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Judgment
S.R. Sen, J.(Oral)—Heard Mr. L.R. Das, learned counsel for the petitioner as well as Mrs. S. Bhattacharjee, learned GA for the State.
The instant writ petition is directed against the impugned order dated 6th November, 2014 bearing No. SDSEO/LP/M/APPT/2010/48156 Dated Shillong, the 6th November, 2014 which is at Annexure-4 of the writ petition.
The petitioner�s case in a nutshell is that:
"The petitioner was appointed on 5-4-2004 as an assistant teacher, on a temporary basis, by the management of the Umpling (R) Primary School, Shillong managed by the proforma respondent, at a consolidated pay of Rs. 1000/- (Rupees one thousand) only, per month. Following piece meal increment given over the years she is currently paid a consolidated sum of Rs. 2,500/- (Rupees two thousand five hundred) per month. The school is under the deficit scheme of the state respondent with a sanctioned strength of 6(six) regular teachers. After the retirement of the senior most teacher from the sanctioned strength the school management vide advertisement dated 11-3-2014 published in The Shillong Times, Shillong, called for applications from deserving candidates.
The petitioner applied for the post and after completion of the selection process she came first and her name was forwarded by the school management to the Sub-Divisional School Education Officer, East Khasi Hills, Shillong (second respondent) for approval. Approval refused holding the petitioner over age although in similar cases ignoring age of the serving senior most temporary teacher�s appointment as regular teacher were approved by the first respondent as a matter of course. Hence, the writ application".
The learned counsel for the petitioner submits that the petitioner entered in service as an Assistant Teacher in Umpling, (R) L.P. School situated at Shillong in the year 2004 when she was only 26 years old. Since then, she has given her best service with sincerity, honesty and with full integrity and against a consolidated pay of Rs. 1000/- (Rupees one thousand) only, per month. The learned counsel also submits that, the school is a Government Aided Deficit school having six numbers of sanctioned post/strength of regular teachers. On 11th March, 2014 an advertisement have been floated by the Managing Committee of the said school inviting an application to sit for the examination. Accordingly, the petitioner also applied for the said post and successfully came out as first position. Thereafter, the School Committee recommended her name to the Sub-Divisional School Education Officer, Government of Meghalaya, Shillong, for confirmation against the sanctioned post, but the same has been denied by the respondent vide letter dated 6th November, 2014. Hence, being aggrieved by the said letter the petitioner approached this court by way of this instant writ petition.
The learned GA for the State submits that, as per Rule 6 Clause 4 of the Meghalaya Fundamental Rules and Subsidiary Rules, 1984 the petitioner is not entitled as she is overage and further argued that the age limit for the post of teacher is 35 years in case of general category and 40 years for SC and ST. Therefore, the Government could not consider the case of the petitioner. In reply to the submission advanced by the learned GA, the learned counsel for the petitioner relied on Meghalaya Education Code and pointed out to Service Rule for Employees of Government Aided Schools.
After hearing the submissions advanced by the learned counsel for the parties, a crux issue involved before this court in this instant writ petition is whether the petitioner is debarred to get confirmation against the sanctioned post? To answer this, I have perused the SR Rule 6 which is reproduced herein below:
"S.R. 6 - Except as otherwise provided by rules governing recruitment to a particular service a person whose age exceeds twenty-seven years (on the 1st January of the year in which the recruitment is made) may not ordinary be admitted into service of the State Service without the sanction of Government. This ordinary limit is extended to:-
(a) Thirty years in the case of -
(i) Appointments to teaching posts in college in Meghalaya Education Service.
(ii) Appointment to teaching post on non-technical subjects in Engineering and technical institution.
(iii) Twenty nine years in the case of appointment of Medical Graduates in the State Service.
(iv) Thirty five years in respect of candidates in employ in aided schools for appointment to Meghalaya School Service provided they are eligible for the same otherwise and have acquired necessary experience".
On bare perusal of the SR Rule 6 quoted above, it appears that the SR Rule 6 is purely applicable in the case of Government Service and in my view, the petitioner serving in a Government Aided School. Persons serving in a Government Department and a Government Aided School stands in two different footings.
I have also perused the Service Rule for Employees of Government Aided Schools at Section 1 Clause 3 and the same is reproduced herein below for ready reference:
"1. Appointment and dismissal :- The Managing Committee of a school is the authority to appoint persons in connection with the affairs of the school and as such it is the authority to dismiss or remove such persons. Provided that -
(3) No person over 60 years of age shall be retained in the teaching staff except on production of a certificate of physical fitness from a Government Medical Officer not below the rank of Assistant Surgeon Grade I and with the approval of the Director of Public Instruction".
On perusal of the said Section 1, I do not find any age barrier for appointment or confirmation of a teacher in Government Aided School except at Clause 3, it is mentioned that, no person shall be retained in the service after the expiry of the age of 60 years unless and until he is physically fit.
It is an undisputed fact that the petitioner initially entered in the service in the year 2004. She was definitely within the age limit and continued her service and applied for sanctioned post when the sanctioned post was available. Therefore, we cannot say that her age should be counted from the date of sitting for the examination or passing the examination. I am of the view that her age should be considered from the date of her initial service or date of entering the service and not from the date of passing her exam. We must also remember that there may be so many rules, but no rule can bypass or overrule the principle of natural justice.
There are also instances available in the Annexure-IV of the rejoinder affidavit filed by the petitioner that some overage candidates were considered and confirmed against the sanctioned post. If it is so, why not the petitioner. This amounts to violation of Article 14 of the Constitution of India. The said Annexure-IV of the rejoinder affidavit filed by the petitioner is reproduced herein as under:
Sl. No.
Name of Schools & name of Teachers
Date of Appointment
Date of Birth
10
Gurkha Pathsala
iii
Smti S. Gurung
1.7.2001
22.9.1968 (41 years)
13
K.J.P. Girl LP School
ii
Smti. S. Synrem
1.5.1997
10.10.1960 (37 years)
18
Lumparing Pres LP School
i
Smti. Iohtilang Kharkongor
1.2.1998
7.8.1970 (38 years)
21
Lumparing RCLP
i
Sr. Arsida Songthiang
1.3.2011
27.3.1983 (38 years)
ii
Shri B. Wahalang
1.3.2002
13.5.1964 (38 years)
42
St. Dominic Savio LP School
iv
Smti. A. Doloi
16.3.2005
15.9.1968 (37 years)
53
Sein Jaintia LP School
iii
Shri. F.L. Shullai
15.2.2006
1.1.1967 (39 years)
Non-Govt. L.P. Schools under Pynursla Block
Sl. No.
Name of Schools
Name of teacher
Date of Birth
Date of appointment
9
Nongskhen Pratlynti RCLP School
Smti. S. Massar
18.3.1956
1.3.1995 (39 years)
22
Nongthymmai Pres LP School
Smti. M. Ryndong
2.2.1971
1.9.2009 (38 years)
List of teachers appointed on 1995 till date
Name of the incumbent (to Indicate Male/Female)
Date of Joining
Date of birth
Remarks
1
2
3
4
Auxillium RCLP
Smti. Christina Nonghuloo
1.2.2004
6.10.1967
37 years
S. Fernando RCLP
Smti. Cathrine Kyntiewmon Lyngdoh
1.3.1995
31.8.1957
38 years
St. Peter Madanrting RCLP
Smti. Khrelbon Nongrum
1.3.2005
04/03/66
39 years
Smti. Theresia Kharumnuid
1.3.2003
13.6.1964
39 years
St. John Bosco RCLP Lawsohtun
Smti. Jim Paul Nongkynrih
2.7.2008
11.11.1971
37 years
Sacred Heart Girls� RCLP
Sr. Bertina Kurbah
1.8.2010
16.3.1974
36 years
Smti. Annavella Shangpliang
14.6.1975
1.4.2012
37 years
Smti. Rosy Mary Warjri
1.2.2011
4.2.1974
37 years
Smti. Daplin M. Thongni
1.3.2009
10.9.1972
37 years
Sacred Heart Boys� RCLP
Smti. Blestina Lyngkot
1.3.2006
21.2.1967
39 years
Pomlakrai Pres. LP
Smti. E. Sohtun
1.10.2009
20.6.1970
39 years
Mawlai Iewrynghep Pres. LP
Shri. M.H. J. Dhar
1.6.2014
22.8.1975
39 years
Phudmuri Pres. LP
Smti. Lakyntiew Kharsyntiew
1.3.2010
1.12.1972
38 years
Madanrting Pres. LP
Smti Baiahunlang Syiem
22.9.2000
15.5.1967
Umlympung Pres. LP
Smti. Secreentila Nongbet
1.7.2014
1.3.1975
39 years
Christian LPS Mawlai Umthlong
Smti. Pricilynw Kharbudon
1.8.1999
13.10.1961
38 years
Christ Church LP Mawlai
Smti. M. Basanshrieh
1.1.2009
11.5.1971
38 years
Smti B. Lyngdoh
1.9.2013
26.7.1970
43 years
Umpling Rynjah LP
Smti. Mira Chakravorty
1.3.1996
15.3.1954
The Office of the SDSEO has no record of her approval of appointment
For the foregoing reasons discussed above, I am of the considered view that the impugned order dated 06.11.2014 bearing No. SDSEO/LP/M/APPT/2010/48156 Dated Shillong, the 6th November, 2014 has no stand or not confirmative in the eye of law. Hence, it is hereby set aside and the respondents are directed to issue a confirmation letter of the service of the petitioner within 15(fifteen) days from the date of receipt of a certified copy of this judgment and order.
With this observation and direction the instant writ petition is allowed to that extent and stands disposed of.