High Court
Legal Reasoning
wp-3105.211 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.3105 OF 2021Kharate Sandip Balshiram,Age-38 years, Occu:Service,R/o-Gunjalwadi, Taluka-Sangamner,District-Ahmednagar. ...PETITIONER VERSUS 1) The State of Maharashtra, Through the Principal Secretary to School Education Department, Mantralaya, Mumbai-32,2) The Education Officer (Secondary), Zilla Parishad, Ahmednagar,3) Shivalay Sarva Sevabhavi Sanstha, Gunjalwadi, Taluka-Sangamner, District-Ahmednagar, Through its Secretary. ...RESPONDENTS ... Mr. Shivaji T. Shelke Advocate for Petitioner. Mr. S.K. Shirse, A.G.P. for Respondent Nos. 1 and 2. Mr. S.S. Wagh Advocate for Respondent No.3. ... CORAM: SMT. VIBHA KANKANWADI AND S.G. CHAPALGAONKAR, JJ. DATE : 30th JANUARY, 2024 wp-3105.212JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :1.Rule. Rule made returnable forthwith. Heard learnedcounsel appearing for the respective parties finally, by consent. 2.By invoking the constitutional powers of this Court underArticle 226 of the Constitution of India, the petitioner, who is anassistant teacher, has prayed for following relief:-“(A)Quash & set aside the order dt. 24.12.2020 of EducationOfficer at Exh.D thereby rejecting the proposal for approval to thetransfer of the petitioner as the Asst. Teacher with a furtherdirection to the Education Officer to grant approval to the transferof the petitioner. “ 3.The petitioner has come with the case that he possessesM.A. B.Ed. Degree and he belongs to O.B.C. category. He wasinitially appointed as an assistant teacher on D.Ed. pay-scale byrespondent No.3 by order dated 7th July 2003 on unaided post.Approval to his services was granted by the Education Officer byorder dated 21st November 2011 from the date of his joining.Respondent No.3, the educational institution wherein he isworking, runs the secondary school, namely DnyandipMadhyamik Vidyalaya having 5th to 10th standards at village wp-3105.213Gunjalwadi, Taluka-Sangamner, District-Ahmednagar. One ShriPramod Maruti Gunjal, who was working as assistant teacher inthe said school retired on 31st May 2019, on superannuation andtherefore, the petitioner became eligible for transfer to the saidvacant post and accordingly, he was transferred by order dated28th November 2020. The management submitted the proposalto the Education Officer seeking approval to the transfer of thepetitioner on 14th December 2020, however, it came to berejected by order dated 24th December 2020. The ground forrejection of the proposal was that as per the letter given by theCommissioner of Education, Pune on 31st March 2017, process ofabsorption of surplus teachers was going on and therefore theapproval cannot be granted. Further, it says that there is noprovision for transfer in 100% pay-scale as well as there is noprovision of promotion from D.Ed. pay-scale to B.Ed. pay-scale.The third ground for rejection was that the finance department,by Government Resolution dated 4th May 2020, has giveninstructions for not to grant approval. All the reasons stated areillegal and therefore the impugned order deserves to be setaside. Hence this Petition. wp-3105.2144.Mr. Ashok Nanasaheb Kadus, the Education Officer(Secondary), Zilla Parishad, Ahmednagar has filed affidavit-in-reply on behalf of respondent No.2. According to him, bynotification dated 8th June 2020 vide amendment to theMaharashtra Employees of Private Schools (Conditions ofService) Rules 1981 (for short “the MEPS Rules”), Rule 41A, theGovernment has completely banned the transfers of teachersfrom primary to higher primary, higher primary to secondary andsecondary to higher secondary. Further, ban is also imposed bythe School Education and Sports Department, Mumbai by issuingGovernment Resolution dated 1st April 2021 in respect of transferof teachers on unequal posts. He, thus justifies the rejection ofthe proposal. 5.The petitioner has filed rejoinder, wherein by takingrecourse to the decision of this Court, he says that theGovernment Circulars, which are contrary to the provisions ofthe MEPS Rules, cannot be the ground for rejection of theproposal. He has submitted that he came to be appointed as anassistant teacher on unaided post in D.Ed. pay-scale but in themeantime he has acquired B.Ed. Degree and he is the senior-
Decision
wp-3105.215most teacher in unaided category and therefore, he was eligiblefor transfer. 6.Heard learned Advocate Mr. Shelke for the petitioner,learned AGP Mr. Shirse for respondent Nos.1 and 2 and learnedAdvocate Mr. Wagh for respondent No.3. Perused theGovernment Resolutions and other documents produced by thepetitioner as well as the respondents.7.The fact which is not in dispute is that the petitioner cameto be appointed as assistant teacher on D.Ed. pay-scale on 7thJuly 2003 and now he has been transferred to the post of B.Ed.pay-scale. This Court in Writ Petition No.11648 of 2019(Sarjerao Dattatray Wagh vs. the State of Maharashtra andothers), decided on 23rd September 2019, relied on the decisionin Writ Petition No. 1493 of 2018 ( Suryakant S/o JanardanMuge vs. the State of Maharashtra and others), with connectedwrit petitions, by this Court, dated 4th July 2019, laying down theguidelines for considering the proposal seeking approval to thetransfer of the assistant teachers from unaided to aided divisionsand then disposed of the Writ Petition No.11648 of 2019 by wp-3105.216setting aside the impugned order therein with direction to decidethe proposal afresh in view of those guidelines. Herein this case,from the impugned order dated 24th December 2020, we areunable to get whether those guidelines have been followed ornot. The guidelines in Writ Petition No.1493 of 2018 are given inParagraph No.23, which runs thus:-“23.Upon confirming about the adherence to the seniority listthat is those who are transferred to aided post are senior mostamongst those working on unaided post and that the roster ismaintained, so also their appointments are approved on unaidedpost, the Education Officer shall grant approvals to theirappointments. If the assistant teachers who have been transferredfrom unaided to aided posts had not completed three years whileworking on unaided post, they they will be granted approvals asShikshan Sevaks for a period they would complete three yearsfrom the date of their initial appointments and thereafter asassistant teachers. Of course, upon satisfying about the seniorityand roster. However, the Education Officer shall not reject theproposal on the ground of circular dated 28.06.2016 and thatthere is availability of surplus teachers. The Education Officer willhave to consider that services of these petitioners are approved onunaided posts.”8.Further, it appears that certain Circulars have been reliedupon by the Education Officer while deciding the issue i.e.transfer of an employee from unaided post to aided post, toanother school run by the same management. In Ajay wp-3105.217Vishwanath Kharade vs. State of Maharashtra and others,2022(2) Mh.L.J. 649, the Co-ordinate Bench at Principal Seat,has held that, the Government Resolution dated 1st April 2021cannot apply retrospectively to the transfer of the petitionertherein as assistant teacher from unaided to aided school, whichwas the transfer prior to the date of Government Resolution.Herein this case also the transfer is dated 28th November 2020and the Government Resolution dated 1st April 2021 has alsobeen relied in Paragraph No.7 of the affidavit-in-reply filed byrespondent No.2, contending that it imposes ban on transfer ofteachers on unequal post. Therefore, we are also of the opinionthat the said Government Resolution dated 1st April 2021 has noapplication to the transfer of the present petitioner which wasprior to that date. Further it has been held in Ajay VishwanathKharade vs. State of Maharashtra and others (supra) that thetransfer of an employee from unaided post to an aided post inanother school run by same management is permissible in termsof Rule 41 of the Maharashtra Employees of Private Schools(Conditions of Service) Rules, 1981 and any Government Circularcontrary to the provision under the said Rule cannot override theRule. Therefore, the said transfer of the present petitioner ought wp-3105.218to have been looked at from the said angle. Of course, thisdecision in Ajay Vishwanath Kharade vs. State of Maharashtraand others (supra) was pronounced on 24th August 2021 i.e.after the impugned order. Thus, on account of two grounds, thatthe impugned order does not reflect that the guidelines issued inthe decision in Writ Petition No. 1493 of 2018, dated 4th July2019 were followed and also that the Government Resolutiondated 1st April 2021 cannot be made applicable retrospectively,the impugned order deserves to be set aside. 9.Another fact which is also required to be noted is, as perthe record with respondent No.2 it is not clear to the departmentthat the petitioner has acquired B.Ed. Qualification. Therefore,while deciding the proposal if respondent No.2 was in need ofany documents, then he was empowered to call for thosedocuments, which course has not been adopted. All these thingsare prompting us to allow the Petition partly and to remand theproposal to respondent No.2, for its fresh consideration. 10.For the above said reasons, we pass following order:- wp-3105.219 O R D E R(I)Writ Petition stands partly allowed.(II)The impugned order dated 24th December 2020 passed byrespondent No.2 rejecting the proposal for approval to thetransfer of the petitioner as assistant teacher from unaided postto aided post, stands quashed and set aside.(III)Respondent No.2 to consider the said proposal afresh.Respondent No.2 can call for the documents, if needed, fromrespondent Nos.3 and 4, in view of the statement by thepetitioner that he has acquired B.Ed. Degree.(IV)While considering the proposal, respondent No.2 to followthe guidelines laid down in Paragraph No.23 of the decision inWrit Petition No.1493 of 2018 dated 4th July 2019 and thedecision in Ajay Vishwanath Kharade vs. State of Maharashtraand others (supra).(V)Respondent No.2 to decide the said proposal expeditiouslyand preferably within a period of FOUR MONTHS from today.(VI)Rule is made absolute in above terms.[S.G. CHAPALGAONKAR] [SMT. VIBHA KANKANWADI] JUDGE JUDGEasb/FEB24