WP(C)/390/2016 of Smt. Supiya Khatun Vs State Of Meghalaya and 6 ors on 31 July 2024

J U D G M E N T

1. Vide order dated 24.10.2016 issued by the Joint District MissionCoordinator, Dadenggre, West Garo Hills through Memo No. JDMC-D/SSA/APPROVAL/2016/672 the respondent No. 7/Smti. Oleda Sheikhwas approved as the Headmistress of Tillapara Girls SSA LP School andthe petitioner herein was directed to immediately hand over all the chargesto the approved Headmistress, that is, the respondent No. 7 herein.

2. Being thus aggrieved with the order passed, the petitioner hasnow approached this Court with an application under Article 226 of theConstitution of India seeking enforcement of her fundamental andconstitutional rights said to have been infringed by the said impugnedorder dated 24.10.2016, the prayer being to set aside and quash the saidorder.

3. Heard Mr. S.A. Sheikh, learned counsel for the petitioner whohas submitted that the historical background of this case is that the saidTillapara Girls LP School was established by the villagers of the Tillaparavillage in the year 2000 with the approval of the Director of Elementaryand Mass Education, Meghalaya, such approval being conveyed by the Deputy Inspector of School, Dadenggre, West Garo Hills vide order dated07.11.2000.

4. At that point of time the Managing Committee of the schoolappointed two teachers, namely Shri. Dilwar Hussain who was appointedas Headmaster and the respondent No. 7 herein was also appointed asAssistant Teacher.

5. It is also the submission of the learned counsel that due to theresignation of the Headmaster of the school on 05.11.2001, the ManagingCommittee of the school had issued an advertisement dated 11.11.2001inviting applications from local candidates to fill up the post ofHeadmaster of the said school.

6. The petitioner had responded to the said advertisement and hadoffered her candidature for the same. On being selected, she wasaccordingly appointed as the Head Teacher of the School on the strengthof the office order No.TGPS/1/4-6/01 dated 20.11.2001 issued by theSecretary of the said Tillapara Girls LP School.

7. The petitioner as the Headmistress of the school, the school beinga recognised private school receiving grant-in-aid from the EducationDepartment under the SSA scheme, it is therefore governed by theprovisions of the Meghalaya School Education Act, 1981 and the ruleslaid therein. The petitioner is also functioning as the Secretary of theManaging Committee of the School.

8. As the Secretary of the Managing Committee, it was incumbentupon the petitioner to ensure that the Managing Committee was duly constituted from time to time and as such, the last Managing Committeewas in place for a period of 3(three) years w.e.f. 01.09.2011 to31.08.2014.

9. Thereafter, on the expiry of the term of the ManagingCommittee, the petitioner had convened a meeting of all concerned and anew Managing Committee was constituted on 22.10.2014. However, thisManaging Committee was not approved by the Sub-Divisional SchoolEducation Officer/Joint District Mission Coordinator, Dadenggri, WestGaro Hills who is also the respondent No. 5 herein and even thesubsequent reconstituted School Managing Committee, constituted on19.08.2015 was also met with disapproval by the respondent No. 5. Theschool is, therefore, functioning without a Managing Committee till thetime this petition was filed.

10. In such an impasse, the respondent No. 5 vide order dated16.04.2016 had authorised Shri. Abdur Rahman Sk. CRC CoordinatorKashiabari to draw and disburse salaries of the teaching staff of the saidTillapara Girls SSA LP School till the recommendation of a newManaging Committee.

11. The learned counsel has further submitted that it was during thisperiod when there was no functional Managing Committee that therespondent No. 5 had issued the said impugned order dated 24.10.2016whereby the petitioner was downgraded from her post as Headmistress tothat of Assistant Teacher. A representation dated 14.11.2016 filed by thepetitioner seeking revocation of the said impugned order also wentunheeded by the respondent No. 5. Hence this petition.

12. The learned counsel has further submitted that the Tillapara GirlsSSA LP School is a recognised private school receiving grant-in-aid fromthe State Government and also grant under the centrally sponsoredscheme called the Sarva Shiksha Abhiyan (SSA). However, as far as thefunctioning of the school is concerned, the same is governed by theprovisions of the Meghalaya School Education Act, 1981. The contentionof the State respondent that the school is guided by the Meghalaya Rightof Children to Free and Compulsory Education Rules, 2011 under theRight to Education Act, 2009 is refuted by the petitioner, who wouldcontend that there are no rules under the RTE Act as far as the serviceconditions of employees of Government Aided Schools are concerned. Allaided schools in the State are governed by the Meghalaya SchoolEducation Act, 1981. The case of Holland Wanniang v. State ofMeghalaya & Ors., (2013) 1 NEJ 90, para 6.1, 6.2, 7 and 9, the case ofLiodrekshon 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 insupport of this contention.

13. The next contention of the learned counsel for the petitioner isthat under the provision of the Meghalaya School Education Act, 1981 inChapter IV of the same is found the terms and conditions of service ofemployees of recognised private schools. Under Section 9, such terms andconditions of service have been enumerated. Again, as far as appointmentand dismissal of an employee of Government Aided School is concerned,the learned counsel has referred to the Service Rule for Employees ofGovernment Aided Schools with special reference to Rule 1- appointment

and dismissal and Rule 5 where a list of penalties which may be imposedon an employee of an aided school by the Managing Committee as far asconduct and discipline is concerned is found and has submitted that theserules are applicable to the case of the petitioner.

14. In this regard, the learned counsel has submitted that the effect ofthe impugned order upon the petitioner whereby she has been punished onreduction of her post, the same was issued without giving her anyopportunity to show cause or to defend her case and as such, grossviolation of natural justice has occurred.

15. The learned counsel has also submitted that nowhere in the saidrules referred to herein is seen that the power for conducting disciplinaryproceedings or imposition of punishment and penalties has been bestowedupon the Government authorities since such power is the exclusivedomain of the Managing Committee, even in the absence of the ManagingCommittee an Administrator is appointed by the concerned authority tolook after the affairs of the school, such Administrator has never beeninvested with the power to impose such penalty as has been done in thecase of the petitioner who was downgraded from Head Teacher toAssistant Teacher on the strength of the order of the Joint District MissionCoordinator/respondent No. 5. In support of this contention, the case ofChander Pal Jain & Anr. v. Delhi Administration Etc., 1996 SCC OnlineDel 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 petitionerhaving been appointed directly as the Head Teacher, she cannot be reverted to a lower post since it is only a promotee who can be reverted tothe lower post he was promoted from. The case of Hussain Sasan SahebKaladgi v. State of Maharashtra, (1988) 4 SCC 168, para 2 was reliedupon by the petitioner in this regard.

17. The final argument of the petitioner is that having been appointedas the Head Teacher since the year 2001 and continuing to hold the posttill the passing of the impugned order in the year 2016, the claim of therespondent No. 7 for promotion and the impugned order passed after along 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 thecase of Union of India & Ors. v. Tarsem Singh, (2008) 8 SCC 648, para 7has been cited in support of this contention.

18. Mr. K.P. Bhattacharjee, learned GA appearing for the Staterespondent has submitted that the stand of the respondent No. 7 is justifiedinasmuch as the fact that she is senior in service to the petitioner, on thevacancy of the Head Teacher having arisen, she ought to have beenappointed as such. However, the petitioner was directly appointed as theHead Teacher in spite of the protest of the respondent No. 7 which wentunheeded by the School Managing Committee.

19. Even the said advertisement for filling up the post of HeadTeacher was issued by the School Managing Committee without theknowledge of the respondent No. 7 as almost all the members of the saidSchool Managing Committee are the family members of the petitioner andas such, the whole process was manipulated to suit the petitioner.

20. The learned GA has also submitted that the relevant Departmenthad no knowledge of the said advertisement and there was also noapproval of the same as well as of the appointment of the petitioner asHead Teacher as no specific information or details of the whole process,such as the number of candidates who have applied for the post was evermade known to the concerned authority in the Education Department.

21. As to how the respondent No. 7 was appointed as the HeadTeacher, the learned GA has submitted that even when the SMC wasfunctioning, the respondent No. 7 had filed several representations whichwere not considered and it was only when the SMC was replaced by anAdministrator, did the representation of the respondent No. 7 received aresponse and an inquiry was conducted by the Department which led tothe finding that firstly, there could not have been any direct recruitment tothe post of Head Teacher as the norm was that it was only the senior mostteacher who is usually appointed to that position and following suchprecedent, the respondent No. 7 being the senior most teacher wasaccordingly appointed as the Head Teacher.

22. The second limb of argument advanced by the learned GA is thatthe claim of the petitioner that the provisions of the Meghalaya SchoolEducation Act, 1981 is applicable to the case of the petitioner since thesaid school though being a private educational institution, however isreceiving grant-in-aid from the State Government cannot be acceptedsince the school is funded under the SSA scheme which scheme is theoutcome of the Right of Children to Free and Compulsory Education Act,2009 also known as Right to Education Act, which fact has not beencontroverted by the petitioner.

23. It is also submitted that under the Right to Education Act specificprovisions have been made dealing with certificate of recognition ofschools found in Section 18 of the Act and also at Section 21 whichprovides for the constitution of School Management Committee. Rule 13of the “Meghalaya Right of Children to Free and Compulsory EducationRules, 2011” provides for the mechanism for the composition andfunctions of the School Management Committee which mandates thatevery school other than an unaided school shall have a SchoolManagement Committee to manage its affairs.

24. The next contention of the learned GA is that the petitioner ifaggrieved by the impugned order dated 24.10.2016, instead of comingdirectly to the High Court she ought to have approached the GrievanceRedressal Forum or Tribunal set up in accordance with the provision ofRule 20 of the Meghalaya Right of Children to Free and CompulsoryEducation Rules, 2011. The petitioner having an alternative forum to airher grievances at the first instance, this petition is therefore notmaintainable 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 thatthe petitioner has been terminated from service but, she continues toremain a teacher of the said school and as such, the authorities cited by thepetitioner in this regard, that is the case of Holland Wanniang (supra),Liodrekshon Nongsiang (supra) and Barnabas R. Marak (supra) whichdeals with termination of service of teachers of aided school are notapplicable to the case of the petitioner herein.

26. Since the petitioner is an employee of an SSA school and henceis governed by the provisions of the Right of Children to Free andCompulsory Education Act, 2009 and the related rules under theMeghalaya Right of Children to Free and Compulsory Education Rules,2011, a look at Section 23 of the Act would show that the same providesfor qualifications for appointment and terms and conditions of service ofteachers, nothing in the Act or the related rules is mentioned about directrecruitment to the post of Head Teacher/Headmaster/Headmistress. Theclaim of the petitioner in this regard is made without basis and her earlierappointment was made dehors the rules, by reverting her position to thatof Assistant Teacher, the relevant authorities have not violated any law orprocedure, submits the learned GA. It is, therefore, prayed that thispetition may be dismissed as devoid of merits.

27. Mr. B. Khyriem, learned counsel for the respondent No. 7 hassubmitted that records which cannot be controverted would show that thisrespondent was appointed as Assistant Teacher of the said school videoffice order No.TPS/1/1-/3/00 dated 29.01.2000 while the petitionerjoined the said school in the year 2001. Therefore, this respondent issenior in service to the petitioner.

28. It is also submitted that the respondent No. 7 had no knowledgeabout the said advertisement for appointment of the Head Teacher of theschool and it was only on a query made to the Sub-Divisional SchoolEducation Officer, Dadenggre, West Garo Hills by way of an RTIapplication dated 27.05.2015 did she came to know about the saidadvertisement.

29. Again, it is the submission of the learned counsel that therespondent No. 7 had time and again filed several representationsrequesting the Managing Committee to promote her to the post of HeadTeacher upon the resignation of the previous Head Teacher but since theManaging Committee consists of family members of the petitioner, herrequest was not accepted. It was only when she made a complaint to theDistrict Mission Coordinator, SSA, West Garo Hills, Tura vide letter dated29.11.2014 and another letter dated 29.03.2016 that an inquiry wasconducted in this regard and the concerned authorities came to the findingthat this respondent is senior in service to the petitioner and accordingly,the impugned order dated 24.10.2016 was passed. There is no infirmity orillegality as far as the said order dated 24.10.2016 is concerned and assuch, the same may not be set aside and quashed, further submits thelearned counsel.

30. This Court on consideration of the submission and contentionraised by the respective parties and on perusal of the petition and thecounter affidavits filed by the respondents would understand that the caseof the petitioner is against the action of the authority in the EducationDepartment, Government of Meghalaya taken on the strength of the saidimpugned order dated 24.10.2016 whereby the petitioner have beendemoted to the position of an Assistant Teacher from the post of HeadTeacher which she was holding at the relevant point of time.

31. It is the contention of the State respondent that the school isbeing funded under the SSA scheme and as such, the law applicable as faras the functioning and management of the school is governed by the Rightof Children to Free and Compulsory Education Act, 2009. It is also the further contention of the learned GA appearing for the State respondentthat under the said Act of 2009 the grievance redressal mechanism forteachers has been spelt out in Rule 20 of the Meghalaya Right of Childrento Free and Compulsory Education Rules, 2011, wherein under sub-Rule 2of the said Rule 20, School Tribunals have been constituted by theGovernment at the State, District and Block levels for redressal of thegrievance of the teachers.

32. As facts would have it, the Right of Children to Free andCompulsory Education Act came into force in the year 2009. Theauthority in place prior to the year 2009 covering the functioning andmanagement of schools such as the school of the parties herein would bethe Meghalaya School Education Act, 1981. The fact that the petitionerwas also appointed as the Head Teacher of the said school in the year2001 only goes on to show that her services is governed by the said Act of1981. Though the impugned order was passed in the year 2016 when theAct of 2009 is in place, nothing in the impugned order nor was anyrecords of proceedings produced before this Court would indicate that theimpugned 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 herclaim for being promoted as Head Teacher in place of the petitioner hasbeen addressed before the School Managing Committee on a number ofoccasions, such representations being dated 10.11.2001, 07.02.2002 and12.07.2005 and thereafter she had also approached the District MissionCoordinator, SSA, West Garo Hills vide representations dated 29.11.2014and 29.03.2016 respectively. This would only show that the respondentNo. 7 had initiated her actions under the provisions of the Meghalaya School Education Act, 1981. If this is not the case, then the respondentNo. 7 should have expressed her grievances before the Block Level orDistrict Level or even the State Level Redressal Tribunal which was notdone so.

34. Therefore, this Court is convinced that there is nothing wrongwith this petition being filed before this Court under Article 226 of theConstitution of India craving exercise of the extra-ordinary jurisdiction ofthis Court.

35. A perusal of the impugned order would also reveal that the samewas passed relying on an inquiry report No.SSA/SEL/INQIRY/2014/687dated 15.12.2014 submitted by the Block Mission Coordinator, SSA, WestGaro Hills. A copy of the said Inquiry Report was also annexed asAnnexure-6 to the affidavit-in-opposition on behalf of the respondent No.5/Sub-Divisional School Education Officer/Jt. District MissionCoordinator. Perusal of the same would show that the Inquiry Officer hadapparently perused the relevant school record and had come to a findingthat the respondent No. 7 is senior to the petitioner herein on the basis oftheir year of joining, that is 2000 for the former and 2001 for the latter.The Inquiry Officer has also concluded that the petitioner had supersededthe respondent No. 7 and as such, the respondent No. 7 is to be appointedas Head Mistress of the school.

36. The manner in which the inquiry was carried out would reflectcallousness and non-application of mind and even scant regard to therequired norms and formalities to be followed whenever an inquiry is tobe conducted. No formal show cause notice was issued upon the petitioner nor was there any statement of the relevant witnesses ever recorded.Finally, it also appears that no opportunity was given to the petitioner orthe complainant/respondent No. 7 to be heard in the matter. On thisground alone, the principle of natural justice not being followed, theimpugned order is liable to be set aside and quashed.

37. It may not be out of place to refer to the proceedings which oughtto have been carried out by the concerned authorities while initiating theinquiry proceedings against the petitioner, the same should have to bedone so under the provision of Rule 5 of the “Service Rule for Employeesof Government Aided Schools” which reads as follows:

“5. Any of the following penalties may be imposed on anemployee of an aided school by the Managing Committee forgood and sufficient reasons –employee of an aided school by the Managing Committee forgood 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 ofan aided school until he has been given a reasonableopportunity of showing cause against the action proposed tobe taken in regard to him;an aided school until he has been given a reasonableopportunity of showing cause against the action proposed tobe 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 hisconviction on a criminal charge;conviction on a criminal charge; (b)Where the Inspector of schools is satisfied that forsome reasons, to be recorded in writing. It is not reasonablypracticable to give to that person an opportunity of showingcause; orsome reasons, to be recorded in writing. It is not reasonablypracticable to give to that person an opportunity of showingcause; or

(c) Where the removal of any person is ordered byGovernment under rule 4 above and if in such a case Government is of the opinion that in public interest it is notexpedient to give to that person such an opportunity;

(2) An order of dismissal or removal issued as a penal measureon a member of the teaching staff will ordinarily be voidunless it is passed in a meeting of the Managing Committeewhere at least three-fourths of the members are present.on a member of the teaching staff will ordinarily be voidunless it is passed in a meeting of the Managing Committeewhere at least three-fourths of the members are present.

(3) No order of dismissal or removal passed by a ManagingCommittee on a member of the teaching or the ministerialstaff will be given effect to without the prior approval of theInspector of schools.”Committee on a member of the teaching or the ministerialstaff will be given effect to without the prior approval of theInspector of schools.”

38. Again, the relevant authorities have failed to note that thepetitioner was appointed as Head Teacher on the basis of an advertisementfloated in this regard. There was no challenge to the said selection processat the relevant point of time. Therefore, rightly or wrongly, the petitionerwould be deemed to have been regularly appointed as Head Teacher in theyear 2001. In this regard, as referred to by the learned counsel for thepetitioner, the case of Hussain Sasan Saheb Kaladgi (supra) is foundrelevant and applicable to the case of the petitioner. Para 2 of the same ishereby reproduced as follows:

“2. Before the High Court it was conceded by the learnedGovernment Pleader that the appellant was appointed to the postof ADEI as a ‘direct recruit’ and that he was not a departmentalpromotee who had been promoted from the post of primaryteacher to the post of ADEI. This is abundantly clear from thefollowing passage extracted from the judgment of the HighCourt:

Before us the learned Government Pleader conceded that theappointment of the plaintiff as ADEI appears to be a directappointment and not a matter of departmental promotion.He may be ineligible in terms of requisite departmentalservice as a teacher, but he had the educationalqualifications required for the post and he had directlyapplied for the post, though the application had to come through proper channel in view of the fact that the plaintiffwas in service.

In view of this concession, the High Court should havestraightway dismissed the appeal. A direct recruit to a post, itcannot be gainsaid, cannot be reverted to a lower post. It is only apromotee who can be reverted from the promotion post to thelower post from which he was promoted. These propositions areso elementary that the same are incapable of being disputed andhave not been disputed. The High Court presumably realised thatthe matter was inarguable and there was no escape from theconclusion reached by the trial court. The High Court washowever carried away by an irrelevant argument which had nobearing on the issue before the Court. What was argued beforethe High Court was that in any case his appointment was atemporary one and it could have been terminated as per theconditions of service applicable to him. Assuming that hisappointment was a temporary one and it could have been soterminated, the fact remains that in point of fact no such powerhad been invoked and the services of the appellant had not beenterminated at all. If his services had been so terminated under therelevant rule, the question could possibly have arisen as towhether or not such termination could have been lawfully made.No such termination having taken place, the existence of the rulewas altogether irrelevant. The State had passed an order whichclearly was unsustainable in view of the fact that the appellantwas a direct recruit and there was no question of reverting him toany lower post. The High Court should not have allowed itself tobe misled by the misleading argument regarding the servicecondition under which the services of the appellant couldpossibly have been, but were not in fact, terminated. The viewtaken by the High Court is thoroughly unsustainable. The appealmust, therefore, be allowed. The judgment and decree passed bythe High Court must accordingly be set aside and the judgmentand decree passed by the trial court must be restored. The partieswill bear their costs throughout.”

39. Without any detailed discussion on the other authorities cited bythe petitioner as well as the respondents, some of which are found relevantto the merits of the case herein, suffice it to say that on the observation Powered by TCPDF (www.tcpdf.org)

made by this Court hereinabove, it is found that the petitioner has madeout a case for interference with the impugned order.

40. Accordingly, this petition is allowed. The impugned order dated24.10.2016 is hereby set aside and quashed. The petitioner is directed tobe reinstated as the Head Teacher/Head Mistress of the said TillaparaGirls SSA LP School.

41. Petition disposed of. No costs.

Judge