High Court · 2024

Legal Reasoning

(1) wp-6610-2022.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.6610 OF 2022Shrirang S/o. Pandharinath Padature, Age: 37 Years, Occu: Service as Assistant Teacher, R/o. Yashwant Higher Secondary School, Ahmedpur, Tal. Ahmedpur, Dist. Latur...PetitionerVersus1.The State of MaharashtraThrough its Secretary, School Education and Sports Department, Mantralaya, Mumbai-322.The Deputy Director of EducationLatur Region, Latur.3.The Education Officer (Secondary),Zilla Parishad, Latur, Taluka District Latur4.Tagore Shikshan Samiti,Ahmedpur, Tal. Ahmedpur, Dist. Latur, Through its Secretary.5.Yashwant Secondary and Higher Secondary Vidyalaya,Ahmedpur, Tal. Ahmedpur, Dist. Latur, Through its Headmaster/Principal...Respondents …Mr. V. D. Gunale, Advocate for the Petitioner.Mr. P. S. Patil, Addl. GP for Respondent Nos.1 to 3.Mr. V. S. Kodale, Advocate for Respondent Nos.4 and 5. … CORAM : SMT. VIBHA KANKANWADI AND S. G. CHAPALGAONKAR, JJ.JUDGMENT RESERVED ON :- 04th APRIL 2024.JUDGMENT PRONOUNCED ON :- 15th APRIL 2024.JUDGMENT (Per: S. G. Chapalgaonkar, J.):- 1.Rule. Rule made returnable forthwith. With the consentof the parties, matter is taken up for final hearing at the stage ofadmission. (2) wp-6610-2022.odt2.The petitioner approaches this Court under Article 226 ofthe Constitution of India impugning order dated 20.04.2022 passedby respondent no.2-Deputy Director of Education, thereby decliningto grant approval to his transfer from unaided post to aided post inrespondent no.5-School. The petitioner seeks consequential Writ ofMandamus to grant approval to the proposal made by theManagement.3.The petitioner contends that in response to theadvertisement dated 04.04.2013, he applied for the appointment onthe post of an Assistant Teacher in respondent no.5-School, run byrespondent no.4-Trust. He was interviewed and being qualified,eligible and suitable came to be appointed against the reservedpost for OBC category. He joined the service in pursuance of theappointment order. Since 2014, he served as an Assistant Teacheron non grant-in-aid basis. His services were approved by theEducation Officer as an Assistant Teacher on non-grant basis.Since, his performance was up to the mark and respondent no.5was in need of an Assistant Teacher to occupy the vacancy thatarose on account of unfortunate death of Shri. B. S. Biradar, he hasbeen transferred vide order dated 28.02.2020 from unaided to aidedpost in the same school. The proposal for approval to his transferwas forwarded to respondent no.2-Deputy Director of Education.However, respondent no.2-Deputy Director of Education declined togrant approval relying upon Clause 4 of the GovernmentResolution dated 01.04.2021. According to the petitioner, the orderis unsustainable in law and consequential directions are requiredto be issued to the Deputy Director of Education by setting asidethe impugned order.4.The respondent nos.4 and 5 filed affidavit in support ofthe petitioner, whereas respondent no.2-Deputy Director of (3) wp-6610-2022.odtEducation filed his affidavit contending that the transfer of thepetitioner is from Secondary School (unaided) to Higher SecondarySchool (aided), which is inconsistent with the existing Rules.Affidavit states that such a transfer would be in contravention withthe Government Resolution dated 01.04.2021. Therefore, theimpugned order is justified. 5.We have heard Mr. Gunale, learned Advocate appearingfor the petitioner, Mr. Patil, learned Addl. G.P. for respondentnos.1 to 3 and Mr. Kodale, learned Advocate for respondent nos.4and 5.6.Mr. Gunale, learned Advocate appearing for thepetitioner would submit that the petitioner possess requisitequalification. He discharged his duties on unaided post for morethan five years. Considering the administrative exigencies of theManagement, the petitioner has been transferred against thevacancy in Higher Secondary School. He would submit thatlooking to the provisions of Rule 41 of the Maharashtra Employeesof Private Schools (Conditions of Service) Regulation Rules, 1981(for short ‘MEPS Rules, 1981), there is no prohibition for suchtransfer. The petitioner would be filing an undertaking to acceptsalary commensurate to his post in Secondary School. Mr. Gunale,learned Advocate places his reliance upon the order passed byNagpur Bench of this Court in case of Akola Education Society& Ors. Vs. State of Maharashtra & Ors., Writ PetitionNo.7030/2019 dated 05.11.2019 to contend that such transfer ispermissible provided that the pay in the Junior College shall befixed at the same stage of pay as the existing pay or at theminimum of scale of pay in the Junior College, whichever is higher.7.Mr. Patil, learned Addl. G.P. appearing for respondentnos.1 to 3 would submit that in view of the provisions of Rule 41-A (4) wp-6610-2022.odtof the MEPS Rules, 1981, the transfer from Secondary School toHigher Secondary School is prohibited. Similar was theprescription under Government Resolution dated 01.04.2021,particularly Clause 4. The Deputy Director of Education takinginto consideration the aforesaid aspects rightly declined to grantapproval.8.We have considered the submissions advanced onbehalf of the learned Advocates appearing for the respectiveparties. The provisions of Rule 41 of the MEPS Rules, 1981empowers the Management to transfer the employee from oneschool to other school or one division to other division in the sameschool. Rule 41 of the MEPS Rules, 1981 reads thus:““41. Transfers. - (1) Subject to the provisions of this rule the Managementconducting more than one school shall not transfer any of itsemployees from one school to another except on administrativegrounds, promotion or at the request of the employee concerned, if itis administratively convenient to do so.(2)Save in exceptional cases, and unless reasons are recorded inwriting by the Management, such transfers shall not be effected inthe middle 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 asadmissible to them.(4)The expenditure on Travelling allowance and Dailyallowance, if any, at the rates applicable to the Governmentemployees of the comparable status, shall be borne by the (5) wp-6610-2022.odtManagement. If the transfer is at the request of the employee, thisexpenditure shall be borne by the employee concerned. Providedthat the transfer involves change of headquarters, the joining timeto be allowed to an employee shall be limited to six days (excludingSunday) and actual days of journey. Subject to this limit, the periodof joining time shall be treated as "duty" for all purposes :Provided 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 secondaryschools and a Junior College of Education -(a) Teachers in a Junior College of Education shall not betransferred to a secondary school against their will Suchtransfers may, however, be made if they are at employees ownrequests, subject to availability of vacancies in secondaryschools. In the event of such a transfer, the pay drawn by theteacher in the Junior College of Education shall not beprotected. He shall be deemed to be working in a secondaryschool during the period he worked in the Junior College ofEducation, and his pay shall be accordingly refixed on hisjoining the secondary school.(b) Teachers in secondary school shall not be transferred to aJunior College of Education against their will. Such transfersmay, however, be made if they are at the employees' ownrequests, subject to the following conditions, namely :(i) Vacancies should be available in the Junior College ofEducation;(ii) The concerned employee shall retain the same place inthe common seniority list; and (6) wp-6610-2022.odt(iii) Their pay in the Junior College of Education shall befixed at the same stage of pay as their existing pay or atthe minimum of the scale of pay in the Junior College ofEducation, whichever is higher.]”9.It appears that Rule 41-A has been introduced in theMEPS Rules, 1981 with effect from 01.03.2020. However, in thiscase issue of transfer effected on 28.02.2020 is subject matter. Theamended provision of Section 41-A cannot be retrospectively madeapplicable in the facts of the case. So far as GovernmentResolution dated 01.04.2021 is concerned, this Court has alreadyheld that said Government Resolution is invalid, so far as it isinconsistent with the statutory provisions. In that view of thematter, case of the petitioner will have to be examined in terms ofRule 41 of the MEPS Rules, 1981, as it stands on 01.03.2020. Thebare reading of the Rule 41 would show that there is no prohibitionfor transfer of the employee from unaided to aided division. Sub-Clause 5 of Rule 41 deals with the transfer by the Management,who runs Secondary School and Junior College of Education. Inthat case, the law stipulates that pay shall be adjusted. However,such stipulation is not found in case of transfer from SecondarySchool to Higher Secondary School or Higher Secondary School toJunior College. Overall survey of the aforesaid provisions wouldshow that the impugned order is based on misconception ofapplicable provisions of law. The issue raised in the present case issquarely covered by the judgment of this Court in case of AkolaEducation Society & Ors. (supra). We are inclined to follow thesame course. Consequently, the impugned order deserves to bequashed and set aside. Hence, we proceed to pass following order:ORDERa.Writ Petition is partly allowed. (7) wp-6610-2022.odtb.The impugned order dated 20.04.2022 passed byrespondent no.2-Deputy Director of Education, Latur Region, Laturis hereby quashed and set aside. c.The respondent no.2-Deputy Director of Education, LaturRegion, Latur shall forthwith grant approval to the transfer of thepetitioner from unaided to aided school. d.In case of the difference in pay scale, the pay of thepetitioner be fixed at the same stage of pay as the existing pay or atthe minimum of scale of pay in the Higher Secondary School,whichever is higher.e.Writ Petition is disposed of.f.Rule is made absolute in above terms. (S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI) JUDGE JUDGEDevendra/April-2024