2024:MLHC:681
Serial No. 01
Supplementary List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 390 of 2016
Date of Decision: 31.07.2024
Smti. Supiya Khatun (Head Teacher) wife of Shri Moktal
Hussain resident of Sakmal, P.O Rajabala P.S Phulbari,
West Garo Hills District, Meghalaya
::::: Petitioner
-Versus-
1. State of Meghalaya
Represented by the Secretary to the Government of Meghalaya,
Education Department, Meghalaya
2. Director of School Education and Literacy, Meghalaya Shillong
3. The state Project Director, SSA Meghalaya, Shillong
4. The District Mission Coordinator, SSA West Garo Hills, Tura
5. The Sub-Divisional School Education Officer/Jt. District Mission
Coordinator, Dadenggri, West Garo Hills
6. The Block Mission Coordinator SSA, Selsalla, West Garo Hills
7. Smti. Oleda Sheikh daughter of Dilmohammad Sheikh resident of
Rajabala P.S Phulbari, District West Garo Hills Meghalaya
::::: Respondents
Coram:
Hon’ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S.A. Sheikh, Adv.
For the Respondent(s) : Mr. K.P. Bhattacharjee, GA (For R 1-6)
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Mr. B. Khyriem, Adv. (For R 7)
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
J U D G M E N T
1. Vide order dated 24.10.2016 issued by the Joint District Mission
Coordinator, Dadenggre, West Garo Hills through Memo No. JDMC-
D/SSA/APPROVAL/2016/672 the respondent No. 7/Smti. Oleda Sheikh
was approved as the Headmistress of Tillapara Girls SSA LP School and
the petitioner herein was directed to immediately hand over all the charges
to the approved Headmistress, that is, the respondent No. 7 herein.
2. Being thus aggrieved with the order passed, the petitioner has
now approached this Court with an application under Article 226 of the
Constitution of India seeking enforcement of her fundamental and
constitutional rights said to have been infringed by the said impugned
order dated 24.10.2016, the prayer being to set aside and quash the said
order.
3. Heard Mr. S.A. Sheikh, learned counsel for the petitioner who
has submitted that the historical background of this case is that the said
Tillapara Girls LP School was established by the villagers of the Tillapara
village in the year 2000 with the approval of the Director of Elementary
and Mass Education, Meghalaya, such approval being conveyed by the
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Deputy Inspector of School, Dadenggre, West Garo Hills vide order dated
07.11.2000.
4. At that point of time the Managing Committee of the school
appointed two teachers, namely Shri. Dilwar Hussain who was appointed
as Headmaster and the respondent No. 7 herein was also appointed as
Assistant Teacher.
5. It is also the submission of the learned counsel that due to the
resignation of the Headmaster of the school on 05.11.2001, the Managing
Committee of the school had issued an advertisement dated 11.11.2001
inviting applications from local candidates to fill up the post of
Headmaster of the said school.
6. The petitioner had responded to the said advertisement and had
offered her candidature for the same. On being selected, she was
accordingly appointed as the Head Teacher of the School on the strength
of the office order No.TGPS/1/4-6/01 dated 20.11.2001 issued by the
Secretary of the said Tillapara Girls LP School.
7. The petitioner as the Headmistress of the school, the school being
a recognised private school receiving grant-in-aid from the Education
Department under the SSA scheme, it is therefore governed by the
provisions of the Meghalaya School Education Act, 1981 and the rules
laid therein. The petitioner is also functioning as the Secretary of the
Managing Committee of the School.
8. As the Secretary of the Managing Committee, it was incumbent
upon the petitioner to ensure that the Managing Committee was duly
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constituted from time to time and as such, the last Managing Committee
was in place for a period of 3(three) years w.e.f. 01.09.2011 to
31.08.2014.
9. Thereafter, on the expiry of the term of the Managing
Committee, the petitioner had convened a meeting of all concerned and a
new Managing Committee was constituted on 22.10.2014. However, this
Managing Committee was not approved by the Sub-Divisional School
Education Officer/Joint District Mission Coordinator, Dadenggri, West
Garo Hills who is also the respondent No. 5 herein and even the
subsequent reconstituted School Managing Committee, constituted on
19.08.2015 was also met with disapproval by the respondent No. 5. The
school is, therefore, functioning without a Managing Committee till the
time this petition was filed.
10. In such an impasse, the respondent No. 5 vide order dated
16.04.2016 had authorised Shri. Abdur Rahman Sk. CRC Coordinator
Kashiabari to draw and disburse salaries of the teaching staff of the said
Tillapara Girls SSA LP School till the recommendation of a new
Managing Committee.
11. The learned counsel has further submitted that it was during this
period when there was no functional Managing Committee that the
respondent No. 5 had issued the said impugned order dated 24.10.2016
whereby the petitioner was downgraded from her post as Headmistress to
that of Assistant Teacher. A representation dated 14.11.2016 filed by the
petitioner seeking revocation of the said impugned order also went
unheeded by the respondent No. 5. Hence this petition.
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12. The learned counsel has further submitted that the Tillapara Girls
SSA LP School is a recognised private school receiving grant-in-aid from
the State Government and also grant under the centrally sponsored
scheme called the Sarva Shiksha Abhiyan (SSA). However, as far as the
functioning of the school is concerned, the same is governed by the
provisions of the Meghalaya School Education Act, 1981. The contention
of the State respondent that the school is guided by the Meghalaya Right
of Children to Free and Compulsory Education Rules, 2011 under the
Right to Education Act, 2009 is refuted by the petitioner, who would
contend that there are no rules under the RTE Act as far as the service
conditions of employees of Government Aided Schools are concerned. All
aided schools in the State are governed by the Meghalaya School
Education Act, 1981. The case of Holland Wanniang v. State of
Meghalaya & Ors., (2013) 1 NEJ 90, para 6.1, 6.2, 7 and 9, the case of
Liodrekshon Nongsiang v. State of Meghalaya & Ors., (2011) 2 NEJ 290,
para 3 and 4 and the case of Barnabas R. Marak v. State of Meghalaya &
Ors., 2019 SCC Online Megh 122, para 7 and 10 have been cited in
support of this contention.
13. The next contention of the learned counsel for the petitioner is
that under the provision of the Meghalaya School Education Act, 1981 in
Chapter IV of the same is found the terms and conditions of service of
employees of recognised private schools. Under Section 9, such terms and
conditions of service have been enumerated. Again, as far as appointment
and dismissal of an employee of Government Aided School is concerned,
the learned counsel has referred to the Service Rule for Employees of
Government Aided Schools with special reference to Rule 1- appointment
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and dismissal and Rule 5 where a list of penalties which may be imposed
on an employee of an aided school by the Managing Committee as far as
conduct and discipline is concerned is found and has submitted that these
rules are applicable to the case of the petitioner.
14. In this regard, the learned counsel has submitted that the effect of
the impugned order upon the petitioner whereby she has been punished on
reduction of her post, the same was issued without giving her any
opportunity to show cause or to defend her case and as such, gross
violation of natural justice has occurred.
15. The learned counsel has also submitted that nowhere in the said
rules referred to herein is seen that the power for conducting disciplinary
proceedings or imposition of punishment and penalties has been bestowed
upon the Government authorities since such power is the exclusive
domain of the Managing Committee, even in the absence of the Managing
Committee an Administrator is appointed by the concerned authority to
look after the affairs of the school, such Administrator has never been
invested with the power to impose such penalty as has been done in the
case of the petitioner who was downgraded from Head Teacher to
Assistant Teacher on the strength of the order of the Joint District Mission
Coordinator/respondent No. 5. In support of this contention, the case of
Chander Pal Jain & Anr. v. Delhi Administration Etc., 1996 SCC Online
Del 74, para 10 and the case of B.S. Verma v. Delhi Administration &
Ors., 1992 SCC Online Del 182 have been cited.
16. Again, the learned counsel has submitted that the petitioner
having been appointed directly as the Head Teacher, she cannot be
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reverted to a lower post since it is only a promotee who can be reverted to
the lower post he was promoted from. The case of Hussain Sasan Saheb
Kaladgi v. State of Maharashtra, (1988) 4 SCC 168, para 2 was relied
upon by the petitioner in this regard.
17. The final argument of the petitioner is that having been appointed
as the Head Teacher since the year 2001 and continuing to hold the post
till the passing of the impugned order in the year 2016, the claim of the
respondent No. 7 for promotion and the impugned order passed after a
long period of 15 years would attract the principle of delay and laches.
The case of Shiba Shankar Mohapatra & Ors v. State of Orissa & Ors.,
(2010) 12 SCC 471, para 18, 19, 21, 22, 23, 25, 29 & 30 as well as the
case of Union of India & Ors. v. Tarsem Singh, (2008) 8 SCC 648, para 7
has been cited in support of this contention.
18. Mr. K.P. Bhattacharjee, learned GA appearing for the State
respondent has submitted that the stand of the respondent No. 7 is justified
inasmuch as the fact that she is senior in service to the petitioner, on the
vacancy of the Head Teacher having arisen, she ought to have been
appointed as such. However, the petitioner was directly appointed as the
Head Teacher in spite of the protest of the respondent No. 7 which went
unheeded by the School Managing Committee.
19. Even the said advertisement for filling up the post of Head
Teacher was issued by the School Managing Committee without the
knowledge of the respondent No. 7 as almost all the members of the said
School Managing Committee are the family members of the petitioner and
as such, the whole process was manipulated to suit the petitioner.
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20. The learned GA has also submitted that the relevant Department
had no knowledge of the said advertisement and there was also no
approval of the same as well as of the appointment of the petitioner as
Head Teacher as no specific information or details of the whole process,
such as the number of candidates who have applied for the post was ever
made known to the concerned authority in the Education Department.
21. As to how the respondent No. 7 was appointed as the Head
Teacher, the learned GA has submitted that even when the SMC was
functioning, the respondent No. 7 had filed several representations which
were not considered and it was only when the SMC was replaced by an
Administrator, did the representation of the respondent No. 7 received a
response and an inquiry was conducted by the Department which led to
the finding that firstly, there could not have been any direct recruitment to
the post of Head Teacher as the norm was that it was only the senior most
teacher who is usually appointed to that position and following such
precedent, the respondent No. 7 being the senior most teacher was
accordingly appointed as the Head Teacher.
22. The second limb of argument advanced by the learned GA is that
the claim of the petitioner that the provisions of the Meghalaya School
Education Act, 1981 is applicable to the case of the petitioner since the
said school though being a private educational institution, however is
receiving grant-in-aid from the State Government cannot be accepted
since the school is funded under the SSA scheme which scheme is the
outcome of the Right of Children to Free and Compulsory Education Act,
2009 also known as Right to Education Act, which fact has not been
controverted by the petitioner.
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23. It is also submitted that under the Right to Education Act specific
provisions have been made dealing with certificate of recognition of
schools found in Section 18 of the Act and also at Section 21 which
provides for the constitution of School Management Committee. Rule 13
of the “Meghalaya Right of Children to Free and Compulsory Education
Rules, 2011” provides for the mechanism for the composition and
functions of the School Management Committee which mandates that
every school other than an unaided school shall have a School
Management Committee to manage its affairs.
24. The next contention of the learned GA is that the petitioner if
aggrieved by the impugned order dated 24.10.2016, instead of coming
directly to the High Court she ought to have approached the Grievance
Redressal Forum or Tribunal set up in accordance with the provision of
Rule 20 of the Meghalaya Right of Children to Free and Compulsory
Education Rules, 2011. The petitioner having an alternative forum to air
her grievances at the first instance, this petition is therefore not
maintainable and the same is liable to be dismissed on this ground alone.
25. Again, the learned GA has submitted that it is not the case that
the petitioner has been terminated from service but, she continues to
remain a teacher of the said school and as such, the authorities cited by the
petitioner in this regard, that is the case of Holland Wanniang (supra),
Liodrekshon Nongsiang (supra) and Barnabas R. Marak (supra) which
deals with termination of service of teachers of aided school are not
applicable to the case of the petitioner herein.
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26. Since the petitioner is an employee of an SSA school and hence
is governed by the provisions of the Right of Children to Free and
Compulsory Education Act, 2009 and the related rules under the
Meghalaya Right of Children to Free and Compulsory Education Rules,
2011, a look at Section 23 of the Act would show that the same provides
for qualifications for appointment and terms and conditions of service of
teachers, nothing in the Act or the related rules is mentioned about direct
recruitment to the post of Head Teacher/Headmaster/Headmistress. The
claim of the petitioner in this regard is made without basis and her earlier
appointment was made dehors the rules, by reverting her position to that
of Assistant Teacher, the relevant authorities have not violated any law or
procedure, submits the learned GA. It is, therefore, prayed that this
petition may be dismissed as devoid of merits.
27. Mr. B. Khyriem, learned counsel for the respondent No. 7 has
submitted that records which cannot be controverted would show that this
respondent was appointed as Assistant Teacher of the said school vide
office order No.TPS/1/1-/3/00 dated 29.01.2000 while the petitioner
joined the said school in the year 2001. Therefore, this respondent is
senior in service to the petitioner.
28. It is also submitted that the respondent No. 7 had no knowledge
about the said advertisement for appointment of the Head Teacher of the
school and it was only on a query made to the Sub-Divisional School
Education Officer, Dadenggre, West Garo Hills by way of an RTI
application dated 27.05.2015 did she came to know about the said
advertisement.
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29. Again, it is the submission of the learned counsel that the
respondent No. 7 had time and again filed several representations
requesting the Managing Committee to promote her to the post of Head
Teacher upon the resignation of the previous Head Teacher but since the
Managing Committee consists of family members of the petitioner, her
request was not accepted. It was only when she made a complaint to the
District Mission Coordinator, SSA, West Garo Hills, Tura vide letter dated
29.11.2014 and another letter dated 29.03.2016 that an inquiry was
conducted in this regard and the concerned authorities came to the finding
that this respondent is senior in service to the petitioner and accordingly,
the impugned order dated 24.10.2016 was passed. There is no infirmity or
illegality as far as the said order dated 24.10.2016 is concerned and as
such, the same may not be set aside and quashed, further submits the
learned counsel.
30. This Court on consideration of the submission and contention
raised by the respective parties and on perusal of the petition and the
counter affidavits filed by the respondents would understand that the case
of the petitioner is against the action of the authority in the Education
Department, Government of Meghalaya taken on the strength of the said
impugned order dated 24.10.2016 whereby the petitioner have been
demoted to the position of an Assistant Teacher from the post of Head
Teacher which she was holding at the relevant point of time.
31. It is the contention of the State respondent that the school is
being funded under the SSA scheme and as such, the law applicable as far
as the functioning and management of the school is governed by the Right
of Children to Free and Compulsory Education Act, 2009. It is also the
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further contention of the learned GA appearing for the State respondent
that under the said Act of 2009 the grievance redressal mechanism for
teachers has been spelt out in Rule 20 of the Meghalaya Right of Children
to Free and Compulsory Education Rules, 2011, wherein under sub-Rule 2
of the said Rule 20, School Tribunals have been constituted by the
Government at the State, District and Block levels for redressal of the
grievance of the teachers.
32. As facts would have it, the Right of Children to Free and
Compulsory Education Act came into force in the year 2009. The
authority in place prior to the year 2009 covering the functioning and
management of schools such as the school of the parties herein would be
the Meghalaya School Education Act, 1981. The fact that the petitioner
was also appointed as the Head Teacher of the said school in the year
2001 only goes on to show that her services is governed by the said Act of
1981. Though the impugned order was passed in the year 2016 when the
Act of 2009 is in place, nothing in the impugned order nor was any
records of proceedings produced before this Court would indicate that the
impugned order was passed under the provision of the Act of 2009.
33. It is also one of the pleadings of the respondent No. 7 that her
claim for being promoted as Head Teacher in place of the petitioner has
been addressed before the School Managing Committee on a number of
occasions, such representations being dated 10.11.2001, 07.02.2002 and
12.07.2005 and thereafter she had also approached the District Mission
Coordinator, SSA, West Garo Hills vide representations dated 29.11.2014
and 29.03.2016 respectively. This would only show that the respondent
No. 7 had initiated her actions under the provisions of the Meghalaya
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School Education Act, 1981. If this is not the case, then the respondent
No. 7 should have expressed her grievances before the Block Level or
District Level or even the State Level Redressal Tribunal which was not
done so.
34. Therefore, this Court is convinced that there is nothing wrong
with this petition being filed before this Court under Article 226 of the
Constitution of India craving exercise of the extra-ordinary jurisdiction of
this Court.
35. A perusal of the impugned order would also reveal that the same
was passed relying on an inquiry report No.SSA/SEL/INQIRY/2014/687
dated 15.12.2014 submitted by the Block Mission Coordinator, SSA, West
Garo Hills. A copy of the said Inquiry Report was also annexed as
Annexure-6 to the affidavit-in-opposition on behalf of the respondent No.
5/Sub-Divisional School Education Officer/Jt. District Mission
Coordinator. Perusal of the same would show that the Inquiry Officer had
apparently perused the relevant school record and had come to a finding
that the respondent No. 7 is senior to the petitioner herein on the basis of
their year of joining, that is 2000 for the former and 2001 for the latter.
The Inquiry Officer has also concluded that the petitioner had superseded
the respondent No. 7 and as such, the respondent No. 7 is to be appointed
as Head Mistress of the school.
36. The manner in which the inquiry was carried out would reflect
callousness and non-application of mind and even scant regard to the
required norms and formalities to be followed whenever an inquiry is to
be conducted. No formal show cause notice was issued upon the petitioner
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nor was there any statement of the relevant witnesses ever recorded.
Finally, it also appears that no opportunity was given to the petitioner or
the complainant/respondent No. 7 to be heard in the matter. On this
ground alone, the principle of natural justice not being followed, the
impugned order is liable to be set aside and quashed.
37. It may not be out of place to refer to the proceedings which ought
to have been carried out by the concerned authorities while initiating the
inquiry proceedings against the petitioner, the same should have to be
done so under the provision of Rule 5 of the “Service Rule for Employees
of Government Aided Schools” which reads as follows:
“5. Any of the following penalties may be imposed on an
employee of an aided school by the Managing Committee for
good and sufficient reasons –
(i) Dismissal or removal;
(ii) Reduction in rank;
(iii) Recovery from pay;
(iv) Stoppage of increment;
(v) Censure.
Provided that –
(1) None of these penalties shall be imposed on an employee of
an aided school until he has been given a reasonable
opportunity of showing cause against the action proposed to
be taken in regard to him;
Provided that this clause shall not apply –
(a) Where a person is dismissed or removed or reduced in
rank on the ground of conduct which had led to his
conviction on a criminal charge;
(b) Where the Inspector of schools is satisfied that for
some reasons, to be recorded in writing. It is not reasonably
practicable to give to that person an opportunity of showing
cause; or
(c) Where the removal of any person is ordered by
Government under rule 4 above and if in such a case
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Government is of the opinion that in public interest it is not
expedient to give to that person such an opportunity;
(2) An order of dismissal or removal issued as a penal measure
on a member of the teaching staff will ordinarily be void
unless it is passed in a meeting of the Managing Committee
where at least three-fourths of the members are present.
(3) No order of dismissal or removal passed by a Managing
Committee on a member of the teaching or the ministerial
staff will be given effect to without the prior approval of the
Inspector of schools.”
38. Again, the relevant authorities have failed to note that the
petitioner was appointed as Head Teacher on the basis of an advertisement
floated in this regard. There was no challenge to the said selection process
at the relevant point of time. Therefore, rightly or wrongly, the petitioner
would be deemed to have been regularly appointed as Head Teacher in the
year 2001. In this regard, as referred to by the learned counsel for the
petitioner, the case of Hussain Sasan Saheb Kaladgi (supra) is found
relevant and applicable to the case of the petitioner. Para 2 of the same is
hereby reproduced as follows:
“2. Before the High Court it was conceded by the learned
Government Pleader that the appellant was appointed to the post
of ADEI as a ‘direct recruit’ and that he was not a departmental
promotee who had been promoted from the post of primary
teacher to the post of ADEI. This is abundantly clear from the
following passage extracted from the judgment of the High
Court:
Before us the learned Government Pleader conceded that the
appointment of the plaintiff as ADEI appears to be a direct
appointment and not a matter of departmental promotion.
He may be ineligible in terms of requisite departmental
service as a teacher, but he had the educational
qualifications required for the post and he had directly
applied for the post, though the application had to come
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through proper channel in view of the fact that the plaintiff
was in service.
In view of this concession, the High Court should have
straightway dismissed the appeal. A direct recruit to a post, it
cannot be gainsaid, cannot be reverted to a lower post. It is only a
promotee who can be reverted from the promotion post to the
lower post from which he was promoted. These propositions are
so elementary that the same are incapable of being disputed and
have not been disputed. The High Court presumably realised that
the matter was inarguable and there was no escape from the
conclusion reached by the trial court. The High Court was
however carried away by an irrelevant argument which had no
bearing on the issue before the Court. What was argued before
the High Court was that in any case his appointment was a
temporary one and it could have been terminated as per the
conditions of service applicable to him. Assuming that his
appointment was a temporary one and it could have been so
terminated, the fact remains that in point of fact no such power
had been invoked and the services of the appellant had not been
terminated at all. If his services had been so terminated under the
relevant rule, the question could possibly have arisen as to
whether or not such termination could have been lawfully made.
No such termination having taken place, the existence of the rule
was altogether irrelevant. The State had passed an order which
clearly was unsustainable in view of the fact that the appellant
was a direct recruit and there was no question of reverting him to
any lower post. The High Court should not have allowed itself to
be misled by the misleading argument regarding the service
condition under which the services of the appellant could
possibly have been, but were not in fact, terminated. The view
taken by the High Court is thoroughly unsustainable. The appeal
must, therefore, be allowed. The judgment and decree passed by
the High Court must accordingly be set aside and the judgment
and decree passed by the trial court must be restored. The parties
will bear their costs throughout.”
39. Without any detailed discussion on the other authorities cited by
the petitioner as well as the respondents, some of which are found relevant
to the merits of the case herein, suffice it to say that on the observation
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made by this Court hereinabove, it is found that the petitioner has made
out a case for interference with the impugned order.
40. Accordingly, this petition is allowed. The impugned order dated
24.10.2016 is hereby set aside and quashed. The petitioner is directed to
be reinstated as the Head Teacher/Head Mistress of the said Tillapara
Girls SSA LP School.
41. Petition disposed of. No costs.
Judge
Signature Not Verified
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Digitally signed by
TIPRILYNTI KHARKONGOR
Date: 2024.07.31 16:59:24
PDT
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