Santosh Vitthalrao Punde … v. The State of Maharashtra Through Its Secretary and others
Case Details
990-12972-2022.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 990 WRIT PETITION NO. 12972 OF 2022 Santosh Vitthalrao Punde ….Petitioner VERSUS The State of Maharashtra Through Its Secretary and others …..Respondents Mr. V. S. Panpatte, Advocate for the Petitioner Mr. P. S. Patil, Addl. GP for Respondent Nos.1 to 4 – State ….. ….. CORAM : R. G. AVACHAT & NEERAJ P. DHOTE, JJ. DATE : 03.07.2025 PER COURT : 1.
Legal Reasoning
By the present Petition, the Petitioner has challenged the order dated 09/11/2022 issued by Respondent No.3, refusing to grant approval to transfer of the Petitioner from un-aided school to aided school, since he has not completed fve [5] years in service. 2. It is submitted by the learned Advocate for the Petitioner that, the condition of fve [5] years continuous service in un-aided school was inserted in the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 [hereinafter referred to as ‘the Rules of 1981’] by a Notifcation dated 08/06/2020. He submits that, Section 16 (4) of the Maharashtra Employees of Privates Schools (Conditions of Service) Regulation 1 990-12972-2022.odt Act, 1977 [hereinafter referred to as ‘the MEPS Act’] mandates that, every rule under the said act is necessarily to be placed before the house of state legislature, and till the same is done, the amendment would not come into force. He submits that, admittedly, the said rule, by which, the requirements of fve [5] years continuous service was amended, was not placed before any of the house of the state legislature and, therefore, it had not come
Decision
into force. Hence, the impugned order is liable to be set aside. 2.1. In support of his contention, the learned Advocate for the Petitioner relied upon the following Judgments :- [a] Narendra Kumar and Others Vs. Union of India ; MANU/SC/0013/1959 ; [b] Mahendra Hiraman Chavan and Ors. Vs. Maharashtra Academy of Engineering & Education Research, Pune 2017 Latest Caselaw 822 Bombay ; [c] Suryakant Janardan Muge Vs. State of Maharashtra and Ors. decided by this Court in Writ Petition No.1493 / 2018 on 04/07/2019 ; [d] Dilip Venkatrao Boienar Vs. State of Maharashtra and Others decided by this Court in Writ Petition No.7841/2019 on 08/08/2019 ; [e] Arvind Venkatroa Fulse and Another Vs. State of Maharashtra and Others decided by this Court in Writ Petition No.6510/2020 on 23/09/2020 ; 3. The Petition is opposed by the learned Addl. GP appearing for Respondent Nos.1 to 4. He submits that, in the impugned order, there is a reference of the Government Resolution 2 990-12972-2022.odt dated 01/04/2021, which was issued pursuant to the Rule 41-A of the Rules of 1981. He submits that, admittedly, the amendment to the said Rules, by which, minimum [5] fve years continuous service was introduced, was not placed before the legislature. However, it is not a condition precedent for coming in force of the said amendment. He submits that, this Court, in the case of Bhagyashri d/o Shivajirao Narwate Vs. The State of Maharashtra and Others passed by this Court in Writ Petition No.1210/2023, have considered Section 16-[4] of the MEPS Act, 1977 and observed that, it was not mandatory in nature. He submits that, there is no illegality in the impugned order and the Petition may be dismissed. 4. There is no dispute that, the Petitioner entered into the service as Assistant Teacher on 11/07/2019. The Clause – (c) of Sub - Clause – (1) of Rule 41-A of the Rules, 1981 reads as under :- “41A. Conditions for transfer of teacher from un-aided to partially aided or aided school or division : [1] The management may transfer a teacher from un-aided school or partially aided school to the vacant post in partially aided school or aided school or division only if the following conditions are satisfed, namely :- [a] (i) …. ….. …… …… …… …… ……. …….. ……. (ii) ….….. …… …… …… …… ……. …….. ……. [b] …. ….. …… …… …… …… ……. …….. ……. before making such transfer, the teacher should have [c] completed minimum fve years continuous service in un-aided school or division or partially aided school or division of the Management ; 3 990-12972-2022.odt [d] …. ….. …… …… …… …… ……. …….. ……. [e] …. ….. …… …… …… …… ……. …….. ……. [f] …. ….. …… …… …… …… ……. …….. ……. [g] …. ….. …… …… …… …… ……. …….. ……. [h] …. ….. …… …… …… …… ……. …….. ……. [2] …. ….. …… …… …… …… ……. …….. ……. [3] …. ….. …… …… …… …… ……. …….. ……. ” 5. The Section 16-[4] of the MEPS Act, 1977 reads as under : “16. Rules [1] …. ….. …… …… …… …… ……. …….. ……. [2] …. ….. …… …… …… …… ……. …….. ……. [a] …. ….. …… …… …… …… ……. …….. ……. [b] …. ….. …… …… …… …… ……. …….. ……. [c] …. ….. …… …… …… …… ……. …….. ……. [d] …. ….. …… …… …… …… ……. …….. ……. [e] …. ….. …… …… …… …… ……. …….. ……. [f] …. ….. …… …… …… …… ……. …….. ……. [g] …. ….. …… …… …… …… ……. …….. ……. [2A] …. ….. …… …… …… …… ……. …….. ……. [3] …. ….. …… …… …… …… ……. …….. ……. [4] Every rule made under this Act shall be laid, as soon as may be, after it is made before, each House of the State Legislature, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modifcation in the rule or both Houses agree the rule should not be made, and notify such decision in the Offcial Gazeette, the rule shall from the date of publication of such notifcation have effect, only in such modifed form or be of no effect, as the case may be; so, however, that any such modifcation or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.” 6. On going through the Judgment as referred above in Bhagyashri d/o Shivajirao Narwate [Supra], it is seen that, similar point was involved in the said case and this Court held that, not placing of the rules before the state legislature will not make the 4 990-12972-2022.odt rules invalid. The relevant Paragraphs from the said Judgment are reproduced below :- “9. Another submission advanced to assail applicability of Rule 41-A is that amendment is not approved by houses of the legislature, as contemplated under clause(a) of Sub-Section (2) of Article 213 of the Constitution of India. However, in support of such submission, no material is placed before us. We fnd that the rule has been inserted vide notifcation No. SANKIRNA/2019/CR- 341/TNT dated 8.6.2020. In absence of any specifc material in support of the said contention, we are not inclined to entertain the same. Pertinently, Rule making power of the State can be found in Section 16 of the MEPS Act, 1977. Sub-clause (e) of clause (2) of Section 16, states as under :- “that every rule made under this Act shall be laid, as soon as may be, after it is made before each House of the State Legislature, while it is in Session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before expiry of the session immediately following the session, or successive sessions aforesaid, both Houses agree in making any modifcation in the rule or both Houses agree that rule should not be made and, notify such decision in the Offcial Gazeette, the rule shall from the date of publication of such notifcation have effect only in such modifed form or be of no effect as the case may be; so, however, that any such modifcation or annulment shall be without prejudice to the validity of anything previously done, or omitted to be done under that rule.” 10. If language of the aforesaid rule is considered, it merely mandates that every rule made in this Act shall be laid before each House of the State legislature and only in case, where both Houses agree in making any modifcation in the rule or that rule should not be made, the decision of both the Houses needs to be notifed in the offcial gazeette. It is, therefore, clear that the rules so made does not require approval from both the houses. It only stipulates the powers of both Houses either to modify the rule or refuse approval for publication of the Rules. Therefore, the submission that in absence of approval by both the Houses, the rules cannot be given full effect, does not stand to the scrutiny. It is not the case of the petitioner that either any modifcation was suggested or publication was prevented by decision of both the Houses.” 7. On going through the Judgment relied upon by the learned Advocate for the Petitioner as referred above in the case of Mahendra Hiraman Chavan and Ors. [Supra] shows that, this 5 990-12972-2022.odt Court observed that, the provisions of Section 16-[4] of the MEPS Act, were directory and not mandatory. The Judgment in the case of Narendra Kumar and Others [Supra] was in relation to the Essential Commodities Act and, therefore, it has no application in the case at hand. In other two Judgments as referred above by the learned Advocate for the Petitioner, it is seen that, they were based on the earlier circular issued by the State of Maharashtra and were not related to the Government Resolution, which is the basis to pass the impugned order. 8. It is clear from the papers on record that, the Petitioner had not completed [5] fve years continuous service, as mandated by the above-referred Rule and the Government Resolution, so as to make him entitle for transfer on the aided school. Thus, we fnd no illegality in the impugned order and no merit in the Petition. Hence, we proceed to pass the following order : ORDER [I] Writ Petition stands dismissed. [NEERAJ P. DHOTE, J.] [R.G. AVACHAT, J.] Sameer/July-2025 Signed by: Md. Sameer Q. Designation: PA To Honourable Judge Date: 08/07/2025 13:54:46 6