Jyoti Vithalrao Khadke vs The State Of Maharashtra And ...
2017 Latest Caselaw 2132 Bom

                                     1          WP-401-17.odt


        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                   BENCH AT AURANGABAD

           WRIT PETITION NO.401 OF 2017 
                      
Jyoti d/o. Vithalrao Khadke,
Age : 36 years, Occ. Service as
Assistant Teacher,
r/o. c/o. T.S. Wadiyar, Saikripa,
Plot No.85/86, Chhatrapati Nagar,
Purna Road, Nanded                  ..Petitioner

               Vs.

1. The State of Maharashtra
   Through Secretary,
   Rural Development and Water
   Conservation Department,
   Mantralaya, Mumbai - 32

2. Divisional Commissioner,
   Aurangabad Region,
   Aurangabad

3. The Chief Executive Officer,
   Zilla Parishad, Nanded 

4. Education Officer (Primary),
   Zilla Parishad, Nanded                      ..Respondents

                          --
Mr.V.S.Panpatte, Advocate for petitioner
Mrs.A.V.Gondhalekar, AGP for respondent nos.1 to 2
Mr.S.B.Pulkundwar,   Advocate   for   respondent   nos.3 
and 4
                          --

                        CORAM    :   S.V. GANGAPURWALA AND
                                     SANGITRAO S. PATIL, JJ. 
               RESERVED ON   :       APRIL 13, 2017
               PRONOUNCED ON :       MAY 03, 2017




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JUDGMENT (PER SANGITRAO S. PATIL, J) :

Rule. Rule made returnable forthwith.

With the consent of the learned Counsel for the

contesting parties, heard finally.

2. The petitioner, who is an Assistant

Teacher (Primary), has challenged the order dated

03.06.2016 issued by respondent no.3 - Chief

Executive Officer, Nanded, transferring her from

Loha, Tq. Hadgaon, to Nandgaon-Tanda, Jaldhara,

Tq. Kinwat, District Nanded.

3. The learned Counsel for the petitioner

submits that the husband of the petitioner is

serving as an Assistant Teacher in a private

school situate in Dnyaneshwar Nagar at Nanded,

which post is not transferable. The petitioner

has been transferred to a place which is at a

distance of about 200 kms. from the place, where

her husband is serving. He submits that the

guidelines given in the Government Resolution

dated 15.05.2014 in the matter of effecting

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transfers have been totally ignored. The transfers

have not been made in a transparent manner. Some

of the teachers have been shown favour, while

others like the petitioners, have been treated

differently. The couple convenience policy also

has not been followed, which mandates that the

place of transfer of a spouse shall be within 30

kms. from the place where the wife/husband is

serving. He submits that under the garb of filling

up vacant posts in tribal area of Kinwat Taluka,

imbalance has been created and many posts have

been kept vacant in non-tribal area like Ardhapur

and Hadgaon Talukas. According to the learned

Counsel, the transfer of the petitioner is most

inconvenient and also is against the guidelines

given in the Government Resolution dated

15.05.2014. Moreover, when the petitioner went to

join the place of her transfer on 10.10.2016, she

was not allowed by the Headmaster to join there

for want of vacancy. He, therefore, submits that

the impugned order of transfer may be set aside

4 WP-401-17.odt

and respondent no.3 may be directed to transfer

the petitioner at a place within the radius of 30

kms. from the place where, her husband is serving.

4. Respondent no.3 filed reply and opposed

the claim of the petitioner. The learned Counsel

for respondent no.3 submits that the petitioner

never worked in tribal area and she has worked in

Hadgaon Taluka only for more than 18 years. He

submits that it is mandatory to fill-up all the

vacancies in the tribal area of Kinwat and Mahur

Talukas. Accordingly, the primary teachers, who

never worked in tribal Talukas, were transferred

there. He submits that maximum care was taken to

see convenience of a large number of primary

teachers, but all the primary teachers could not

be considered for want of vacant posts. He submits

that the petitioner did not join the place of her

transfer. It is only when the this Court directed

all the petitioners to join the place of their new

postings, the petitioner also tried to join at her

post of transfer. However, since the petitioner

5 WP-401-17.odt

did not join there till 10.10.2016 and since it

was not possible to keep the said post vacant,

with a view to impart education to the students

admitted in the school in the tribal area,

temporary arrangement was made and some other

teacher was posted in the school where the

petitioner was transferred. Therefore, when the

petitioner went to join the said place, the

Headmaster of the said school, could not allow her

to join there. He submits that the petitioner

cannot take benefit of her own wrong and she would

be accommodated at the place of transfer. He

submits that the transfer of the petitioner has

not been effected with any mala fide intention.

It would not be possible for respondent no.3 to

satisfy all the primary teachers by giving the

posts as per their choice. He submits that the

Writ Petitions of the primary teachers similarly

situated to that of the present petitioner, have

been dismissed by this Court with costs. He

submits that the common judgment delivered in

6 WP-401-17.odt

those petitions is very much applicable to the

facts of the present case also. He, therefore,

prays that the present Writ Petition may be

dismissed with costs.

5. A copy of the common judgment dated

27.02.2017 delivered by this Court in the case of

Sou. Sunita Damodharrao Deshmukh Vs. The State of

Maharashtra and others in Writ Petition No.5984 of

2016 and connected Writ Petitions, has been

produced on record. The petitioner - Sunita

Damodharrao Deshmukh, Primary School Teacher, was

transferred from Zilla Parisad School, Degloor,

District, Dist. Nanded to Gokunda Marathi, Center

Nayacamp, Taluka Kinwat, a tribal area in Nanded

District. The distance between the place where she

was transferred and the place where her husband

was serving, was about 230 kms. All the points

which have been raised by the learned Counsel for

the present petitioner, were raised while

challenging transfer of Sunita Damodharrao

Deshmukh. The said Writ Petition came to be

7 WP-401-17.odt

dismissed with costs of Rs.15,000/-. The

observations made by this Court while dismissing

the said Writ Petition still hold good.

6. We find no reason to take a contrary view

in the present Writ Petition. However, we are

inclined to show some leniency to the present

petitioner by not imposing costs of Rs.15,000/-.

7. In the above circumstances, we do not

find any reason to interfere in the order of

transfer issued by respondent no.3 in respect of

present petitioner. The Writ Petition is devoid of

any substance. It is liable to be dismissed.

8. Hence, the order :-

(i) The Writ Petition is dismissed.

(ii) Rule is discharged accordingly.

(iii)          No costs.


[SANGITRAO S. PATIL, J.]            [S.V. GANGAPURWALA, J.]
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