1. In this writ application the petitioner has challenged the Annexure 4 order dated 18.12.92 issued by the third respondent terminating the services
of the petitioner and also praying for appropriate writ or direction to implement the Annexure 6 order dated 5.1.93 issued by the Inspector of
Schools, East Khasi Hills District, Shillong, the second respondent.
2. The short fact of the petitioner''s case is that she obtained Master degree in Assamese and she served in leave vacancy in Laitumkhra Sisu
Bidyalaya for a period from March, 1984 to April, 1986. Thereafter, she was out of job. A post of graduate teacher fell vacant in Laitumkhrah
Assamese High School. Petitioner on coming to know about it submitted an application dated 17.9.92 (Annexure 1) to the second respondent
giving particulars of her educational qualification, past experience,, etc. This application was forwarded by the Secretary, LajtumJchrah Assamese
High School making the following endorsement :
Forwarded to the Inspector of Schools, East Khasi Hills District. Shillong for favour of necessary action the applicant may be allowed to officiate
as Assistant teacher against the vacant post. This has the approval of the school Managing Committee.
By Annexure 2 order dated 2.12.92 the second respondent approved the appointment of the petitioner as Assistant Teacher, Laitumkhrah
Assamese High School, Shillong in the scale of pay mentioned there in. The appointment of the petitioner being approved by the second
respondent, the Secretary of the School by order dated 15.12.92 (Annexure 3) appointed the petitioner with effect from the date of her joining,
An advertisement was published by the Secretary of the School in The Shillong Times'' in its issue dated 12.11.92 for a post of Assistant Teacher.
In the said advertisement it was specifically mentioned that preference would be given to the experienced teacher. The petitioner passed MA
examination and had teaching experience by serving as a teacher for a period of more than 2 years in the said Sisu Bidyalaya. On 18.12.92 an
interview was held for selection of candidates for appointment of Assistant Teacher against the vacancy. Petitioner along with others appeared in
the said interview. By Annexure4 order dated 18.12.92 ie the date on which the interview was held the appointment of the petitioner was
terminated with effect from 19.12.92. At the time of issuance of the said order no person was selected. Several complaints were made before the
second respondent regarding selection of candidate for appointment as Assistant Teacher in the post in which the petitioner had been serving on
the basis of Annexure 2 order. By Annexure 5 order dated 22.12.92 the second respondent informed the third respondent that according to Rules,
appointment could not be made by the Managing Committee without prior approval by the Inspector of Schools and any appointment made by the
Managing Committee without such approval should be treated as cancelled. He also informed the third respondent that he had received complaints
against the conduct of test by the Managing Committee and asked the third respondent for sending applications of all candidates with their
certificates, etc to him. By Annexure 6 letter dated 5.1.93 the second respondent informed the third respondent that termination of appointment of
the petitioner was highly irregular and contrary to the provisions of rule and circular issued by Government, inasmuch as no prior approval was
taken before termination of her service. The second respondent further instructed the third respondent to cancel the order of termination and allow
the petitioner to continue in her service. The school remained closed for winter vacation from December, 1992 to 23.2.93 and as the petitioner
was not aware of any order of termination she reported for duty on the date of reopening of the school. The Headmistress (fourth respondent),
however, did not allow the petitioner to resume her duty. Having been refused to resume duty, she approached the second respondent and in his
office the petitioner could come to know about her termination from service. The petitioner was given a copy of the Annexure 6 letter dated 5.1.93
and she was directed by the Inspector of Schools to resume her duty in the school. However, till the date of filing of this writ petition the petitioner
was not allowed to resume her duty. As the petitioner was not allowed to resume her duty as per Annexure 6 letter the petitioner on 25 2.91
submitted a representation to the fourth respondent referring the Annexure 6 letter Issued by the second respondent and requested her to allow her
(petitioner) to join duty. The fourth respondent did not pay any heed to it. According to the petitioner the manner in which the interview was held
by the Managing Committee (fifth respondent) reflected malicious and biased attitude towards the petitioner. It was also not in accordance with the
advertisement and, therefore, the action of the Managing Committee was illegal in appointing Arpana Saikia and terminating the services of the
petitioner without prior approval of the second respondent. The termination order (Annexure 4) being illegal for not obtaining prior approval, the
petitioner was deemed to be in service and during her service, the appointment given to Arpana Saikia by the Managing Committee and
subsequent approval given by the second respondent was illegal, without jurisdiction and contrary to the provisions of law. Hence the present
petition.
3. This petition was moved before this Court on 23.3. v3. On that day a notice of motion was issued and the fifth respondent was directed to allow
the petitioner to officiate as Assistant Teacher of Laitumkhrah school until further order. By the said order liberty was given to the fifth respondent
to pray for cancellation, modification or alteration of the interim order passed. An application was filed for vacating the interim order dated 23.3.93
and this matter came up on 28.5.93 before this Court. On that day the interim order was not vacated. However, this Court decided to hear the
entire matter. Accordingly, the matter was heard by this Court.
4, On behalf of respondents 3, 4 and 5, the third respondent filed an affidavitinopposition on 22.5.93 and further affidavit on 14.8.93, The
petitioner also filed a reply affidavit on 4.8.93. In the affidavitinopposition the said respondents have submitted that the writ petition was not
maintainable and that there was no violation of any rights. Besides, the said respondents have stated that on 17.9.92 the writ petitioner brought an
application addressed to the second respondent praying for appointment. This application was ''routinely forwarded'' by the President and
Secretary of the Managing Committee on 21 9.92. Approval was given by the second respondent and on the basis of the said approval the
petitioner was appointed. The respondents further have stated that by a resolution adopted in a meeting of the Managing Committee held on
10.11.92 the Committee decided to advertise the post in ''The Shillong Times'' and accordingly, the post was advertised in the said paper on
12.11.92. As per the said advertisement (Annexure 3 to the affidavitinopposition) preference was to be given to an experienced teacher strong in
English and Mathematics and having Assamese at least upto Pre University. 4P candidates including the petitioner had submitted applications to the
third; respondent and on careful scrutiny by the members of the Managing Committee the applications of only 14 candidates including the petitioner
were found to be in order. The Committee further decided to call for written and viva voce interview. On 18.12 92 written and viva voce tests had
been taken for all the 14 candidates for final selection and the marks both for written and oral tests were given. It has been further stated in the said
affidavitinopposition that though the second respondent approved the proposal of the Managing Committee for appointment of the writ petitioner
subject to strict observance of Rules, the Managing Committee could not give effect to the said approval in view of the fact that the post in
question had already been advertised as per the instructions of second respondent vide Annexure 1 to the affidavitinopposition. The said
respondents have also stated that the appointment of the writ petitioner was purely on temporary basis on the condition that in the event of her
failure to qualify in the test, her appointment would be terminated. This temporary appointment was accepted by the writ petitioner and
accordingly, she joined duty on the date of appointment. According to the said respondents as per the advertisement preference was not only to be
given to the experienced teachers but also to the teachers strong in English and Mathematics. As the writ petitioner could not do well in the written
and oral interview and miserly failed both in Mathematics and English, her services were terminated.
In the said affidavitinopposition the said respondents have further stated that no prior approval was necessary to terminate the services of the
conditional ad hoc appointment and in any event if approval was required, it was given by the second respondent by Annexure 7 (to the
affidavitinopposition) letter dated 8.12.92. The said respondents denied the allegation that there was any mala fide intention to terminate her
services and appoint another person. According to them the written and oral tests had been conducted by the Selection Board constituted by the
Managing Committee and in that tests the petitioner miserably failed. Besides, the second respondent by order dated 12.3.93 (Annexure 10 to the
affidavitinopposition) approved the appointment of Arpana Saiisia with a direction to terminate the services of the writ petitioner. In view of that the
petitioner was not allowed to resume her duty and her representation dated 25.2.93 (Annexure 7) could not be considered. Besides, aforesaid
Annexure 10 letter dated 12.3.93 put an end to the earlier letter of the second respondent dated 22.12.92 (Annexure 5). Therefore, according to
these respondents the action taken by them in appointing Arpana Saiicia was just, proper and in strict compliance with the provisions of law and,
therefore, no interference is called for.
In the further affidavit these respondents have reiterated the statements made in the affidavitinopposition. Besides, they have annexed few more
Annexures, namely, Annexures 15 to 17.
Petitioner also has filed a reply affidavit reiterating her stand. She has further stated that without prior approval of the second respondent neither
appointment nor termination could take place as per circular issued by the Joint Director of Public Instruction (Annexure 8 to the reply affidavit).
5. I have heard Mr. AR Paul Mazumdar, learned counsel for the petitioner, Mr. A. Sarma, learned Government Advocate and Mr. VK Jindal,
learned counsel on behalf of respondents 3 to 5.
6. Learned counsel for the petitioner submitted that the petitioner gave Annexure 1 application to the second respondent and the same was
forwarded by the Secretary of the school. While forwarding the said application the Secretary of the school requested the second respondent to
give appointment. The Secretary further informed the second respondent that this had the approval of the Managing Committee. On the basis of
the said application the second respondent passed the Annexure 2 order approving the appointment of the petitioner in the school, subject to strict
observance of Government Education Department Rules and orders and fulfillment of the conditions required for a sanctioned post. On the basis of
the said order the petitioner was appointed by Annexure 3 order. Therefore, without prior approval, the appointment of the petitioner cannot be
cancelled and without canceling the appointment there could not have been any fresh appointment. The learned counsel further submitted that as
per the Meghalaya School Education Act, 1981, for appointment and termination of an employee prior approval of the Inspector of Schools is
necessary. Therefore, without prior approval of the second respondent the appointment of the petitioner cannot be terminated. But in the instant
case the school authority had done so and made a fresh appointment in her place on the basis of written and oral examinations. The learned
counsel also submitted that the appointment was given to said Arpana Saikia contrary to Annexure 3 advertisement inasmuch as the advertisement
did not refer to any examination oral or written. As per the said advertisement preference was to be given to an experienced teacher strong in
English and Mathematics and having Assamese at least upto PreUniversity level. Further, candidates having teachers'' training were to be
considered as added qualification. The written and oral tests were taken contrary to the advertisement. Therefore the termination of the petitioner
by the school authority without prior approval of the second respondent and subsequent approval given to the appointment of Arpana Saikia was
contrary to the provisions of Rules, without jurisdiction and liable to be set aside and quashed.
7. Mr. VK Jindal, learned counsel for the third, fourth and fifth respondents, on the other hand, submitted that the petition was not maintainable in
view of the fact that on the date of filing of the writ petition Arpana Saikia was appointed and she had joined her duties prior to the filing of the writ
petition, but without making Arpana Saikia a party, her appointment could not be cancelled. Learned counsel further submitted that the petitioner
had no right to be appointed and she had at best the right of consideration of her appointment. The Managing Committee having considered her
case, the petitioner could not challenge Annexure 4 and 6. Besides, she could not also challenge the legality of the examination inasmuch as she
appeared in the examination. Moreover, approval given by the second respondent in respect of appointment of Arpana Saikia having not been
challenged, the petition was liable to be rejected summarily. Learned Government Advocate placed the record.
8. On the basis of the rival contentions of the parties it is to be seen whether the action of the respondents is in accordance with the provisions of
the Rules and it can sustain in law.
9. I have perused the record submitted by the learned Government Advocate and the affidavitinopposition and reply affidavit filed by respondents
3, 4 and 5 and the petitioner respectively.
10. The Meghalaya School Education Act was enacted in 1981. This Act was enacted to provide better organisation, management and
development of school education in the State of Meghalaya and for matters connected therewith or incidental thereto. Chapter IV of the said Act
refers to the terms and conditions of service of employees of recognised private schools. Section 9 empowers the Government to make rules
regulating the minimum qualifications for recruitment and the conditions of service of employees of recognised schools. Under subsection (2) of
section 9, no employee of a recognised private school shall be dismissed, removed or reduced in rank nor shall his service be otherwise terminated
except with the prior approval of the competent authority. Besides, the Joint Director of Public Instructions Meghalaya, Shillong issued a circular
bearing number EG/I/MISC1 48/91186 dated 29.10.92 (Annexure 8 to the reply affidavit filed by the petitioner) whereby he informed the
Inspector of Schools and others to instruct all the schools that both appointment and termination of teachers and employees of deficit schools
cannot take place in any school without prior approval of the Inspectors and Deputy Inspector of Schools. Admittedly, in the instant case the
services of the petitioner were terminated without prior approval of the second respondent who was the competent authority for appointment and
termination. In view of the above, the termination of the petitioner is not in accordance with the provisions of law and, therefore, in my opinion, the
school authority had no jurisdiction to terminate her services.
11. On the second point urged by the petitioner regarding selection of a teacher for appointment to the post in pursuance of Annexure 3
advertisement, it is to be seen whether the selection made in pursuance of the advertisement can sustain in law. The aforesaid advertisement
mentions that preference would be given to the experienced teacher strong in English and Mathematics. Preference would also be given to the
candidates having teachers training. However, the advertisement does not refer to any written and oral tests.
12. Form the record it appears that after receipt of the applications pursuant to the Annexure 3 advertisement, the applications were scrutinized by
the members of the Managing Committee and 14 applications were found valid. Thereafter, written and oral tests were conducted and result was
declared. On the basis of the said result Smti Arpana Saikia was selected. Accordingly, appointment letter was issued on 20.3.93 with the prior
approval of the Inspector of Schools, and she joined on 24.3.93. From the record it also appears that the appointment of Arpana Saikia was given
on the basis of written and oral tests only. However, Annexure 3 does not indicate regarding holding of written and oral tests. These tests had been
conducted on the basis of subsequent decision of the Managing Committee as will appear from the record.
The candidates who applied for the post acquired vested right for being considered for selection in strict compliance with the terms and conditions
contained in the advertisement, unless the advertisement itself indicates a contrary intention. A candidate has right to be considered in accordance
with the terms and conditions set out in the advertisement as his/her right crystalises on the date of publication of the advertisement. (See State of
Gujarat & another vs. Patel Naranbbai iNathubai, AIR 1990 SC 1232).
13. Petitioner could not do well both in English and Mathematics in the written test. On the other hand, Managing Committee found Arpana Saikia
qualified the test and fulfilled all the conditions required as per the advertisement. I have perused the application of Arpana Saikia which is on
record. I find she has all the qualifications as per the Annexure 3 advertisement. She also faced well in the test examinations. However, the test
examinations both oral and written were not mentioned in the Annexure 3 advertisement. But the selection of the candidate by the Managing
Committee and the order dated 20.3.93 giving appointment to Arpana Saikia have not been challenged. She has also not been made party Even
the third, fourth and fifth respondents in their affidavitinopposition categorically stated that Arpana Saikia was appointed in pursuance of the
advertisement and the approval was given long before the tiling of the writ petition. Therefore, it will not be expedient for this Court to pass any
adverse order against said Arpana Saikia who has since joined the service on the basis of selection made by the Managing Committee. But then
the Court cannot ignore another aspect of the matter that the termination of the petitioner was not made in accordance with the provisions of law as
referred to herein before. As the termination of the petitioner is illegal and not in accordance with the provisions of law, she is deemed to be in
service. This is incongruous position. On the one hand, termination of petitioner is contrary to the provisions of law and cannot sustain in law but on
the other hand, appointment of Arpana Saikia cannot be set aside in view of the observations made above.
14. All these irregularities in terminating the services of petitioner and giving appointment to Arpana Saikia occurred because of wrong handling of
the matter both by the Managing Committee and by the second respondent. As stated above, in one hand the order of termination of petitioner
being illegal she is deemed to be in service and on the other hand the appointment of Arpana Saikia cannot be set aside on the grounds stated
above. It is the duty of the respondents to regularise the services of both the teachers.
15. In view of the above, I dispose of this writ petition holding that the petitioner is still in service and she shall continue in her service. Similarly,
Arpana Saikia shall also continue her service. Therefore, I direct the respondents 1 and 2 to find out ways and means for absorbing both the
petitioner and said Smt S Arpana Saikia, if possible in the same school. Respondents 3 to 5 is also directed to make all endeavor for absorbing the
said two teachers in the school.
16. Learned counsel for the petitioner informed that in spite of this Court''s order the petitioner had not been paid her salary. This is a very sad
state of affairs. Therefore, I direct that the respondents shall make immediate arrangement for payment of her salary as expeditiously as possible, at
any rate within a period of one month from today.
