High Court · 2024
Legal Reasoning
(1) wp-14956-2017.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.14956 OF 20171.Syeda Shahana Firdaus,Age : 40 years, Occ. Service,R/o Plot No. 145, National Colony,Aurangabad, Dist. Aurangabad.2.Zameerudding Farooqui,Age: 42 years, Occu. Service,R/o Plot No.6, Nagsen Colony,Jinsi, Aurangabad, District Aurangabad...PetitionerVersus1.The State of Maharashtrathrough its Secretary, School and Education Department,Mantralaya, Mumbai-32.2.The Director of Technical Education,Maharashtra State, Mumbai.3.Maulana Azad Education Society,Rojabaugh, Aurangabad,through its President.4.The Principal,Kamla Nehru Polytechnic(Pharmacy), Aurangabad,Aurangabad.5.Junaid Kha s/o Sayeed Kha PathanAge : 31 years, Occu. Nil,R/o Gali No.16. H3, Pir Burhan Nagar,Workshop Corner, Nanded..Respondents...WITHCIVIL APPLICATION NO.377 OF 2018INWRIT PETITION NO.14956 OF 2017Shaikh Sajid Shaikh Rasool,Age 33 years, Occu. Service,R/o. Plot No.26, Sector-L,
Legal Reasoning
(2) wp-14956-2017.odtN-11, Near Kohinoor Masjid,HUDCO, Aurangabad...ApplicantVersus1.Syeda Shahana Firdaus,Age : 40 years, Occ. Service,R/o Plot No. 145, National Colony,Aurangabad, Dist. Aurangabad.2.Zameerudding Farooqui,Age: 42 years, Occu. Service,R/o Plot No.6, Nagsen Colony,Jinsi, Aurangabad, District Aurangabad.3.The State of Maharashtrathrough its Secretary, School and Education Department,Mantralaya, Mumbai-32.4.The Director of Technical Education,Maharashtra State, Mumbai.5.Maulana Azad Education Society,Rojabaugh, Aurangabad,through its President.6.The Principal,Kamla Nehru Polytechnic(Pharmacy), Aurangabad,Aurangabad...RespondentsMr. S. R. Barlinge, Advocate for the Petitioners.Mr. S. K. Shirse, AGP for Respondent Nos.1 and 2.Mr. P. S. Dighe, Advocate for Respondent Nos.3 and 4.Mr. S. S. Kazi, Advocate for Respondent No.5.Mr. S. V. Dixit, Advocate for the Applicant in CA.… CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 29th FEBRUARY 2024.JUDGMENT PRONOUNCED ON :- 18th MARCH 2024. (3) wp-14956-2017.odtJUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consent ofthe parties, matter is taken up for final hearing at the stage ofadmission.2.The petitioners have approached this Court under Article226 of the Constitution of India praying for issuance of Writ ofMandamus against respondent nos.3 and 4 to transfer the petitionersfrom unaided wing to aided wing of respondent no.4-College and awardconsequential benefits from the date of their respective appointments.3.The petitioners contend that they have been appointed asLecturers in Pharmacy at Kamla Nehru Polytechnic (Pharmacy),Aurangabad in the year 2004-2005. Their appointments have beenapproved by the Director of Technical Education, Maharashtra State.They are serving in the unaided wing of respondent no.4, since lastdecade and assumed the status of confirmed employees. Therespondent no.3 is recognized as minority institution. It is registeredunder the Bombay Public Trust Act.4.The petitioners further contend that their services aregoverned by the Maharashtra Employees of Private Schools (Conditionsof Service) Regulation Act and Rules of 1981, framed thereunder. TheRules provide for the transfer of the employees from unaided to aidedwings. Many such transfers are approved under the orders of thisCourt. According to the petitioners, considering their continuous andprolonged services and vacancies of teachers in the aided wing ofrespondent-Institution, the petitioners represented respondent nos.3and 4 to transfer them against vacancies in the aided wing. However,respondent nos.3 and 4 issued an advertisement inviting candidates byway of direct recruitment. According to the petitioners, they have every (4) wp-14956-2017.odtright to be considered for transfer to aided wing. The action of therespondents thereby inviting the applications for direct recruitment ofthe vacancies is arbitrary and detrimental to their rights. 5.The respondent nos.3 and 4 filed affidavit-in-reply andoppose the petition contending that the petitioners have no vested rightto seek their transfers to aided wing. The management in its wisdomissued advertisement for direct recruitment of the qualified teachers.More than 54 candidates responded to the advertisement and 36candidates appeared for online examination. The result of writtenexamination communicated to the Regional Joint Director of Education.The interviews were held on 09.03.2020. The Panel consist ofresponsible officers/their representatives. The petitioners have alsoparticipated in the selection process. Final results are not declared inview of the interim order passed by this Court.6.Mr. Barlinge, learned Advocate appearing for thepetitioners submits that the petitioners are qualified and experiencedteachers working in Kamla Nehru Polytechnic at Aurangabad andrendered unblemished valuable services. Rule 41, 41-A of the MEPSRules, 1981 empowers management to transfer the employee fromunaided to aided division. The MEPS Act and Rules framed thereunderare brought into statute book to secure the interest of the teachersagainst mighty management. The management is expected to exerciseits powers and required to take pragmatic view in the matter of transferof employees working in unaided wing to the aided wing. He wouldsubmit that, although the pay scale of the teachers on aided or unaidedpost is one and same, there are many privileges attached to the servicesrendered on aided post. The petitioners are deprived of such benefits.Now management has advertised the vacancies of aided posts. Thepetitioners could have been accommodated by transferring them against (5) wp-14956-2017.odtsuch vacancies. He would, therefore, urge to issue Writ of Mandamusdirecting respondents to transfer the petitioners against such vacancies.7. Mr. Dighe, learned Advocate appearing for respondentnos.3 and 4 would submit that the petitioners have no vested right toseek issuance of Writ of Mandamus, particularly against minorityinstitution, privileged under Article 30 of the Constitution of India. Hewould submit that the petitioners have also participated in the selectionprocess and interviewed for such vacancies. The declaration of theresult is withhold due to pendency and interim order passed in thispetition. Mr. Dighe, learned Advocate would place his reliance on theorder of this Court in Writ Petition No.1451/2017 decided on04.04.2019 to contend that the teachers appointed on unaided postshave no right to seek transfer. Under statutory scheme, the discretionis left with the management to execute such transfers subject to consentof the teachers.8.We have considered the submissions advanced on behalf ofthe learned Advocate appearing for the respective parties. We havegone through the record placed into service in support of suchcontentions. There is hardly any dispute as regards to the factualmatrix of the matter. It is not in dispute that the petitioners areworking as teachers with respondent no.4, since the date of theirappointments and they have continuously rendered services for morethan a decade. They hold necessary qualification. Their services havebeen approved by the competent authority. The Rule 41 of the MEPSRules, 1981 as it exists envisaged power with the management totransfer the employees. This Court in Writ Petition No.1451/2017decided on 04.04.2019 elaborately considered the scope of Rule 41 of theMEPS Rules, 1981 and approved the powers of the management totransfer the teachers appointed on unaided post to aided post. (6) wp-14956-2017.odtHowever, in present case, the question posed before us for considerationis as to whether the teachers / employees of private school have anyright under the scheme of MEPS Act and Rules to seek transfer fromunaided to aided post?. 9.Rule 41 and 41-A of the MEPS Rules, 1981 states as under:“41. Transfers. - (1) Subject to the provisions of this rule the Management conductingmore than one school shall not transfer any of its employees from oneschool to another except on administrative grounds, promotion or at therequest of the employee concerned, if it is administratively convenient todo so.(2)Save in exceptional cases, and unless reasons are recorded inwriting by the Management, such transfers shall not be effected in themiddle of the term.(3)The Management shall see that the transfers do not adverselyaffect the pay or pay scale of the employees concerned and that suchtransfer do not result into loss in the pensionary benefits as admissibleto them.(4)The expenditure on Travelling allowance and Daily allowance, ifany, at the rates applicable to the Government employees of thecomparable status, shall be borne by the Management. If the transfer isat the request of the employee, this expenditure shall be borne by theemployee concerned. Provided that the transfer involves change ofheadquarters, the joining time to be allowed to an employee shall belimited to six days (excluding Sunday) and actual days of journey.Subject to this limit, the period of joining time shall be treated as "duty"for all purposes : (7) wp-14956-2017.odtProvided that, an employee shall not be entitled to joining time, iftransfer is effected during the vacation.(5) Where a Management runs a secondary school or secondary schoolsand a Junior College of Education -(a) Teachers in a Junior College of Education shall not betransferred to a secondary school against their will Such transfersmay, however, be made if they are at employees own requests,subject to availability of vacancies in secondary schools. In the eventof such a transfer, the pay drawn by the teacher in the JuniorCollege of Education shall not be protected. He shall be deemed tobe working in a secondary school during the period he worked inthe Junior College of Education, and his pay shall be accordinglyrefixed on his joining the secondary school.(b) Teachers in secondary school shall not be transferred to a JuniorCollege of Education against their will. Such transfers may,however, be made if they are at the employees' own requests, subjectto the following conditions, namely :(i) Vacancies should be available in the Junior College ofEducation;(ii) The concerned employee shall retain the same place in thecommon seniority list; and(iii) Their pay in the Junior College of Education shall be fixedat the same stage of pay as their existing pay or at theminimum of the scale of pay in the Junior College of Education,whichever is higher.][41A. Conditions for transfer of teacher from un-aided topartially aided or aided school or division. - (1) The management may transfer a teacher from un-aided school orpartially aided school to the vacant post in partially aided school or (8) wp-14956-2017.odtaided school or division only if the following conditions are satisfied,namely : -(a) (i) the Management and Education Officer or Deputy Directorshall, before making such transfer, verify that there is no surpluspersons are available as provided in sub-section (1) of section 5 ofthe Act;(ii) if the surplus persons are available, the Management shall notmake such transfer;(b) the transfer shall not be made from the teachers of self-financedschool of the Management;(c) before making such transfer, the teacher should have completedminimum five years continuous service in un-aided school ordivision or partially aided school or division of the Management;(d) the transfer shall be made in equal or same cadre. The transfershall not be made from primary to higher primary, higher primaryto secondary or secondary to higher secondary or higher secondaryto D. El. Ed. schools or vice-versa;(e) the transfer shall be made only by following the seniority and asper the requirement of the subject;(f) before making transfer of a teacher, his appointment shouldhave been approved by the Education Officer or Deputy Director, asthe case may be;(g) the transfer shall be made on the vacant post;(h) the transfer shall be subject to the approval of Education Officeror Deputy Director, as the case may be.(2) If the post becomes vacant due to transfer, such vacant post shall befilled as per the procedure provided in Rule 9. (9) wp-14956-2017.odt(3) The transferred teacher shall be eligible for scale of pay andallowances as decided by the Government, from time to time.]”10.The plain reading of the aforesaid provisions depicts thatmanagement is empowered to effect the transfers of the employeesbased on request or exigencies however, rules, no where stipulates rightin favour of employees to seek transfer. Even the amended Rule 41-Aopens with the words “the management may transfer”. The aforesaidprovision gives discretion in favour of management to transfer theemployee subject to administrative exigency. We are of the consideredview that the scheme of the MEPS Act and Rules framed thereunderdoes not contemplate right in favour of the petitioners to seek transferfrom unaided to aided post. The discretion is left to management,conducting more than one school, to transfer any of its employee fromone school to another, in case of administrative exigency, promotion orrequest of the employee subject to administrative convenience. 11.Pertinently, respondent no.3 is recognized as minorityinstitute and enjoys the privileges guaranteed under Article 30 of theConstitution of India. This Court in case of Sandeep BabasahebChate and Ors. Vs. Shri. Vardhaman Sthanakwasi JainShrawak Sangh and Ors., [Writ Petition No.1451/2017] disposedvide order dated 04.04.2019, observed in paragraph no.23 thus:“If the Government wanted to grant right to the teachers workingon unaided post for transfers from unaided post to aided post,there should have been specific provision to that effect. In absenceof statutory provision, the petitioners and others have no right toclaim that they should be automatically transferred from unaidedpost to aided post of the same institute.” (10) wp-14956-2017.odt12.Similarly, giving reference to the right of the minorityinstitute under Article 30 (1) of the Constitution of India, as underlinedin case of Modern Dental College Vs. State of M.P.1, this Courtfurther observed that: “unnecessary interference in the administration of minorityinstitute would violate the constitutional right and it is notpermissible, although there can be reasonable restrictions on suchrights in order to ensure transparency, fairness and non-exploitiveness of education which is field of larger public interest.”.13.It is accordingly held that the High Court cannot issuedirection under Article 226 of the Constitution of India to transfer theteachers from unaided post to aided post, particularly in case ofminority institute.14.It is trite law that the powers of Writ Court, particularly toissue Writ of Mandamus can be exercised only when the publicauthority fails to exercise the legal duty. The Writ of Mandamus can beissued in favour of the person, who establishes legal right in himself.Such legal duty emanates from either discharge of public duties or byoperation of law. The object of issuing writ of mandamus is to preventfailure of justice. The reference can be given to the observations of theSupreme Court of India in case of Director of Settlements, A.P. andOthers Vs. M. R. Apparao and another2. When it comes to theissuance of Writ of Mandamus against non-Governmental institute likerespondent no.4, particularly, when it is recognized as minorityinstitute, unless it is pointed that there is failure of discharge of legalduties or statutory obligations, this Court would be very slow ininvoking jurisdiction under Article 226 of the Constitution of India. 12016 (7) SCC 353.2(2002) 4 SCC 638.
Decision
(11) wp-14956-2017.odt15.Looking to legal position as discussed above, in our viewpetitioners have failed to establish legal right to seek transfer fromunaided to aided post, No such obligation of respondent management isdiscernible from provisions contained in MEPS Rules or any statepolicy. Writ Petition sans merit. Hence, stands dismissed.16.In view of dismissal of the Writ Petition, pending CivilApplication is disposed of.17.Rule is discharged.(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/March-2024