High Court of Meghalaya
Shri. Bloomingstar J.Diengdoh & ... vs . State Of Meghalaya & 2 Ors. on 28 October, 2022
Serial No. 01
Supplementary List 1
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C). No. 369 of 2020 with
WP(C). No. 56 of 2021
WP(C). No. 83 of 2021
WP(C). No. 84 of 2021
WP (C) No. 400 of 2020
WP (C) No. 401 of 2020
WP (C) No. 402 of 2020
WP (C) No. 403 of 2020
WP (C) No. 404 of 2020
WP (C) No. 405 of 2020
WP (C) No. 406 of 2020
WP (C) No. 407 of 2020
WP (C) No. 408 of 2020
WP (C) No. 409 of 2020
WP (C) No. 410 of 2020
WP (C) No. 414 of 2020
WP (C) No. 415 of 2020
WP (C) No. 416 of 2020
WP(C). No. 432 of 2020
WP(C). No. 438 of 2020
WP(C). No. 458 of 2020
WP(C). No. 462 of 2020
WP(C). No. 465 of 2020
WP(C). No. 470 of 2020
Date of Decision: 28.10.2022
Shri. Bloomingstar J.Diengdoh & Anr. Vs. State of Meghalaya & 2 Ors.
Smti. Ruma Sumer Vs. State of Meghalaya & 6 Ors.
Phikirbha Khariah Vs. State of Meghalaya & 5 Ors.
Arbihlang Suchiang Vs. State of Meghalaya & 5 Ors.
Smti. Laljoy Darnei Vs. State of Meghalaya & 3 Ors.
Smti. Laljoy Darnei Vs. State of Meghalaya & Ors.
Smt. Lalsami Darnei Vs. State of Meghalaya & 3 Ors.
Shri. Thlamuana Darnei Vs. State of Meghalaya & Ors.
Shri. Livingstone Nampui Vs. State of Meghalaya &3 Ors.
Smti. Blessing Sukhlain Vs. State of Meghalaya & Ors.
1
Shri. Khama Pangamte Vs. State of Meghalaya & 3 Ors.
Smt. Mary Jone Ngamlai Vs. State of Meghalaya & 3 Ors.
Shri. Zalena Nampui Vs. State of Meghalaya & 3 Ors.
Smti. Lalchonpari Theite Vs. State of Meghalaya & 3 Ors.
Shri. Lalsaula Nampui Vs. State of Meghalaya & 3 Ors.
Shri. Samiran Rishi Vs. State of Meghalaya & Ors.
Shri. Rajeev Shrestha Vs. State of Meghalaya & Ors.
Shri. Bipul Roy Vs. State of Meghalaya & Ors.
Smti. Metilda Marwein Vs. State of Meghalaya & 5 Ors.
Smti. Dioris Wahlang Vs. State of Meghalaya & 6 Ors.
Smti. Jubanda Sumarlyne @ Sumarlin Vs. State of Meghalaya & 5 Ors.
Smti. Merry Shyrkon Vs. State of Meghalaya & 5 Ors.
Smti. Binaris Kanai Vs. State of Meghalaya & 5 Ors.
Smti. Pressiful Lyngkhoi Vs. State of Meghalaya & 5 Ors.
Coram:
Hon'ble Mr. Justice H.S.Thangkhiew, Judge.
Appearance:
For the Petitioner/Appellant(s) : Mr. P. Yobin, Adv.
Mr. H.R. Nath, Adv.
Ms. S. Deb, Adv. vice
Mr. S. Dey, Adv.
For the Respondent(s) : Mr. A. Kumar, AG with
Mr. N.D. Chullai, AAG
Ms. R. Colney, GA
Ms. Z.E. Nongkynrih, GA
Mr. H. Kharmih, Addl. Sr. GA
Ms. S. Bhattacharjee, GA
Mr. H. Abraham, GA
Mr. A.H. Hazarika, GA
Mr. K.P. Bhattacharjee, GA
Ms. A. Thungwa, GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
JUDGMENT AND ORDER
1. This batch of writ petitions, assailing the advertisement dated
04.06.2020, Addendum dated 28.10.2020, and Notification dated
17.11.2020, for selection of MTET passed candidates for the post of
Assistant Teachers, which are on similar grounds are being disposed of
by this common judgment and order. The central theme or grievance,
that runs through all these writ petitions is that, the writ petitioners are
all teachers appointed in various institutions as Assistant Teachers on
contractual basis, prior to the implementation of the Right of Children
to Free and Compulsory Education Act, 2009, and the NCTE
notification No. 76-4/2010/NCTE/Acad dated 23rd August, 2010. With
the coming into force of the NCTE norms, w.e.f., 23rd August, 2010,
only those teachers who fulfilled the said norms, in this case, the
Meghalaya Teachers Eligibility Test (MTET) were to be considered
eligible for appointment as Assistant Teachers in Lower and Upper
Primary Schools, which the petitioners apart from petitioners in WP(C)
Nos. 400, 403, 407, 409, 414 of 2020, and WP(C) Nos. 83 and 84 of
2021, do not possess. The prayers however, in all these writ petitions
are common, inasmuch as, all the writ petitioners, firstly, pray that the
NCTE norms, be not made applicable to them, as they were all
appointed before the date of implementation that is, 23rd August, 2010,
and secondly, that in view of their service which is over 10 years, they
be regularized in their said posts.
2. For the sake of convenience, the details of each of the writ
petitioners is set out in the table below for easy reference;
Case No. Name of the Educational Date of Last Date of
Petitioner(s) Qualification Appointment Appointment
WP(C) No. 369 of No. 1. Shri. HSSLC, IGNOU 18.05.2007 30.07.2007 to
2020 Bloomingstar J. 30.11.2020
Diengdoh
WP(C) No. 369 of No. 2. Emel Sangma HSSLC, NEHU 09.08.2010 09.03.2020
WP(C) No. 400 of Smti. Laljoy Darnei SSLC, HSSLC, 12.03.2010 18.08.2020 to
2020 D.El.Ed, MTET 15.10.2020
WP(C) No. 401 of Smti. Laljoy Darnei SSLC, HSSLC, 12.03.2010 20.04.2020 to
2020 D.El.Ed 17.06.2020
WP(C) No. 402 of Smti. Lalsami Darnei SSLC, HSSLC, 30.10.2006 18.08.2020 to
2020 D.El.Ed 15.10.2020
WP(C) No. 403 of Shri. Thlamuana Darnei SSLC, HSSLC, BA, 03.09.2008 18.08.2020 to
2020 D.El.Ed, MTET 15.10.2020
WP(C) No. 404 of Shri. Livingstone SSLC, HSSLC, 01.05.2007 18.08.2020 to
2020 Nampui D.El.Ed 15.10.2020
WP(C) No. 405 of Smti. Blessing Sukhlain SSLC, HSSLC, BA, 15.06.2010 18.08.2020 to
2020 D.El.Ed 15.10.2020
WP(C) No. 406 of Shri. Khama Pangamte SSLC, HSSLC, 31.10.2005 18.08.2020 to
2020 D.El.Ed 15.10.2020
WP(C) No. 407 of Smti. Mary Jone SSLC, HSSLC, 12.03.2010 18.08.2020 to
2020 Ngamlai D.El.Ed, MTET 15.10.2020
WP(C) No. 408 of Shri. Zalena Nampui SSLC, HSSLC, 07.07.2005 18.08.2020 to
2020 D.El.Ed 15.10.2020
WP(C) No. 409 of Smti. Lalchonpari Theite SSLC, HSSLC, BA, 12.03.2010 18.08.2020 to
2020 D.El.Ed, MTET 15.10.2020
WP(C) No. 410 of Shri. Lalsaula Nampui SSLC, HSSLC, BA, 12.08.2008 18.08.2020 to
2020 D.El.Ed 15.10.2020
WP(C) No. 414 of Shri. Samiran Rishi SSLC, HSSLC, 10.07.2007 19.10.2020 to
2020 B.Com, M.Com, 15.12.2020
D.El.Ed, MTET
WP(C) No. 415 of Shri. Rajeev Shrestha SSLC, HSSLC, B.Sc, 29.06.2007 19.10.2020 to
2020 D.El.Ed 15.12.2020
WP(C) No. 416 of Shri. Bipul Roy SSLC, D.El.Ed, SET 17.05.2010 19.10.2020 to
2020 15.12.2020
WP(C) No. 83 of 2021 Phikirbha Khariah BA, MA, D.El.Ed, 27.03.2008 15.12.2020
SET, MTET
WP(C) No. 84 of 2021 Arbihlang Suchiang BA, D.El.Ed, SET, 08.09.2008 15.12.2020
MTET
WP(C) No. 432 of Metilda Marwein BA, D.El.Ed, SET 01.03.2006 15.10.2020
WP(C) No. 462 of Merry Shyrkon BA, D.El.Ed, SET 01.03.2006 19.10.2020
WP(C) No. 465 of Binaris Kanai BA, MA, D.El.Ed, 31.10.2007 21.10.2020 (stated
2020 SET to be still serving)
WP(C) No. 470 of Pressiful Lyngkhoi BA, D.El.Ed, SET 15.02.2011 15.12.2020
WP(C) No. 458 of Jubanda Sumarlyne @ BA, D.El.Ed, SET 15.11.2011 15.10.2020
2020 Sumarlin
WP(C) No. 438 of Dioris Wahlang BA, D.El.Ed, SET 15.02.2011 16.04.2020
WP(C) No. 56 of 2021 Ruma Sumer SSLC, HSSLC, 05.03.2012 15.12.2020
D.El.Ed
3. It is to be noted that, this subject of eligibility of teachers on
the benchmark of MTET qualification and the cut-off date, thereto, of
its implementation, that is, 23rd August, 2010, has been the subject
matter of a number of writ petitions before this Court. An important
case which will have a bearing on the instant writ petitions is the case
of Probirth D. Marak & Ors. vs. State of Meghalaya & Ors. [WP(C)
No. 98/2020], and other connected matters, wherein a Single Bench of
this Court by judgment and order dated 05.10.2020, held that adhoc or
temporary teachers cannot seek regularization, when they lack the
essential qualification of passing the MTET examination. This
judgment on appeal, being W.A No. 21 of 2020, was upheld by order
dated 10.12.2020, which dismissed the appeal. The matter then
travelled before the Hon'ble Supreme Court, by way of Special Leave
Petition (Civil) No. 9151 of 2021, which was disposed of by order dated
30.09.2022, by directing that the State respondents, that for the
candidates who may not be in service presently, but who were in service
at the relevant time, be considered for giving age relaxation.
4. In the instant case, it is noted that the substantial prayer of the
petitioners herein, is similar to the above-mentioned case, which is a
prayer for regularization of the services of the petitioners, on the ground
that, they have served over a period of 10 years, on contractual service,
and that, their appointment, though not regular was not an illegal
appointment.
5. Mr. P. Yobin, Mr. H.R. Nath and Mr. S. Deb, learned counsels
appearing for the petitioners, in the series of writ petitions, have jointly
advanced their submissions on the foundation of legitimate expectation
of the petitioners, who have served for periods of approximately over
10 years. It is contended that, as most of the petitioners except for
petitioners in WP(C) Nos. 470 and 56 of 2021, and WP(C) Nos. 458
and 438 of 2020, were appointed before the cut-off date of 23.08.2010,
and they possessing other valid qualifications, the requirement of
MTET passed, should not apply to them. It has been further contended
that, though the appointments were temporary in nature, none of them
were illegal, and that all the petitioners, for the duration of their service
since the initial engagement, before it was not renewed, served
continuously without any break. Shelter is sought to be taken by the
petitioners, under the judgment of the Hon'ble Supreme Court in the
case of State of Karnataka and Others vs. Umadevi (3) and Others
reported in (2006) 4 SCC 1, wherein it is submitted by the learned
counsels that Para - 53, has carved out an exception, which will be
applicable to the petitioners. The learned counsels have also placed
reliance on the judgment of Daiamonlang M. Skhemlon vs. State of
Meghalaya and Others reported in 2019 SCC OnLine Megh 49, to
buttress their arguments that the NCTE norms (i.e., MTET passed) will
not be applicable to teachers who have been appointed prior to
23.08.2010. It is finally prayed that, as the petitioners have been serving
for a considerable period of time, they be not thrown out of service and
that their services, be regularized in terms of their own qualifications
before the advent of MTET.
6. Mr. A. Kumar, learned Advocate General with Mr. N.D.
Chullai, learned AAG assisted by Ms. R. Colney, learned GA and Ms.
Z.E. Nongkynrih, learned GA for the State respondents submits that the
petitioners do not possess the basic minimum qualification of passing
the Teacher Eligibility Test (TET), and as such, cannot be considered
for regularization, inasmuch as, it goes against the mandate, as
stipulated in the Right of Children to Free and Compulsory Education
Act, 2009, (for brevity the Right to Education Act, 2009) that it is
mandatory to possess the minimum qualification as laid down, by the
academic authority, authorized by the Central Government. The learned
AG then submits that, in terms of Section 2 and 23(1) of the Right to
Education Act, especially in the first proviso to Section 23(2), it has
been provided that, a teacher who at commencement of the Act, does
not possess minimum qualification, should acquire the same within a
period of 5 years. He further submits that, by subsequent amendment in
2017, it has been further provided that, 4 years' time, with effect from
01.04.2015, is allowed to every teacher appointed or in position of a
teacher as on 31.03.2015, for acquiring the minimum qualification.
7. It is submitted that, the State respondents have to adhere to the
regime created by the Right to Education Act, 2009, the NCTE Act,
1993, and has referred to a judgment of the Supreme Court in State of
UP and Another vs. Anand Kumar Yadav and Others reported in
(2018) 13 SCC 560, wherein he submits that the State cannot derogate
and relax the minimum qualifications prescribed by the NCTE. With
regard to the applicability of NCTE norms, it is submitted that, as per
the notification dated 23.08.2010, Clause 4 thereof, which deals with
the categories of teachers appointed before the dated of notification,
who were not required to acquire the minimum qualifications, has
limited the same to three categories, of which the first category is
relevant for the present case. This category, learned AG submits,
concerns teachers who were appointed on or after 3rd September, 2001,
the date on which the NCTE (Determination of Minimum
Qualifications for Recruitment of Teachers in Schools) Regulation,
2001, came into force before 23.08.2010, but under the said Regulations
of 2001, were exempted from the prescribed minimum qualification.
The petitioners it is submitted, cannot seek exemption, as they do not
fall in any of the categories, as they were only temporarily engaged for
59 days at a time, and the same was not regular, or continuous
appointment based on any selection. It is further submitted that, the
engagements of the petitioners were also not in compliance with the
NCTE (Determination of Minimum Qualifications for Recruitment of
Teachers in Schools) Regulation, 2001.
8. The learned AG has placed reliance on the judgment of
Probirth D. Marak & Ors. vs. State of Meghalaya & Ors. [WP(C) No.
98/2020], passed by this Court, which was upheld by the Division
Bench and also the order of the Supreme Court in Special Leave
Petition (Civil) No. 9151 of 2021, arising from the same case. It is also
further submitted that, in the light of the statutory provisions of Right
to Education Act, and the NCTE Act, it is mandatory for the petitioners
to qualify the MTET exam, to be eligible for consideration. The
petitioners, he submits, were appointed temporarily and not on regular
basis, and as such, cannot seek regularization of their services. With
regard to the application of the exception of the judgment of State of
Karnataka and Others vs. Umadevi (3) and Others (supra), the learned
AG submits that, the same will be no assistance, as the petitioners from
the initiation of the contract, were fully aware of the temporary nature
of their employment and that, it would expire at the end of the stipulated
period. Reference is made to Para - 47 of the same judgment, in support
of his argument, which he contends that, in view of the terms of
engagement of the petitioners, there can be no legitimate expectation
for regularization. Learned AG concludes his arguments by submitting
that, in view of the statutory requirements, and the situation of the
petitioners, no relief as claimed will be permissible.
9. Having heard learned counsels for the parties, it is firstly noted
that, as observed herein before, the case of Probirth D. Marak & Ors.
vs. State of Meghalaya & Ors. (supra), has a direct bearing, inasmuch
as, the statutory scheme governing the issue of regularization of
teachers and the requirement of passing the MTET examination has
been analyzed, by this Court. Reliance has been placed in the said
judgment also on the case of State of UP and Another vs. Anand
Kumar Yadav and Others (supra), that teachers who have not passed
the examination cannot seek regularization of their services. With
respect to the statutory requirements, by the said judgment, it has been
held that, the State respondents are bound by the Right to Education
Act, 2009, and the NCTE Act, 1993. Paras 15 and 18 which are the
relevant paragraphs concerning statutory compliance and
regularization, are quoted herein under:
"15. In the light of the mandatory provisions of the Right to
Education Act, 2009, the NCTE Act and notification and
guidelines issued thereunder, the State of Meghalaya was
bound to conduct the MTET examination and include it as
necessary qualification for eligibility to appointing teachers
at Lower and Primary level schools. Annexure R/5 to the
affidavit in reply of the Government is a copy of letter of the
Director of School Education & Literacy, Meghalaya dated
01-04-2015 which was issued to the District School
Education Officers and Sub-Divisional School Education
Officers. The Director by this letter insisted that the District
School Education Officers and Sub-Divisional School
Education Officers should appoint persons for Lower and
Upper Primary Schools only in accordance with the norms
laid down by NCTE. It is the case of the respondent
Government that teachers like petitioners were appointed on
temporary basis to meet the exigencies of time and to ensure
that there is no break in the education. It is further the case
of the respondents that petitioners were appointed on adhoc
basis as stop-gap arrangement for teaching children in
Lower and Upper Primary Schools and therefore, a short
term contractual appointment has been made.
18. .........The Government of Meghalaya in the light of the
decision of the Apex Court in Anand Kumar Yadav (Supra)
must follow the Right to Education Act, 2009 and NCTE Act,
1993. As stated earlier, the State of Meghalaya has taken
steps in this regard and conducted the MTET examination.
Though in some petitions, it was not disclosed that the
petitioners therein also appeared for the MTET examination,
but during the course of arguments, it is accepted that almost
all the petitioners had appeared for the said examination,
however, they failed. Thus, though the petitioners were
continued as temporary/adhoc teachers in the schools run by
the Government of Meghalaya, they are not eligible to be
appointed as permanent teachers for lack of essential
qualification namely, MTET. If the petitioners are not
qualified to be appointed as permanent teachers for want of
essential qualification namely, MTET, then in my considered
view their services also cannot be regularized."
10. The above noted judgment of the Single Bench, was thereafter
upheld by the Division Bench of this Court, and the Hon'ble Supreme
Court on the SLP preferred against the orders, by order dated
30.09.2022, had not interfered with the said judgments, but only
directed for consideration for age relaxation for being eligible to sit for
the MTET examinations. The operative part of the said judgment at
Paras 18 and 19, is reproduced herein below:
"18. Be that as it may, para 2.2(b) of the notification of the
State Government dated 22 April, 2021 specifies that there
will be no age bar for in-service candidates. We are of the
view that the candidates such as the petitioners who
technically may not be in service today as a result of the
termination, but who were in service at the relevant time may
be sympathetically considered for giving an age relaxation.
In any event, the age limit is relaxable up to 37 years in the
case of SC/ST candidates and for persons with disabilities.
19. We request the State Government to consider whether a
similar age relaxation which is available to in-service
candidates should be granted to persons such as the
petitioners who had in the past served for several years and
who may now become age barred. If such a concession is
granted, it would substantially assuage the grievance of the
petitioners that the inability of the State to hold the TET at
more frequent intervals in the past had disabled them from
appearing for the examination. In the event that the State
grants a concession, it may be granted on an even footing to
all similarly placed candidates."
11. From what has been discussed above, in view of the judgment
of this Court, in the case of Probirth D. Marak & Ors. vs. State of
Meghalaya (supra), this Court at this stage, need not delve any further
to the issues raised by the petitioners or to address the requirements of
statutory compliance as mandated by the Right to Education Act, 2009
and the NCTE Act, 1993. However, it would be apposite to observe
herein, that the judgments relied upon by the petitioners cannot come to
their aid, as in Umadevi (supra), it has been held in Paras 47 and 49, as
follows:
"47. When a person enters a temporary employment or gets
engagements as a contractual or casual worker and the
engagement is not based on a proper selection as recognized
by the relevant rules or procedure, he is aware of the
consequences of the appointment being temporary, casual or
contractual in nature. Such a person cannot invoke the
theory of legitimate expectation for being confirmed in the
post when an appointment to the post could be made only by
following a proper procedure for selection and in cases
concerned, in consultation with the Public Service
Commission. Therefore, the theory of legitimate expectation
cannot be successfully advanced by temporary, contractual
or casual employees. It cannot also be held that the State has
held out any promise while engaging these persons either to
continue them where they are or to make them permanent.
The State cannot constitutionally make such a promise. It is
also obvious that the theory cannot be invoked to seek a
positive relief of being made permanent in the post.
.........
49. It is contended that the State action in not regularizing
the employees was not fair within the framework of the rule
of law. The rule of law compels the State to make
appointments as envisaged by the Constitution and in the
manner we have indicated earlier. In most of these cases, no
doubt, the employees had worked for some length of time but
this has also been brought about by the pendency of
proceedings in Tribunals and Courts initiated at the instance
of the employees. Moreover, accepting an argument of this
nature would mean that the State would be permitted to
perpetuate an illegality in the matter of public employment
and that would be a negation of the constitutional scheme
adopted by us, the people of India. It is therefore not possible
to accept the argument that there must be a direction to make
permanent all the persons employed on daily wages. When
the court is approached for relief by way of a writ, the court
has necessarily to ask itself whether the person before it had
any legal right to be enforced. Considered in the light of the
very clear constitutional scheme, it cannot be said that the
employees have been able to establish a legal right to be made
permanent even though they have never been appointed in
terms of the relevant rules or in adherence of Articles 14 and
16 of the Constitution."
12. The ratio of Daiamonlang M. Skhemlon and Others vs. State
of Meghalaya and Others (supra), will also not be helpful, as the case
concerns teachers who were regularly appointed and in service.
13. For the aforesaid reasons, these writ petitions in view of the
earlier judgment of this Court, and the fact that, the petitioners are all
on contractual service, no grounds have been made out, or are available
for grant of any the reliefs, as prayed.
14. The writ petitions accordingly stand dismissed. However,
before parting with the records, as the petitioners in WP(C) Nos. 400,
403, 407, 409, 414 of 2020, and WP(C) Nos. 83 and 84 of 2021, are
stated to have since qualified the MTET examination, the State
respondents shall accord due consideration to allow them to participate
in any further selection for the post of Assistant Teacher.
15. No order as to costs.
Judge
Meghalaya
28.10.2022
"D. Thabah- PS
