Samarendra Pratap Singh, J.:— In these batch of applications, the petitioners pray for initiation of contempt proceedings against the opposite parties for deliberate and willful disobedience of the directions contained in the order, dated 23.09.2010, passed in L.P.A No. 412 of 2003, which was heard analogous with 89 appeals, read with order, dated 08.08.2012, passed in M.J.C No. 4075 of 2011, clarifying paragraph 30 of the order, dated 23.09.2010, aforementioned.

2. The foundational facts of the case, dating back to two decades as well as the provisions of law, have been noticed, in detail, in L.P.A No. 412 of 2003 disposed of on 23.09.2010 and C.W.J.C No. 13734 of 2012 and analogous writ petitions disposed of on 30.01.2013

3. The petitioners were appointed as Assistant Teachers in Primary and Middle Schools between 1994 and 2000. Quite a few number of them were appointed on compassionate ground. None of these teachers was Matric Trained at the time of their appointments. It would not be out of place to mention that prior to the year 1991, the appointments of elementary teachers were made on the basis of circulars and instructions issued by the Government from time to time and no statutory rules, in this regard, were in existence. It is for the first time that in the year 1991, pursuant to the directions of this Court, Bihar Elementary Teachers Appointment Rules, 1991, (hereinafter referred to as ‘1991 Rules’) were framed under Article 309 of the Constitution.

4. 1991 Rules provided for appointment of both trained and untrained teachers. As per Rule 11, only trained teachers were to receive Matric trained scale and untrained teachers, irrespective of their qualifications, were to be placed in Matric untrained scale. The Rules favoured a written examination and, on the basis of marks secured, a select list was to be prepared under Rule 10 in the light of 1991 Rules for reservation. Rule 11 provided for filling up of the vacancies from the select list and to appoint trained candidates in matric trained scale and matric untrained teachers in matric untrained scale. Rule 11, which would be relevant in the context, is quoted hereinbelow:

5. Though 1991 Rules did not favour grant of Matric Trained Scale to untrained teachers till they passed their training examination, the strikes and pressing situations pushed the Government to arrive at an agreement with the association of the employees and, as a result of this agreement, distinction between the trained and untrained teachers, appointed in the year 1994-95, became almost nonexistent and all those, trained as well as un-trained teachers, who were appointed in 1994, received Matric Trained Scale with higher qualifications of Intermediate and B.A in spite of being untrained.

6. However, the matter did not rest there, the State Government employees raised a demand for grant of Central Pay Scale, which led to formation of another Fitment Committee in January, 1998, to sort out the controversy. The 2nd Fitment Committee, in its report, dated 08.02.1999, recommended Matric trained scale to teachers, who had passed training examination, and Matric untrained scale to all untrained teachers irrespective of higher qualifications.

7. A wide protest erupted against the recommendation of the 2 Fitment Committee. The Government relented and agreed to grant Matric Trained scale to the Assistant Teachers having higher qualification with certain conditions; but soon thereafter, on 25.06.1999, the Finance Department, Government of Bihar, issued a Circular stating therein that untrained teachers, having higher qualification, who had completed one year training by 01.01.1996, would receive Matric trained scale. This Circular, dated 25.06.1999, was successfully challenged, in this Court, by the Teachers. The issue of pay scale seemed to get embroiled in never ending controversy. The Government constituted a Fitment Appellate Committee, which submitted its report on 15.01.2000 The Fitment Appellate Committee favoured trained scale to trained teachers as well as to those, who possessed graduate degree. As per recommendation of this Committee, the matric untrained and Intermediate were placed in matric untrained scale.

8. However, the Government, vide its resolution, dated 16.01.2000, adopted the Second Fitment Committee's report, dated 08.02.1999, which recommended untrained scale to all untrained teachers irrespective of their qualifications in preference to Fitment Appellate Committee report submitted in January, 2010. The resolution of the Government was followed by another Executive Order, dated 16.01.2001, whereby the higher scale, paid to the untrained teachers, were directed to be recovered in 20 (twenty) equal installments.

9. The Executive Order, dated 16.01.2011, was challenged in writ applications filed by the teachers, who were appellants in L.P.A No. 412 of 2003 (Chandrakant v. The State of Bihar) and analogous batch of appeals, numbering 89, in total, which came to be finally dismissed on 17.04.2003

10. The dismissal of the writ petitions led to filing of L.P.A No. 412 of 203 and 89 other appeals aforementioned. It was argued before the Division Bench that though most of the appellants had completed their in service training, the examination was held only in the year 2004 and the result thereof was published in June, 2005. The appeals were partly allowed on 23.09.2010

11. In these batch of contempt applications, the petitioners, who were appellants in the aforesaid appeals, have alleged that the respondents have committed contempt of the directions contained in paragraph 30 of the judgment, dated 23.09.2010, which reads as follows:

“30. Coming to the last issue, we find merit in the submission advanced on behalf of the appellants that due to inability of the State Government to hold the required examination within a reasonable time, the appellants who were successful, have suffered undue hardship. In that view of the matter, when the examination could not be held within two years in spite of directions of the Apex Court and even later, as per directions of this Court, we are of the view that the State Government which has the necessary powers, must take steps to relax rule 11 of the Rules as a one time measure within a reasonable time and take a prompt decision to grant Matric trained scale to the teachers who have passed the in-service training examination in June, 2005 form any date which may be found suitable and reasonable so as not to affect such teachers adversely for the unusual delay in holding the training examination. It would be reasonable and appropriate to grant matric trained scale to such teachers as indicated above from any reasonable date, may be from the date when the period of two years fixed by the Apex Court for completing the training of such teachers expired without compliance or even from 1-10-2003, i.e when actual payment in Matric trained scale was stopped. Keeping in view the requirements of Article 14 of the constitution, benefit of advancing the date for grant of Matric trained scale, as indicated above will also be made available to such teachers who may pass the training examination in the second attempt. For them the date will vary but benefit should be on same lines as given to those who have passed in the first attempt.”

(Emphasis supplied by us)

12. The observations, contained in paragraph 30 of the judgment, dated 23.09.2010, aforementioned were partly modified by order, dated 08.08.2012, passed in M.J.C No. 4075 of 2011. Paragraph 6 thereof is quoted hereinbelow for easy reference:

“6. From a perusal of paragraph 30 of the judgment extracted above, it is evident that this Court has not applied its mind as to what would be reasonable and appropriate date for grant of Matric trained scale to such teachers as the petitioners. In view of aforesaid facts, particularly when it is not in dispute that actual payment of Matric trained scale was stopped from different dates and not from 1.10.2003, the illustration that the date may be fixed even from 1.10.2003, which was only by way of simple observation, is modified. That observation may be treated to have been deleted and instead the State Government shall apply its mind with reference to all the relevant facts and fix the date for grant of Matric trained scale to the concerned teachers on the basis of other observations keeping in mind that no adverse effect is caused upon seniority of the concerned teachers by fixing of the date for grant of Matric trained scale.”

(Emphasis supplied by us)

13. In a nutshell, the Division Bench, in L.P.A No. 412 of 2003, observed that in case an Assistant Teacher, who passed, in first attempt, the in-service examination held in the year 2004, the result whereof was published in 2005, would be granted Matric Trained Scale even from 01.10.2003, when actual payment of Matric Trained Scale was stopped or from any other date that the Government may decide. It was further directed that the assistant teachers, who had appeared in the in-service examination prior to June, 2005, and if they passed their in-service examination in second attempt, would also be given benefit on the same lines, as given to those, who had passed in first attempt.

14. In view of the decision of the Division Bench, in L.P.A No. 412 of 2003, Department of Human Resources Development, Government of Bihar, issued Resolution, dated 29.07.2011, which was subsequently clarified in the letter, dated 10.02.2012 The Principal Secretary, Education Department, in his letter, dated 10.02.2012, clarifying the resolution, dated 29.07.2011, aforementioned stated that it would not only benefit the appointees of 1994, but also those teachers, who were appointed in the year 1999 and 2000, on compassionate ground and those compassionate appointees would, therefore, receive Matric Trained scale with effect from 01.10.2003

15. However, in spite of the letter, dated 10.02.2012, of the Principal Secretary, Education Department, the benefits of L.P.A No. 412 of 2003 were not granted even in the case of 1994 appointees much less the 1999 appointees. The matter rested as it was.

16. The recalcitrant attitude of the Government led to further litigations. A writ application, bearing C.W.J.C No. 13734 of 2012 and a batch of other writ petitions, came to be filed by the Teachers, who were appointed subsequent to 1994, for a direction to the Government to grant them Matric Trained Scale in terms of the direction given in L.P.A No. 412 of 2003 and batch of appeals. Further-more, some of the assistant teachers, appointed between 1994 and 2000, and who had also passed in-service examination in first attempt and some in the compartmental, filed Contempt applications, in the year 2013, giving rise to the present batch of contempt applications. These Contempt Applications have been categorized in three groups. Apart from these three categories, there is one contempt application, bearing M.J.C No. 428 of 2014, which does not mention the year of passing the in-service training examination nor does it mention whether the writ petitioner had passed in-service examination in first or second attempt.

17. The Batch of Contempt applications can be bracketed in three categories as under:

1. 1st Category (94 Batch-1 attempt)

1. M.J.C No. 613 of 2013 (Chandra Kant)

2. MJC No. 5947 of 2013 (Binay Kumar)

2. 2 Category (Post 94 Batch-1 attempt)

1. MJC No. 5551 of 2013 (Ramendra Kr.)

2. MJC No. 5818 of 2013 (Surendra Rai.)

3. MJC No. 5251 of 2013 (Ranjit Kr. Rai)

4. MJC No. 6212 of 2013 (Ashutosh Chandra)

5. MJC No. 5550 of 2013 (Manoj Kumar)

6. MJC No. 5549 of 2013 (Prem Kumar)

7. MJC No. 5548 of 2013 (Ranjan Kumar)

8. MJC No. 5547 of 2013 (Dhananjay Kr.)

9. MJC No. 5830 of 2013 (Sheo Shankar Pd.)

10. MJC No. 5635 of 2013 (Rakesh Kumar)

3. 3rd Category (94 Batch-Compartmental)

1. MJC No. 5252 of 2013 (Anil Kr.)

2. MJC No. 442 of 2014 (Azaz Ahmad)

3. MJC No. 407 of 2014 (Jyoti Chand Paswan)

18. The respondent State has filed its show cause in the Contempt applications stating that there has been no willful disobedience of the order of the Division Bench, rather, they have been complying with the orders passed by this Court. They submitted that in pursuance of the order, dated 23.09.2010, passed in L.P.A No. 412 of 2003, the Human Resources Development Department issued Resolution No. 790, dated 29.07.2011, which was modified, vide letter, dated 10.02.2012, of the Principal Secretary, Education Department, extending the benefits of the order, in appeal, to not only appointees of 1994, but also compassionate appointees of 1999-2000 for favour of Matric Trained Scale w.e.f 01.10.2003 However, a learned single Judge of this Court, vide order, dated 30.01.2013, passed in C.W.J.C No. 13734 of 2012, clarifying the judgment/order passed by the Division Bench in L.P.A No. 412 of 2003, observed that Rule 11 of Rules 1991 was only one time relaxation for such untrained teachers, who were appointed in the year 1994 or prior thereto and not subsequent thereto. The relevant extract of the order of the writ Court is quoted hereinbelow:

“22. It is relevant to state that at no point of time during the hearing of the writ applications any of the petitioners pointed out that any of the appellants in L.P.A No. 412 of 2003, which was heard analogous with 89 cases, were appointees either of 1996, 1999 or 2000. Furthermore, nothing in the order of Chandra Kant case (Supra) even in remotest indicate that any of the appellants in analogous appeals were appointees subsequent to 1994. The only paragraph of Division Bench judgment, which gave some details of the date of appointment, is paragraph 7, which is quoted herein below:

“Thus there is no indication in the judgment of Division Bench to infer that the benefits of one time relaxation of Rule was to be extended to appointees of 1999-2000 so as to confer them matric trained scale w.e.f 1.10.2003 even if they pass the training examinations much subsequent to it. It is relevant to state that appellants of Chandra Kant and analogous batch of appeals were appointed in 1994. They struggled to get trained scale, which government acceded by making an agreement with the employees twice between 1994 and 1999 itself. Some of them even moved Hon'ble Apex Court with a grievance that they were denied opportunity of getting higher scale as no training was provided, much less, taking of examination. The Apex Court in S.L.P No. 23187/97 disposed of on 5.9.1997 directed that training be granted within two years. At the relevant time, the appointees of 1999-2000 were not even recruited. Further more, the appointees of 1994 moved this Court as back as in 2011 itself and the matter was finally settled in 2010 vide Chandra Kant case. In such circumstance, the Division Bench noticing the hardship, allowed one time relaxation of provision of Rule 11. As observed by learned Single Judge, the judgment ought not to be inferred to include reliefs or benefits, it did not intend to confer to latter appointees of 1999 to 2000.”

19. In view of the clarification rendered by the order, dated 30.01.2013 aforementioned, passed in C.W.J.C No. 13734 of 2012, an amended resolution was issued vide Memo No. 1400, dated 13.09.2013 The broad features of the resolution, dated 13.09.2013, read as follows:

“(a) That those untrained teachers possession higher qualification who had been appointed in connection of 1994 batch or prior to 1994 under Bihar Elementary School Appointment Rule, 1991 would be given Matric Trained Scale notionally for the period between 05.09.1999 to 30.09.2003 and from 01.10.2003 would be given financial benefits as before.

(b) That those untrained teachers possession higher qualification who had been appointed after 1994 in terms of Bihar Elementary School Appointment Rule, 1991 would be given Matric Trained Scale from the date of passing in the training examination.

(c) That the rest of the conditions laid down in Resolution no. 790 dated 29/07/11 would remain intact.”

20. On the other hand, the Contempt petitioners submit that the order of the learned single Judge, dated 13.09.2013, passed in CWJC No. 13734 of 2012, was carried in appeal, bearing L.P.A Nos. 1459 of 2013, 1682 of 2013, 1608 of 2013, 1034 of 2013, 1566 of 2013, 1651 of 2013, 1652 of 2013, 1653 of 2013, 1654 of 2013, 1685 of 2013, and 1597 of 2013, by Ramakant Yadav and others.

21. In the appeals aforementioned, the order, dated 30.01.2013, passed in C.W.J.C No. 13734 of 2012 and analogous cases, was set aside vide order, dated 03.01.2014 The Division Bench, while setting aside the order to the extent mentioned therein, observed that it was not brought to the notice of the learned single Judge that the appeals, which were heard along with L.P.A No. 412 of 2003, also included the appellants appointed after 1994 and till 2000. The Division Bench further observed that all persons, appointed under 1991 Rules up to 2000, who had cleared in-service training examination till June, 2005 or from the actual date of passing, in the second attempt, constituted a class of their own. The observations, made at paragraph Nos. 11 and 13 of the order, dated 03.01.2014, of the Division Bench, passed in L.P.A No. 1459 of 2013, etc., bearingrelevant in the context, are quoted hereinbelow:

“11. The respondents rightly in correct appreciation of Chandrakant (supra) issued orders on 29.7.2011 and 10.2.2012 cumulatively making it applicable to all teachers appointed under the Rules as untrained irrespective of the date of appointment, but restricted the benefit to those who had cleared the in-service training examination by June, 2005 or from the actual date of passing in second attempt.

13. Chandrakant (supra) is stated to have attained finality questioned by none. The benefit of one time relaxation under it is available only to those who fall within the classification made in it as discussed above. The benefit is not available under it to the second category who may have been appointed upto the year 2000 but who passed the in-service training examination after June 2005. In LPA No. 1034 of 2013, the pleading at paragraph 18 contended that similar benefit of one time relaxation of the Rule must be extended to the second category also. But, the matter appears to have proceeded on a different discussion and that issue was left undecided.”

22. In terms of the interpretation by the Division Bench, in L.P.A No. 1459 of 2013, of the directions given in L.P.A No. 412 of 2003 and analogous appeals, the following position merges:

(i) The benefit of L.P.A No. 412 of 2003 would be available to appointees uptil 2000 provided that they had cleared the in-service training;

(ii) Such appointees would be entitled to the benefit given in L.P.A No. 412 of 2003 if they had cleared the in-service examination by June, 2005;

(iii) However, if they had not cleared the in-service examination by June, 2005, they would still be entitled to Matric Trained Scale, but from the actual date of passing in the second attempt.

23. In the backdrop of interpretation of the benefits accruing from L.P.A No. 412 of 2003, we would, now, consider the contempt applications batch wise as categorized in the preceding paragraph.

24. The first category would contain the M.J.C applications filed by 1994 batch, who have cleared the in service examination in first attempt before the year 2005. In this first category falls two M.J.C applications, which are M.J.C No. 613 of 2013 (Chandra Kant) and M.J.C No. 5947 of 2013 (Binay Kumar). The second category would comprise of post 1994 batch, who had passed in-service examination in first attempt. The second category would contain M.J.C applications, bearing M.J.C No. 5551 of 2013, 5818 of 2013, 5251 of 2013, 6212 of 2013, 5550 of 2013, 5549 of 2013, 5548 of 2013, 5547 of 2013, 5830 of 2013 and M.J.C No. 5635 of 2013. The third category comprises of 1994 batch, who failed to clear all papers in one go and passed compartmental examination after June, 2005. This category contains M.J.C applications, bearing M.J.C No. 5252 of 2013, 442 of 2014 and, 407 of 2014.

25. The first two categories of contempt applications, for the sake of convenience, are taken up together for consideration.

26. It is relevant to state here that as per the decision in L.P.A No. 412 of 2003, interpreted by the Division Bench in L.P.A No. 1459 of 2013 (Rama Kant Yadav v. The State of Bihar) and analogous appeals, Assistant Teachers, appointed prior to 2000, who had passed the in-service examination, in first attempt, before June, 2005, would be entitled to Matric Trained Scale from 01.10.2003 or any suitable date that the Government may decide. This apart, those, who passed the in-service training examination in second attempt after 2005, would be entitled to Matric Trained Scale from the date of passing the in-service training examination as per paragraph 11 of the order of the Division bench quoted hereinabove.

27. The petitioners of first category and the second category would stand fully covered under the decision of L.P.A No. 412 of 2003 and analogous appeals as interpreted by the Division Bench in L.P.A No. 1459 of 2013 and analogous appeals decided on 03.01.2014

28. Mr. S.K Sharma, learned Counsel, appearing on behalf of the respondents, submits that the issue whether the direction, in L.P.A No. 412 of 2003, would apply to 1994 batch or to the post 1994 appointees too was pending consideration, first, in CWJC No. 13734 of 2012 and, later on, in L.P.A No. 1459 of 2013. They were, as such, dealt with the true import of the directions given in L.P.A No. 412 of 2003. Even if we accept this submission of the State, yet there would be left no justification for the State not to implement the order after 03.01.2014 in the case of the teachers falling in first two categories of contempt applications.

29. We were contemplating initiation of contempt proceedings against the defaulting opposite parties, but because of the assurance given, on behalf of the State, that the order would be implemented forthwith, the contempt proceedings are not draw at this stage and the contempt applications are disposed of accordingly.

30. The third category of contempt applications consist of Assistant Teachers, who were appointed in the year 1994, but could not clear the in-service examination in first attempt before June, 2005, but cleared in compartmental examination held after June, 2005. The issue is whether the compartmental examination would form part of first attempt of examination or would constitute second attempt.

31. Learned Counsel for the parties have not been able to produce any rule or Government instructions on the issues governing the training examination of the Assistant Teachers.

32. Though, as per Bihar School Examination Board Rules governing secondary examination, and the Universities Rules, a compartmental examination is considered part of the same examination, there is no specific provisions, in 1991 Rules, touching the compartmental examination, with regard to in-service examination. Even Rule 11 does not refer to compartmental examination.

33. In the situation, which has so arisen, a deeper consideration is needed in appropriate writ petition or in some other proceedings permissible in law and since the question of extending benefit of pay scale to those teachers, who have passed in the compartmental examination, is shrouded in controversy and engulfed in dispute, this dispute needs to be resolved in appropriate adjudicatory proceeding.

34. Situated thus, it is clear that in the present state of affairs, no contempt proceeding can be drawn up against the respondents concerned for non-implemention of the relevant directions in respect of those teachers, who have passed their compartmental examination after June, 2005. These contempt proceedings shall also, therefore, stand accordingly disposed of.

35. So far as M.J.C No. 428 of 2014 is concerned, it is impossible, in view of lack of foundational facts, to place the applicants in any of the categories aforementioned. The Contempt petitioners have, nowhere, stated whether they have passed the in-service examination in first attempt or in second attempt. Even the year of passing of the examination finds, nowhere, mentioned.

36. In view of lack of material facts, no cognizance can be taken of the issue. The contempt application, bearing MJC No. 428 of 2014, shall, therefore, stand accordingly dismissed.

37. I.A Ansari, J:— I agree.