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2014 DIGILAW 271 (MEG)

Secretary, Managing Committee, Selsella Higher Secondary School Meghalaya v. John Pajellard K. Sangma

2014-11-13

T.NANDAKUMAR SINGH, UMA NATH SINGH

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JUDGMENT : Uma Nath Singh, J. 1. This writ appeal has been preferred against judgment and final order dated 27-10-2011, passed by learned single Judge of the then Gauhati High Court, Bench at Shillong, whereby the writ petition of respondent was allowed, inter alia, on the grounds that the selection was not carried out in terms of the provision of the Assam Aided High and Higher Secondary School Employees Rule, 1965 (for short the Rules of 1965). The writ petitioner (respondent herein) though possessed higher qualification was not considered for the post and there was no advertisement of the vacancy. Appellant No. 1 herein is the Secretary of the Managing Committee of Selsella Higher Secondary School, West Garo Hills, whereas, appellant No. 2 is the Principal of that school, whose appointment was approved by the School Managing Committee and the Inspector of Schools. It appears that the appellant at the relevant point of time possessed the qualification of BA/B.Ed, the minimum qualification required for appointment on the post of Principal, whereas, the respondent admittedly had obtained a Master Degree in Arts. It also appears that the appellant was appointed as Principal on 23-10-2010, and the respondent at that time was working as Vice-Principal, a post which he was holding for about six years. However, after the appellant was appointed as Principal, the respondent was by a resolution dated 02-04-2011, of the Managing Committee relieved of the charge of post of Vice-Principal and was reverted to his original post of Assistant Teacher, ostensibly, on the ground that there was no vacancy of Vice-Principal in the school. As the appointment of appellant to the post of Principal was to be governed by Rule 5 of the amended Assam Aided High and Higher Secondary School Employees Rule, 1965, and there was no advertisement for the post, it was challenged by way of writ petition by the respondent. The points raised for decision before the learned single Judge were: (i) as to whether the promotion of Mr. Lowchimber W. Marak, appellant herein was justified under law; (ii) as to whether a reversion of private respondent to the post of Assistant Teacher from the post of Vice-Chancellor was violative of principles of natural justice, and (iii) as to whether the Memo dated 2nd March, 2011 and order dated 6th April, 2011 were liable to be set aside and quashed. On a careful consideration of rival submissions, learned single Judge found that Rules 4 and 5 of the Rule 1965 were applicable in the case of selection of Principal in this case. Rule 4 prescribes the method of recruitment to the post of Headmasters/Headmistresses. Sub-rule (i) of Rule 4 thus reads: "4. Method of recruitment (1) Headmasters/Headmistresses: (i) there shall be a State Selection Board consisting of the following viz.: (a) Director of Public Instruction, Assam-Chairman. (b) Additional Director of Public Instruction, Assam-Secretary. (c) Inspectors of Schools concerned-Members. (d) Two educationists to be nominated by the Government-members. (ii) The Director of Public Instruction, Assam, shall ascertain from various institutions concerned well ahead of each academic year vacancies that are likely to occur during the year and advertise in at least two newspapers and also in the Assam Gazette and forward to the Selection Board the applications received together with all relevant records indicating at the same time the number of vacancies and names of the institutions involved. (iii) The Selection Board shall after interview prepare a list of candidates in order of preference and shall forward the list so prepared to the Managing Committee of the schools concerned. (iv) The Managing Committee shall make appointments after due verification and with prior approval of the Inspector of Schools concerned." Rule 5 prescribes essential academic and other qualifications for appointment to the post of Headmasters/Headmistress and Clause (i) of Rule 5 is also reproduced hereunder: "Academic and other qualifications:-- (i) Headmasters/Headmistresses: A candidate shall hold a B.T. or Master's Degree in Arts, Science or Commerce and shall have at least ten years' teaching experience. The educational qualification may be relaxed to the Bachelors' degree in Arts, Science or Commerce if: (a) the Headmasters and Headmistresses are already confirmed in their services with due approval of the Inspector of Schools concerned on or before 1st October, 1956: provided that such Headmasters/Headmistresses have put in at least ten years service as a teacher in a recognized Secondary School: (b) the candidates have put in at least 15 years service as teacher in recognized Secondary Schools including 5 years as an Assistant Headmaster or Headmistress or in both capacities or at least 20 years experience as a teacher in recognized Secondary School. In case of women candidates, however, the candidates may have only 10 years total teaching experience in Secondary Schools." 2. In case of women candidates, however, the candidates may have only 10 years total teaching experience in Secondary Schools." 2. Moreover, as per Meghalaya Education Code, the amended Rule of 1965 was adopted by State of Meghalaya by issuing necessary notification under North Eastern Areas (Reorganisation) Act, 1971. The relevant paragraph of notification is also reproduced as under: "By notification No. ESS-140/59 dated 9th March, 1961 the following set of Rules were issued by the Government of Assam, viz : Assam Aided College Employees Rules 1960, Assam Aided High and Higher Secondary School Employees Rules, 1960, Assam Aided Middle English Schools Teachers Rules, 1960. The above Rules came into force with effect from 15th February, 1961. The Assam Aided High and Higher Secondary School Employees Rules, 1960 was amended and the Government of Assam by notification No. ESS-58/64/11 dated 1st December, 1965 notified the Amended Assam Aided High and Higher Secondary School Employees Rules, 1965 notified the Amended Assam Aided High and Higher Secondary School Employees Rules, 1965, which are incorporated below. The above rules are applicable in the State of Meghalaya." 3. Moreover, this issue was also dealt with in a judgment of Gauhati High Court reported in (1987)1 GLR 55 (Rev. Fr. Paul Petta v. The Director of Public Instruction Government of Meghalaya and others). Para 15 of the judgment clearly suggests that Assam Rule was made applicable to the State of Meghalaya and is being followed. The respondent herein also possessed requisite qualification for being appointed as Principal. He was appointed on 12.04.1986 as Assistant Teacher whereas, private respondent was appointed on 02.06.1990 after a gap of fifteen years. Moreover, the respondent was appointed as Vice-Principal on 03.08.2005 and he discharged the function efficiently till he was removed from the post. The respondent was having a master degree in English and was thus senior to the appellant. Only because the original mark-sheet of respondent was destroyed and later the duplicate but verified mark-sheet of Master in English was submitted in support of his claim for appointment as Principal, he could not have been denied the opportunity. The service experience as well as the Master Degree in English was ignored by the authority. Thus, learned single Judge held that the respondent herein possessed M.A. degree in English and in the case of Principal, the provisions of the Rule of 1965 are to apply. The service experience as well as the Master Degree in English was ignored by the authority. Thus, learned single Judge held that the respondent herein possessed M.A. degree in English and in the case of Principal, the provisions of the Rule of 1965 are to apply. Moreover, the respondent was removed from the post of Vice-Principal without assigning any reason and without affording him any opportunity of hearing. 4. Ms. S.G. Momin, learned counsel for appellant submitted that the appellant possessed the requisite minimum qualification for appointment as Principal. Though the writ petitioner/respondent challenged the appointment, but he did not seek any relief for his appointment to the post in question, and the appellant's appointment was approved by the Inspector of Schools. Learned counsel for appellant also referred to a judgment of Hon'ble the Apex Court, in the case of K.D. Sharma Vs. Steel Authority of India Ltd. and Others, (2008) 12 SCC 481 to argue that where a litigant makes false statements or conceals material facts or misleads the Court in the case, the Court may dismiss the petition at the threshold without considering the merits of the case. 5. On the other hand, Mr. K. Paul, learned counsel for the respondent defended the impugned judgment while reiterating the arguments before the learned single Judge that the selection of the appellant on the post of Principal was not carried out within the precincts of law, and rather it was in derogation thereof. Thus, according to him, the same has been rightly held to be not sustainable in the eye of law. 6. On due consideration of the rival submissions of learned counsel for the parties, we do not find any merit in the writ appeal, for the reason that the post in question namely, the Principal of the School concerned which ought to have been filled-in, in accordance with and under the provisions of the Assam Aided High and Higher Secondary School Employees Rule, 1965, which was adopted by the Govt. of Meghalaya by issuing a notification under North Eastern Areas (Reorganisation) Act, 1971, and the Employment Exchanges (Compulsory Notification and Vacancies) Act, 1959, was not filled in accordance therewith. The filling in of the vacancy of Principal is also not in accordance with the pronouncement of the constitution bench in Secretary, State of Karnataka and Others Vs. Umadevi and Others AIR 2006 SC 1806 . The filling in of the vacancy of Principal is also not in accordance with the pronouncement of the constitution bench in Secretary, State of Karnataka and Others Vs. Umadevi and Others AIR 2006 SC 1806 . Simply possession of qualification without adopting the procedure prescribed for, will not provide satisfactory explanation as to me irregularity in the appointment. Undoubtedly, in all such appointments to the posts in public domain, the Selection Committee should go for the best of the candidates and that is possible only upon participation of other candidates if the vacancy is widely advertised. Moreover, if a thing is to be done in a particular manner, it should be done in that manner or not at all. 7. As regards the judgment referred to by learned counsel for the appellant in K.D. Sharma v. Steel Authority of India Ltd. & Ors. (supra), as it is an admitted position that the writ petitioner/respondent possessed Master Degree in English which was verified and confirmed by me University authorities on affidavit, the question as addressed in the judgment may not be attracted. In that view of the matter, the impugned judgment passed by learned single Judge does not appear to suffer from any infirmity whatsoever. Hence, it is hereby affirmed and the writ appeal is dismissed. However, as the post of Principal would be vacant hereinafter, mere-fore, it would be expedient, in the interest of justice, to direct the authorities to carry out me appointment, after complying with the procedural requirements under the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959, and Assam Aided High and Higher Secondary Employees Rule, 1965, apart from following the directions as contained in the pronouncement of Hon'ble the Apex Court in Uma Devi's case, for, in the case of public employment, the Selection Board must go for the best of the candidates.