The High Court
Case Details
THE HIGH COURT OF MEGHALAYA WP(C)[SH] No. 277/2012 Shri Nur Hussain, R/o Village Pathorkatta, West Garo Hills District, Meghalaya. -versus- 1. The State of Meghalaya, Represented by the Secretary. Education Department, State of Meghalaya. …Petitioner 2. The Director of School Education and Literacy, Government of Meghalaya, Shillong. 3. The Additional Director of School Education and Literacy, East West and south Garo Hills, Tura. 4. The Joint Director of School Education and Literacy, East West and South Garo Hills, Tura. 5. The District School Education Officer, West Garo Hills, Tura. … Respondents 6. The Principal, Pathorkatta Higher Secondary School, West Garo Hills District, Meghalaya. ….Proforma Respondent BEFORE THE HON’BLE MR JUSTICE T NANDAKUMAR SINGH Advocate for the petitioner Advocate for the respondents Date of hearing Date of Judgment - - - -
Legal Reasoning
Mr. S. Sen, Mr. R. Gurung, Govt. Advocate 10-6-2013 10-6-2013 JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) JUDGMENT AND ORDER (ORAL) 1. Heard Mr. S. Sen, learned counsel appearing for the petitioner as well as Mr. Gurung, learned Govt. Advocate appearing for the respondents. 2. At the very outset of the hearing, Mr. Gurung, learned Govt. Advocate fairly submits that the respondents had been requested many times for sending the parawise comments to the present writ petition for filing affidavit-in- opposition. Inspite of such requests, the respondents did not send any parawise comments. As a result, the affidavit-in-opposition on behalf of the respondents had not been filed. 3. In writ petition of present nature, we need the assistance of the government in the form of affidavit or otherwise. But, this Court is also not getting any assistance from the government/respondents in deciding if there are any materials for justifying the impugned order dated 13-9-2012 for canceling the order dated 22-8-2012 for approving the election of the Managing Committee of the Patharkatta Higher Secondary School, West Garo Hills. Withholding the documents, if any, in relation of the impugned order dated 19-9-2012 shall have adverse reference against the respondents. 4. It is stated that there were complaints regarding the illegality of the election of the Managing Committee of the Patharkatta Higher Secondary School, West Garo Hills. Two writ petitions regarding the election of the Managing Committee of the Patharkatta Higher Secondary School, West Garo Hills being WP(C)[SH] No.187/2012 and WP(C)[SH] No.282/2012 were filed before this Court. This Court vide common Judgment and Order dated 1-2-1012 had dispose of the said two writ petitions with four directions: “1. The Inspector of Schools, West Garo Hills District, Tura shall convene a general public meeting of the Patharkata village for election of the Members of the Managing Committee of the 2 Patharkata Higher Secondary School within forty five days from the date of receipt of this order: 2. Such meeting may be conducted by the Inspector of Schools, West Garo Hills District, Tura by himself or any an official authorized by him: 3. The voters list in the latest Electoral Roll for Meghalaya State Assembly election in respect of Pathatkata village shall be used as the Electoral Roll for the election in question: 4. Needless to say, both the petitioners shall also be allowed to take part in such election as candidates or voters, as the case may be:” 5. It is stated that in compliance with the said directions of this Court in the common Judgment and Order dated 1-2-2012, the election of the Managing Committee of the Patharkatta Higher Secondary School, West Garo Hills was held on 30-7-2012. In that election held on 30-7-2012, the members of the Managing Committee of the Patharkatta Higher Secondary School, West Garo Hills were elected in which the present petitioner was elected as the Secretary of the School Managing Committee. 6. The concerned authority i.e. Joint Director of School Education & Literacy, Govt. of Meghalaya as required under the Meghalaya Aided Higher Secondary and Upper Primary School Management Rules 1997, had approved the said election of the Managing Committee of the Patharkatta Higher Secondary School, West Garo Hills held on 30-7-2012 vide Order dated 22-8-2012 (Annexure A IV of the writ petition). For easy reference, the said order dated 22-8-2012 is reproduced below: “GOVERNMENT OF MEGHALAYA OFFICE OF THE DISTRICT SCHOOL EDUCATION OFFICER ::::WEST GARO HILLS:::: TURA
Decision
ORDER Dated Tura, the 22-8-2012 A new Managing Committee of Pathorkatta Hr. Sec. School is hereby reconstituted for the term of 3 (Three) years with effect from 30-7-2012 to 29-7-2015 with the following members as per the general public meeting held on 30-7-2012. The Managing Committee shall have to act according to the provisions made in Sec.II (Chapter III of the Assam 3 Education Department Rules & Orders Volumn – I Revised Edition, 1955). 1.Shri Abdul Jobbar Khan 2.Shri Nur Hussain 3.Shri Johirul Islam Sarkar, Principal 4.Shri Kismat Ali Ahmed 5.Shri Shahajamal Sarkar 6.Shri Ashad Ali 7.Shri. Shader Ali 8.Shri Abdul Sobur Sarkar 9.Shri Abu Bakkar Siddique 10.Shri Tasrul Islam 11.Shri Shahabuddin Sk. :President :Secretary :Ex. Officio Member :donor Member :Teacher’s Representative :Guardian Representative :Guardian Representative :Nominated Member -do- : -do- : -do- : 5 (five) members shall form a quorum. The Secretary is hereby instructed to operate the Bank Account jointly with the President in respect of deposits and drawl of money relating to the school. N.B. The undersigned has approved the Managing Committee of the school as because majority of the Members has withdrawn and supported Shri. Abdul Jobbar Khan for President and Shri. Nur Hussain for Secretary. Therefore, the undersigned has approved the same. Sd/- P.K.Hajong, & Jt. Director of School Education & Literary, i/c District School Education Officer, West Garo Hills, Tura.” 7. In pursuance of the said order dated 22-8-2012, the petitioner had joined the office of the Secretary, Managing Committee of the Patharkatta Higher Secondary School, West Garo Hills. It is stated that the Addl. Director of School Education & Literacy (E,W &S) Garo Hills, Tura Dalopgre under his letter dated 7- 9-2012 directed the District School Education Officer, West Garo Hills, Tura that as the constitution of the Managing Committee of the Patharkatta Higher Secondary School, West Garo Hills is not valid, constitute a new Managing Committee in order to avoid contempt of the said orders of this Court. 8. In pursuance of the said directions, the District School Education Officer, West Garo Hills, Tura passed the impugned order dated 13-9-2012 for cancellation of the said approval orders dated 22-8-2012 and the District School Education Officer, West Garo Hills, Tura will hold the charge of the Managing 4 Committee of the Patharkatta Higher Secondary School, West Garo Hills till a regular Managing Committee is reconstituted in compliance with the said directions of the Hon’ble High Court. 9. In the present writ petition, it is stated that the impugned order dated 13-9- 2012 is in gross violation of the principles of natural justice and fair procedure, and the principles of natural justice demand that the petitioner should have been given a show cause notice before issuing the impugned order dated 13-9-2012. It is also the case of the petitioner that the petitioner had no idea nor has he been informed about any complaints filed by any person or authority against the election of the new school Managing Committee which had been approved by the said approval order dated 22-8-2012. 10. This Court also has given anxious consideration to the impugned order dated 13-9-2012 and it appears that the impugned order dated 13-9-2012 had been passed on the basis of some complaints. 11. As stated above, inspite of giving sufficient opportunities to the respondents for filing affidavit-in-opposition, the respondents had opted not to file affidavit-in- opposition. In such circumstances, the adverse reference is to be taken against the present respondents who are duty bound to disclose the facts which compelled the Authority to pass the impugned order dated 13-9-2012. 12. Mr. Sen, learned counsel appearing for the petitioner by placing heavy reliance on the decision of the Apex Court in Naseem Bano (Smt) versus State of U.P. and Others 1993 Supp (4) SCC 46 contended that since the respondents did not file affidavit-in-opposition in the present writ petition, the averments made in the writ petition should presume to have been admitted by the respondent. Relevant portion of para 9 of the SCC in Naseem Bora (Smt) versus State of U.P. and Others read as follows: “9. The aforesaid reply would show that on behalf of respondents 1 to 4, it was not disputed 5 that 40 per cent posts which have to be filed up by promotion had not been filled up and the denial of promotion to the appellant was justified on the sole ground that she was not qualified to be promoted to L.T grade. This shows that in the pleadings before the High Court, there was no contest on the question that the post of L.T grade which was sanctioned on August 29, 1977 was required to be filled up by promotion for the reason that 40 per cent posts had not been so filled. Even though there was no contest on this question the High Court has gone into it and has held that the appellant has failed to establish her case that at the time of the appointment of respondent 6 by direct recruitment 40 per cent of the total number of posts in the College were not filled up by promotion as prescribed by Regulation 5(2)(a) of the Regulations. Since no dispute was raised on behalf of respondents 1 to 4 in their reply to the averments made by the appellant in the writ petition that 40 per cent of the total number of posts had not been filled by promotion, the said averments had not been controverted, the High Court should have proceeded on the basis that the said averments had been admitted by respondents. “ inasmuch as 13. It is equally well settled law that the averments made by the petitioner in the writ petition which are not controverted by the respondent by filing affidavit-in- opposition, shall deem to have been admitted. For the foregoing reasons, this Court has no alternative but to accept the case of the petitioner that the impugned order dated 13-9-2012 was passed in violation of the principles of natural justice and also there are no materials to substantiate the case of the respondents that the impugned order dated 13-9-2012 was passed due to public complaint. 14. Accordingly, this Court has to interfere with the impugned order dated 13-9- 2012. In the result, the impugned order dated 13-9-2012 is hereby quashed. It is an admitted case of both the parties that the term of the school Managing Committee under the said rules of the Meghalaya Aided Higher Secondary and Upper Primary School Management Rules 1997 is 3 (three) years. 15. Consequence of quashing the impugned order dated 13-9-2012 would be that the school Managing Committee of the Patharkatta Higher Secondary School, 6 West Garo Hills which had been approved by the said approval order dated 22-8- 2012 will be functional till the expiry of the terms. 16 However, in the peculiar circumstances of this case, the respondent, if, at all necessary, may take up the steps for cancellation of the said approval order dated 22-8-2012 only after complying with the rules as well as the principles of natural justice but till the passing of any cancellation order, the Managing Committee of the Patharkatta Higher Secondary School, West Garo Hills approved under the said order dated 22-8-2012 shall be functional. 17. It is also made clear that consequence this order would be that the said directions of the Addl. Director of School Education & Literacy, (E, W & S), Garo Hills under the said letter dated 7-9-2012 (Annexure V) is also quashed. 18. With the above observations and directions, this writ petition stands dispose of. S.Rynjah JUDGE 7