High Court
Legal Reasoning
{1} 1279.21 wp (1).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 1279 OF 2021Smt. Anjana d/o. Madhav ChannagireAge 39 years, Occ. Service as Assistant Teacher,R/o. Bharat Housing Society,Nanded Road, Latur... PetitionerVersus1.The State of MaharashtraThrough its Secretary,School Education and Sports Department,Mantralaya, Mumbai.2.The Education Officer (Primary)Zilla Parishad, Latur,Taluka and District Latur.3.Latur Education Society, LaturThrough its President/Secretary,Shahu Chowk, Nanded Road, Latur,Taluka District Latur.4.The Head Master,Jawahar Primary School,Shahu Chowk, Nanded Road,Latur, Taluka District Latur. .. Respondents.Mr. V.D. Gunale, Advocate for petitioner,Mr. P.S. Patil, AGP for respondent No.1.Mr. U.B. Bondar, Advocate for respondent No.2.Mr. A.M. Sabnis, Advocate for respondent Nos. 3 and 4. CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. DATE : 21st February, 2024. JUDGMENT [ S.G. CHAPALGAONKAR, J.] :- {2} 1279.21 wp (1).odt1.Rule. Rule made returnable forthwith. Heard finally byconsent of learned advocate for respective parties.The petitioner approaches this Court under Article 226 of theConstitution of India thereby impugning the order dated 28.10.2020passed by the respondent No.2 - Education Officer (Primary), ZillaParishad, Latur, thereby refusing to approve her transfer from un-aidedto aided post in respondent No.4 School. The petitioner seeks to issuewrit of Mandamus against respondent No.2 to grant approval to hertransfer.2.The petitioner contends that she is qualified as B.A. B.Ed. Inpursuance of the advertisement issued by respondent No.3 LaturEducation Society, she had responded and after going through theselection process, she was appointed as Assistant Teacher withrespondent No.4 w.e.f. 24.4.2013. Her services were approved on non-grant basis by the Education Officer vide order dated 31.9.2013. Aftersuccessfully completing the probation period, she was granted permanentapproval vide order dated 24.4.2015 in Pay Scale of Rs. 5200-20200 withGrade Pay of Rs. 2800, with continuity of service from the date of herinitial appointment. On retirement of Shri S.K. Chanale, one post ofAssistant Teahcer on grant-in-aid division became vacant. Therespondent No.3 transferred petitioner to aided post vide order dated26.4.2020. Consequently, proposal seeking approval to her transfer wasforwarded to the Education Officer, however, vide impugned order dated28.10.2020, the respondent No.2 rejected the proposal citing reason thatsurplus teachers are available in Latur District and unless such teachersare absorbed, the transfer of the petitioner can not be approved. The {3} 1279.21 wp (1).odtpetitioner raises challenge to the aforesaid communication beingarbitrary, and illegal.3.The respondent No.2 Education Officer filed affidavit inreply stating that the petitioner was appointed on 5th to 7th Standard onnon grant basis w.e.f. 24.4.2013. However, her services are sought to betransferred by the school authorities to 1st to 4th standards receiving grantin aid. Further, such transfer is effected without the permission from theSchool Education Department. There are surplus teachers available forabsorption. The proposal is not in conformity with Rule 41A of the MEPSRules.4.Mr. V.D. Gunale, learned counsel for the petitioner submitsthat the petitioner is a qualified teacher. She was appointed on24.4.2013 with respondent No.4 school on non-grant in aid basis. Oncompletion of her probation, she was continued in service vide orderdated 24.4.2015. The management transferred her vide order dated26.4.2020 against vacancy created on account of retirement of apermanent teacher. The management has every right to transfer theemployee. The amended provision of Rule 41A of the MEPS Rules has noapplication in the present case since said amendment is introduced instatute book w.e.f. 8.6.2020. The appointment of the petitioner is prior tointroduction of such amendment which has no retrospective application.5.Mr. U.B. Bondar, learned counsel for respondent No.2referring to the affidavit in reply, submits that prior to introduction ofamended Rule 41A, the circular dated 28.6.2016 was in operation andgoverning transfers of teachers. The circular also contains analogousprovisions which are introduced by inserting Sec 41-A in MEPS Rules {4} 1279.21 wp (1).odtw.e.f. from June 2020. He would, therefore, justify the impugned orderrejecting approval seeking transfer of the petitioner from unaided toaided division.6.We have considered the submissions advanced by thelearned advocates on behalf for respective parties. We have perused thedocuments annexed alongwith the petition as well as affidavit in reply.The issue that falls for consideration is, as to whether the impugnedorder can be justified in light of provision of Rule 41A of the MEPSRules, 1981 read with circular dated 28.6.2016. Pe2373rtinently, thisCourt in W.P. No. 1493 of 2018 ( Suryakant Janardan Muge Vs. State ofMaharashtra and others) dealt with the provisions of Rule 41 of theMEPS Rules and observed that the management has every right totransfer the employee from unaided to aided post and circular dated28.6.2016 would not override the statutory right of the managementconferred under Rule 41 of the MEPS Rules, 1981. Previously this Courtdealt with circular dated 28.6.2016 in W.P. No. 5313 of 2017 at PrincipalSeat at Mumbai and observed that circular dated 28.6.2016 are theGovernment instructions without statutory force. Rule 41 of MEPS Rulesbeing subordinate legislation, the administrative instructions which arenot in conformity with the Rules cannot be held to be valid in law.Therefore, clauses Nos. 1 and 2 of said circular were declared as invalid.7.In view of aforesaid authoritative pronouncements from thisCourt, the stand taken by the respondent No.2 relying upon the circularcannot be countenanced. Mr Bonder learned Advocate appearing forrespondent No.2 further seeks to rely upon Rule 41A of MEPS Ruleswhich read as under :- {5} 1279.21 wp (1).odt“41A. Conditions for transfer of teacher from un-aided topartially aided or aided school or division. - (1) Themanagement may transfer a teacher from un-aided school orpartially aided school to the vacant post in partially aidedschool 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 there is no surplus persons are available as provided in sub-section (1) of section 5 of the Act; (ii)if the surplus persons are available, the Managementshall not make such transfer;(b) the transfer shall not be made from the teachers of self-financed school of the Management;(c)before making such transfer, the teacher should have completed minimum five years continuous service in un-aided school or division or partially aided school or division of the Management;(d) the transfer shall be made in equal or same cadre. The transfer shall not be made from primary to higher primary, higher primary to secondary or secondary to higher secondary or higher secondary to D. El. Ed. schools or vice-versa;(e) the transfer shall be made only by following the seniority and as per the requirement of the subject;(f) before making transfer of a teacher, his appointmentshould have been approved by the Education Officeror Deputy 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 Education Officer or Deputy Director, as the case may be.(2) If the post becomes vacant due to transfer, such vacant postshall be filled as per the procedure provided in Rule 9.
Decision
{6} 1279.21 wp (1).odt(3) The transferred teacher shall be eligible for scale of pay andallowances as decided by the Government, from time to time..”8.Relying upon aforesaid provision it is submitted that in caseof availability as surplus teachers, the transfer of petitioner from unaidedto aided division cannot be approved. However we cannot accept suchsubmissions. Apparently, Rule 41A has been inserted by amendmentw.e.f. 28.6.2020. There is no factual dispute as regards the date oftransfer of the petitioner which is stated to be 26.4.2020. The petitioneris transferred before the introduction of the amended Rule 41A. It is tritelaw that unless the statute or Rule is specifically made retrospectivelyapplicable, it would be applied prospectively from the date of itsintroduction. We could not infer anything from Rule 41A to make itretrospectively applicable. The transfer of the petitioner dated 26.4.2020can not be governed by the said provision. Resultantly, the petitioner’stransfer will have to be tested in terms of Rule 41 of the Rules as itsstands on 26.4.2020. Apparently, clauses introduced under Rule 41Awhich restricts the transfer in case of availability of surplus teachers,could not have been made applicable to the case of the petitioner.9.In view of the aforesaid conclusions, the impugned ordercannot be sustained in law. Hence, we proceed to pass following order :-O R D E R [a]The writ petition is partly allowed;[b]The impugned order dated 28.10.2020 passed by the respondent No.2 is hereby quashed and set aside;[c]The respondent No.2 Education Officer (Secondary) Zilla Parishad, Latur shall re-consider the proposal for grant of approval to the transfer of the petitioner in {7} 1279.21 wp (1).odtthe light of aforesaid observations as per provisions of Rule 41 of the MEPS Rules,1981, as it stood on the date of Transfer.[d]However, it would be open for the respondent No.3 to check compliance of conditions regarding seniority and reservation roster.[e]Respondent No.3 shall take his decision after hearing all concern within a period of 8 weeks from thedate of this order and communicate same to the petitioner.[f]Rule made absolute in above terms. No costs. [S.G.CHAPALGAONKAR,J][SMT. VIBHA KANKANWADI, J]grt/-