Bombay High Court
Sameena Kauser Sardar Fazal Mohd ... vs Talat Shikshan Mandal And Ors on 23 December, 2015
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5328 OF 2008
Smt. Sayada Mumtaz Jahan Sayad Ahteshamuddin,
Age : 32 Years, Occ: Service as Primary Teacher,
in R-2 School, R/o. House No.6-7-309,
Behind Nutan Kanya School,
Bansilal Nagar, Railway Station Road,
Aurangabad. PETITIONER
1]
VERSUS
Talat Shikshan Mandal,
Kabadipura, Aurangabad,
Through its Secretary.
2] The Education Officer [Primary],
Zilla Parishad, Aurangabad.
3] The Director of Education [Primary],
Central Building, Pune 411 001. RESPONDENTS
...
Mr. Ajay S. Deshpande, Advocate for the Petitioner
Mr. A.M.Karad, Advocate for the Respondent No.1
Mr. Dilip Patil Bankar, Advocate for Respondent No.2
Mr. S.R.Yadav, AGP for the Respondent No.3
...
WITH
WRIT PETITION NO.5330 OF 2008
Smt. Parveen Sultana Abdul Gani,
Age : 43 Years, Occ: Service as Primary Teacher,
in R-2 School, R/o. 5/5/46, Rajashree Colony,
Bhadkal Gate, Aurangabad. PETITIONER
VERSUS
1] Talat Shikshan Mandal,
Kabadipura, Aurangabad,
Through its Secretary.
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2] The Education Officer [Primary],
Zilla Parishad, Aurangabad.
3] The Director of Education [Primary],
Central Building, Pune 411 001. RESPONDENTS
...
Mr. Ajay S. Deshpande, Advocate for the Petitioner
Mr. A.M.Karad, Advocate for the Respondent No.1
Mr. Dilip Patil Bankar, Advocate for Respondent No.2
Mr. S.R.Yadav, AGP for the Respondent No.3
...
WITH
WRIT PETITION NO.1958 OF 2009
Smt. Sameena Kauser d/o. Sardar Fazal Mohd. Khan,
Age : 28 Years, Occ: Service as Assistant Teacher,
in Talat High School, R/o. Asifiya Colony,
A-6/269, Town Hall, Aurangabad. PETITIONER
VERSUS
1] Talat Shikshan Mandal,
Kabadipura, Aurangabad,
Through its President.
2] The Education Officer [Secondary],
Zilla Parishad, Aurangabad.
3] The Education Officer [Primary],
Zilla Parishad, Aurangabad. RESPONDENTS
...
Mr. Ajay S. Deshpande, Advocate for the Petitioner
Mr. A.M.Karad & Mr. E.G.Irale, Advocates for the
Respondent No.1
Mr. U.B.Bondar, Advocate for respondent Nos.2 and 3.
...
CORAM: S.S.SHINDE &
P.R.BORA, JJ.
Reserved on : 14.12.2015
Pronounced on: 23.12.2015
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JUDGMENT: [Per S.S.Shinde, J.]:
1] In Writ Petition No.5328/2008, the petitioner
has taken exception to the impugned order of transfer
dated 16.04.2008 at Exhibit-B. In Writ Petition No.
5330/2008, the petitioner has taken exception to the
impugned order of transfer dated 16.04.2008 at Exhibit-B.
In Writ Petition No.1958/2009, the petitioner therein has
taken exception to the impugned order of transfer dated
28.03.2009 at Exhibit-A.
All these three Writ Petitions have been heard
together since in all these Petitions exception is taken to
the transfer orders against respondent No.1 and also other
respondents are common.
In view of the order passed by this Court on 10th
February, 2010 in Writ Petition No.1958/2009, even Writ
Petition No.1958/2009 was directed to be listed under
caption 'final disposal' along with Writ Petition No.
5328/2008 and 5330/2008. Therefore, Rule, taken up for
final hearing with the consent of the parties.
Brief facts necessary for adjudication of these
Petitions, are as under:
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2] It is the case of the petitioners in Writ Petition
No.5328/2008 and Writ Petition No.5330/2008 that, they
have joined the services as Assistant Teachers in Talat High
School, Barudgar Nala, Juna Bazar, Aurangabad, run by the
respondent No.1. The petitioners possessed H.S.C. D.Ed.
qualifications, and thus, they are qualified for appointments
as Primary Teachers. The appointments of the petitioners
have been duly approved by the respondent No.2.
It is further the case of the petitioner in Writ
Petition No.1958/2009 that, the petitioner joined the
services as an Assistant Teacher in the same School, run by
the respondent No.1. The petitioner possessed H.S.C. D.Ed.
qualification, and thus, she is qualified for appointment as
an Assistant Teacher. The appointment of the petitioner
has been also duly approved by the respondent No.2.
3] It is further the case of the petitioners that,
they have acquired status of deemed permanent
employees, by virtue of the provisions of Section 5 [2] of
MEPSR Act. The petitioners have been rendering services
as Assistant Teachers in Talat High School, Barudgar Nala,
Juna Bazar, Aurangabad.
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4] It is further the case of the petitioners that, the
petitioners are aware that, transfers are incident of service
and since they have been transferred at a distance of few
meters in Aurangabad itself, they may not be able to
sustain challenge to the said order of transfers. Keeping
this in mind, upon being transferred from one school to
another by order of transfers, they immediately reported at
transferred places. The petitioner in Writ Petition No.
1958/2009, joined at transferred place in the month of
April, 2009.
It is further the case of the petitioners that,
Therefore, for all practical purposes, they have submitted to
the order of transfer and respected the same. The distance
between the earlier place of transfer and the present place
is hardly 300 meters. On this score, the petitioners are not
in a position to demonstrate any inconvenience as such and
as a result, they opted to submit to the order of transfers
and immediately reported to duty.
5] It is further the case of the petitioner that, in
order to appreciate the nature of challenge and the reasons
therefor, it would be appropriate to know the background
on which the petitioners came to be transferred from one
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High School to another Primary School. Undoubtedly, the
order of transfer in so many words state that, the salary,
seniority, service protection shall continue to be as before,
even after transfer, which was a predominant factor to
dissuade the petitioners from taking recourse to the
remedies available to them under law, challenging the
order of transfers.
6]
It is further the case of the petitioners that,
there has been extreme strained relations between most of
the employees and management of Talat Shikshan Mandal.
The root cause of the strained relations is exploitation of
the employees in whatever possible manner. The
employees have been made to suffer extreme financial
hardship by paying them a meager amount of Rs.1000/- or
Rs.2000/- as against their entitlement of Rs.8500/- to Rs.
9000/-. Similarly, huge amount of loan has been shown
from the Bank and Society, when in fact none of the
employees have received any amount. Resultantly, regular
installments towards repayment of the said so-called loan,
of which no amount has ever been received by any of the
employees, are being regularly deducted. The petitioners,
however, were being paid an amount of Rs.5000/- per
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month towards salary during 2005-06, 2006-07. It
continued upto May 2007 and since then, they are actually
receiving an amount of salary which they are legally
entitled to, as per the pay scale prescribed. The petitioners
are getting an amount of about Rs.9000/- [Rs.Nine
Thousand only] or thereabout and the installments are
being deducted from the said amount, as the record shows
that, they have availed a loan from Bank and society both.
7] It is further the case of the petitioners that,
extreme financial harassment of the employees culminated
in unrest amongst the employees and there have been
police cases / complaints and cross complaints against each
other. The respondent Management has also fabricated the
record to deprive its employees from their rightful
legitimate claim and to bestow underserving benefits to
those employees, who are in good books. Writ Petition No.
7375/2007 also came to be filed before this Court wherein
this Court directed the Director of Education [Primary],
Maharashtra State, Pune to hold a discrete enquiry and to
take appropriate decision in respect of the representations
of the employees. Pursuant to the aforesaid directions of
this Court, on 03.03.2008, the Director of Education
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[Primary], M.S., Pune conducted an inquiry and having
noticed many irregularities, illegalities, fabrication of record
etc., recommended for withdrawal of recognition of Primary
Schools run by the respondent No.1 at Kabadipura,
Shahanoorwadi at Aurangabad and also at Gangapur.
8] It is further the case of the petitioners that, in
spite of voluminous record against the respondent No.1,
which is good enough for withdrawal of recognition of all
three primary schools of respondent No.1, the respondent
No.1 could manage to abort the resolution regarding
withdrawal of recognition in the General Body of the Zilla
Parishad, Aurangabad. It is an open secret that such
Resolutions can conveniently be disapproved for
extraneous considerations, which are known to law. The
voluminous record at Exhibit-A would make it absolutely
clear that, withdrawal of recognitions of the Primary
Schools run by the respondent No.1 was very much
warranted, having regard to the huge mal-practices,
embezzlement of funds, fabrication of record etc. However,
since the respondent No.1 to afford to manage the things,
the General Body of Zilla Parishad could not pass a
Resolution as tabled, in view of horse-trading by the
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respondent No.1.
9] It is further the case of the petitioners that,
they are indeed aggrieved by the transfer from the Talat
High School, Juna Bazar to Talat Urdu Primary School, vide
its order of transfers. The said transfers have been effected
to rebuke the petitioners for having not acceded to the
dictates of the management and thereby to remain
associated with the employees who have been agitating
against the management, to protest against the extreme
financial harassment being made. It is further the case of
the petitioner that, joining of the petitioners at transferred
places is under compulsion. Had petitioners not joined at
the transferred places, petitioners would not have been
permitted to perform the duty and solely with an object to
ensure earning of their daily bread for their livelihood, they
opted to join at the transferred places. However, in the
wake of the proceedings relating to withdrawal of
recognition, in respect of which documents have been
placed on record at Exhibit-A, it is more than clear and it
leaves no room for doubt that, those who were not in the
good book of respondent No.1, were singled out for being
posted in Primary Schools, of which recognition was in
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danger. In this view of the matter, if the things are viewed
in its right earnest, the mala fides on the part of the
respondent No.1 are writ large, warranting interference to
subserve the ends of justice.
10] It is further the case of the petitioner that, since
transfers are prerogative of the management, initially, the
petitioners did not feel it appropriate to challenge the order
of transfers. However, considering the background and the
attending circumstances, petitioners later on felt it
appropriate to challenge the said transfers. One of the
prime consideration to assail the order of transfers is that,
since they joined at the transferred places, their salary has
not been released by the respondent No.1. The respondent
No.2 has disapproved the transfer of the petitioners and
thus refused to accord approval and to release the salary.
The said refusal is reported to be on account of the action
of withdrawal of recognition proposed by the respondent
No.3, to advocate the cause of employees of respondent
No.1. Salary of one Smt. Tabassum Rana Yasmin Mohd.
Ismail who has been transferred from Primary School to
Talat High School is also not being released and both the
teachers are being made to suffer at the hands of of
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respondent No.1. It is for the respondent No.1 to get the
issue settled between respondent No.1 and respondent No.
2, however, the respondent No.1 cannot be permitted to
shirk its responsibility to make payment of the salary to the
petitioners, having been extracted work from the
petitioners. On account of non-payment of salary for more
than three and half months, the petitioners are facing
extreme financial hardships and it would also culminate in
recovering penal interest on the due installments of the
loans, which the petitioners never availed in reality.
11] It is further the case of the petitioners that, one
more facts deserves consideration of this Court at this
stage that, increments which were otherwise due to the
petitioner, have been illegally withheld by the respondent
No.1. As a matter of fact, withholding of increments is a
minor punishment under the Rules, which contemplates
adherence to the procedure prescribed. However, with the
extreme grudge mala fides and vengeance, respondent No.
1 has towards the petitioners, having protested against the
financial harassment being made, the respondent No.1 has
deliberately withheld two increments, which the petitioner
would otherwise eligible and entitled.
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12] It is further the case of the petitioners that,
they have not been issued order of appointment by the
respondent No.1 at any point of time. It has been the
practice of respondent No.1 to obtain acknowledgment of
the order of appointment, however, the order of
appointments is never given to the employees. Still,
however, on the basis of the seniority list, pay bill
submitted by the respondent No.1, under the signature of
the Head Mistress, who also happens to be the Secretary of
the respondent No.1, the name of the petitioner appears in
the seniority list and pay bills. The said seniority list and
pay bill establish that, the petitioners have been working
with the respondent No.1 since 1997, 1990 and 2002
respectively. The said list has been obtained by the
petitioners from the office of respondent No.2, which also
bears the number and date of the order of approval of their
appointment. In the list of staff working during 2007-08 as
well, against the name of the petitioners, the date of first
appointment is mentioned as 01.09.1990.
13] It is the case of the petitioner in Writ Petition
No.1958/2009 that, as a result of illegalities after illegalities
being committed by the respondent No.1, the respondent
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No.2 has directed to deposit an amount of Rs.10,25,022/-
deducted from the salary of the teachers / employees
working in various schools run by respondent No.1. The
Education Officer, Primary i.e. respondent No.3 has also
issued a final show cause notice to respondent No.1 on
14.05.2008 seeking explanation from the petitioner for the
grave irregularities and illegalities, which is likely to
culminate in withdrawal of recognition of primary schools
run by respondent No.1. Copies of the said communications
dated 14.05.2008 and 02.02.2009 are being placed on
record at Exh.F colly, for kind perusal of this Court. In the
light of the irregularities and the action in the offing against
the respondent No.1, there is every likelihood that the
permission of the primary Schools run by the respondent
No.2 would be withdrawn. The impugned order of transfer
is therefore, required to be considered in the light of the
action proposed against the respondent No.1. Since the
petitioner has been considered amongst those employees,
who are agitating against the respondent No.1 for their
legitimate claims, such employees are being selected for
being transferred from High School to Primary Section and
the blue eyed employees are being chosen to be brought
from Primary School to Secondary School. On this
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background, in view of the ex-facie unsustainable order of
transfer and the malice behind issuance thereof, petitioner
seeks to approach this Court to seek protection from this
Court, which deserves to be afforded to them, to subserve
the ends of justice.
14] It is further the case of the petitioners that, on
the aforesaid canvas, they are approaching this Court
against the impugned order of transfer and non-payment of
salary till date, invoking extra-ordinary jurisdiction under
Article 226 of the Constitution of India. Having regard to
the extreme financial crisis being suffered by the
petitioners, appropriate orders to sub-serve the ends of
justice, deserves to be passed.
15] The learned counsel appearing for the
petitioner invited our attention to the pleadings in the
petition, annexure thereto and submits that, transfers of
the petitioners are with vengeance and mala fide intention
of the respondent No.1. It is further submitted that, in view
of the Circular dated 26.10.1990 issued by the Government
of Maharashtra, the employees from primary establishment
to secondary establishment and vise versa are not
permissible. The learned counsel appearing for the
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petitioners invited out attention to the pleadings in the
Petition and submits that, the petitioners have been made
to suffer extreme financial loss by paying them meager
amount by the respondent No.1. It is submitted that, the
respondent No.1 has committed irregularities, illegalities
and fabrication of record. The inquiry was also held against
the respondent No.1. However, the respondent No.1 could
manage to abort the Resolution regarding withdrawal of
recognition in the General Body of the Zilla Parishad,
Aurangabad. It is submitted that, the transfers of the
petitioners were illegal and contrary to the Government
Circular, therefore, the impugned orders deserve to be
quashed and set aside.
16] The learned counsel appearing for the
respondent No.1, relying upon the averments in the
affidavit-in-reply, submits that, the respondent No.1 is a
minority institution, which receives grant-in-aid from the
State. It is submitted that, as per the provisions of Bombay
Primary Education Act, 1947, it is the duty cast upon
respondent No.2 i.e. the Education Officer [Primary], Zilla
Parishad, Aurangabad, to release the salary of the teachers,
working in the minority institution. It was informed to the
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respondent No.2 that, the petitioners are transferred from
Talat High School, Juna Bazar, Barudgarnala, Aurangabad to
Talat Urdu Primary School, Kabadipura / Shahanoorwadi,
Aurangabad. It is submitted that, in the Writ Petition
averments are made regarding withdrawal of recognition of
Talat Urdu Primary School, Kabadipura. It is submitted that,
Writ Petition No.7375/2007 was filed before this Court. The
respondent
ig No.1 was not made party in the said Petition.
On 17.12.2007, this Court directed respondents to decide
the issue involved in the Petition on its own merit. Pursuant
to the directions given by this Court, the enquiry was
conducted and the report was prepared by the Director,
Primary Education. As per the provisions contemplated in
Bombay Primary Education Act, 1947, the report was kept
in the meeting of Education Committee, Aurangabad Zilla
Parishad, however, upon considerable debate the proposal
to withdraw the recognition of respondent No.1 was refused
by the Education Committee. It is submitted that, the
petitioners are transferred as per the provisions of law, they
joined the service, intimation of their transfers are given to
the Education Officer, their pay bills for releasing the salary
are already submitted to the Education Officer, Zilla
Parishad, Aurangabad. It is submitted that, by the
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impugned orders, the petitioners were transferred, and
accordingly, petitioners joined services on their respective
transfered places, which shows that, the petitioners are
accepted the transfer orders and acted upon as per the
law.It is submitted that, the allegations made in the Petition
against the respondent No.1 are denied in toto. The said
allegations are without any proof, and there is no substance
in the said allegations.
17] The learned counsel also invited our attention
to the additional affidavit filed on behalf of the respondent
No.1. It is submitted that, the petitioners have been paid
regular salary. It is submitted that, the petitioners have
been appointed as Assistant Teachers. It is submitted that,
since the petitioners are possessing qualifications
necessary for the appointment as Primary Teacher, they
were appointed as Primary Teacher. It is submitted that,
the respondent No.1 is running various Schools. It is
submitted that, though the school is named as Talat Urdu
High School, the classes are conducted in the said school
are from V to VII Standard and VIII to X Standard. The
classes from VIII to X are of High School. However, classes
from V to VIII are attached in the same school. The
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petitioners were teaching to the students studying in V to
VII Standard. The transfers were made on administrative
ground. It is submitted that, the provisions of Rule 41 of
the MEPS Rules enables the management to transfer
Assistant Teachers from one school to another school on
administrative ground. The said provision does not
contemplate that, the schools should take permission of the
concerned
ig Authorities
employees of the Institution.
for effecting transfer
It is submitted that, the
of the
petitioners were transferred having recourse to the
provisions of Rule 41 of the MEPS Rules, 1981. The Circular
dated 26.10.1990 is in respect of transfers of the teachers
from Secondary School. In the present case, the petitioners
were transferred, who are working as Assistant Teachers,
from Primary Section to another Primary Section of the
same management. Therefore, the provisions of Circular
dated 26.10.1990 has no application in the facts of the
present case. It is submitted that, without admitting but
assuming that, the said Circular is applicable, even in the
said Circular there is no total prohibition for the transfers
from the High Schools to Primary Schools. It is only
mentioned in the Circular that, in case some difficulties
regarding service or financial loss of the particular teacher
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arises in future, in that case the Government will not be
responsible for such losses and the management will be
held responsible for such loss.
18] The learned counsel further submits that, the
petitioner in Writ Petition No.1958/2009 has challenged her
transfer order dated 28th March, 2009, by which she was
transferred from Talat High School, Barudganwala Primary
Section to Talat Urdu Primary School, Shahanoorwadi,
Aurangabad. It is submitted that, the said transfer was on
administrative ground, without affecting salary or pay of
the petitioner.
19] The learned counsel appearing for the
respondent No.1 submits that, bald allegations are made
against the respondent No.1 by the petitioners without any
substance, and therefore, those allegations are totally
denied by the respondent No.1.
20] During the course of hearing, the learned
counsel appearing for the respondent No.2 invited our
attention to the provisions of Rule 41 of the MEPS Rules.
He further submitted that, the transfer is an incident of
service. It was not necessary for the respondent No.1 to
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seek prior permission of the Education Officer for transfer.
In support of this contention, the learned counsel appearing
for the petitioners placed reliance Marathwada Banjara
Seva Sangh Vs. State of Maharashtra1.
21] It is submitted that, since transfers were
effected in the year 2008 and 2009, and the interim relief
was refused by this Court, this Court may not entertain
Petitions after lapse of considerable period.
22] The learned counsel appearing for the
respondent No.2, relying upon the averments in the
affidavit-in-reply, submits that, the primary establishment
and secondary establishment are two different institutions.
The schools having standard I to IV or I to VII, if attached
with primary schools are the primary establishments and
standard VIII to X and standards V to X if attached to
secondary schools are secondary establishments. It is
submitted that, the primary establishment is controlled by
the Education Officer [Primary / Director of Primary,
Maharashtra State, and Secondary establishment is
controlled by the Education Officer [Secondary] / Director of
Secondary, Maharashtra State. It is submitted that, the
1 2004 [4] Mh.L.J. 8
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budgetary provisions are also separate fro both the
establishments. The seniority criteria / lists are also
separate for both the establishments. If any employee
enters to any of such establishments, either by way of
appointment or transfer, from the date of such entry, his /
her seniority would be counted and therefore in case of
seniority, the earlier services of such of the employee gets
affected when he / she is transferred from primary
establishment to secondary establishment vise versa, which
leads to further problems of promotion, pensionary and
other economical benefits, etc.
23] It is further submitted that, as the concerned
Government Department has realized the problems,
circular dated 26.10.1990 has also been issued to the effect
that, the transfer of the employees from primary
establishment to secondary establishment and vise versa in
the private grant-in-aid schools leads to several
complications in respect of any pay fixation, seniority,
pensionary benefits etc. However, if the concerned
employee specifically gives his / her consent for such
transfer / change of establishment, the Education Officer
would have no objection for the same but if there is no such
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consent, then it is the whole responsibility of the concerned
School / Institution in respect of all prospective losses of
service conditions and economic consequences, for which
the Government would not be responsible. Therefore, vide
said Circular, such of the transfers have been prohibited.
24] It is further submitted that, subject matter of
transfers of the petitioners and other employees in their
places are the transfers from primary establishment to
secondary establishment or vise versa of the respondent
Institution. It is submitted that, it shows that, the transfers
were made way back in the month of April, 2008. However,
the proposal for approval has been forwarded to the office
of respondent - Education Officer [Primary], after more than
three months, that too, without forwarding all necessary
information in that respect. The same is the case of
submission of pay bills of such of the employees. It is
submitted that, unless the transfers are approved by the
Education Officer, the pay bill of such of the employee can
not be released. It is submitted that, after getting the
relevant information from the respondent Institution, the
Education Officer [Primary], Zilla Parishad, Aurangabad,
found that, the subject matter transfer from one
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establishment to other establishment as explained above,
has no consent of the petitioners to the same. Therefore, in
view of the above said Circular, the same cannot be
approved. The Education Officer [Primary], vide
communication dated 10.10.2008 has also intimated the
said fact to the Head Master of the respondent / concerned
Talat Urdu High School. In view of the same, the Education
Officer can not release the salary of such of the employees
and the same is the responsibility of respondent institution /
School.
25] During the course of hearing, the learned
counsel appearing for the respondent No.2 submitted that,
the respondent No.1 has not sought permission / approval
of the Education Officer [Primary] for transfer of the
petitioners from secondary school to primary school.
26] It is further submitted that, the respondent -
Education Officer [Secondary], Zilla Parishad, Aurangabad
communicated respondent No.1 that, inter se transfers
from one establishment to another establishment cannot be
accorded approval arising out of the subject matter
transfer. Therefore, relying upon the averments in the
affidavit in reply and the afore-mentioned Circular, the
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learned counsel appearing for the respondent No.2 submits
that, Writ Petitions deserve to be dismissed against the
respondent - Education Officer.
27] We have heard the learned counsel appearing
for the petitioners, the learned counsel appearing for the
respective respondents at length. With their able
assistance, we have perused the pleadings in the Petitions,
annexure thereto, affidavit-in-replies filed by the
respondents, the provisions of MEPS Rules and also the
Government Circular dated 26.10.1990. In these two Writ
Petitions i.e. Writ Petition Nos.5328/2008 and Writ Petition
No.5330/2008, this Court was pleased to issue Rule,
however, no interim relief was granted. The petitioners
have disclosed in the Petitions that, they have joined at
transferred places. It is not in dispute that, the transfers of
the petitioners were from one school at Aurangabad to
another school at Aurangabad run by the respondent No.1
management. It is also not in dispute that, the petitioners
possessed qualifications which was required for
appointment as Assistant Teacher [Primary]. It is also not
in dispute that, the respondent No.1 management runs
more than one School in Aurangabad City and also outside
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Aurangabad, at Gangapur. Rule 41 of the Maharashtra
Employees of Private Schools [Conditions of Service]
Regulation Rules, 1981, reads thus:
41. Transfers.
(1) Subject to the provisions of this rule the
Management conducting more than one
school shall not transfer any of its
ig employees from one school to another
except on administrative grounds,
promotion or at the request of the
employee concerned if it is
administratively convenient to do so.
(2) Save in exceptional case, and unless
reasons are recorded in writing by the
Management, such transfers shall not be
effected in the middle of the term.
(3) The Management shall see that the
transfers do not adversely affect the pay
or pay scale of the employees concerned
and that such transfers do not result into
loss in the pensionary benefits as
admissible to them.
(4) The expenditure on Traveling allowance
and Daily allowance if any, at the rates
applicable to the Government employees
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of the comparable status, shall be borne
by the Management. If the transfer is at
the request of the employee, this
expenditure shall be borne by the
employee concerned. Provided that, the
transfer involves change of headquarters,
the joining time to be allowed to an
employee shall be limited to six days
[excluding Sunday] and actual days of
ig journey. Subject to this limit, the period
of joining time shall be treated as "duty"
for all purposes:
Provided that, an employee shall not be
entitled to joining time if transfer is
effected during the vacation.
(5) Where a Management runs a secondary
school or secondary schools and a Junior
College of Education. -
(a) Teachers in a Junior College of
Education shall not be transferred
to a Secondary school against their
will. Such transfers may, however,
be made if they are at employees
own requests, subject to availability
of vacancies in secondary schools.
In the event of such a transfer, the
pay drawn by the teacher in the
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Junior College of Education shall not
be protected. He shall be deemed
to be working in a secondary school
during the period he worked in the
Junior College of Education, and his
pay shall be accordingly reflexed
on his joining the secondary school.
(b) Teachers in secondary school shall
ig not be transferred to a Junior
College of Education against their
will. Such transfers may, however,
be made if they are at the
employees own requests, subject to
the following conditions, namely -
(i) Vacancies should be available
in the Junior College of Education;
(ii) The concerned employees
shall retain the same place in the
common seniority list; and
(iii) Their pay in the Junior College
of Education shall be fixed at the
same stage of pay as their existing
pay or at the minimum of the scale
of pay in the junior College of
Education, whichever is higher.]
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28] Sub rule (1) of Rule 41 prohibits the
Management conducting more than one school, to transfer
any of its employees from one school to another except on
administrative grounds, promotion or at the request of the
employee concerned if it is administratively convenient to
do so. Upon careful perusal of the impugned orders of
transfer issued by the President, Talat Shikshan Mandal,
Aurangabad,
ig it appears
transferred on administrative grounds.
that, the petitioners
It is also further
were
mentioned in the said order that, the service conditions
shall remain unaffected. Upon perusal of the sub rule (3) of
Rule 41 of the said Rule, the responsibility is cast upon the
Management that, transfers do not adversely affect the pay
or pay scale of the employees concerned and that such
transfers do not result into loss in the pensionary benefits
as admissible to them. The said rule does not provide for
seeking permission of the Education Officer for such
transfer.
29] In the facts of the present case, it is not in
dispute that, the petitioners were appointed as Assistant
Teacher [Primary], since they possessed qualification of
S.S.C./H.S.C. D.Ed. It is true that, from the School from
5328.2008 WP+.odt
which petitioners are transferred, same is called secondary
school and where petitioners are transferred is a Primary
School. However, it is not in dispute that, the petitioners
even in Secondary School were teaching to the students
studying from V to VII Standards i.e. primary section and
not to the students from VIII to X Standards. The School
where the petitioners are transferred, the classes are from
I to VII Standards. It is specifically mentioned in the
transfer orders that, the petitioners' seniority, pay scale,
pension salary and service conditions shall remain
unaffected due to such transfers. Therefore, upon perusal
of the contents of the transfer orders, in the first place the
transfer is on administrative ground, and secondly, said
transfer order is passed ensuring that, the transfers do not
adversely affect the pay or pay scale of the petitioners and
that such transfers will not result into loss in the pensionary
benefits as admissible to the petitioners. Therefore, the
transfer order has taken care of the mandate of sub-rule (3)
of Rule 41 of the said Rules.
The contention of the learned counsel
appearing for the petitioners and the respondent No.2 that,
teachers from the Secondary School to Primary School,
5328.2008 WP+.odt
even if it is run by the same management, and though the
petitioners are appointed as Assistant Teachers [Primary],
is not permissible, does not find place in sub-rule (5) of Rule
41 of the said Rules. In sub-rule (5) of Rule 41 it is
specifically mentioned that, teachers in a Junior College of
Education shall not be transferred to a secondary school
against their will. Except on own requests of the employees
and subject to availability of vacancies in secondary
schools. However, in the event of such a transfer, the pay
drawn by the teacher in the Junior College of Education
shall not be protected and he shall be deemed to be
working in a secondary school during the period he worked
in the Junior College of Education, and his pay shall be
accordingly reflexed on his joining the secondary school.
Sub-rule (5) (b) further provides that, teachers in secondary
school shall not be transfered to a Junior College of
Education against their will. Said provision further provided
some exception for such transfers on request of the
concerned employees on certain conditions. If it was the
intention of the Legislature that, teachers who are teaching
in the secondary school, and in the facts of the present
case, in V to VII Standards, shall not be transferred to a
Primary School run by the same management, certainly
5328.2008 WP+.odt
such provision might have been incorporated in sub-rule (5)
of the said Rules. As already observed, in the facts of the
present case, the petitioners are appointed as Assistant
Teachers [Primary] since all of them possessed qualification
of S.S.C. / H.S.C. D.Ed. at the time of their appointment and
they are also teaching to the students upto VII Standard,
which is included in Primary Education. In our opinion,
there is no force in the contention of the learned counsel
appearing for the petitioners and also respondent -
Education Officer that, such transfers were not permissible
by the management. As already observed, sub-rule (1) of
Rule 41 of the said Rules, does not prohibit the
management from transferring the employees from one
school to another school on administrative grounds. In case
of such transfer, as required under sub-rule (3) of Rule 41 of
the said Rules, the management shall ensure that, the
transfers do not adversely affect the pay or pay sale of the
employees concerned, and that such transfers do not result
into loss in the pensionary benefits as admissible to them.
30] The learned counsel appearing for the
petitioners and the respondent No.2 have placed reliance
on the Government Circular dated 26.10.1990. The
5328.2008 WP+.odt
Government Circular dated 26.10.1990, reads thus:
egkjk"Vª 'kklu
dzekad &vek'kk&6181&34574&d fnukad [email protected]@1990
fo"k; % v'kkldh; ek/;fed 'kkGkrhy f'k{kdkaP;k cnY;k
dj.;kckcr-
'kklukP;k vls fun'kZukl vkys vkgs dh] dkgh
laLFkkpkyd v'kkldh; vuqnku izkIr ek/;fed 'kkGkrhy
f'k{kdkaP;k cnY;k ek/;fed 'kkGkrwu izkFkfed 'kkGk
foHkkxkdMs djrkr o dkgh dkyko/khuarj R;kaP;k iqUgk
ek/;fed 'kkGkadMs cnY;k dsY;k tkrkr- R;keqGs v'kk
f'k{kdkaP;k ckcrhr osrufuf'prh] lsokT;s";Brk
lsokfuo`Rrh osru oxSjs ckcrP;k lsokfo"k;d leL;k uarj
fuekZ.k gksrkr- ;k leL;k izpfyr 'kkldh; rjrqnhps
vk/khu jkgwu lksMfork ;sr ulY;keqGs lacaf/kr f'k{kdkauk
vkfFkZd lsokfo"k;d leL;kauk rksaM |kos ykxrs- vkiY;k
ftYg;krhy loZ ek/;fed 'kkGkauk vki.k ;k
lanHkkZr ;ksX; rs ifji=d ikBowu dks.kR;kgh ifjfLFkrhr
vuqnkuizkIr v'kkldh; ek/;fed 'kkGkrhy f'k{kdkaP;k
cnY;k laLFksus vkiY;k izkFkfed 'kkGkadMs d: u;sr o
tj ;kiq<sgh v'kk izdkjs laLFkkaph f'k{kdkaP;k ojhy
Lo:ikP;k cnY;k dsY;kps fun'kZukl vkys rj R;kaP;k
5328.2008 WP+.odt
ifj.kkekph laIkw.kZ tckcnkjh laLFksoj jkghy o f'k{kdkaP;k
laHkkO; lsokfo"k;d o vkfFkZd uqdlkuhl 'kklu tckcnkj
jkg.kkj ukgh ;kph R;kauk tk.kho |koh-
2½ tj ,[kknk deZpkjh f'k{kd Lor% P;k
lks;klkBh v'kh cnyh Lor% gksmu d:u ?ksr vlsy rj
ek= v'kh cnyh dj.;kr [kkR;kph gjdr jkg.kkj ukgh-
v'kh cnyh djrkauk lnj f'k{kdkl ;k cnyheqGs dkgh
lsokfo"k;d dk;|kauk tjh eqdkos ykxys rjh gh R;kaph
tckcnkjh jkghy v'kh Li"V dYiuk cnyhps osGh R;kal
ys[kh ns.;kr ;koh-
[True translation by the Official Translator, of
the above-mentioned Government Circular dated
26.10.1990, reads thus:
GOVERNMENT OF MAHARASHTRA
No.PSS-6181-34574-C Dated 26-10-1990.
Subject : Regarding transfer of teachers working in
private secondary school.
It has come to the notice of government that
some management of private granted institutions
make transfer of their teachers from granted
Secondary School to their Primary School and after
some time they again make transfer of such teachers
to the Secondary School. Due to such type of
5328.2008 WP+.odt
practice the problem of pay fixation, seniority and
retirement etc. of such teachers arises. Since such
problems can not be solved in accordance with the
prevailing government provisions, the concerned
teachers have to face their financial service related
problems. You are therefore, directed to bring this
issue into the notice of all Secondary Schools in your
district by issuing a proper circular in this regard so
that in no circumstances teachers working in the
privateig Aided Secondary School should be
transferred to their Primary School. And, hereinafter
if it is noticed that such types of transfer of teachers
have been made by the institutions the entire
responsibility of the consequences towards such
types of transfer shall lie on the institution and
government shall not be responsible for the
incidental financial service related losses of such
teachers. This may be brought into their notice.
2] If any teacher voluntarily gets his
transfer done then there shall not be any objection
to the department. While seeking such type of
transfer by the said teacher it should be brought in
writing to his notice that if he has to loose any
service related benefits due to such transfer he shall
be responsible therefor.]
31] Upon careful perusal of the contents of the
aforesaid Circular, it appears that, the State Government
5328.2008 WP+.odt
noticed that, the person who runs private institution on
aided basis, effects the transfers of the teachers from
secondary school to primary school and after some period,
again transfers are made from primary school to secondary
school. Therefore, such transfers of the teachers create
problems / difficulties about pay fixation, seniority, pension,
salary, etc. in future. These difficulties / problems cannot
be solved in accordance with prevailing Government
provisions, and therefore, such teachers have to face
financial service related difficulties arising out of such
transfers. Therefore, such transfers from all employees
from aided private secondary school to primary School shall
not be effected, and if such transfer orders are passed in
future by the institutions, the concerned institution will be
held fully responsible for any loss caused to the concerned
employees, arising out of the breach of any service
conditions or financial loss, and the Government will not be
responsible for such losses. However, transfer can be
allowed on the request of the teacher, though he may
sustain loss in future.
32] In our opinion, though such Circular is issued by
the State Government, it cannot override the provisions of
5328.2008 WP+.odt
Rule 41 of the said Rules and secondly, even upon reading
the contents of the said Circular in its entirety, in case of
breach of provision in the said Circular that, there should
not be transfer of the teacher from secondary school to
primary school and vice versa, though run by the same
management, if concerned employee sustains any financial
loss or any loss arising out of change in service conditions,
salary, pension, pay etc. concerned Institution would be
responsible for such loss, and not the State Government.
In the facts of the present case, as already
observed, the transfer order itself makes mentioned that,
due to the transfer of the petitioners, service conditions,
salary, pay, pension, etc. of the petitioners shall remain
unaffected. As already observed, in pursuant to the
transfer orders issued to the petitioners, they have joined
at transferred places 7/8 years back, since there was no
any interim order passed by this Court, staying transfer
orders. In the light of discussion in foregoing paragraphs,
we are not inclined to interfere in the impugned orders of
transfer. However, we make it clear that, the respondent
No.1 would be responsible in case any of the petitioners
have sustained financial loss as contemplated by sub-rule
5328.2008 WP+.odt
(3) of Rule 41 of the said Rules and afore-mentioned
Circular due to such transfer. The petitioners have not
brought to the notice of this Court any such loss sustained
by them due to such transfers.
33] The petitioners have made serious allegations
against the respondent No.1 in the Petitions, including
harassment to the petitioners, financial losses caused to
the petitioners, illegalities and irregularities and fabrication
of record etc. by the respondent No.1. It appears that,
though, the proceedings were initiated for withdrawal of
recognition of the respondent No.1 in the meeting of
Education Committee of the Zilla Parishad, Aurangabad, the
report regarding withdrawal of recognition of the
respondent No.1 school is disapproved. We do not wish to
enter into the allegations made in the Petitions and also
denial of the said allegations by the respondent No.1. We
are confined our adjudication of these Petitions only so as
to find out whether the orders of transfers were
inconformity with the provisions of Rule 41 of the said Rules
and the afore-mentioned Circular.
34] The Bombay High Court Bench at Aurangabad
in the case of Marathwada Banjara Seva Sangh Vs. State of
5328.2008 WP+.odt
Maharashtra [cited supra], while interpreting the provisions
of Rule 41 of the said Rules in para 6 held thus:
"6. Plain reading of the provisions
contained in Rule 41 would therefore
disclose that it is left to the discretion of
the management to take appropriate
decision in the matter of transfer of its
employees, albeit the transfers cannot be
at the whims and fancies
management but are necessarily to be for
of the
administrative reasons or at the request of
the employee/s concerned. Certainly it can
also result from the promotion granted to
an employee. Undoubtedly, sub-rule (2) of
Rule 41 also clarifies that except in
exceptional cases mid-term transfer should
be avoided. However, the rule nowhere
provides that permission or consent is
required from the authorities for effecting
transfer of the employees of the institution.
It is not in dispute that the decision to
withhold the grant was taken solely on the
ground that permission of the authorities
was not taken, and secondly that mid-term
transfer is prohibited. As already seen
above, there is neither requirement of
permission nor total prohibition against
mid-term transfer. Being so, the basis on
which the decision to withhold the grant
5328.2008 WP+.odt
was arrived at was itself contrary to the
provisions of law and the authorities could
not have withheld the grant to the
petitioner on either of the grounds."
Therefore, it follows from the observation in
para 6 of the Judgment in the case of Marathwada Banjara
Seva Sangh [cited supra] that, Rule 41 does not provide
that, permission or consent is required from the authorities
for effecting transfer of the employees of the institution.
However, we make it clear that, so far allegation made in
the Petitions by the petitioners about the less payment of
salary to them, their harassment at the hands of the
respondent No.1, any financial loss caused to them, any
irregularity or illegality and fabrication of documents by the
respondent, which caused loss to the petitioners, by which
the petitioners are aggrieved or affected their service
conditions, they may seek appropriate remedy for redressal
of their grievances. We have not expressed any opinion
about the availability of such remedy or on merits of such
allegations made by the petitioner and denied by the
respondent No.1.
35] In the light of discussion in the foregoing
paragraphs, we are not inclined to interfere in the
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impugned order of transfers, hence Petitions stand
dismissed. Rule discharged. No order as to costs.
36] In view of dismissal of the Petitions, Civil
Applications stand disposed of.
[P.R.BORA] [S.S.SHINDE]
JUDGE
ig JUDGE
DDC
