Secretary of the Managing Committee of Smit Higher Secondary School v. State of Meghalaya
2014-12-09
T.NANDAKUMAR SINGH, UMA NATH SINGH
body2014
DigiLaw.ai
Judgment Uma Nath Singh; ACJ. 1. As these writ appeals impugn a common question of law based on somewhat similar facts, they are taken up together and disposed of by a common judgment. We have heard learned counsel for parties and perused the pleadings of writ appeal. This writ appeal has been filed by Secretary of Managing Committee of Smit Higher Secondary School, against the judgment and order dated 21-05-2014 passed by learned Single Judge, whereby writ petition of respondent No. 8 herein, namely, Shri Kerlang Chyne, was allowed with directions and observations vide Paragraphs 9, 10 and 11 as under: "9. Therefore, in my view Headmasters/Headmistresses cannot be recruited by the governing body or Director of Public Instruction alone for which Selection Board is a must. In this instant case, respondent No. 7 has been appointed as Headmistress/Principal bypassing the Provision as laid down under Section-4 of the Amended Assam Aided High and Higher Secondary School Employees Rules, 1965. Therefore, in my view appointment of respondent No. 7 is illegal and in violation of Amended Assam Aided High and Higher Secondary School Employees Rules, 1965. 10. For the reasons as discussed above, I find that the appointment of respondent No. 7 is not in accordance with the rules and laws, hence, the impugned order dated 1.04.11 is hereby set aside. However, it is further observed that, selection of new Headmistress may take sometime; so for the smooth functioning of the School, let the respondent No. 7 continue as Headmistress and she is also entitled to appear in the Selection Board. It is further ordered that, since there is no fault on her part, the salary and other benefits which she has already drawn during her service as Headmistress should not be recovered. The Government authorities should constitute the Selection Board within 1(one) month from the date of receipt of this Judgment & Order and to complete the whole process of selection within 2(two) months. 11. With these observations and directions, this instant writ petition is allowed and the matter stands disposed of." 2. It appears from averments made in writ appeals that Smit Higher Secondary School was established in 1968 by Smit Village Authority under original name and style "Smit Proceeding High School" for the purpose of imparting education to Class VII and VIII students of village upon grant of permission by Inspector of Schools, Education Department, Govt.
It appears from averments made in writ appeals that Smit Higher Secondary School was established in 1968 by Smit Village Authority under original name and style "Smit Proceeding High School" for the purpose of imparting education to Class VII and VIII students of village upon grant of permission by Inspector of Schools, Education Department, Govt. of Meghalaya, Shillong, in 1969. This school was subsequently renamed as "Smit High School". The School came to be covered under the requirements of Deficit Grant-in-aid Scheme vide order dated 02-03-1983. Later on, the school was upgraded to "Smit Higher Secondary School" from 1999. Writ petitioner (respondent No. 8 herein), claimed to be the senior most Assistant Teacher in the school, therefore, he asserted his right for promotion and appointment as Principal of the school in the event of any such vacancy arising in future. Former Principal of School took voluntary retirement vide letter dated 27-12-2006, w.e.f. 31-03-2007. His application was accepted on 16-01-2007, and thereafter, Management Committee decided to appoint Smt. Drassila Mawroh, (respondent No. 7 herein) as new Principal on the basis of her qualification as MA and B.Ed. Managing Committee also recommended the case for approval of proposal to appoint the said respondent. Thereafter, Joint Director of Higher and Technical Education vide letter dated 12-03-2007, and letter dated 04-05-2007, sought clarification from Inspector of Schools concerned as to why post of Principal of the above school should not be filled by promoting the senior most teacher of school, and in compliance of that letter, Inspector of Schools vide his correspondence dated 17-05-2007, conveyed the said queries to Managing Committee of School. Managing Committee vide letter dated 28-05-2007, forwarded the letter dated 26-05-2007, written by Vice Principal of School in favour of appointment of private respondent No. 7 and showing his unwillingness to become Principal. Joint Director of Higher & Technical Education vide letter dated 30-08-2007, informed Inspector of Schools that if Vice Principal is not willing to take up the post, the selection to the post of Principal should go to teacher who was next in seniority in accordance with deficit grant system governed by Assam Aided High and Higher Secondary Employees Rules, 1965. Non-teaching Staff of the School also expressed resentments against the appointment of private respondent No. 7.
Non-teaching Staff of the School also expressed resentments against the appointment of private respondent No. 7. Inspector of Schools, however, even before disposing of the representation of non-teaching staffs, granted his approval for appointment of respondent No. 7 as Principal of School. That is how respondent No. 8, herein, filed writ petition questioning appointment of respondent No. 7. The State filed affidavit-in-opposition to justify the order dated 01-04-2011, in granting approval for appointment of respondent No. 7, as Principal of School. Appointment was made on the ground that respondent No. 7 was more qualified having possessed Master Degree with B.Ed, whereas respondent No. 8 had only B.Sc. Degree. 3. Learned Single Judge having considered submission on behalf of writ petitioner (respondent No. 8 herein), and writ appellant as well as the State and upon examining documents on record came to conclusion that selection of Principal has to be governed by provisions of amended Assam Aided High and Higher Secondary School Employees Rule, 1965. Being aggrieved by aforesaid judgment and order, learned counsel for appellant submitted that provisions of 1965 Rule would not govern the selection process because that Act was not adopted by State of Meghalaya in terms of Section 79 of North-Eastern Area (Reorganisation) Act, 1971. It is also his submission that as per provisions of Assam Reorganisation (Meghalaya) Act, 1969, State of Meghalaya became an autonomous State, therefore, provisions of 1965 Rules are not to apply. Learned counsel also argued on the basis of Section 79of North-Eastern Area (Reorganisation) Act, 1971, again to submit that 1965 Rules were not specifically adopted. It is also a submission of learned counsel that for selection of Principal in appellant's school, the order of Inspector of Schools dated 08-08-1997, is to apply whereunder Managing Committee of School has been given discretion and liberty to select Principal of its choice. 4. On the other hand, Mr. ND Chullai, learned Sr. GA, appearing for respondents, contends that issue in question stands concluded by judgment of this court passed in WA No. 48 of 2011, (Secretary, Managing Committee Selsella Higher Secondary School and Anr. -v- John Pajellard K. Sangma and Ors), wherein this Court has categorically held that 1965 Rules are to apply in the matter of selection of Principal and teachers in Government Aided Schools. It is also a submission of learned Sr.
-v- John Pajellard K. Sangma and Ors), wherein this Court has categorically held that 1965 Rules are to apply in the matter of selection of Principal and teachers in Government Aided Schools. It is also a submission of learned Sr. counsel that correspondence under reference namely, dated 08-08-1997, has not been approved by the State Government as is evident from letter dated 28-05-1999. 5. Having regard to rival submission of learned counsel for parties, we are of considered view that 1965 Rules would be applicable in this case for the reason that in terms of Section 79 and 80 of North-Eastern Area (Reorganisation) Act, 1971, the position has been more than clarified that in respect of resolution of such dispute, it is the Court that would act as a final arbiter. Secondly, at the time of creation of independent State of Meghalaya, all rules which were already in vogue were continued to remain in force unless specifically repealed or modified, and also for the reason that the State of Meghalaya is governed by Sixth Schedule to the Constitution. Section 79 and 80 of North-Eastern Area (Reorganisation) Act, 1971, on reproduction would read as: "79. For the purpose of facilitating the application of any law in relation to any of the States or Union territories formed or established by the provisions of Part II, the appropriate Government may, before the expiration of two years from the appointed day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent Legislature or other competent authority." 6. From a careful reading of the Section, it would appear that act of 'adaptation' and 'modification' of the law was left to decision and discretion of appropriate Government and it is not the case that if not specifically adopted or modified, the existing law shall cease to exist and apply. 7. That apart, Section 66 of Assam Reorganisation (Meghalaya) Act also has to be read harmoniously. Though, learned counsel for appellant submitted that clause 2 of Section 66 is independent of Section 66(1), but if that is accepted, then it may defeat the very objective of enactment. Section 66 is reproduced herein below: "66.
7. That apart, Section 66 of Assam Reorganisation (Meghalaya) Act also has to be read harmoniously. Though, learned counsel for appellant submitted that clause 2 of Section 66 is independent of Section 66(1), but if that is accepted, then it may defeat the very objective of enactment. Section 66 is reproduced herein below: "66. (1) All laws in force immediately before the appointed day in the autonomous State shall continue to be in force therein until altered, repealed or amended by a competent legislature or other competent authority. (2) For the purpose of facilitating the application in relation to the autonomous State of any law made before the appointed day, the appropriate Government may, within two years from the day, by order, make such adaptations or modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent legislature or other competent authority. Explanation-In this section, the expression "appropriate Government" means as respects any law relating to a matter enumerated in the Union List in the Seventh Schedule to the Constitution, the Central Government, as respects any law relating to a matter in the Second Schedule, the Government of Meghalaya, and, as respects any other law, the Government of Assam." 8. From a bare reading of the provision, it appears that Section 2 is enacted as a supplementary provision to Sub-section 1 of Section 66. That being so, the impugned judgment passed by learned Single Judge does not call for our interference, and thus, it is affirmed. Resultantly, this writ appeal being devoid of merit is hereby dismissed.