 primary teachers training colleges are available. Of these only 21 have recognition from the National Council of Teachers Education. But, in the official publication "Teachers Education in Bihar", National Council for Teachers Education, 1999, table (5.8 the gross number on responding institutions which qualify for teachers training institutions up to the period of 1997-98 only 46 are available. This figure also is of undivided Bihar. The Statement made by the Secretary in the supplementary counter affidavit, thus, does not inspire confidence.

The facts as are given by the State government to the High Court appear to have been edited, withheld and truncated. This is suppression. It is not expected that a Secretary to a government in a matter-like the present one, which has seen a decision at the Supreme Court will withhold information.

The contradiction can be seen from the affidavit of the Secretary itself. Paragraph-15 is reproduced:

That the State Government owned 60 Primary Teacher''s Training Colleges are equipped with necessary infrastructure requirements of land, building, library etc. for functioning as Counselling Centres of Distance Mode Training Programmes of SCERT/IGNOU/Nalanda Open University on a rational basis. They are only short of Lecturers of requisite qualification.

First, the Secretary says that the State government possesses (owned) 60 primary teachers training colleges. The details and the names are not provided. The rest of the submissions go on to explain that necessary infrastructure requirements of lands, buildings, library etc. for functioning as counselling Centres of distance Mode Training Programmes of Nalanda Open University are available on rotational basis is obfuscation eyewash. Are these State owned institutions or non-government organisations? No details have been given which institution and in which district. The worst is the submission that they are only short of lecturers of requisite qualification.

The court inquired from the State Counsel as to what sort of institutions the State government is running that it does not have lecturers of requisite qualification. This implies that unqualified lecturers have been put into teacher''s training institutions and. they are supposed to confer qualifications on untrained teachers. It is stated that 21 institutions only have recognition, meaning thereby that 39 are without recognition. The statement in paragraph 15 acknowledges that the government is taking steps to equip these colleges (sic) with requisite manpower and thereby get N.C.T.E''s approval. This means that these institutions do not have the full manpower of lecturers who are imparting training apart from the fact that they are unqualified Conveniently, the Secretary has evaded the details. It has not been explained that the figures have been updated upto which year. The government official publication mentions that only 46 institutions were available in undivided Bihar. How does the Secretary get the number 60 and that also with recognized institutions and unqualified lecturers. The explanation is either irresponsible or callous. It is certainly not authenticated. The Secretary was misleading the court.

That the recruitment of teachers has dwindled post 1991 or was never made as a routine in the normal course of administration is a fact that was suppressed, but it surfaces from the official publication, "Elementary Education in the State of Bihar". This official publication, gives the picture between 1950 to 1993. The recruitment as was done between 1991-93 is perhaps even less than what was done during 1950. The highest was done between 1971 to 1980. Why are these hard realities not being acknowledged by the State government? The reality is that it has to cover up what it has not done for 14 years. Why was this material not placed before the High Court? This circumstance does effect the decision making within the government as well as of the court in deciding a case. A decision within the government is an act of responsibility. Wrong or suppressed facts will give the output of wrong policies. If facts are concealed from the court, the court will be hardly in a position to deliver a correct decision.

There is a note recorded by the Chief Secretary dated 27.12.1999. This note has been signed by the Chief Minister on 4 January 2000. The detailed notings are otherwise contained in CWJC. No. 1533 of 2004 Awadesh Kumar Singh v. State of Bihar. In this noting the following questions are being tossed around between the then Secretary Education, the Chief Secretary and the Chief Minister.

Four questions have been asked;

Paragraph 4 of the noting is placing on record that the recruitment process has been done and ought to be done by the Bihar Public Service Commission. Page after pages has been written that 45% marks obtained in a High School examination would be an adequate qualification to apply for the job of primary school teacher. This is subsequently being changed. The notings also record that prior to 1991 training to teachers had been abandoned. Teacher''s training from a recognized institution is also contemplated in these notings. The minute of the meeting has been signed by four officers on 6 March 2000. It is thereafter the matter is placed before the Chief Secretary and the Chief Minister. Originally, the file was coming from the Secretariat of the Chief Secretary and the Chief Minister. If decisions were taken to begin the process of recruitment with a file which started from the Secretariat of the Chief Secretary through the Chief Minister for executing the plan by the Directorate of Education in early 2000 and the recruitment was to be done by the Bihar Public Service Commission, why were the modalities changed? The file seemed to be shuttling from the office of the Chief Minister, the Chief Secretary, and the Directorate of Education and between the State Lawyers. Upto 2000 there was talk of following the decision of the Supreme Court. Right as late as April 2004 information was yet being collected as to how many persons had applied. When the examination was being contemplated by the Bihar Public Service Commission a reply was received by the State government, Director Primary Education, that 75,000 teachers had applied in which 65,000 took the examination. The communication mentions that by a letter of 2 January 2004 the successful candidates had been invited. All this is recorded in a letter from the Bihar Public Service Commission, Patna dated 20 February 2004. A copy of this is being endorsed to the Law Secretary on 16 April 2004. This letter has been mentioned in the Law Secretary''s report. What happened to the successful candidates who were notified? Result of an examination in 1998 was being notified in January 2004 after 6 years. Between 75,000 who had applied, 65,000 sat in the examination and only 1048 were taken in as successful. This implies that 65,000 trained teachers were or are available but eliminated with only 1048 retained. Instead it was now being contemplated to give in service training to untrained teachers. Untrained recruits will teach in preference to the trained, who had not been found fit. Why cannot the trained also receive in service but further training? Clearly, Bihar has yet to start a crash programme on primary education which has been a non-starter for the last 14 years.

Now take the last paragraph of the Chief Secretary''s last report. It is contended that information is being collected from the districts on the availability of primary school teachers. The submission itself is vague and the information which is being collected has not been disclosed to the court. If information has been received only from some of the districts, then, it is to be presumed that from most of the districts information is not available to the education department. It has not been divulged to the court which districts have given information. The acknowledgement now is apparent from the record that prior to the High Court making inquiries no effort was made to collect the information on the availability of teachers, trained or untrained and the institutions which are available and functional to impart training to teachers in pursuance of the Supreme Court''s order.

The Chief Secretary, Government of Bihar, seems to be explaining in Chambers that he had sworn the affidavit at 10 A.M. when the court gave an indulgence of a special sitting immediately on the start of summer recess on Monday (24.5.2004) expecting that, as assured to the court, the State of Bihar will present a composite plan to take care of the defaulting situation of the last 14 years and after following the judgment of the Supreme Court affirming judgment of the High Court, leaving no factor referred in the two judgments, continue the process of recruitment and assignment of teachers to elementary schools and if there be a shortfall make recruitments as already reflected in the judgments.

That was the last opportunity which the court gave to the State of Bihar to finish this mess of a recurring lapse and default to leave primary schools without teachers and students. The court gave a special sitting in the interest of a public plan and the grave situation that illiteracy was increasing at a galloping rate. It appears that with all the opportunities granted by the High Court for the last 4 months a slip shod affidavit was prepared on the date of the sitting. The affidavit does not even acknowledge the directions of the Supreme Court. Signing an affidavit on the day of the special sitting implies that clear cut precise decisions were evaded. The court cannot criticize the Chief Secretary when he acknowledges that he signed on an affidavit at 10 A.M. on the day of the sitting of the court.

A bare perusal of the affidavit reveals that information is yet being collected. How will a plan work if the blue print had not been made? A plan for education is a public plan. How will it be administered without inputs?

This takes the court to place on record another unusual feature, which was happening in the background of the case. The judgment of the High Court which has been affirmed by the Supreme Court refers to certain legislations. The officials of the education department perhaps may have been finding it difficult to locate this legislation, some of which dates back 1885. However, a request was made to the High Court''s administration, if the High Court''s library could be utilized. Anything which is connected with a public plan and about public information, the Registrar General readily agreed that any book desired may be had by the officials of the education department. On several days, the officials of the education department including the Law Secretary utilized the archives of the High Court and this assistance was readily supplied by the Registrar General. It is a bit difficult to believe that a Directorate of Education which owes its pedigree, being the foremost in the nation as it was part of the administration of undivided Bengal, has misplaced its record. In so far as the court is concerned, it needed the latest information which should have been readily supplied by the education department. It was not. The court made a request to the National Informatics Centre, Bihar State Unit, Ministry of Information and Technology, Government of India, to give an update information on the number of children available who will be put to elementary schools. The teachers available. The schools available. The students teacher ratio as of now and a public plan which has seen a budget allocation and allocation of fund both for the child who will go to the schools and the teachers who will teach. The Registrar General reported to the court that the Officer-in-Charge of the National Informatics Centre, Bihar State Unit, is being difficult in supplying the information. He gave out orally when he was under instructions from the top of the State Education Department not to give information to the High Court. This was unusual. The headquarters of the National Informatics Centre was informed. The information was available on the website of the Government of India. It was down loaded and brought to the High Court. Obstruction in access to public information is a horrible feature and for this no other phenomenon is to blame except bureaucracy.

The High Court directed the Registrar General to conduct an inquiry in this matter. The questions which were put to the National Informatics Center''s officer confirms that he was under constraints by somebody high up in the education department not to part with information which the High Court was seeking. The inquiry of the Registrar General and his report lies on the record.

During the pendency of this case the officer who dealt with this all important matter and had interacted with the Law Secretary in assisting him to make a report was the Director of Education. When the court reopened after summer recess, the Director of Education was transferred out of the education department. In an all important matter of public education which has been in default for 14 years, the Secretary, Education Department, did not appear in the court. He was not unaware that this matter had engaged the attention of the High Court and the Supreme Court. The Supreme Court had been critical of the State Government of Bihar in not implementing the plan for recruiting primary school teachers. The Supreme Court''s judgment was passed in 1997. It was seven years ago. There is much to that has not been explained. Even the stricture of the Supreme Court means nothing to the State bureaucracy. Manufacturing illiterates is not a matter of sensitivity to the education department. Otherwise, how does one explain the seven years since the Supreme Court gave its judgment in the same matter.

Assistance to the Court or the State Counsel is a public obligation. The Education Secretary, when the proceedings resumed after the summer recess was conspicuous by his absence. The court is not impressed by an explanation that he was attending conferences outside Patna. In that case, the Director of Education should not have been transferred.

The Law Secretary reported to the court that he was not welcome for writing the report which the Court had sought from him. Ho wrote it with the material provided by the Director of Education. The latter was transferred during the hearing of the case. As if to neutralize the report of the Law Secretary a meeting was called to make another report giving the semblance of a compromise decree. All the sounds the like of which make a compromise decree in e collusive suit generated a counter report to place it before the court as if to checkmate the Law Secretary''s report, who simply advised that the decision of the Supreme Court be followed. The Education Secretary did not like the Law Secretary''s report. The Law Secretary advised that as directed by the Supreme Court the recruitment be done through the Bihar Public Service Commission. The Governor of Bihar also directed the State government that as per, the directions of the Supreme Court the recruitment process should be through the Bihar Public Service Commission. The State government seems to be insisting in avoiding the direction of the Supreme Court. Once the Supreme Court had given a direction, the Law Secretary had advised it ought to be followed and the Governor of Bihar has directed the State government that the recruitment be done as directed by the Supreme Court, the Chief Secretary had no business to submit in his report that it was decided at a meeting under his Chairmanship that the selection may be made by the appropriate body as prescribed under law. This submission has been made in paragraph 9 of the affidavit sworn on 24 May 2004. The law is what the Supreme Court says. This Court cannot spell out any other alternative even if the State government has some other design. If the State government is an authority then it was obliged to follow the direction of the Supreme Court (Article 144). The meeting which was chaired by the Chief Secretary virtually sounds like a collusive compromise, it cannot evade the direction of the Supreme Court. Why is the State government so interested in making a recruitment by some other agency? If monies have been received on the applications which were invited by the advertisement of 10 December 2003, the entire deposited amount with the application forms can simply be transferred to the Bihar Public Service Commission. The Bihar Public Service Commission will examine if all the inputs are available to make the recruitment, for instance trained or qualified but not trained

Why was all this useless activity done? On the one hand, the Government of India is serious about taking primary education to the grass root. On the other side, there is total obstruction in executing the primary education plan. Anybody''s plain will work provided there is an element of dedication in it. The Education Secretary does not like the judgment of the High Court in re. Vinod Kumar (supra) ibid. The Education Secretary does not want to implement the Supreme Courts judgment, in re Ram Vijay Kumar (supra) ibid. He himself wanted to submit interjecting the Stale Counsel. When the court asked why would he not follow and implement the Supreme Court''s judgment, he refused to respond or reply as if he had other plans. Likewise, when the State Counsel was asked why the Supreme Court''s judgment will not be honoured and why had it been put in the cold storage for seven long years, he expressed his inability to offer an explanation except that he is not being instructed on it.

Now the record which explains why the Secretary in the Education Department was so reluctant to provide information to the court. What the Secretary would not provide, the information was down loaded from website of the Government of India. It shows that Bihar has not given even inputs on statistical data. For instance, all the three States which were split with three new States born, in November 2000 the data of primary education down loaded as late as 21 May 2004 reads thus:

TEACHERS IN PRIMARY SCHOOLS

SI. No. State Full-time Teachers Para-teachers Part-time Teachers

Male Female Total Male Female Total Male Female Total

1 2 3 4 5 6 7 8 9 10 11

4 Bihar 0 0 0 0 0 0 0 0 0

11 Jharkhand 23534 5575 29109 361 712 10712 79 198 277

Source: NIC, Patna, Gov.ua.nic.in./alses/national

TEACHERS IN UPPER PRIMARY SCHOOLS

SI. No. State Full-time Teachers Para-teachers Part-time Teachers

Male Female Total Male Female Total Male Female Total

1 2 3 4 5 6 7 8 9 10 11

4 Bihar 0 0 0 0 0 0 0 0 0

11 Jharkhand 7311 3052 10363 95 78 173 96 63 159

Source: Ibid

TEACHERS IN SECONDARY SCHOOLS

SI. No. State Full-time Teachers Para-teachers Part-time Teachers

Male Female Total Male Female Total Male Female Total

1 2 3 4 5 6 7 8 9 10 11

4 Bihar 0 0 0 0 0 0 0 0 0

11 Jharkhand 7311 3052 10363 95 78 173 96 63 159

Source: Ibid

TEACHERS SCHOOLS ACCORDING TO NUMBER OF TEACHERS

SI. No. State Primary Schools According to Number of Teachers*

0 1 2 3 4 5 More than 5 Total Schools

Having Female Teachers*

1 2 3 4 5 6 7 8 9 10 11

4 Bihar 0 0 0 0 0 0 0 0 0

11 Jharkhand 738 5421 8930 1445 363 95 59 17051 4242

Source: Ibid

EROLMENT IN DIFFERENT CATEGORIWS OF SCHOOLS

SI. No. State Higher Secondary Schools Total

Boys Girls Total Boys Girls Total

1 2 12 13 14 15 16 17

4 Bihar 0 0 0 0 0 0

11 Jharkhand 155209 85040 240249 2256136 1692438 3948574

Source: Ibid

EROLMENT IN DIFFERENT CATEGORIES OF SCHOOLS

SI. No. State Primary Schools Upper Primary Schools Secondary Schools.

Boys Girls Total Boys Girls Total Boys Girls Total

1 2 3 4 5 6 7 8 9 10 11

4 Bihar 0 0 0 0 0 0 0 0 0

11 Jharkhand 981872 789865 1771737 853975 642832 1496807 265080 174701 439781

Source: Ibid

NUMBER OF SCHOOLS BELONING TO DIIFERENT CATEGRIOES

SI. No. State Primary Schools Upper Primary Schools Secondary Schools Higher Secondary Schools Total numbers schools Degree colleges having Classes XI & XII

1 2 3 4 5 6 7 8

4 Bihar 0 0 0 C 0 0

11 Jharkhand 17051 4279 1150 213 22693 130

Source: Ibid

CLASS-WISE ENROLMENT OF BOYS AND GIRL IN CLASSES VI TO VIII

SI. No. State Enrolment in Classes

1 2 VI VII VIII

B G T B G T B G T

1 2 3 4 5 6 7 8 9 10 11

4 Bihar 0 0 0 0 0 0 0 0 0

11 Jharkhand 155217 105754 260971 140812 95300 236112 121566 78289 199855

Source: Ibid

Additional enrolment required for universal primary education

State/UT Enrolment 1997 (Provisional) Nat /Additional Enrolment Required

Bihar 10266989 2949604

Source : Asia Development Research Institute, Patna (A.D.R.I.)

State-wise Enrolment and Teachers in Primary Schools

State/U Ts Total Enrolment Total Teachers Teachers Pupil Ratio %of Trained Teachers %of Female Teachers

Bihar 10266989 130822 78 90.4 19.48

Source : Ibid

Statistical data of other States is not relevant but it reveals by contrast that Bihar had not even collected information to work on a plan. A direct connection between the ratio of teachers and students calls off the bluff of the scandal which is a dormant plan on primary education in Bihar. Lack of teachers render the teacher-student ratio at 78. The highest in the nation.

The story continues and even the official publications (Teacher Education in Bihar & Educational Administration in Bihar) reveals that the last data which is being fed into these publications is out of date. It is either upto 1993 or 1997. Hiding data information from any authority, court not excluded, which is examining an issue is half way house to criminality. Data is public information. It is not secret. On the subject in context it is a public education plan for children to receive basic and primary education.

No plan will succeed unless the data to work the plan has been collected. Now the court repeals the statement on oath by the Chief Secretary which submits that information from some district has been collected. What type of information has been collected has not been disclosed to the court. This further implies that information from most of the districts is not even available. Though, whether available or not available, the court''s also not being intimated on what information has been gathered the little which was, is only from some districts. This now may be seen in totality of a negative approach of the education department to hide information. The education department did not even have the inputs to work a plan. Why did such an educated Chief Secretary join such a shabby exercise. This resistance in court and seeking concessions from the NCTE is itself an acknowledgement that nobody had done any home work to plan primary education. Concessions were for the inadequacies; of absents schools; of inadequate training infrastructure; of the student teacher ratio not available; of untrained teachers. Thus, the concessions sought and received is an acknowledgement that Bihar is not ready to execute the plan of primary education.

If this was not enough, the Education department did not even make available to the High Court the Education Code. The full name of the publication is the Bihar and Orissa Education Code. It was published by the Superintendent of Government Printing, Bihar and Orissa, Patna. It ran into several editions. After the passing of the Government of India Act it was updated. This was the 6th edition. They are lying in the High Court library. The publications were shown, to the'' State counsels The Court inquired from the State counsel whether he ever had the occasion during the course of his consultations and preparation of his brief, been apprised of this government publication. He acknowledged that it had never been shown to him. Chapters 6 and 7 are on the subject "The Middle School Certificate Examination and Training School" and "Examination For Teachers". It is almost a complete answer on what an education plan for elementary education is about. The Court suggest that the Directorate of Education studies its own Education Code, which it conveniently consigned to the godown. No wonder that for the last two decades the plan on Elementary Education collapsed. A plan for public education is not the private preserve of the bureaucracy. There must be a dedicated plan. If there is no plan then it must be made. If there is a plan then it must be worked. But hiding records unless one is ignorant of them, is mediocrity. The Court had no desire to record what it has. But the Court is equally pained that even after the Supreme Court judgment in which the government of Bihar had to face adverse remarks, the approach to a plan on elementary education and the execution of it continues to be lackadaisical. The observation of the Supreme Court was thus:

This lackadaisical approach in the matter of imparting training to persons who are required to teach students is indefensible. It is, therefore, directed that the State Government shall take immediate steps to finalise the syllabus and that the training courses for training of the untrained teachers should commence from 1.10.1997. It must be ensured that all the untrained teachers who have been appointed as per the aforementioned selection are duly trained within two years'' time.

This situation continues.

Taking all the circumstances into Account inasmuch as the Court could collect information and having considered every factor of which the Court was intimated and with the reservation that this is based on the data which was supplied on record and as much as the Court could gather from other official sources, than the Education Department, whose Secretary was uncooperative throughout, the Court is of the view that the following reliefs and orders be passed:

(a) The Respondents shall follow the judgment and direction as was given by the Supreme Court in re Ram Vijay Kumar v. The state of Bihar and Ors. (supra) & the judgment of the High Court affirmed by the Supreme Court in re. Vinod Kumar and Ors. v. The State of Bihar and Ors. (supra).

(b) The advertisement issued by the State of Bihar dated 10 December 2003 annexure 1 to CWJC. No. 13246 of 2003 for recruitment of teachers is quashed.

(c) The Bihar Elementary Teachers Appointment Rules, 2003 are quashed.

(d) All the trained teachers available are to be reckoned and considered for recruitment, by selection or otherwise, to teach elementary school, even taking into account the relaxation of age.

(e) The concessions granted by the National Council for Teachers'' Education as a generality are quashed. The concessions may be considered upon application by the institutions concerned and/or for specific teachers on a case to case basis whether considering the inadequacies of facilities in an institution or lack of qualifications of a teacher who may be put into in-service training.

(f) The State government may now proceed by taking into account the totality of the circumstances and after having reckoned the availability of trained teachers, consider the recruitment of untrained teachers who will be given in-service training should the occasion so arise.

(g) All Applicants who applied in response to the advertisement dated 10 December 2003, which stands quashed, the applications and consequential monetary deposits shall stand transferred to the Bihar Public Service Commission. and the latter shall proceed with the recruitment of teachers as indicated by the Supreme Court judgment (supra) and by updating the statistical data required for recruitment of teachers, and these inputs be reflected in the advertisement which may now be issued, with the sole criteria in mind that the public plan for elementary education must be executed forthwith.

(h) In the interests of pubic, for the execution of a public plan to eradiate illiteracy, and the larger interests of children in the State, the plan for basic and primary education be implemented forthwith and without delay. If the circumstances and the exigencies so require that the process of recruitment, selection of teachers or the shortfall be made up by teachers who will be given in-service training, the plan should be given a kick start by considering the service of retired teachers who will man the position of elementary school teachers until the full strength of teachers is available when the recruitment process is finalised.

(i) While making recruitment of teachers, whether trained or untrained being put into in-service training, the State government will keep in mind the Bihar Education Code, particularly chapters 6 and 7 in the Bihar Education Code have been conveniently forgotten and the Code consigned to the godown.

The petitions are allowed with the aforesaid directions or observations.