High Court
Facts
{1} wp 10427.15 (1).odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 10427 OF 2015Sulbha Rangrao Pawar,Age 44 years, Occupation : Assistant Teacher,R/o. Murli Manohar Colony,Maloni, Tq. Shahada,District Nandurbar... Petitioner.Versus1. The State of Maharashtrathroughthe Secretary,Department of Education,Mantralaya, Mumbai-32.2.The Commissioner of Education,Maharashtra StateDr. Any Bezant Road,Pune 0 411 001.3.The Directorate of Educationthrough the Deputy Director of Education,Nashik Division, Nashik.4.The Education Officer (Primary),Zilla Parishad, Nandurbar.5.The Suvarta Alliance Ministries Trustthrough The Secretary,The Suvarta Alliance Ministries Trust,Central Office, Near Panchayat Samiti,At Girls Hostel,Church Compound,Nandurbar, 425412E-mail : sam_tindia@ rediffmail.com.
Legal Reasoning
{8} wp 10427.15 (1).odttransfer by way of punishment, least that could have been done is toserve a show cause notice upon the petitioner with imputations and granther opportunity to put up her stand, which is apparently not done in thepresent case. Secondly, transfer order has been issued on 6.12.2014.Sub-clause (2) of Rule 41 bars mid-term transfers, but for exceptionalcircumstances, that too by recording reasons in writing by themanagement. The text of transfer order dated 6.12.2014 nowhere recordreasons for mid-term transfers; more particularly, exceptionalcircumstances warranting such mid-term transfer.15.Mr. Y.B. Bolkar, learned Advocate for the respondents reliesupon the judgment of this Court in the case of “Maya Manikumar Vs.Shikshan Prasarak Mandal and others” (Supra) to contend that if thetransfer is made immediately at the beginning of the second term thatwould not be termed as mid-term transfer. We observe that in the casereffered, the transfer was effected on 14th November, whereas, in presentcase, transfer is effected on 6th December, i.e. much after commencementof the second term which begins on 1st November. Therefore, the ratio inthe case of Maya (supra) would not assist the cause of the respondents.16.Mr. Bolkar, learned advocate for the respondents furthersubmits that if the transfer is effected on administrative grounds by wayof resolution passed by the Governing Body and no malafides arediscernable, it cannot be interfered in writ jurisdiction. However, we areconvinced that no administrative ground exists for transfer of thepetitioner. We are not oblivious of the limitations of judicial review ofadministrative action in exercise of writ jurisdiction, however, when wefind that the order is contrary to the Rules governing/regulating transfersof the employees and in violation of principles of natural justice, exercise {9} wp 10427.15 (1).odtof writ jurisdiction would be essential to correct the wrong.17.Mr. Bolkar has further submitted that the petitioner has notjoined at the transferred place and, therefore, she cannot claim salaryfrom the date of her transfer. Although the petitioner has employed aprayer for release of the salary from the date of her transfer, we are notinclined to enter into the disputed questions of fact. Suffice to say thatthe petitioner would be entitled to receive salary as per her entitlement.For that purpose, we deem it appropriate to relegate parties to thejurisdiction of respondent No.4 - Education Officer, who shall afterhearing all concerned, work out the entitlement of the petitioner, afterexamining the relevant record. In that view of the matter, we proceed topass the following order :O R D E R[A]Writ petition is partly allowed;[B]The impugned transfer order dated 6.12.2014 passed by the respondent Management is hereby quashed and set aside;[C]The respondent/Management shall retain the petitioner at her posting i.e. SAM Private Primary School at Nandurbar. However management shall be at liberty to take further stepsin accordance with MEPS rules, if so required in the interest of administration.[D]Rule made partly absolute in above terms. Civil Application No. 5341 of 2020 stands disposed of. In the circumstances, there shall be no orders as to costs.[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J] {10} wp 10427.15 (1).odtAfter pronouncement of order in open court, Mr. Y. B. Bolkarlearned Advocate appearing for respondents No. 5 to 9, submits thatrespondent management may approach Hon’ble Supreme Courtimpugning order of this court, hence seeks stay to the operation of orderfor period of four weeks. Considering submissions, we deem it proper to keepoperation and effect of our order in abeyance for period of four weeksfrom today to enable respondents to avail appropriate remedy aspermissible under law. [S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J]grt/-
Arguments
{2} wp 10427.15 (1).odt6.Suvarta Alliance Mission’s Private Primary School,Selinpur, Tq. Taloda, District NandurbarThrough The Head Master,7.Suvarta Alliance Mission’s Private Primary School,at Maloni, Tq. Shahada, District NandurbarthroughThe Head Master.8.Suvarta Alliance Mission’s Private Primary School,Nandurbar, District Nandurbar,throughthe Head Master.9.Suvarta Alliance Mission’s Private Primary School,Mundalwad, Tq. Dhadgaon, District Nandurbar,throughthe Head Master... Respondents.Petitioner – Party-in-person;Mr. S.K. Shirse, AGP for respondent Nos. 1 to 3Mr. P.S. Patil, Advocate for respondent No.4Mr. Y.B. Bolkar, Advocate for respondent Nos. 5 to 9. CORAM : SMT. VIBHA KANKANWADI & S.G. CHAPALGAONKAR, JJ. RESERVED ON : 19TH MARCH, 2024. PRONOUNCED ON : 5TH APRIL, 2024. JUDGMENT [ PER S.G. CHAPALGAONKAR, J.]1.Heard. Rule. Rule made returnable forthwith. By consent ofparties, taken up for final hearing.The petitioner impugns the transfer order dated 6.12.2014issued by the respondent No.5 Trust, thereby transferring her servicesfrom the School at Nandurbar to the school at Mundalwad, TalukaDhadgaon, Dist. Nandurbar. {3} wp 10427.15 (1).odt2.The petitioner contends that the respondent No.5 is aneducational institute and runs schools at various places in NandurbarDistrict. The petitioner was appointed as Assistant Teacher at PrimarySchool at Taloda on 1.6.1996. However, the respondents intentionallystarted harassment towards her. She was subjected to transfers from oneschool to another. The service period of the petitioner is given in tabularform which reads thus :-“a]Selinpur School, Taluka Talodafrom 1.9.1996 to 31.5.2001 b]Maloni School, Shahada,from 1.6.2001 to 31.5.2011c]Mundalwad School, Taluka Dhadgaon,from 1.6.2011 to 31.5.2013d]Nandurbarfrom 1.6.2013 to 8.12.2014.”3.According to the petitioner, Mundalwad is situated in Hillyarea of Satpuda Mountains. It is exclusive tribal area having no facilitiesfor accommodation, transport, medical etc. She served there during theperiod from 1.6.2011 to 31.5.2013. Since her husband, who is also ateacher under the establishment of Zilla Parishad School was sent ondeputation at Dhadgaon by way of couple convenience, the petitionercould attend her school from Dhadgaon. However, the petitioner’shusband is transferred to Nandurbar. Now, the petitioner is againtransferred to Mundalwad, Taluka Dhadgaon under the impugned orderdated 6.12.2014. The petitioner represented the management to give herconvenient posting. However, they are acting in revengeful manner andtransferred her from Nandurbar to Mundalwad for obvious reasons.According to petitioner, such transfer is contrary to the provisions of {4} wp 10427.15 (1).odtMaharashtra Employees of Private Schools (Conditions of Service)Regulation Rules, 1981.4.Although she represented to respondent No.3 – EducationOfficer to intervene in the matter, no steps were taken by him. Thepetitioner in absence of alternative remedy approached this Courtinvoking jurisdiction under Article 226 of the Constitution of India andseeks to quash and set aside the impugned order dated 6.12.2014. Sheraised challenge to validity of Rule 41 of the MEPS Rules that enables themanagement to transfer an employee. Petitioner also seeks to issuedirections against the respondents to release payment of regular salaryand arrears.5.The respondent- Management filed affidavit in replycontending that the transfer order has been passed by the managementon the ground that there were numerous complaints by Head Masterregarding petitioners misconduct in the school, which led to filing ofpolice complaint. She indulged in misbehaviour with the co-employees.The management was compelled to passed resolution in the interest ofthe administration. The transfer order is issued with due adherence toRule 41 of the MEPS Rules of 1981. It is further contended that thepetitioner failed to join at transferred place and claiming the salarywithout work. She is paid regular salary till date of the transfer. Theaffidavit in reply further makes reference to petitioners unauthorizedabsence, indiscipline etc. The reply also refers to defamatory statementsmade by the petitioner against management and consequential civil suitfiled by the management claiming for damages of Rs. 50 Lakhs.6.The petitioner party-in-person made her submissions in tune {5} wp 10427.15 (1).odtwith the contentions raised in the petition. She restricted her challengeonly to transfer order and consequential reliefs. The other prayersraising challenge to validity of MEPS Rules is not pressed during thecourse of arguments.7.Mr. Yogesh Bolkar, learned advocate appearing for therespondents submits that Rule 41 of the MEPS Rules, empowers themanagement to transfer the employees from one school to another onadministrative grounds, promotion etc. He placed on record theresolution bearing No. 9(A) dated 3.12.2014 passed by the GoverningBody, to transfer the petitioner. It states that the petitioner reports theschool belatedly, manipulates the register by scoring late marks. She isresponsible for the loss to the students. Her behaviour is unbecoming ofa teacher. She has disturbed the school environment. Accordingly, it isresolved to transfer her services to Primary School at Mundalwad.8.Mr. Bolkar would further rely upon following judgments insupport of his submissions :-1.Maya Manikumar Vs. Shikshan Prasarak Mandal and others”2014 (4) Mh.L.J. 255 ;2.Marathwada Banjara Seva Sangh Vs. State of Maharashtraand others 2004(4) Mh.L.J. 83.Shilpi Bose vs. State of Bihar and others 1991 Supp.(2) SCC659;4.National Hydroelectric Power Co.Ltd. Vs. Shri Bhagwan(2001)8 SCC 5745.Public Services Tribuanl Bar Association Vs. State of UP andanother (2003)4 SCC 1046.State of U.P. vs. Gobardhan Lal (2004) 11 SCC 402 {6} wp 10427.15 (1).odt7.Mohd. Masood Ahmed Vs. State of U.P.9.Rajendra Singh Vs. State of UP (2009) 15 SCC 17810.Namrata Verma vs. State of U.P. 2021 SCC Online 333711.Sanjeev Bhagwanrao Kokil Vs. State of Maharashtra 2013(2)Mh.L.J. 1079.After hearing the submissions advanced on behalf ofrespective parties, the issue that arises for consideration before us, is :-“As to whether the impugned transfer order dated 6.12.2014 issued by the repsondent management is sustainable in law.”10. The respondent school is a private school governed by theprovisions of the MEPS Act, 1977 and Rules framed thereunder. Rule 41of the MEPS Rules of 1981 stipulates powers of the managementregarding transfer of the employee. Sub-clause(1) and (2) of Rule 41states as under :-“41. Transfers. - 1) Subject to the provisions of this rulethe Management conducting more than one school shallnot transfer any of its employees from one school toanother except on administrative grounds, promotion orat the request of the employee concerned if it isadministratively convenient to do so. 2) Save in exceptional cases, and unless reasons arerecorded in writing by the Management, such transfersshall not be effected in the middle of the term.”11.The clause (1) of Rule 41, it can be gathered thatmanagement conducting more than one school is not expected to transferany of its employees from one school to another except on administrative {7} wp 10427.15 (1).odtgrounds or promotion, or at the request of an employee. Sub-clause (2)of Rule 41 specifically states that save in exceptional cases, and unlessreasons are recorded in writing by the management, such transfers shallnot be effected in middle of the term. Meaning of “Term” as prescribedin Secondary School Code would depict that the “first term” of theSchool shall be from “June to October” and “second term” shall be from“November to April”. Thus, mid-term transfers are prohibited. However,in exceptional circumstances only upon recording reasons in writing bythe management, mid-term transfers are permissible.12.Perusal of impugned transfer order depict that the petitionerhas been transferred in pursuance of Governing Body resolution No.9(A). The transfer order is bereft of any administrative reason,particularly, for mid-term transfer. The copy of the proceeding book ofthe General Body Meeting dated 3.12.2014 is placed before us during thecourse of hearing. Since it is part of pleading in the affidavit in reply, weallowed its production at this stage.13.The contents of the proceeding book shows that subject ofpetitioner’s transfer was not on the agenda, but it was taken up in themeeting as a “addendum” or “last minute item”. It records instances ofmisconduct on the part of the petitioner and refers to various complaints.If the tenor of the resolution is considered, apparently, transfer of thepetitioner is by way of punishment. However, she was not served withany show cause notice or she was not offered any opportunity to explainthe allegations or put up her stand.14.We find that the petitioner’s transfer is bereft ofadministrative reason as sought to be contended before us. In case of