High Court · 2024
Facts
1 953.WP-8111 & 8136-2023.doc (Correction has been carried out in view of speaking to the minutes order dated 13.08.2024) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Writ Petition No. 8111 / 2023Huma d/o Mohammad Bin Sairy,Age : 38 years, Occu. Service. R/o Old Bhaji Market, Karanja Road,Beed. ...PetitionerVersus1.State of MaharashtraThrough it’s Secretary, School Education and Sports Department,Mantralaya, Mumbai.2.The Deputy Director of Education,Aurangabad Division, Aurangabad.3.The Education Officer (Secondary),Zilla Parishad, Beed.4.The President/Secretary,Anjuman Ishat-E-Talim, Beed.R/o Ashef Nagar, Near Beed High School,Beed.5.The Head Master,Milliya Girls High School & Junior College,Beed. ..RespondentsWITHWrit Petition No. 8136 / 2023Amar Bin Abood ChoushAge : 33 years, Occu. Service. R/o Shahu Nagar, Bagwan Galli,Beed. ...Petitioner 2 953.WP-8111 & 8136-2023.doc Versus1.State of MaharashtraThrough it’s Secretary, School Education and Sports Department,Mantralaya, Mumbai.2.The Deputy Director of Education,Aurangabad Division, Aurangabad.3.The Education Officer (Secondary),Zilla Parishad, Beed.4.The President/Secretary,Anjuman Ishat-E-Taleem, Beed.R/o Ashef Nagar, Near Beed High School,Beed.5.The Head Master,Milliya Girls High School & Junior College,Beed. ..Respondents _ _ _Advocate for the Petitioners in Writ Petitions : Mr. Vijay A. Dhakne A.G.P. for Respondent Nos. 1 to 3 /State : Mr. K.N. LokhandeAdvocate for Respondent No.4 and 5 : Mr. Sayyed Tauseef Yaseen _ _ _ CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ. DATE : 11 JUNE 2024 ORAL JUDGMENT [ Per Shailesh P. Brahme, J. ] :.Rule. Rule is made returnable forthwith. Heard the matterfinally with the consent of both the parties. 3 953.WP-8111 & 8136-2023.doc 2.Both the petitions are being decided by this common judgmentas facts and circumstances are identical. They pertain to selfsameeducation institution and the school in question.3.Both the petitioners are challenging rejection of proposal forapproval to their transfer from unaided school to the aided schoolrun by the same respondent no.4/Educational institution. Therespondent no.4 is a minority institution running various aidedschools and one unaided D.Ed. College at Beed.4.Petitioner in Writ Petition No.8136/2023 was appointed on01.09.2017 in unaided Milliya Urdu D.Ed. College, Beed as Assistant ArtTeacher. His appointment was approved by the respondentno.3/Education Officer vide order dated 03.10.2018. Respondentno.4/management transferred him to the respondent no.5/aidedsecondary and higher secondary school due to vacancy of apermanent sanctioned post. Resolution was passed on 31.08.2018 andorder of transfer was issued on the same date. A proposal seekingapproval to the transfer was rejected by order dated 19.05.2023which is under challenge.5.Petitioner in Writ Petition No.8111/2023 was appointed asAssistant Teacher on 01.12.2018 in unaided Milliya Urdu D.Ed. College.Her appointment was approved by the Education Officer vide orderdated 21.09.2019. A vacancy was created in the respondent
Legal Reasoning
6 953.WP-8111 & 8136-2023.doc transferred from unaided school to aided school. As per Rule 41(5)(a),when an employee is willing, it is permissible for the management toeffect transfer from Junior College of Education to the SecondarySchool subject to availability of the vacancies. We find that thetransfer in question was permissible under Rule 41(5)(a). It is also notdisputed that in both the petitions, permanent vacancies ofsanctioned posts occurred which compelled the management toeffect the transfers.13.There is no provision in Rule 41 to import or to read theparameters of Section 5(1) of M.E.P.S. Act. It is only by amendedprovision of Rule 41A(1)(a), the availability of surplus persons as perSection 5(1) of the Act is to be ascertained. However as we haverecorded earlier the transfer orders were effected on 31.08.2018 and30.09.2019 respectively, therefore the amended provision will have noapplication. We are therefore of the considered view that reasonassigned by Education Officer in rejecting the proposal is whollyunsustainable.14.There is one more facet of the matter that is special privilegesconferred by Article 30(1) of the Constitution of India. A reference ismade to judgment delivered by Division Bench in the matter of TheCanossa Society & Another (supra). In that case, a minorityinstitution was directed to accommodate surplus teachers. Upholdingthe special privilege conferred by Article 30(1) of the Constitution of 7 953.WP-8111 & 8136-2023.doc India, impugned order was quashed. The relevant paragraphs are asfollows :21. Adverting to the settled legal position as discussed herein above it becomes clear that a minority“educational institution has a fundamental right to establish and administer an educational institution ofits choice. This right encompasses several facets one of them being a right to appoint teaching and non-teaching staff. It is held that the right to appoint teaching and non-teaching staff is an integral part of aright conferred under Article 30 of the Constitution of India namely to administer a minority educationalinstitution. Merely because aid has been granted to a minority institution it would not loose its characteras a minority institution and cease to enjoy constitutional guarantee conferred on it by virtue of theprovisions of Article 30 of the Constitution of India. The grant of aid would not convert a minorityinstitution into a departmentally conducted school or a department of the Government so that itsautonomy of administration of an educational institution of its choice conferred under Article 30 of theConstitution of India would stand restricted. The State would be within its right to impose only suchrestrictions so as to maintain standards of education and to check any kind of maladministration.However, the autonomy in regard to day to day administration of the minority institution cannot be takenaway by imposing any condition or restrictions which would take away the minority character of aminority institution and infringe the Constitutional guarantee conferred by Article 30 of the Constitutionof India.22.There is merit in the submissions of the learned counsel for the petitioners. In the present case bythe impugned directive dated 17.6.2011 the respondent nos. 1 to 3 have foisted upon the petitioners theappointment of the respondent no.4 who is rendered a surplus employee in view of the closure of a schoolsituate in Nanded District. Admittedly, there is no consultation with petitioner no.2-school before suchappointment is thrusted upon the petitioner no.2-school. The respondent-authorities have also failed totake into consideration the fact that there is no vacancy as urged by the petitioners before theauthorities, in view of the appointment of Mrs.Jyotsna Thorat who came to be appointed on 30.9.2006 andwhose appointment was approved on 18.8.2007. Consequence of the impugned order issued by therespondent no.1 is that the approved appointment of Mrs.Jyotsna Thorat as validly done by the petitionerNo.2-institution in exercise of its right to administer a minority educational institution is being interfered,coupled with a consequence that such valid appointment would be required to be cancelled. In ourconsidered opinion it is impermissible for respondent nos. 1 to 3 to resort to such an action of foistingappointment of respondent no.4 on the petitioner no.1-institution as it directly infringes the fundamentalright guaranteed under Article 30 (1) of the Constitution of India conferred on the petitioner no.2institution to administer and establish petitioner no.2 school. The State authorities cannot indirectly do anact which cannot directly be done. In other words, when the State has no authority to make appointmentof teaching and non-teaching staff in respect of a minority institution,even if aid has been granted, suchaction of making an appointment cannot be taken by directing absorption of a surplus employee. This isnothing but, making appointment of a staff member in a minority institution. The law confers no suchauthority and power with the State Government to thrust an employee rendered surplus in other schools to 8 953.WP-8111 & 8136-2023.doc be absorbed by a minority institution. Rule 25 A of the Maharashtra Employees of Private Schools(Conditions of Services) Rules cannot be made applicable to appoint surplus staff in a minority institutionunless the minority institution is consulted and concurs for such an appointment. We, therefore have nohesitation to conclude that the impugned order dated 17.6.2011 issued bay respondent no.1 is whollyarbitrary and illegal as the same infringes on the petitioner's right guaranteed under Article 30 (1) of theConstitution of India.”.We follow the ratio laid down by the coordinate bench. For thatreason also, impugned orders are unsustainable. 15.Impugned orders refer to the circular dated 28.06.2016. Theselfsame circular suffered criticism and was held to be contrary tosubstantive provision contained in Rule 41. For that purpose, ourattention is invited by learned Counsel for the petitioners to thejudgment rendered by the Division Bench in the matter of SuryakantJanardan Muge Vs. State of Maharashtra and Others in Writ PetitionNo.1493/2018 and connected matters. We prefer to reiterateparagraph no.17 :17. The question would be whether by way of an executive instructions, the powers of the management“under Rule 41 of MEPS Act for transfer of an employee can be circumscribed, curtailed and eroded. Rule 41is framed under the Rule making power of the Government as provided under Section 13 of the MEPSRules. The MEPS Rule is piece of subordinate legislation. It is trite that, executive instructions cannotoverride the statutory Rules. Precisely, this has been held by the Division Bench of this Court at PrincipalSeat at Bombay in Writ Petition No.5313 of 2017 with connected writ petitions decided on 25.04.2019. TheDivision Bench in the said judgment held that :The circular dated 28.06.2016 can hardly be said to be Government instructions. It has no statutory force in law. Rule 41 of the MEPS Act which is the subordinate legislation, the administrative decisions which run contrary to them cannot be held to be valid in law. We find that, since Clauses 1and 2 of the said circular, run contrary to the provisions of the subordinate legislation as found in Rule 41, the same would not be valid in law. While delivering the said judgment, the Division Bench considered the earlier judgments of thisCourt. Subclauses 1 and 2 of Clause 3 of the circular has already been held to be not valid in law by theDivision Bench. There is no reason for us to take different view. The impugned circular as it affects the 9 953.WP-8111 & 8136-2023.doc rights of the management to transfer, as such, same is improper and does not have any enforceablestatus.”.Thus, we have no manner of doubt that the impugned ordersare unsustainable and liable to be quashed.16.Impugned orders in both petitions passed on 19.05.2023 by therespondent no.3/Education Officer are quashed and set aside. Boththe matters are relegated to the respondent no.3/Education Officerto consider the proposal seeking approval to the transfer of thepetitioners afresh on its own merits.17.The respondent no.3 shall not assign the selfsame reasonswhich we have disapproved in the present judgment. He shallconsider the proposal by extending opportunity to the petitioners andthe management and decide it within a period of four weeks fromtoday.18.Both the petitions are disposed of. Rule is made absolute inabove terms. SHAILESH P. BRAHME MANGESH S. PATIL JUDGE JUDGENajeeb..
Arguments
4 953.WP-8111 & 8136-2023.doc no.5/school due to promotion of one of the teachers.Respondent/management passed resolution on 30.09.2019 and on thesame date transferred petitioner to the respondent no.5. Proposalseeking approval to the transfer of the petitioner came to berejected by the respondent no.3/Education Officer vide order dated19.05.2023 which is under challenge.6.Pertinently in both the petitions, proposals seeking approval fortransfers are rejected only on the ground that circular dated28.06.2016 prohibited grant of approval if surplus teachers wereavailable. In both the petitions, respondent no.3/Education Officer hasfiled affidavit-in-reply raising only plea to justify impugned ordersthat orders of transfers are contrary to Rule 41 (A)(1)(d) of theMaharashtra Employees of Private Schools (Conditions of Services)Regulation Act, 1977 and Rules, 1981 (hereinafter referred to as ‘Rules’for the sake of brevity).7.Learned Counsel for petitioner submits that respondentNo.4/Educational Institution is a Minority Institution declared by theCompetent Authority and has a special privileges as envisaged byArticle 30(1) of the Constitution of India. It is further submitted thatorder of transfers are in-consonance with Rule 41 (5). Both thepetitioners have consented for the transfers. Impugned orders arecontrary to law laid down by the Division Bench in the matter of TheCanossa Society & Another Vs. The Commissioner, Social Welfare & 5 953.WP-8111 & 8136-2023.doc Others, 2015(3) ALL MR 575. It is further contended that amendedprovisions of Rule 41A cannot be applied retrospectively.8.Per-contra, learned AGP would submit that in view ofprovisions contained in Rule 41A(1)(d) of the Rules, transfer of thepetitioners from unaided D.Ed. School to aided Higher SecondarySchool is prohibited.9.Respondent No.4 and 5 support the petitioners. They have filedaffidavit-in-reply reiterating that respondent no.3 is minorityinstitution and the transfer of the petitioners are with their consent. 10.Having heard both the Counsels, we find it expedient to referto the provisions of amended Rule 41A(1)(d) which is as follows :41A. Conditions for transfer of teacher front un-aided to partially aided or aided school or“division…(1)…(d) the transfer shall be made in equal or same cadre. The transfer shall not be made from primaryto higher primary, higher primary to secondary or secondary to higher secondary or highersecondary to D.EI. Ed. Schools or vice-versa;”11.The amendment is introduced on 08.06.2020 incorporating Rule41A. In both the petitions, the orders of transfer were effected priorto 08.06.2020. Amended provisions of Rule 41A(1)(d) cannot be madeapplicable retrospectively. When the transfers were effected, theywere governed by Rule 41.12.It is not disputed in both the petitions that petitioners werewilling for the transfers and obviously so because they were being