Bombay High Court
Smt.Manisha Bhimraj Patil vs The State Of Maharashtra on 22 October, 2013
Bench: R.M. Borde, S.P. Deshmukh
{1} WP No.3728/2012
Drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3728 OF 2012
1. Smt.Manisha Bhimraj Patil PETITIONERS
Age-39 years, Occ-Service
At Present working as Assistant Teacher,
Navnirmit Residential School For
Scheduled Caste Candidates,
Chalisgaon, Tq-Chalisgaon
Dist-Jalgaon
2.
Smt.Pushpa Baburao Savkare
Age-39 years, Occ-Service
At Present Working as Assistant Teacher
Navnirmit Residential School for
Scheduled Caste Candidates, Chasligaon
Taluka-Chalisgaon, Dist-Jalgaon
5. Smt.Sangita Ramdas Wani
Age-39 years, Occ-Service
At Present Working as Assistant Teacher,
Sarvodaya Shikshan Prasarak Mandal
Sanchalit VJNT, Primary Ashram School,
Warkhede, Tq-Chalisgaon
Dist-Jalgaon
7. Smt.Shubhangi Popatrao Pawar
Age-31 years ,Occ-Service
At present working as Assistant Teacher,
Seva Sahakari Shikshan Prasarak
Mandal Sanchalit, VJNT Ashram School,
Pimparkhed Thanda, Tq-Chalisgaon
Dist-Jalgaon
9. Shri.Sahebrao Pratap Rathod
Age-39 years, Occ-Service
At present working as Assistant Teacher,
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{2} WP No.3728/2012
Savitribai Phule Government Girls Hostel,
Chalisgaon, Tq-Chalisgaon
Dist-Jalgaon
10. Shri.Shalikgram Khandu Patil,
Age-42 years, Occ-Service
At present working as Assistant Teacher,
Government Ashram School, Bhadane,
Taluka-Sakri, Dist-Dhule
11. Shri.Jaishankar Dadaji Patil,
Age-31 years, Occ-Service
At present working as Assistant Teacher,
Navnirmit Residential School for
Scheduled Caste Candidates, Chalisgaon
Taluka-Chalisgaon, Dist-Jalgaon
(Petitioners No.3, 4, 6, 8 and 12 are deleted as per order dated
22-06-2012)
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Principal Secretary,
Social Justice and Special Assistance
Department, Mantralaya, Mumbai-32
2. The Director,
VJNT, OBC and Welfare of Special Backward Class,
Maharashtra State, Pune-1
3. The Divisional Social Welfare Officer,
Jalgaon Division, Jalgaon
4. The Special District Social Welfare Officer,
Jalgaon Dist-Jalgaon
5. Shri.Sant Dnyaneshwar Shikshan Sanstha,
Islampur, Tq-Walva, Dist-Sangli
Through its Secretary,
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{3} WP No.3728/2012
6. Punyashlok Ahilyabai Holkar
Primary Ashram School,
Chondi, Tq-Jamkhed,
Dist-Ahmednagar
Through its Secretary,
7. Navnirmit Residential School for
Scheduled Caste Candidates,
Chalisgaon, Taluka-Chaligaon
Dist-Jalgaon,
Through its Head Master
.......
Mr. D.S.Bagul, Advocate for the petitioners
Mrs. A.V.Gondhalekar, AGP for respondent State
Mr. S.S.Chaudhary h/f Mr.V.M.Maney, Adv. for respondent No.5
ig .......
WITH
WRIT PETITION NO.6537 OF 2012
1. Bharat Hiraman Rathod PETITIONERS
Age-35 years, Occ-Labourer,
R/o Krushnanagar, Talegaon Tanda
Tq-Chalisgaon, Dist-Jalgaon
2. Ramesh Dharma Chavan
Age-35 years, Occ-Labourer
R/o Talegaon Tanda,
Taluka-Chalisgaon, Dist-Jalgaon
3. Prabhu Walmik Chavan
Age-65 years, Occ-Labourer
R/o Talegaon Tanda,
Tq-Chalisgaon, Dist-Jalgaon
VERSUS
1. The State of Maharashtra RESPONDENTS
Through its Principal Secretary,
Social Justice and Special Assistance
Department, Mantralaya, Mumbai-32
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{4} WP No.3728/2012
2. The Director,
VJNT, OBC and Welfare of Special Backward Class,
Maharashtra State, Pune-1
3. The Divisional Social Welfare Officer,
Nashik Division, Nashik
4. The Special District Social Welfare Officer,
Jalgaon Dist-Jalgaon
5. Banjara Magasvargiya Shikshan Prasarak Mandal
Talegaon Tanda, Tq-Chalisgaon
Dist-Jalgoan
Through its President,
Indal Bhagwan Chavan
6. Shri Sant Dnyaneshwar Shikshan Sanstha,
Islampur, Tq-Walva, Dist-Sangli
Through its Secretary,
7. Punyashlok Ahilyabai Holkar Primary
Ashram School, Chondi
Tq-Jamkhed, Dist-Ahmednagar
.......
Mr. A.B.Girase, Advocate for the petitioners
Mrs. A.V.Gondhalekar, AGP for respondent State
Mr. Paresh B.Patil, Advocate for respondent No.5
Mr. S.S.Chaudhary, h/f Mr. V.M.Maney, Advocate for respondents No.
6 and 7
.......
[CORAM : R
. M. BORDE
AND
SUNIL P.DESHMUKH, J.J.]
th
OCTOBER, 2013
RESERVED ON : 7
nd
PRONOUNCED ON : 22
OCTOBER 2013
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{5} WP No.3728/2012
JUDGMENT (PER SUNIL P.DESHMUKH, J.):
1. Rule. Rule made returnable forthwith and heard finally
by consent of the parties.
2. Banjara Magasvargiya Shikshan Prasarak Mandal,
Talegaon Tanda, Taluka-Chalisgaon, Dist-Jalgaon, under its aegis,
was running primary ashram school by the name Prabodhankar
Thakare Prathmik Ashram Shala, Talegaon Tanda, Tq-Chasligaon
Dist-Jalgaon. Petitioners, possessed of requisite qualifications,
were appointed in their respective posts in said Ashram School,
during the period from 1999 to 2004. Appointments of petitioners,
in due course, were approved during 2004-2006. Their
appointments are made permanent with effect from dates referred
to in chart submitted by the petitioners at Exhibit-A.
3. Around 2009, Chief Executive Officer, Zilla Parishad,
Jalgaon, on his visit, found certain irregularities and deficiencies
in conducting the school and a report accordingly was submitted
by him to the Director of VJNT, OBC, Social Welfare of Special
Backward Class, Pune (Respondent No.2 herein). Subsequently,
recognition granted to the school came to be withdrawn on
{6} WP No.3728/2012
23-08-2010, which according to the petitioners occasioned for not
taking corrective steps with regard to deficient infrastructural
facilities.
4. In the very order, respondent No.2 directed Special
District Social Welfare Officer, Jalgaon (Respondent No.4 herein) to
take appropriate steps for absorption of students in nearby Ashram
school of Zilla Parishad and / or a recognized institution, with a
further direction to take appropriate steps in respect of services of
staff and to make report pursuant thereto.
5. Vide order dated 15-12-2010, respondent No.2 gave
permission / no objection to absorb petitioners in other primary
Ashram Schools recognized by the Government. The petitioners
were accordingly absorbed under order dated 29-03-2011, at the
places referred to in said order.
6. Petitioners, pursuant to said order dated 29-03-2011,
have joined their posts at the respective places and were
discharging duties sincerely and honestly. There was a subsequent
direction to cause certain changes in the placement of the
{7} WP No.3728/2012
petitioners by the Secretary, Social Welfare and Special Assistance
Department, Mantayalaya, Mumbai, pursuant to which placements
underwent change, under order dated 18-06-2011 of respondent
No.3. Petitioners had accordingly joined said places. There were
further changes caused to order dated 18-06-2011, moving
placements of some of the petitioners and according to these
subsequent changes, petitioners have joined and are discharging
their duties accordingly. Some petitioners have got benefit of couple
convenience. Accordingly the petitioners have been working at their
respective places.
7. Under Resolution dated 2nd January, 2012 Government
purported to transfer the de-recognized and closed down
Prabodhankar Thakare Prathamik Ashram School, Talegaon
Tanda, Tq-Chalisgaon, Dist-Jalgaon then run by Banjara
Magasvargiya Shikshan Prasarak Mandal, Talegaon Tanda, to Sant
Dnyaneshwar Shikshan Sanstha, Islampur, Tq-Walva, Dist-Sangli
at its Punyashlok Ahilyadevi Holkar Prathamik Ashram School,
Chondi, Tq-Jamkhed, Dist-Ahmednagar, directing that the
presently working staff, having approval, of the closed school be
{8} WP No.3728/2012
absorbed. Pursuant to which communications dated 06-04-2012
were issued to present petitioners.
8. Petitioners have questioned propriety, legality and
validity of the Government Resolution dated 2nd January, 2012,
and the actions pursuant thereto so also the order dated
06-04-2012, whereby Assistant Commissioner, Social Welfare,
Jalgaon purported to relieve the petitioners considering that as if
they are staff of the closed down Ashram School.
9. Respondents No.1 to 4 submitted affidavit in reply and
purported to contend that the petitioners were temporarily
absorbed in Primary Ashram Schools, nearby the closed Ashram
School and relied on, for said purpose on clause No.7 appearing in
the orders issued to stress that petitioners' absorptions are for
temporary period. It is further contended that Government
Resolution dated 02-01-2012 has been issued so that all the
employees of the closed down Ashram School shall be absorbed by
the transferee school, which is a stipulation according to the policy
laid down under Government Resolution dated 01-08-2007. The
respondents contend that the reliance placed on the Secondary
{9} WP No.3728/2012
School Code, of Tribal Development Department, is misplaced as
the same would not hold good for Ashram Schools run by the
Social Welfare Department. The respondents have contended that
six employees of the closed Ashram School have already joined
services at the transferee school and were being paid salary
accordingly. The schools wherein the petitioners were temporarily
absorbed have refused to take care of salary of the petitioners after
19-04-2012. The respondent purports to stiffly object to the
request and conduct of the petitioners seeking payment without
working at the transferred place.
10. Respondent No.5, the transferee institute, through its
Secretary, has submitted its affidavit in reply and purports to
support action of the Government referring to that the transfer is
pursuant to the policy and further to that under the same, the
teaching and non teaching staff of de-recognized / earlier
institution has been handed over to respondent No.5, and refer to
clause No.4 of Government Resolution dated 01-08-2007. The
legality of the action is further sought to emphasized with reference
to withdrawal of employees from the present petition, who have
{10} WP No.3728/2012
joined respondent No.6 school of respondent No.5 at the
transferred place. Respondent No.5 further contends that
investments have been made for running the school at transferred
place. Having regard to same, it has been requested to reject the
writ petition.
11. We have perused Government Resolution dated 1st
August, 2007. It is issued in respect of voluntary transfer of private
institutions' residential Ashram School to another institution.
Under caption, "the conditions for transfer of primary and
secondary residential schools" conditions bearing clauses No.1 to 9
have been stipulated. Relevant extract of said Government
Resolution is reproduced herein below.
'kklu fu.kZ; % Lo;alsoh laLFksekQZr pkyfo.;kr ;s.kk&;k dks.kR;kgh fuoklh
vkJe 'kkGsps LFkykarj.k rlsp O;oLFkkiu vU; nql&;k laLFksdMs gLrkarj.k
lacaf/kr laLFksP;k LosPNsuqlkj dj.;kl iq<hy 3 (rhu o"kZ) o"kkZi;Zar dks.kR;kgh
izdkjps vuqnku ns; gks.kkj ukgh ;k vVhl v/khu jkgwu 'kklukdMwu
ijokuxh ns.;kr ;sbZy- rlsp ,dk fof'k"V fBdk.kh vkJe'kkGk eatwj dsyh
vlsy v'kk fBdk.kh 10 fd- eh- ifjljkr iz'kkldh; vFkok lks;hP;k dkj.kkLro
lnj vkJe'kkGk LFkykarjhr dj.ks xjtsps vkgs vls 'kklukps er >kY;kl]
{11} WP No.3728/2012
izdj.kfugk; xq.koRrsP;k vk/kkjs xq.kkuqdzes fopkj d#u 'kkGk vU; fBdk.kh
LFkykarjhr dj.;kl iq<hy vVhaP;k v/khu jkgwu ijokuxh ns.;kr ;sbZy-
izkFkfed @ ek/;fed fuoklh 'kkGsP;k LFkykarjk.kklkBh vVh o 'krhZ
1- 'kklukus ekU; dsysY;k c`gr vkjk[kM;kizek.ks laLFksP;k vkJe'kkGsps
fBdk.k vlY;kl o R;kBhdk.kh lacaf/kr laoxkZph yksdla[;k fud"kkizek.ks vlwu
fon;kFkhZ la[;k iwjs'kh vkgs o loZ izdkjP;k ewyHkwr lks;h lqfo/kk fuoklh
'kkGslkBh miyC/k d:u nsr vkgs v'kk ifjfLFkrhr 'kkGsP;k LFkykarjkl ekU;rk
nsrk ;s.kkj ukgh- ek= [kkyhy ckch y{kkr ?ksowu jkT; 'kklu @ lapkyd ,
[kkn;k fof'k"V ifjfLFkrhr LFkykarjkl ijokuxh nsbZy-
2- vkJe'kkGk T;kfBdk.kh dk;kZfUor vkgs v'kkfBdk.kh flapu izdYi
vFkok brj lkoZtfud midze lq: gks.kkj vlrhy o R;klkBh lnjP;k tkxsps
vf/kxzg.k dj.ks vko';d vlsy fdaok iwj] Hkwdai bR;knhlkj[;k uSlxhZd
vkiRrhpk /kksdk vlsy fdaok
3- l/;k fuoklh 'kkGk T;kfBdk.kh vkgs R;k lHkksorkyph vusd xkos
nqljhdMs olkgrhlkBh xsY;keqGs fdaok brj dkj.kakeqGs fuoklh 'kkGsP;k Vkiwr
vlysyh yksdla[;k deh >kY;keqGs fuoklh 'kkGsrhy fon;kF;kZaph la[;k 50 %
is{kk deh vlY;kl fadaok
4- T;kfBdk.kh fuoklh 'kkGk vlsy R;kfBdk.kh ewyHkwr lks;h mnk-
tfeuhph miyC/krk] oht o ik.;kph miyC/krk bR;knhckcr xaHkhj leL;k
{12} WP No.3728/2012
vlY;kl fadaok tkrh; r.kko] xVckthpk la?k"kZ bR;knh eksB;k izek.kkr
ok<.ks ;klkj[;k lkoZtfud v'kkarrsP;k ?kVuk ?kMY;keqGs fuoklkh 'kkGsph
fon;eku tkxk vlqjf{kr vlY;kl R;k ftYg;kr 10 fd-eh- P;k ifjljkrhy
vU; fBdk.kh yksdla[;k o 'kkGk lq: dj.;kl izkFkfed o ewyHkwr lks;h lqfo/kk
miyC/k vlY;kl R;kfBdk.kh LFkykarjkl ijokuxh 'kklukP;k iwoZ ijokuxhus]
lapkyd] foTkkHkt o lapkyd] lektdY;k.k ;kaP;kdMwu fnyh tkbZy-
5- l/;k pkyw vlysY;k 'kkGsP;k fBdk.kh oht] ik.kh] bekjr] eSnku fdaok
vU; LFkkfud viq&;k lks;heqGs fdaok LFkkfud izklafxd dkj.keqGs ,[kkn;k
'kkGsps LFkykarj R;kp 'kkGsP;k ifjljkr 10 fd-eh- ps varjkoj dj.ks
vko';d vlY;kl oLrqfLFkrhpk vgoky izkIRk d:u ?ksowu 'kklukP;k iwoZ
ijokuxhus lapkyd v'kh ijokuxh uohu fBdk.kh laLFksus dsysY;k ewyHkwr
lqfo/kk y{kkr ?ksmu nsrhy-
6- T;kfBdk.kh laLFkk LFkykarjkph fouarh djhr vlsy o v-dz-1 e/;s uewn
dsysY;k lks;h lqfo/kk izpfyr 'kkGsP;k fBdk.kh miyC/k ulsy o lacaf/kr
laoxkZph fon;kFkhZ la[;k deh vlsy] 'kkGk @ laLFkk LFkykarjkP;k fBdk.kkiklwu
ewyHkwr lks;h lqfo/kk miyC/k d:u nsr vlsy o lacaf/kr fBdk.k cgr
vkjk[kM;ke/;s lekfo"V vlsy rj v'kk fBdk.kh 'kkGk LFkykarjkl eatwjh
nas.;kpk 'kklu fopkj djsy-
7- ,[kkn;k fof'k"V ifjfLFkrhr ,[kkn;k 'kkGsps LFkykarj dj.;kl fof'k"V
ckc Eg.kwu eatwjh ns.;kps vf/kdkj 'kklukps jkgrhy-
{13} WP No.3728/2012
8- dks.kR;kgh vkJe'kkGsps LFkykarj vU; fBdk.kh dsY;kl lacaf/kr laLFksyk
vuqnku ns; Bj.kkj ulY;kus R;k vkJe'kkGsrhy f'k{kd @ f'k{kdsrj
deZpk&;kaps osru vnk dj.;kph tckcnkjh R;k njE;ku loZLoh laLFksoj
jkghy-
9- 'kklukP;k ekU;rsf'kok; fuoklh 'kkGsps LFkykarj dsY;kl rs voS/k
Bjfo.;kr ;kos o R;keqGs mnHko.kkjs fofo/k iz'u mnk- deZpkjh] LFkkoj taxe
ekyeRrk o fon;kFkhZ la[;k ;kckcr jkT; 'kklukph dks.krhgh tckcnkjh
jgk.kkj ukgh- lacaf/kr fuoklh 'kkGsph ekU;rk vkiksvki jnn let.;kr ;sbZy-
v'kk jnn >kysY;k 'kkGsps gLrkarj.k fofgr ekxkZus vU; laLFksyk gLrkarj.k
dj.;kps vf/kdkj 'kklukl jkgrhy-
12. It would be pertinent to note that Government
Resolution dated 1st August, 2007 does not make any reference to
transfer of de-recognized and closed school. We have also perused
Government Resolution dated 2nd January, 2012, under which the
impugned transfer is sought to be effected. It is apparent from the
same that none of the terms and conditions were available under
which the transfer could have even been mooted. It is further to be
noted that whenever a voluntary transfer is sought, it would be on
Government forming an opinion on administrative ground or for
{14} WP No.3728/2012
convenience that such transfer is necessary, then the Government
may permit transfer. The Resolution also refers to a rider of
transfer / shifting of school within a periphery of 10 kms.
13. None of the conditions referred to in clauses 1 to 9 of
the Government Resolution dated 01-08-2007 have been subsisting
for transfer of the school and more particularly of a de-recognized
and closed down school. The transfer of school is beyond periphery
of 10 kms that too in the absence of terms and conditions, referred
to under the government resolution. Though the parties have
placed on record Government Resolution dated 2nd January, 2012
but a corrigendum to the same dated 14th March, 2012 has not
been placed on record.
14. We have not been able to appreciate that as to how a
de-recognized and closed down school could be transferred. In the
process of transfer, it appears that a recognition accorded to a
school is being considered and treated as if it is amenable to
transfer as would be possible in the cases of business licence. A
non-est recognition after de-recognition at one place can hardly be
revived or resurrected at other place.
{15} WP No.3728/2012
15. Aforesaid apart, the transfer is not preceded by any
wide circulation about intention to transfer, which would have
enabled other desirous institutions to explore possibility of putting
in claims to have the transfer of such a school, which would have
taken care of the persons concerned with the Ashram School, for
whose benefit it was being conducted and for whom the liabilities
were incurred. This is to refer to that the process of transfer has
been undertaken without wide publicity and thus keeping out
possible viable claims from institutions closer to the location of
school from where it is being transferred. Adequate transparency
in the process would have avoided present situation. Nor does it
appear that convenience of the erstwhile staff has been taken into
account while issuing the Government Resolution dated 2nd
January, 2012.
16. The petitioners have placed reliance on decisions in
Writ Petitions No.949 of 2012 and 8386 of 2011 dated 10th/11th
September, 2012 as well as in writ petition No.1728 of 2012 dated
11th September 2012 by Division Bench at Principal Seat. The
Division Bench has ruled that as no procedure has been
{16} WP No.3728/2012
prescribed by the State Government for consideration of request of
transfer of Ashram school from one management to another, there
is lack of transparency in the decision making process rendering
the decisions taken ad hoc, without letting opportunity to other
interested organizations. More so, in the case of aided institution,
the Court has felt it necessary that the State Government should
frame appropriate guidelines setting out fair and transparent
procedure for consideration of such request. The Division Bench
has observed thus-
"But what the government has done in the present case
is to allow as it were a shifting of the recognition of a
closed Ashram School to a completely new institution
both physically and in terms of decision ostensibly by
handing over the recognition of a derecognized school to
another NGO. Once an existing Ashram School was
derecognized, there would be no occasion to handover
that recognition to another Ashram School. If as a result
of the derecognition of an Ashram School the
government is in a position to fund some other
institution elsewhere in the State of Maharashtra, that
is a completely separate and independent decision in
arriving at which a transparent decision making
{17} WP No.3728/2012
process must be followed. Recognition is not like a
licence to enter on a business which can be transferred.
Once recognition granted to a school is withdrawn, that
original recognition ceases to exist in law and in fact.
There is no occasion then to 'transfer' the erstwhile
recognition to another institution."
17. Petitioners have also placed reliance on a decision
dated 25-07-2011 in writ petition No.4305 of 2009 by a Division
Bench at Nagpur, wherein it is observed thus -
"Though, there are some affidavits filed on record to sho
w that the staff in the ashram school at Kayar have
willingly joined their service at the ashram school at
Jebapur, we can visualize the circumstances in
which the staff must have been forced to shift from
the Vidarbha region to the North Maharashtra region
due to the transfer of the ashram school from village
Kayar in Yavatmal district to village Jebapur in
Dhule district.
13. We find that the State was not empowered to
transfer the ashram school at village Kayar in Yavatmal
district to village Jebapur in Dhule district,
specially when the two districts are located in different
{18} WP No.3728/2012
regions of the State of Maharashtra. The State of
Maharashtra could not have granted permission to
the respondent no.3 to run the ashram school at village
Jebapur, in place of the ashram school, which was
being run since the year 1999 in village Kayar in
Yavatmal district. The transfer of the ashram school has
been effected by the respondent no.1 by giving a total go
bye to the provisions of the Ashram School Code. We
find from the communications placed on record that the
impugned Government Resolution dated 29.08.2009
was issued by the respondent no.1 in view of political
pressure. The State has acted in this case at an
electrifying speed so as to grant the ashram school at
Kayar in favour of the respondent no.3-Trust, to be run
and administered at village Jebapur in Dhule district.
The said Government Resolution is bad in law and
is iable to be set aside"
18. Similar is a case in present petition. The petitioners are
sought to be transferred from Jalgaon district to Ahmednagar
district. On this count as well impugned orders are rendered
unsustainable and deserve to be set aside.
19. In view of aforesaid, we allow the writ petitions and
quash and set aside Government Resolution dated 02-01-2012
{19} WP No.3728/2012
(Exhibit-E) and orders dated 19-04-2012 (Exhibit-I) issued by the
Assistant Commissioner of Social Welfare, Jalgoan and the order
26-04-2012 (Exhibit-J) issued by Assistant Commissioner, Social
Welfare, Dhule and dated 06.04.2012 (Exhibit-F) issued by
Secretary, Sant Dnyaneshwar Shikshan Sanstha, Islampur, Tq-
Walva, Dist-Sangli and direct the respondents to release salaries of
the petitioners regularly with a further direction to issue to them
proper absorption orders in the schools, nearer to the closed down
and de-recognized school and / or allow them to continue at the
places of absorption, according to the position prior to 2nd
January, 2012. The respondents are also directed to release
salaries of the petitioners for the period from 06-04-2012 to date of
decision. Rule is made absolute in aforesaid terms with no order as
to costs.
20. Pending civil application, if any stand disposed of.
[SUNIL P.DESHMUKH, J.] [R.M.BORDE, J.]
drp/A13/wp3728-12
