High Court
Facts
939.WP.15505.23+3.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.15505 OF 2023Akash s/o Gangadhar Kochewad …PETITIONERVERSUS1.The State of Maharashtra,through its Principal SecretarySchool Education Department,Mantralaya, Mumbai – 400 0322.The Deputy Director of Education,Latur Division, Latur3.The Education Officer (Secondary),Zilla Parishad, Latur4.Kisan Shikshan Prasarak Mandal,Beside City Police Station 5.Shivaji Vidyalaya, Handarguli…RESPONDENTSANDWRIT PETITION NO.15457 OF 2023Rahul s/o Pralhad Bhangawad…PETITIONERVERSUS1.The State of Maharashtra,through its Principal SecretarySchool Education Department,Mantralaya, Mumbai – 400 0322.The Deputy Director of Education,Latur Division, Latur3.The Education Officer (Secondary),Zilla Parishad, Latur4.Kisan Shikshan Prasarak Mandal,5.Nagabuwa Vidyalaya, Helamb…RESPONDENTSANDWRIT PETITION NO.8731 OF 2023Sambhaji s/o Shesherao Belkone …PETITIONERVERSUS1.The State of Maharashtra,through its SecretarySchool Education and Sports Department, Mantralaya, Mumbai – 400 0321/12
Legal Reasoning
939.WP.15505.23+3.odtentitled to be transferred under Rule 41A. We, therefore, conclude thatthe orders granting approval to such transfer are clearly illegal and liableto be quashed and set aside.17.True it is that in the matters of Amol Baban Sangar andDnyaneshwar Laxman Chavan (supra) coordinate benches of this Courthad observed that once approvals were granted by the Education Officer,it was not proper for the DDE to refuse to direct inclusion of names ofsuch teachers in the Shalarth Pranali. However, ex facie, the matters inhand stand on a different footing. In the present matters when theproposal reached the DDE, already petitions were filed by Belkone andJadhav questioning the approvals granted to transfer of Kochewad andBhangawad and the fact was brought to his notice. Therefore, no faultcan be found in the impugned order passed by him in refusing to directinclusion of names of Kochewad and Bhangawad by observing that thetwo petitions were still pending before this Court. In view of above,Kochewad and Bhangawad are not entitled to derive any benefit from theabove two decisions of the coordinate benches.18.Resultantly, the writ petitions filed by Kochewad andBhangawad are liable to be dismissed and the petitions filed by Belkoneand Jadhav deserve to be allowed to the extent challenging the orderpassed by the Management transferring Kochewad and Bhangawad andquestioning the legality of approval granted by the Education officer.19.So far as the prayer of Belkone and Jadhav seeking a writ of10/12 939.WP.15505.23+3.odtmandamus directing the Management to effect their transfers under Rule41A is concerned, in our considered view, no such mandamus can beissued. As is evident from the wording of Rules 41 and 41A, it is theprerogative of the Management if it so desires to exercise that power. Useof word ‘may’ at the beginning of that Rule is conspicuous. Conversely,there is no provision which mandates a Management in exercising suchdiscretion/power.20.Mr. Gunale would vehemently submit that if at all there arevacancies in the aided divisions, Management can certainly be directed toeffect transfers of the teachers from unaided division to aided division.When the provision has been inserted to enable such transfer, it comeswith an obligation on the Management to take such decision in theinterest of the teachers who have been serving in unaided division.21.We are afraid, the submission of Mr. Gunale is notsustainable in law. There is no express provision which mandates aManagement in exercising the powers under Rules 41 and 41A.Obviously, if the Management intends to exercise the discretion it wouldbe guided by the parameters laid down therein but no mandamus can beissued directing it to undertake such transfers even if there are vacancies.22.In view of above, the Writ Petition No.15505/2023 and WritPetition No.15457/2023 are dismissed.23.The Writ Petition No.8731/2023 and Writ PetitionNo.8732/2023 are allowed partly.11/12 939.WP.15505.23+3.odt24.The orders passed by the respondent – Education Officergranting approval to the transfer of Kochewad and Bhangawad arequashed and set aside.25.The Writ Petition No.8731/2023 and Writ PetitionNo.8732/2023 seeking writ of mandamus against the Managementdirecting it to transfer Belkone and Jadhav under Rules 41 and 41A, fromunaided post to aided post are dismissed. 26.Rules are made absolute in above terms. [ SHAILESH P. BRAHME ] [ MANGESH S. PATIL ] JUDGE JUDGEhabeeb12/12
Arguments
939.WP.15505.23+3.odt2.The Deputy Director of Education,Latur Region, LaturTq. and Dist. Latur3.The Education Officer (Secondary),Zilla Parishad, LaturTq. and Dist. Latur4.Kisan Shikshan Prasarak Mandal,through its Secretary 5.Rahul s/o Parlhad Bhangawad6.Akash s/o Gangadhar Kochewad…RESPONDENTSANDWRIT PETITION NO.8732 OF 2023Balaji s/o Ramdas Jadhav …PETITIONERVERSUS1.The State of Maharashtra,through its SecretarySchool Education and Sports Department, Mantralaya, Mumbai – 400 0322.The Deputy Director of Education,Latur Region, LaturTq. and Dist. Latur3.The Education Officer (Secondary),Zilla Parishad, LaturTq. and Dist. Latur4.Kisan Shikshan Prasarak Mandal,through its Secretary 5.Rahul s/o Parlhad Bhangawad6.Akash s/o Gangadhar Kochewad…RESPONDENTS ...Advocate for petitioners: Mr. K.P. Rodge in WP/15505/2023 andWP/15457/2023 Advocate for petitioners : Mr. V.D. Gunale in WP/8731/2023 andWP/8732/2023 A.G.P. for respondent Nos.1 to 3 : Mr. D.R. KordeAdvocate for respondent Nos.5 and 6: Mr. K.P. Rodge in WP/8731/2023and WP/8732/2023 Advocate for respondent No.4 : Mr. Amarjeet V. Patil… CORAM : MANGESH S. PATIL & SHAILESH P. BRAHME, JJ.DATED : 13.06.20242/12 939.WP.15505.23+3.odtORDER (MANGESH S. PATIL, J.) :Leave granted to correct the name of the petitioner in WPNo.8732/2023. Amendment to be carried out forthwith.2.Rule in all the petitions. It is made returnable forthwith. Thelearned AGP and the learned advocates for the respective respondentswaive service. At the joint request of the parties, matters are heardfinally at the stage of admission, together as the issues being raised areinterdependent and to avoid rigmarole. 3.All these petitioners are the teachers serving in the schoolbeing run by the respondent – Management. For the sake of convenience,the petitioners are being referred to by their surnames.4.The Management transferred petitioners Kochewad andBhangawad by separate orders dated 08.02.2022 and 27.01.2022respectively from unaided division to the aided division purportedly inthe light of Rules 41 and 41A of the Maharashtra Employees of PrivateSchools (Conditions of Service) Rules, 1981 (the MEPS Rules). Theproposals were forwarded to the Education Officer for grant of approvalto such transfers. Initially those proposals were turned down. Thosedecisions were challenged by these two individuals by two separatepetitions, WP No.4824/2023 and WP No.4825/2023. By similar ordersdated 25.04.2023 the petitions were partly allowed and the EducationOfficer was directed to consider their proposal for grant of approval to3/12 939.WP.15505.23+3.odtsuch transfers in the light of Rule 41 (1) and 41 (2) and Rule 41A (1) ofthe MEPS Rules. Accordingly by the orders dated 07.06.2023 and13.06.2023 the Education Officer granted approval to the transfer ofKochewad and Bhangawad respectively.5. Petitioners Belkone and Jadhav challenge these orders of theEducation Officer granting approval by filing separate writ petitions, asthe ground that the approvals were granted contrary to Rule 41A andignoring the inter se seniority amongst all the teachers. They allege thatthough all these four petitioners were appointed on the same date, theyare senior to Kochewad and Bhangawad. Simultaneously, Belkone andJadhav are praying that the Management be directed by way of writ ofmandamus to transfer them from unaided division to aided division beingsenior.6.When the Headmaster submitted a proposal to the DeputyDirector of Education (DDE) for including the name of Kochewad andBhangawad in the online portal for disbursement of salary, by the orderdated 04.10.2023 the respondent – Deputy Director of Education, LaturDivision, Latur refused to direct inclusion of their names in the ShalarthPranali on the ground that the dispute regarding inter se was beingquestioned in the writ petitions filed by Belkone and Jadhav. By othertwo petitions, Kochewad and Bhangawad are impugning the decision bythe DDE dated 04.10.2023.7.Learned advocate Mr. Rodge for Kochewad and Bhangawad4/12 939.WP.15505.23+3.odtwould submit that as far as these petitioners are concerned approval wasgranted to their transfer from unaided division to aided divisions and tillthe time it was not revoked or cancelled, their claim for including theirnames in the Shalarth Pranali was innocuous and should have beenapproved by the DDE. Even if that approval was under challenge in theother two petitions, till the time those were not set aside these petitionerswere entitled to receive the salary through the portal. He would placereliance on the decision of the division benches of this Court in thematter of Amol Baban Sangar Vs. The State of Maharashtra and Ors.; WPNo.8966/2021 (decided on 21.02.2022) and Dnyaneshwar LaxmanChavan Vs. The State of Maharashtra and Ors.; WP No.5013/2022(decided on 05.05.2022).8.As far as the inter se seniority is concerned, Mr. Rodge wouldstrenuously submit that it is the prerogative of the Management totransfer a teacher as contemplated under Rules 41 and 41A. Thesepetitioners had acquired requisite qualifications and the Management onthat basis had transferred them and therefore the approval was grantedby the Education Officer to such transfer. If at all some dispute was to beraised regarding supersession, the other two petitioners, Belkone andJadhav could have approached the School Tribunal in appeal underSection 9 of the Maharashtra Employees of Private Schools (Conditions ofService) Act, 1977 (The MEPS Act).9.Per contra, Mr. Gunale for the petitioners Belkone and5/12 939.WP.15505.23+3.odtJadhav would vehemently submit that a common seniority list has beenprepared by the Management which is annexed in these petitions primafacie showing that these petitioners are senior to Kochewad andBhangawad. He would point out that apart from these two petitionersBelkone and Jadhav even there were other teachers who were senior toKochewad and Bhangawad and five of them had submitted an applicationto the Headmaster questioning the decision to transfer the teachers whowere junior to them, from unaided division to aided ones. Even thedispute was raised with the Education Officer and still, ignoring theseniority and contrary to Rule 41A approvals were granted to the transferof Kochewad and Bhangawad. He would submit that in fact this Courthad expressly directed the Education Officer to consider the grant ofapproval to the transfer in the light of Rule 41 and Rule 41A of the Rules.In spite of that the impugned orders granting approval were passed.10.Mr. Gunale would submit that once a seniority list wasprepared by the Management which was even signed by all the teachersmentioned therein including Mr. Kochewad and Mr. Bhangawad, since thelatter had never raised any objection to the seniority list which wasprepared in accordance with the provisions of Scheduled ‘F’ of the MEPSRules, the conduct of the Management in exercising the discretion underRule 41A in transferring Kochewad and Bhangawad irrespective of thefact that they were junior to several other teachers is clearly violative ofRule 41A (1)(e). He would submit that even the conduct of the6/12 939.WP.15505.23+3.odtEducation Officer in not even ascertaining as to if these two teacherswere really senior most clearly shows that he had granted approvalarbitrarily and illegally. Mr. Gunale would, therefore, submit that even ifthe approval was granted to the transfer of Kochewad and Bhangawadsince it was contrary to law and was expressly challenged in thesepetitions by Belkone and Jadhav, no fault can be found with the stand ofthe DDE in refusing to direct inclusion of names of Kochewad andBhangawad in the Shalarth Pranali.11.Learned advocate for the Management would submit that itis the discretion of the Management under Rules 41 and 41A to transfer ateacher from unaided division to aided ones and accordingly the decisionwas taken and the proposal was forwarded to the Education Officer whogranted approval to such transfer.12.Learned AGP would submit that no fault can be found withthe stand of the DDE in refusing to direct inclusion of names of Kochewadand Bhangawad in the Shalarth Pranali when it was brought to his noticethat Belkone and Jadhav have been expressly challenging even the orderof transfer and also the approvals granted by the Education Officer.13.As can be gathered, there is not much of a dispute on facts.So far as the issue regarding seniority is concerned, Belkone and Jadhavhave filed seniority list of the teachers maintained by the Management forthe year 2020-2021 in their respective petitions. The Management hasnot controverted this fact by filing any reply. More importantly Kochewad7/12 939.WP.15505.23+3.odtand Bhangawad have filed their affidavits-in-reply in the petition ofBelkone inter alia expressly admitting in paragraph No.2 that indeed(Exhibit-D page 44) therein is a common seniority list maintained by therespondent – Management in respect of the teachers. One can thereforesafely proceed on the premise that (Exhibit-D) in petition of Belkone isthe inter se seniority list which includes names of all these fourpetitioners. Belkone and Jadhav are at serial Nos.4 and 5, whereas,Bhangawad and Kochewad are at serial Nos.8 and 10 respectively. It is,therefore, in our considered view not necessary to elaborate on the aspectof the manner in which a seniority list is to be maintained in accordancewith the Scheduled ‘F’ of the MEPS, Rules. Admittedly, no issue has beenraised by anybody muchless by Kochewad and Bhangawad questioninglegality of this seniority list.14.Though Mr. Rodge strenuously tried to impress upon us thatKochewad and Bhangawad were possessing higher qualification or eventhe essential qualification and therefore were entitled to be treated assenior to the other two petitioners and were entitled to be transferred toaided division under Rule 41A, the argument is not germane to the issue.As is observed earlier, no dispute regarding inter se seniority andquestioning legality of the seniority list (Exhibit-D) maintained by theManagement has been raised by anybody. Consequently, we cannot gointo and beyond this seniority list.15.Even the submission of Mr. Rodge that Belkone and Jadhav8/12 939.WP.15505.23+3.odthad the remedy before the School Tribunal under Section 9 of the MEPSAct is not sustainable for the simple reason that the jurisdiction of theSchool Tribunal is limited in respect of the disputes inter alia supersessionin the matter of promotion. When the dispute in the matters in hand ismerely regarding transfer from unaided division to aided division effectedunder Rule 41A, in our considered view it is not a matter of supersessionin the matter of promotion so that a remedy of appeal could be availableto petitioners Belkone and Jadhav.16.Resultantly, when Rule 41A (1)(e) requires a Managementto effect transfer from unaided division to aided division, by keeping inmind the seniority and when apparently, in the seniority list maintainedby the Management, apart from Belkone and Jadhav there were five tosix other teachers who were senior to Kochewad and Bhangawad, theaction of the Management in transferring them and even the decision ofthe Education Officer in granting approval to such transfers is clearlyillegal being violative of Rule 41 A (1)(e). We, therefore, have nohesitation in reaching such a conclusion. It is clearly an abdication ofduty by the Education Officer in not undertaking the scrutiny of theproposals received by him from the Management, whereby, approval wassought to the transfer of Kochewad and Bhangawad. He should havesolicited information from the Management regarding seniority list moreso when the proposals received by him were clearly avoiding to evenmention that these two teachers were senior most teachers who were9/12