SAYYED MUBARAK BEGUM HASANALIVERSUSTHE STATE OF MAHARASHTRA AND OTHERSMr v. P. Patil
Facts
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD24 WRIT PETITION NO. 10481 OF 2018ARUN SONU MOREVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITH WRIT PETITION NO. 10487 OF 2018UKHARDU BHILA WALDEVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10489 OF 2018VIJAY NARAYAN DHANRALEVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10511 OF 2018RAJENDRASING WAMANSING PATILVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 5626 OF 2019SAHEBRAO HARI CHAVANVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10480 OF 2018MOHAN BHAGWAN TADEVERSUSTHE STATE OF MAHARASHTRA AND OTHERS24 WP10481.18.odt1 of 9 WITHWRIT PETITION NO. 10541 OF 2018MOHAMMAD KALIM SHAIKH CHANDVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10491 OF 2018ABDUL MUNAF ABDUL LATIFVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10486 OF 2018SHILA MANOHAR SONARVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10540 OF 2018SAIED AHMED KHALIDUJJAMA KHANVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10542 OF 2018SAHEBRAO RAMDAS SHINDEVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10493 OF 2018ABDUL SALAM ABDUL RAUFVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10488 OF 2018SHAIKH NAIM SHAIKH IBRAHIMVERSUSTHE STATE OF MAHARASHTRA AND OTHERS24 WP10481.18.odt2 of 9 WITHWRIT PETITION NO. 10477 OF 2018AISHA SHAIKH AKBARVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10490 OF 2018PUSHPA DILIP WAGHVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10479 OF 2018MOMIN MUSTAQ SHAIKH AMIRVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10485 OF 2018KAZI SHAIKH IBRAHIM ABDUL RAZAQVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10492 OF 2018SAMADKHAN MAJIDKHANVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10484 OF 2018VISHNU CHIMAN THAKAREVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10539 OF 2018DILIP BHASKAR WAGHVERSUSTHE STATE OF MAHARASHTRA AND OTHERS24 WP10481.18.odt3 of 9 WITHWRIT PETITION NO. 10482 OF 2018RAJESH SUDHAKAR FIRKEVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10478 OF 2018PUSHPALATA SHAMBHU SALIVERSUSTHE STATE OF MAHARASHTRA AND OTHERSWITHWRIT PETITION NO. 10483 OF 2018SAYYED MUBARAK BEGUM HASANALIVERSUSTHE STATE OF MAHARASHTRA AND OTHERSMr. V. P. Patil, Advocate for the PetitionersMr. K. S. Hoke Patil, AGP for the Respondent/StateMr. M. S. Sonawane, Advocate for Respondent No.2.CORAM: R. M. JOSHI, J.DATE: 18th AUGUST, 2025PER COURT :-1.These Petitions involved common questions of facts and lawand hence, by consent of both sides heard finally at the stage ofadmission and decided by this common order.2.The facts which led to the filing of these Writ Petitions can benarrated in brief as under:-(i)The Petitioners are Assistant Teachers working to ZillaParishad. In the year 2013, Zilla Parishad has undertaken process of24 WP10481.18.odt4 of 9 transfer of the teachers. The Petitioners and other teachers beingaggrieved by the said order of transfers preferred Petitions before thisCourt challenging the said order of transfer, being Writ Petition No. 4566of 2013 and others.(ii)Admittedly during the pendency of the Petition, there was nointerim stay to the order of transfer, however, the Division Bench of thisCourt has passed order on 22/07/2014 in following terms:“(a)In case, the posts are vacant at the place where thepetitioners had requested for transfer, they should beimmediately posted at that place.(b)The petitioners, who had made requests for transfer onthe basis of couple convenience, their request may also beconsidered and if vacancy exists, they may beaccommodated. (c)In case, there is no vacancy available at the place oftheir request, then, petitioners shall be continued at theplace where they are transferred, till the end of thisacademic year and shall be considered positively for theirtransfer at the place of their choice, i.e. as per requestapplication which they have already given.(d)The modalities shall be worked out effectively so as toaccommodate all the petitioners.24 WP10481.18.odt5 of 9
Legal Reasoning
(e)The respondents shall also consider the cases of thosepetitioners, who have made request for transfer on theirmedical ground or of their spouses/kins, as per theavailability of vacancies, expeditiously.”(iii)The Division Bench in this order has granted leave to theteachers to make an Application to the Zilla Parishad for considering theperiod of their absence as admissible leave. It was directed to considerthe Application if filed on its own merits.(iv)Pursuant to the said direction, the Petitioners madeApplications to the Chief Executive Officer of Zilla Parishad for treatingtheir period of absence as the earned leave. There is no dispute aboutthe fact that in respect of all Petitioners, sufficient earned leave wasavailable to the credit. Chief Executive Officer by order dated 19/09/2016rejected the said request on the ground that the Petitioners have filedthe petition challenging the order of transfer without seeking permissionof the employer. Hence, the said period of absence was considered aswithout pay. Against the said order passed by Chief Executive Officer anAppeal came to be filed under Rule 14 of the Maharashtra Zilla ParishadDistrict Services (Discipline And Appeal) Rules, 1964 before theAdditional Commissioner, Nashik, Division Nashik. The AppellateAuthority dismissed the Appeal, hence these Petitions. 24 WP10481.18.odt6 of 9 3.Learned Counsel for the Petitioners has drawn attention ofthe Court to the various orders passed by the Division Bench of thisCourt in Writ Petition No. 4566 of 2013 and other petitions. It is hissubmission that while finally disposing of the petitions the Division Benchof this Court has granted leave to the Petitioner to make an Applicationbefore the Authority for leave and the Authority was directed to decidethe same on merit. It is his submission that except for the reason thatthe Petitioners had filed petition against the order of transfer withoutleave of the employer, their Applications were not rejected on any otherground. According to rejection of request on the said ground is whollyunsustainable in law.4.Learned Counsel for the Zilla Parishad vehemently resistedthe Petitions by pointing out the fact that during the pendency of thePetitions in the earlier round of litigation, there was no interim reliefgranted by this Court to the transfer order and in spite of the samePetitioners remained absent. In such circumstances, according to him theorder of treating the leave period as without pay is justified. He furtherargues that the Petitioners are teachers and their absence has causedprejudice not only to the administration but to the students and on thiscount too impugned order needs no interference.5.At the outset it needs to be recorded that the Petitioners24 WP10481.18.odt7 of 9 were not required to take any leave of Zilla Parishad before challengingthe order of transfer before this Court by filing these petitions. Perusal ofthe order passed by the CEO indicates that only on this ground, therequest for treating the period of absence as leave with pay i.e. earnedleave is rejected. Though the Appellate Authority has sought to take intoconsideration the inconvenience of the administration so also theobligations of the teachers, this is nothing but supplanting the reasonwhich were not there in the order passed by CEO. Needless to say that itis not permissible for the Appellate Authority to supplant the reasonwhich are absent in the original order.6.Suffice is to say that only for the reason that there was apetition filed by the Petitioners challenging the order of transfer withoutseeking leave of Zilla Pairshad, their request for considering/ treating theperiod of absence as earned leave is rejected. Since this is the onlyreason recorded for rejecting the Application, order impugned is notsustainable in law. Admittedly, to the credit of all the Petitioners therewere sufficient earned leaves. Thus, it was open for the Chief ExecutiveOfficer to treat the said period adjusting as earned leave. It seems thatonly for the reason that the Petitioners had challenged the order passedby the Zilla Parishad and out of grudge against the Petitioners’, leaveabsence was treated as without pay.24 WP10481.18.odt8 of 9 7.In the afore stated facts, more particularly in view of theobservations made by the Division Bench of this Court holding that thetransfers of Petitioners being not justified and it is only for the reasonthat since the order passed by the Division Bench finally was after aboutthe year of the filing of the petition, it was thought not necessary tocause interference therein.8.In such circumstances, when there are adverse observationsmade by Division Bench of this Court with regard to the correctness ofthe transfers, this is a fit case to cause interference in the impugnedorder.9.Hence, impugned orders are set aside. The period of absenceof Petitioners for the period concerning in these Petitions, be treated asearned leave and the same adjusted against the leaves availableaccordingly. Petitions therefore, are allowed in above terms. (R. M. JOSHI, J.)ssp24 WP10481.18.odt9 of 9