President, Shri Saraswati ... vs Vinayak Bhagwan Karodade And Ors.
2006 Latest Caselaw 737 Bom

JUDGMENT

B.P. Dharmadhikari, J.

1. The petitioner - employer has by this writ petition challenged the judgment dated 10-4-1992 passed by the School Tribunal, Aurangabad, in Appeal No. 123 of 1989-A in relation to District - Akola. The School Tribunal has held that transfer of present respondent No. 1 from Saraswati Vidyalaya, Ambashi to Saraswati Vidyalaya at Maslapen amounted to "otherwise termination" of his services as Peon and has therefore, quashed and set aside the order and directed the petitioners to reinstate him as Peon in the School at Ambashi within a period of 40 days. This Court has while issuing Rule in the matter, after hearing both the sides, granted interim stay to this judgment of the School Tribunal.

2. Heard Shri Deshpande, learned Counsel for the petitioners, Shri Sable, learned Counsel for respondents No. 1 and 2 and Shri Thakre, learned AGP for respondent No. 3.

3. Shri Deshpande, learned Counsel urged that Section 9 of Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, does not permit challenge to transfer order before the School Tribunal. He points out that the respondent in fact obeyed the transfer order, got himself relieved on 28-6-1989 and also submitted joining report and joined on 30-6-1989 at Saraswati Vidyalaya, Maslapen. Thereafter on 1-7-1989, he applied for grant of leave to bring all his domestic goods to Maslapen and thereafter on 10-7-1989, he moved application for grant of medical leave for a period of 15 days. On 19-7-1989, he again sought further medical leave for a period from 19-7-1989 to 2-8-1989. Thereafter the employee filed appeal before the School Tribunal under Section 9 of the MEPS Act and impugned judgment came to be passed.

4. Shri Deshpande invites attention to Rule 41 of the Maharashtra Private Schools (Conditions of Service) Rules, 1981, to contend that the provisions of Rule permit the management to transfer its employee and only restriction placed upon right is to see that the pay or pay-scale of transferred employee are not adversely affected or there is no loss in pensionary benefits of said employee. He argues that the School Tribunal has not recorded any findings in this respect.

5. Shri Sable, learned Counsel for respondents No. 1 and 2 invites attention to the judgment of the School Tribunal to contend the School Tribunal has found that transfer of an employee from an aided private school to unaided school is itself not permissible. He further found that such transfer by itself results in loss of pensionary benefits and therefore such transfer is not permissible. Respondent No. 1 has treated it as "otherwise termination". According to him, the School Tribunal was therefore justified in granting respondent No. 1 relief of reinstatement. He states that the petitioners did not appear before the School Tribunal to contest the matter.

6. Shri Thakre, learned Assistant Government Pleader appearing for respondent No. 3 has supported the order of School Tribunal.

7. The question before this Court is whether transfer of respondent by order dated 26-6-1989 from Saraswati Vidyalaya, Ambashi to Saraswati Vidyalaya, Maslapen constitute "otherwise termination". It is to be noted that the said transfer order has been treated as "otherwise termination" because the School Tribunal has found that said transfer results in loss of pensionary benefits. In such circumstances, when the provisions of Rule 41 of MEPS Rules are looked into, the said Rule 41 permits management to transfer any of its employee from one school to another on administrative grounds, promotion or at the request of the employee concerned, if it is administratively convenient to do so. Sub-rule (2) thereto imposes restriction upon the management to record reasons if the transfer is being effected in the middle of the term. Sub-rule (3) with which we are concerned, reads as under:

The management shall see that the transfers do not adversely affect the pay or pay scale of the employees concerned and that such transfer do not result into loss in the pensionary benefits as admissible to them.

It is, therefore, apparent that said rule only places an obligation upon the management to see that transfer does not adversely affect the pay or pay scale of the employee concerned and further it does not result in loss in the pensionary benefits as admissible to the employee. Tacitly, therefore, this rule permits the management to effect transfer even to unaided school but then places obligation upon the management to see that or in that event the management has to take precaution that the pay or pay scale of such employee is not adversely affected because of such transfer and further that employee is not put to any loss insofar as pensionary benefits are concerned. Thus, if the management takes these two precautions, Rule 41 also permits management to transfer employee from aided to unaided school. Otherwise there was no need to place Rule 41(3) in statute book.

8. In the facts of present case, the School Tribunal has not given any express finding holding that the transfer of present respondent No. 1 from Ambashi School to Maslapen School in fact resulted in any way in reducing his pay scale or salary or in any way adversely affected the benefits payable to him and just an inference has been drawn that as the employee has been transferred from aided school to unaided school hence it results into loss in pensionary benefits to him. In view of sub-rule (3) of Rule 41 of the MEPS Rules, the management can transfer an employee from one school to another school. It is, therefore, apparent that the transfer in such circumstances cannot constitute "otherwise termination". Various applications by employee after joining the School to which he was transferred also show that he even after transfer treated the relationship of employer and employee as surviving.

9. Section 9 of MEPS Act, 1977, does not contemplate a challenge to transfer. It is, therefore, apparent that the School Tribunal could not have entertained appeal of present respondent No. 1. The order of School Tribunal in the present case is, therefore, unsustainable and deserves to be quashed and set aside.

10. In the result, the judgment of the School Tribunal, Aurangabad, dated 10th April 1992 passed in Appeal No. 123 of 1989-A is quashed and set aside.

Writ Petition is disposed of accordingly. Rule is made absolute in above terms. There shall be no order as to costs.