High Court
Legal Reasoning
{6} wp 1210.23 (1).odtclause (c) of clause (A) of Rule 41-A stipulates that before makingtransfer, the teacher should have completed minimum five years ofcontinuous services in unaided division or divisions or partially aidedschools or divisions of the management.8.Indisputably, the petitioner has hardly completed 3 years, ason the date of transfer from unaided to aided division, which violateseligibility criteria of five years service on unaided division. Self samereason is incorporated in the impugned order. Therefore, no fault can befound with the impugned order in the light of statutory mandate, asreferred to above, laying down the conditions of transfer of a teacherfrom unaided to aided division. So far as, another submission advancedby Mr. Panpatte, relying upon the observations of this Court in W.P. No.1493 of 2019 in the case of Surykant Janardan Muge Vs. The State ofMaharashtra, we observe that the said judgment is delivered on 4.7.2019in terms of Rule 41 of the MEPS Rules i.e. position before theintroduction of Rule 41A which is subject matter of consideration in thepresent case. Therefore, the observations of this Court in the matterSuryakant Muge (supra) would not advance the cause of the petitioner.9.Another submission advanced to assail applicability ofRule 41-A is that amendment is not approved by houses of thelegislature, as contemplated under clause(a) of Sub-Section (2) of Article213 of the Constitution of India. However, in support of such submission,no material is placed before us. We find that the rule has been insertedvide notification No. SANKIRNA/2019/CR- 341/TNT dated 8.6.2020. Inabsence of any specific material in support of the said contention, we arenot inclined to entertain the same. Pertinently, Rule making power of the {7} wp 1210.23 (1).odtState can be found in Section 16 of the MEPS Act, 1977. Sub-clause (e)of clause (2) of Section 16, states as under :-“that every rule made under this Act shall be laid, as soon asmay be, after it is made before each House of the StateLegislature, while it is in Session for a total period of thirtydays, which may be comprised in one session or in two ormore successive sessions, and if, before expiry of the sessionimmediately following the session, or successive sessionsaforesaid, both Houses agree in making any modification inthe rule or both Houses agree that rule should not be madeand, notify such decision in the Official Gazette, the rule shallfrom the date of publication of such notification have effectonly in such modified form or be of no effect as the case maybe; so, however, that any such modification or annulment shallbe without prejudice to the validity of anything previouslydone, or omitted to be done under that rule.” 10.If language of the aforesaid rule is considered, it merelymandates that every rule made in this Act shall be laid before each Houseof the State legislature and only in case, where both Houses agree inmaking any modification in the rule or that rule should not be made, thedecision of both the Houses needs to be notified in the official gazette. Itis, therefore, clear that the rules so made does not require approval fromboth the houses. It only stipulates the powers of both Houses either tomodify the rule or refuse approval for publication of the Rules. Therefore,the submission that in absence of approval by both the Houses, the rulescannot be given full effect, does not stand to the scrutiny. It is not the {8} wp 1210.23 (1).odtcase of the petitioner that either any modification was suggested orpublication was prevented by decision of both the Houses.11.Resultantly, there is no merit in the writ petition. Samestands dismissed.[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J] grt/-
Arguments
{1} wp 1210.23 (1).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1210 OF 2023Bhagyashri d/o. Shivajirao Narwate,Age 31 years, Oc. Service as Assistant Teacher,r/o. Chatrapati Chowk, Bajaj City,Flat No. 207, Nanded Tq. And Dist. Nanded... Petitioner.VERSUS1.The State of Maharashtrathrough its SecretaryEducation Department,Mantralaya, Mumbai-322.The Deputy Director of EducationLatur Division, Latur,3.The Education Officer (Secondary),Zilla Parishad, Nanded.4.The Superintendent,Pay Unit and Provident Fund Department,(Secondary), Zilla Parishad, Nanded.5.Janta Shikshan Prasarak Mandal,Umardari, Tq. Mukhed, Dist. Nandedthrough its President/Secretary.6.Shivaji Vidyalaya, CIDCO,New Nanded, Tq. & Dist. Nanded,through Head Master... Respondents.Mr. V.S. Panpatte, Advocate for the petitioner,Ms. R.P. Gaur, AGP for respondent Nos. 1 and 2Mr. S.B. Pulkundwar, Advocate for respondent No.3.Mr. R.C. Brahmhankar, Advocate for respondent Nos. 5 and 6 {2} wp 1210.23 (1).odt CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. DATE : 30TH APRIL, 2024 JUDGMENT : (PER S.G. CHAPALGAONKAR, J.]The petitioner has approached this Court, under Article 226of the Constitution of India seeking declaration that the petitionerstransfer effected vide order dated 13.8.2022, on aided post of AssistantTeacher in respondent No.6 school is legal and valid. The petitionerfurther impugns the order dated 9.11.2022 passed by the respondentNo.2 - Education Officer declining to grant approval to said transfer.2.Mr. V.S. Panpatte, learned counsel for the petitioner submitsthat the respondent No.5 society runs respondent No.6 school. Anadvertisement dated 11.7.2019, was issued by them inviting applicationsfrom eligible candidates for appointment on the post of AssistantTeacher. The petitioner possesses the requisite qualification (B.A. B.Ed.(Maths). Therefore, she responded to the advertisement and after goingthrough the selection process, she has been selected and appointed videorder dated 19.7.2019. The respondent No.3 Education Officer grantedapproval to her appointment vide order dated 31.12.2020. The servicesof the petitioner have been confirmed on completion of probation periodw.e.f. 19.7.2021. The appointment of the petitioner was on unaided post.However, on vacancy on aided division, respondent management passeda resolution dated 24.4.2022 and transferred the petitioner w.e.f.30.7.2022. The respondent No.5 and 6 forwarded the proposal seeking {3} wp 1210.23 (1).odtapproval to the transfer of the petitioner from unaided to aided post.However, the respondent No.3 vide impugned order dated 9.11.2022rejected the proposal only on the ground that the petitioner had notcompleted 5 years of service on unaided post.3.Mr. Panpatte, learned counsel for the petitioner submits thatthe respondent No.3 has placed reliance on G.R. dated 1.4.2021 andnotification dated 8.6.2020 to turn down the proposal. However, thenotification/ordinance dated 8.6.2020 introduced Rule 41A of the MEPSrules de-hors procedure prescribed under clause (a) of sub clause (2) ofArticle 213 of the Constitution of India as it has not been approved byboth the houses of Assembly. He would further submit that this Court inW.P. No. 1497 of 2018 had interpreted the provision of Rule 41 of theMEPS Rules and upheld the powers of management to transfer employeefrom unaided to aided post. He would make reference to para.23 of theaforesaid judgment to contend that condition of 4 years service onunaided division is not mandatory for transfer on aided post.4.Mrs. R.P. Gaur, learned AGP for respondent State and Mr.S.B. Pulkundwar, learned Advocate for respondent No.3 supports theimpugned order contending that Rule 41A has been brought in voguesince 8.6.2020, which specifically deals with conditions of transfer ofteachers from unaided to aided post or division and submits that theimpugned order is in consonance with the amended provision, since thetransfer of the petitioner is after introduction of Rule 41-A. According tothem petitioner cannot seek exception to conditions in said Rule.5.We have considered the submissions advance on behalf of {4} wp 1210.23 (1).odtlearned advocates appearing for the respective parties. It is not indispute that the petitioner has been appointed as Assistant Teacher on19.7.2019 on unaided post with respondent No.6 school. After renderingservices for almost 3 years, respondent No.5 passed a resolution totransfer the petitioner on aided post. Accordingly, a transfer order dated13.8.2022 has been issued by the management. The proposal dated17.8.2022 was forwarded to the Education Officer seeking approval tothe transfer of the petitioner, however, vide the impugned order dated8.11.2022, the proposal came to be rejected giving the reason that thepetitioner is not eligible for transfer on aided post as she has renderedservices less than 5 years on unaided post.6.Before we proceed further to consider the contentions of theparties, it would be apposite to refer to Rule 41-A of the MEPS Rules,which has been given effect to, vide notification dated 8.6.2020 andreads as under :-“41A. Conditions for transfer of teacher from unaided topartially aided or aided school or division. - 1) The management may transfer a teacher from un-aidedschool or partially aided school to the vacant post in partiallyaided school or aided school or division only if the followingconditions are satisfied, namely : -a) i) the Management and Education Officer or DeputyDirector shall, before making such transfer, verify that thereis no surplus persons are available as provided in sub-section(1) of section 5 of the Act; ii) if the surplus persons are available, theManagement shall not make such transfer; {5} wp 1210.23 (1).odtb) the transfer shall not be made from the teachers of self-financed school of the Management; c) before making such transfer, the teacher should havecompleted minimum five years continuous service in un-aided school or division or partially aided school or divisionof the Management;d) the transfer shall be made in equal or same cadre. Thetransfer shall not be made from primary to higher primary,higher primary to secondary or secondary to highersecondary or higher secondary to D. El. Ed. schools or vice-versa;e) the transfer shall be made only by following the seniorityand as per the requirement of the subject; f) before making transfer of a teacher, his appointmentshould have been approved by the Education Officer orDeputy Director, as the case may be; g) the transfer shall be made on the vacant post; h) the transfer shall be subject to the approval of EducationOfficer or Deputy Director, as the case may be. 2) If the post becomes vacant due to transfer, such vacantpost shall be filled as per the procedure provided in Rule 9.3) The transferred teacher shall be eligible for scale of payand allowances as decided by the Government, from time totime.”7.A plain reading of the aforesaid provision would depict thatthe transfer from unaided to aided school or division is permissiblesubject to compliance of the conditions stipulated in the Rules. Sub-