Rekha Ashok Khandare vs Bahuuddeshiya Shikshan Prasarak ...
2021 Latest Caselaw 6372 Bom

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        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                     BENCH AT AURANGABAD

                       WRIT PETITION NO. 4753 OF 2019

Rekha Ashok Khandare
age 31 years, occ. Service
r/o Shelwad, Tq. Bodwad
Dist. Jalgaon                                      Petitioner

       Versus

1.     Bahuuddeshiya Shikshan Prasarak Mandal
       Through its Secretary
       Dashrath s/o Yadav Wawage
       age 70 years, occ. Secretary
       R/o Shelwad, Tq. Bodwad
       Dist. Jalgaon.

2.     Bahuuddeshiya Madhyamik Vidyalala
       Through its Head Master
       Shrikrushna s/o Pandhari Ingle
       Age 50 years, occ. Service
       R/o Shelwad, Tq. Bodwad
       Dist. Jalgaon.

3.     Pravinkumar S/o Rajaram Jaware
       Age 32 years, occ. Service
       R/o Bahuuddeshiya Madhyamik Vidyalaya
       Shelwad, Tq. Bodwad
       Dist. Jalgaon

4.     Education Offcer (Secondary)
       Zilla Parishad, Jalgaon

5.     State of Maharashtra
       Through Education and
       Sports Department,
       Mantralaya, Mumbai 32.                               Respondents




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Mr. L.V. Sangeet, Advocate for the petitioner.
Mrs. V.S. Choudhary, AGP for respondent Nos. 4 and 5.
Mr. A.S. Kulkarni, Advocate for respondent Nos. 1 and 2.
Mr. S.R. Dheple, Advocate for respondent No. 3.



                                  CORAM : Ujjal Bhuyan &
                                          M.G. Sewlikar, JJ.

RESERVED ON : 22nd March, 2021.

PRONOUNCED ON : 9th April, 2021.

JUDGMENT : ( Per M.G. Sewlikar, J.)

Rule. Rule made returnable forthwith.

2. With the consent of the parties, heard fnally at the stage

of admission.

3. By this petition under Articles 226 and 227 of the

Constitution of India, petitioner is seeking the relief of quashing of

order dated 26th March, 2019 passed by respondent No. 4 cancelling

transfer of the petitioner as Shikshan Sewak from unaided to aided

school and order dated 17th September, 2019 transferring respondent

No. 3 as Shikshan Sewak from unaided school to aided school.

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4. Facts as set out in the petition are that the qualifcations

of the petitioner are B.A., B.Ed. and M.A. Respondent No. 1 is the

school of which respondent No. 2 is the Head Master. Respondent

No. 4 is the Education Offcer.

5. It is contended in the petition that respondent No. 1 runs

the school from 5th to 10th standards. The school has one division

from 5th to 10th standards on grant-in-aid basis and another division

on non-grant basis. Petitioner was appointed as Assistant Teacher in

the year 2013 in unaided school. Petitioner teaches Marathi subject

to 9th and 10th standards.

6. It is also contended in the petition that one Kishor

Shankar Patil, an Assistant Teacher in aided school died in an

accident on 12th April, 2015. Being the teacher of Marathi subject,

respondent No. 1 transferred the petitioner in the vacant post created

on account of death of said Kishor Patil. Accordingly, respondent No.

1 submitted proposal to respondent No. 4 for approval. Respondent

No. 4 - Education Offcer accorded his approval vide order dated 06 th

November, 2018 for the appointment of petitioner as Shikshan Sewak.

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7. It is further contended that respondent No. 3 who holds

B.A. and B.Ed. Degree in Hindi and Politics was also appointed by

respondent No. 1 in unaided school as Assistant Teacher vide order

dated 16th February, 2013. Respondent No. 1 teaches subject Hindi.

Respondent No. 1, because of the threats given by respondent No. 3

forwarded the proposal of respondent No. 3 to respondent No. 4 for

approval to the transfer of respondent No. 3 as Shikshan Sewak.

Respondent No. 4-Education Offcer by order dated 26 th March, 2019

revoked the order dated 06th November, 2018 whereby petitioner was

appointed as Shikshan Sewak and, accorded approval of the even

date i.e. 26th March, 2019 to the transfer and appointment of

respondent No. 3. Petitioner has assailed the order dated 26 th March,

2019.

8. This Court (Coram : Hon'ble Shri P.B. Varale and Hon'ble

Shri N.W. Sambre, JJ) on 26th April, 2019 passed the following

order :-

6. On perusal of the impugned order, we hardly see any reason to be refected in the said order. The order itself speaks of an arbitrariness and high handed exercise of powers by the Education Offcer (Secondary), Zilla Parishad, Jalgaon.

7. In that view of the matter, we direct the

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respondent - Education Offcer, Zilla Parishad, Jalgaon, who has passed the aforesaid impugned order dated 26th March, 2019, to fle his personal affdavit explaining and justifying the passing of the said impugned order.

8. We also expect that the Education Offcer (Secondary), Zilla Parishad, Jalgaon shall also explain what prompted him not to hear the petitioner before passing the order of cancellation of transfer, which was already awarded in his favour.

9. It is further clarifed that the Education Offcer must explain as to what prompted him in the matter not to pass any reasoned/speaking order.

10. Till the returnable date, the impugned order dated 26th March, 2019 is stayed.

11. Needless to clarify that in case, if this Court is not satisfed with the explanation by the Education Offcer, this Court will be constrained to pass an order of recovery of salary payable to the petitioner from the salary of the Education Offcer.

9. It appears that after this order was communicated to

respondent No. 4, respondent No. 4 issued notices to the petitioner

and respondents for rehearing on the proposal for appointment of

respondent No. 3 as Shikshan Sewak. Petitioner recorded her

presence and submitted written explaination along with necessary

documents. Respondents Nos. 1 and 2 also appeared and tendered

written explanation. Petitioner by communication dated 01.10.2019

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communicated to respondents No. 1, 2 and 4 that this issue was

subjudice before this Court and the order dated 26th March, 2019 was

stayed and, it was not proper on the part of respondent No. 4 to

proceed with the hearing of the matter under consideration before

this Court. Notwithstanding the same, respondent No. 4 passed the

order dated 17th September, 2019 confrming the order dated 26 th

March, 2019 whereby the order in favour of the petitioner dated 6 th

November, 2018 was cancelled and on the same day order according

approval to the appointment of respondent No. 3 as Shikshan Sewak

was passed. Accordingly, petitioner amended the writ petition and

sought the relief of quashing and setting aside the order dated 17 th

September, 2019.

10. Respondents No. 1 and 2 have fled affdavit-in-reply. It

is contended in the affdavit-in-reply that the post of Assistant

Teacher teaching Marathi subject had fallen vacant on account of

death of Assistant Teacher, Kishor Patil. It is further contended that

no teacher was available for teaching Marathi subject and, therefore,

the petitioner was transferred from unaided to aided school.

11. Respondent No. 3 has fled his affdavit-in-reply. It is

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contended in the affdavit-in-reply of respondent No. 3 that initially,

the management had forwarded two proposals; one in the name of

the present petitioner and another in the name of respondent No. 3.

After receiving two proposals for one post, respondent No. 4 directed

the management to submit only one proposal for the said post. It is

contended that the Secretary of the School Management who

happens to be the father-in-law of the petitioner, forwarded the

proposal of the petitioner to respondent No. 4 and this is how the

petitioner came to be transferred as Shikshan Sewak from unaided

school to aided school. It is further contended that petitioner and

respondent No. 3 were appointed on the same day but respondent

No. 3 is senior to petitioner and, therefore, respondent No. 3 ought to

have been transferred to aided school from unaided school in view of

Government Circular dated 28th June, 2016. It is contended that

respondent No. 4 gave hearing to all the concerned parties and

accordingly, respondent No. 3 was accorded approval when it was

brought to the notice of respondent No. 4 - Education Offcer that

respondent No. 3 was senior to petitioner. Thus, transfer of

respondent No. 3 from unaided school to aided school on the vacant

post is in accordance with law.

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12. Respondent No. 4 has fled his affdavit-in-reply. It is

contended that in accordance with the proposal forwarded by the

Management, petitioner came to be transferred to aided school from

unaided school. Respondent No. 3 made complaint alleging therein

that he was senior to petitioner. When respondent No. 4 scrutinised

the proposal, he cancelled the order dated 06 th November, 2018 and

passed the order of transfer of respondent No. 3 from unaided to

aided school. It is further contended that respondent No. 4, after

hearing all the concerned parties, passed the order dated 26 th March,

2019.

13. We have heard Mr. Sangeet, learned counsel for the

petitioner, Mrs. Choudhary, learned AGP for respondents No. 4 and 5,

Mr. Kulkarni, learned counsel for respondents No. 1 and 2 and, Mr.

Dheple, learned counsel for respondent No. 3.

14. Learned counsel Mr. Sangeet submitted that petitioner

holds a degree of B.A. B.Ed. in Marathi and History whereas

respondent No. 3 holds a degree of B.A. B.Ed. in Hindi and History.

Late Kishor Patil, Assistant Teacher in aided school, was teaching

Marathi subject. On the vacant post created due to the sad demise of

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said Kishor Patil, petitioner was transferred from unaided to aided

school vide the order dated 6th November, 2018. Without hearing the

petitioner, respondent No. 4 - Education Offcer revoked the order

dated 06.11.2018 transferring the petitioner from unaided to aided

school and accorded approval for transfer of respondent No. 3 from

unaided to aided school. He submitted that the post which had

fallen vacant was of Marathi subject and transfer from unaided to

aided school ought to have been of a teacher teaching Marathi

subject. Respondent No. 3 is not teacher of Marathi subject but he

teaches Hindi subject. Therefore, respondent No. 3 could not have

been appointed in the vacancy created due to the sad demise of

Kishor Patil. He submitted that respondent No.4 being a quasi-

judicial authority, has no power of review and without hearing the

petitioner he reviewed the order dated 16 th November, 2018 and

passed the order dated 26th March, 2019. He further submitted that

seniority is not a criteria for being transferred from unaided to aided

school but the requirement of the subject is the sole consideration.

He submitted that respondent No. 4 did not consider this aspect of

the matter and had passed the impugned order arbitrarily. Learned

counsel Mr. Sangeet produced a copy of Notifcation dated 08 th June,

2020 indicating therein that Rule 41A of the Maharashtra Employees

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of Private Schools (Conditions of Service) Rules, 1981 has been

amended and the criteria for transfer from unaided to aided school is

seniority and the requirement of the subject. He submitted that the

Circular dated 28th June,2016 is not applicable to the petitioner as a

Division Bench of this Court in the Principal Seat at Bombay in Writ

Petition No. 5313/2017 with connected writ petitions decided on 25 th

April, 2019 has held that the Circular dated 28 th June, 2016 has no

force of law and clauses (1) and (2) of the said Circular have been

invalidated.

15. Learned counsel Mr. Sangeet placed reliance on the

judgments in the case of Dr. Smt. Kuntesh Gupta vs. Management of

Hindu Kanya Mahavidyalya, Sitapur (U.P.) and others reported in AIR

1987 Supreme Court 2186, Saramma Varghese vs.

Secretary/President, S.I.C.E.S. Society and others reported in 1989

Mh.L.J. 951, Ashok Yashwant Nikam vs. Chatrapati Shivaji Vidya

Prasarak Mandal, Nasik and others reported in 2009(4) ALL MR 118

and Murlidhar s/o Janrao Kale and others vs. State of Maharashtra

and others reported in 2011(1) ALL MR 374.

16. Mr.Dheple, learned counsel for respondent No. 3

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submitted that the petitioner is junior to respondent No. 3. For

transfer of a teacher from unaided to aided school, the sole criteria is

seniority. Admittedly, respondent No. 3 is senior to the petitioner.

Therefore, respondent No. 3 ought to have been transferred on the

vacant post of Late Shri Kishor Patil. He further submitted that

respondent No. 3 has attended some seminars of Marathi language

owing to which, he becomes eligible to teach Marathi subject. He

submitted that since the Secretary of the school is the father-in-law

of the petitioner, proposal in the name of the petitioner came to be

forwarded to respondent No. 4 and, respondent No. 4 accorded

approval for transfer of petitioner to aided school. When the fact that

respondent No. 3 is senior to petitioner was brought to the notice of

respondent No. 4, he revoked the order dated 06 th November, 2018

and transferred respondent No. 3 to aided school. After passing the

order dated 26th March, 2018, respondent No. 4 gave hearing to all

the parties concerned. Since respondent No. 3 is senior to the

petitioner, his transfer to aided school was confrmed by the

subsequent order dated 17th November, 2019. He submitted that

amendment in Rule 41 of the MEPS Rules was made vide Notifcation

dated 08th June, 2020 and the transfer was being effected on 26 th

March, 2019. Therefore, this amendment would not apply to the

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facts involved in the instant case.

16.1 Learned counsel Mr. Dheple placed reliance in the case

of Suryakant S/o Janardan Muge vs. The State of Maharashtra and

others in Writ Petition No. 1493/2018 decided on 04.07.2019 and

Pramod s/o Prabhakar Pokale vs. State of Maharashtra and others

reported in 2019(4) Mh.L.J. 278.

17. Mr. Kulkarni, learned counsel for respondents No. 1 and

2 has supported the case of the petitioner. Learned counsel Mr.

Kulkarni placed reliance in the case of Miss. Devkar Dipali Kisan and

others vs. The State of Maharashtra and others in Writ Petition No.

5313/2017 decided on 25.04.2019.

18. Issue involved in this petition is whether transfer from

unaided to aided school of an Assistant Teacher should be on the

basis of seniority or on the basis of requirement of the subject.

18.1 It is not disputed that though both the petitioner and

respondent No. 3 were appointed on the same date, respondent No. 3

is senior to the petitioner. It is also not in dispute that Late Shri

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Kishor Patil who was Assistant Teacher in aided school was teaching

Marathi subject and the said post had fallen vacant due to his

accidental death. Admittedly, petitioner teaches Marathi subject

whereas respondent No. 3 teaches Hindi subject.

19. It is to be noted that appointment of Assistant Teachers

is governed by Maharashtra Employees of Private Schools (Conditions

of Service) Regulation Act, 1977 (hereinafter referred to as the 'MEPS

Act'). In the case of Suryakant (supra), this Court has held that the

MEPS Act applies uniformly and equally to the Assistant Teachers

working on aided posts and also on unaided posts. No distinction is

made in service conditions of the Assistant Teachers working on

aided and unaided posts. Section 13 of the MEPS Act gives authority

to the State Government to frame Rules. Pursuant thereto, the State

Government has framed Rules viz. The Maharashtra Employees of

Private Schools (Conditions of Service) Rules, 1981 (hereinafter

referred to as "MEPS Rules). Rule 41 of the MEPS Rules deals with

transfer of teachers from one school to another school which 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 employees from

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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 cases, 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 benefts as admissible to them.

(4) The expenditure on Travelling allowance and Daily allowance, if any, at the rates applicable to the Government employees 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 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

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are at employees own request, subject to availability of vacancies in secondary schools. In the event of such a transfer, the pay drawn by the teacher in the 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 refxed on his joining the secondary school.

(b) Teachers in secondary school shall 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 employee shall retain the same place in the common seniority list; and

(iii) Their pay in the Junior College of Education shall be fxed 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."

19.1 Thus, Rule 41 authorises the School Management to

make transfers for the better administration of the school taking into

consideration administrative exigencies.

20. It needs to be mentioned at the outset that neither the

petitioner nor the respondents have placed on record any rule or

circular or notifcation dealing with the subject in issue in this writ

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petition. Reliance has been placed on Circular dated 28 th June, 2016

by respondent No. 3. This Circular is reproduced for facility of

reference :-

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21. Learned counsel Mr. Dheple for respondent No. 3 argued

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that clause (3) of the Circular dated 28th June, 2016 specifcally

mandates that seniority shall be the rule for the transfer of a teacher

from unaided school to aided school. Since respondent No. 3 is

senior to the petitioner, the Education Offcer has followed the

instructions in the Circular which cannot be faulted with. To counter

this argument, learned counsel for the petitioner Mr. Sangeet placed

reliance on paragraph No. 17 of the judgment in the case of

Suryakant (supra) contending that it has been held in this decision

that the Circular dated 28th June, 2016 cannot be treated as

Government instructions. Paragraph No. 17 of the judgment reads

thus :-

17. The question would be whether by way of an executive instructions, the powers of the management under rule 41 of MEPS Act for transfer of an employee can be circumscribed, curtailed and eroded. Rule 41 is framed under the Rule making power of the Government as provided under Section 13 of the MEPS Rules. The MEPS Rules is a piece of subordinate legislation. It is trite that, executive instructions cannot override the statutory Rules. Precisely, this has been held by the Division Bench of this Court at Principal Seat at Bombay in Writ Petition No. 5313 of 2017 with connected writ petitions decided on 25.04.2019. The Division Bench in the said judgment held that :

"The circular dated 28.06.2016 can hardly be said to be Government instructions. It has no

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statutory force in law. Rule 41 of the MEPS Act which is the subordinate legislation, the administrative decisions which run contrary to them cannot be held to be valid in law. We fnd that, since Clauses 1 and 2 of the said circular, run contrary to provisions of the subordinate legislation as found in Rule 41, the same would not be valid in law."

While delivering the said judgment, the Division Bench considered the earlier judgments of this Court. Sub-clauses 1 and 2 of Clause 3 of the circular has already been held to be not valid in law by the Division Bench. There is no reason for us to take a different view. The impugned circular as it affects the rights of the management to transfer, as such, same is improper and does not have any enforceable status.

21.1 As held by the Division Bench of this Court, it cannot be

said that Circular dated 28th June, 2016 has any enforceable status.

It cannot be treated to be Government instructions and has no

statutory force in law. Therefore, in view of the decision of this Court

in the case of Suryakant (supra), it cannot be said that seniority is

the rule on the sole criteria to be followed when transfers are being

effected from unaided to aided school.

22. Learned counsel Mr. Sangeet placed reliance on the

Notifcation dated 08.06.2020 issued by the School Education and

Sports Department by which, Rule 41A of the MEPS Rules has been

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amended. Rule 41A 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 to 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) the Management and Education Offcer or Deputy Director shall, before making such transfer, verify that there is no surplus persons are available as provided in sub-section (1) of section 5 of the Act;

(ii) if the surplus persons are available, the Management shall not make such transfer;

(b) the transfer shall not be made from the teachers of self-fnanced school of the Management;

(c) before making such transfer, the teacher should have completed minimum fve years continuous service in un-aided school or division or partially aided school or division of the Management;

(d) the transfer shall be made in equal or same cadre. The transfer shall not be made from primary to higher primary, higher primary to secondary or secondary to higher secondary or higher secondary to D.El.Ed. Schools or vice-versa;

(e) the transfer shall be made only by following the seniority and as per the requirement of the subject;

(f) before making transfer of a teacher, his appointment should have been approved by the

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Education Offcer or Deputy Director, as the case may be;

(g) the transfer shall be made on the vacant post;

(h) the transfer shall be subject to the approval of Education Offcer or Deputy Director, as the case may be.

(2) If the post becomes vacant due to transfer, such vacant post shall be flled as per the procedure provided in rule 9.

(3) The transferred teacher shall be eligible for scale of pay and allowances as decided by the Government, from time to time."

23. It is to be noted that Rule 41A of the MEPS Rules came to

be amended in the year 2020 whereas transfer of petitioner was

effected on 06th November, 2018 which was subsequently revoked and

respondent No. 3 was transferred by order dated 26 th March, 2019.

This clearly shows that the amendment is subsequent to the transfer

in issue. When transfer was effected, no such rule was in force.

There is nothing on record to show that this amendment has

retrospective effect. Therefore, this amendment has no application to

the facts of this case. In view of this amendment, especially Rule

41A(i)(e), it is specifcally laid down that the transfers from unaided to

aided school will be based on seniority and as per the requirement of

the subject. However, since this amendment has no retrospective

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effect, this amendment cannot be pressed into service.

24. In the case of Pramod Pokale (supra), the facts were that

the petitioner was appointed as Assistant Teacher for teaching 1 st to

7th standards. Thereafter, one teacher working on aided basis retired

from the said school. On the request of the petitioner, he was

appointed on the aforesaid vacant post on grant-in-aid basis.

Petitioner Pramod was given appointment as Shikshan Sewak by the

School Management and proposal for grant of approval to his

appointment as Shikshan Sewak was forwarded to the Education

Offcer. The Education Offcer rejected the proposal on the ground

that there were surplus teachers available for absorption in

Aurangabad District. On these facts, it was held thus :-

"When there is vacant post in the aided school, the institution can transfer senior most qualifed Assistant Teacher working on unaided post to fll up the said vacancy, and if such senior most teacher is available in same school, said post on aided basis can be offered to him. There is no prohibition to adopt the aforesaid course. When the management can legally transfer Assistant Teacher serving in the unaided school to aided school, there is no reason to obtain an undertaking from such teacher as stated in sub- clause 5(B) of clause 3 of the aforesaid Circular. However, in case the State Government sanctions new post/posts on aided basis, and those are to be flled in afresh by giving fresh appointment/appointments on the post of Shikshan Sevak, the State Government

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can make applicable the formula/percentage of proportionate salary to be disbursed by the State Government and the concerned Institutions in the manner stated in sub-clause 5(B) of Clause 3 of the said Circular."

24.1 This is not the question involved in the case at hand.

Therefore, this case is of no assistance to respondent No. 3.

25. In the case of Miss. Dipali Kisan Devkar (supra), the

same facts were involved. Therefore, this case is also not applicable

to the facts of the instant case.

26. Thus, it is clear that neither the petitioner nor the

respondents produced any rule/notifcation to show that when a post

of a particular subject falls vacant what course shall be followed by

the School Management while transferring the teachers from unaided

to aided school. In the case at hand, admittedly, the petitioner was

teaching Marathi subject in unaided school and the post which fell

vacant was also of Marathi subject. Petitioner was appointed to teach

Marathi subject in unaided school considering her qualifcation of

B.A. B.Ed in Marathi and History. Respondent No. 3 was appointed

to teach Hindi subject considering his qualifcation of B.A. B.Ed. in

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Hindi and History. Having regard to the qualifcations of the

petitioner, petitioner is the only eligible candidate to be transferred

and appointed to teach Marathi subject in aided school. If seniority

rule is to be followed it would lead to an anomalous situation which

will be neither in the interest of the students nor in the interest of the

Management. For instance, if a post of Assistant Teacher teaching

Physics subject falls vacant in an aided school and a teacher from

unaided school is to be transferred to the aided school on the basis of

seniority and the senior most teacher is not of the same subject but

of a different subject say Sanskrit or Hindi, it does not require any

expertise to say that a teacher teaching Sanskrit will never be able to

teach Physics and vice versa. Therefore, the course adopted by

respondent No. 4 is neither practical nor it furthers interest of any

stakeholder i.e. students or the Management. The criteria of

seniority will be applicable only when there are more than one

teacher in the subject in which post has fallen vacant. Taking a

hypothetical example, if in this unaided school there had been two

teachers teaching Marathi subject, then it was permissible for the

Education Offcer to apply the rule of seniority. When there is only

one teacher teaching a particular subject and he is to be transferred

to aided school for teaching that subject only, the question of

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seniority goes on the backburner. While making transfer from

unaided school to aided school, requirement of subject is the frst

and foremost criteria. If there are more than one teacher in unaided

school teaching that particular subject, then only seniority will come

into the picture. Though Rule 41A was not on the statute book in

2018, the principle underlying the said rule can be adopted while

deciding the case at hand. The underlying principle is that the

requirement of the subject should have frst and foremost

precedence. If a solitary post is available in the unaided school in

that subject, then question of seniority does not arise. It will be

relevant only when there are more than one teacher teaching the

subject in which post has fallen vacant while effecting transfers from

unaided to aided school. In such cases, seniority and the

requirement of the subject shall be the rule. Therefore, the

Education Offcer had initially correctly accepted the proposal for

transfer of petitioner from unaided school to aided school for teaching

Marathi subject. There was no occasion for respondent No. 4 -

Education Offcer to consider the criteria of seniority having regard to

the requirement of the subject. Since there was only one teacher

teaching Marathi subject in unaided school, the question of following

seniority never arose. Having regard to this, the order dated 26 th

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March, 2019 passed by respondent No. 4 is unsustainable.

27. The order of the Education Offcer cannot be sustained

for one more reason. Admittedly, by the order dated 6 th November,

2018, petitioner was transferred and appointed as Shikshan Sewak in

aided school from unaided school. This order came to be reviewed by

the Education Offcer by the order dated 26 th March, 2019 and this

review order was confrmed by the order dated 17 th September, 2019

after hearing the parties. The order dated 26th March, 2019 was

passed without hearing the petitioner. The question is whether the

Education Offcer has power to review his own order. It is trite that

review is a creature of the Statute and a quasi judicial authority or

any such authority or tribunal does not remain in seisin of the

matter once it has been decided unless power of review is conferred

on such authority. In the case of Ashok Yashwant Nikam (supra), it

has been held thus :

4. Mr. Anilkumar Patil the learned counsel for the petitioner submitted that an Education Offcer determines the seniority of teachers in exercise of power under Rule 12 of M.E.P.S. Rules. According to the learned counsel there is no power of review and adjudication of seniority once made. The petitioner has relied on the decision of a learned Single Judge of this Court Lodha, J. (as he then was) in Kausalyabai wd/o Nattu Praskar & ors. Vs.

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Ramchandra Satbaji Patekar [1995(2) Mh.L.J. 913], where this Court observed as follows :

"..... It is well settled that the review is the creature of the Statute and quasi judicial authority or any such authority or tribunal does not remain in seisin of the matter once it has been decided unless power of review is conferred on such authority. Even on the justifable ground unless power of review is conferred on the authority under the law the order once passed cannot be reviewed. Power of review is not inherent. Rent Control Order, 1949 does not provide any power on the Rent Controller to review its order on any ground whatsoever."

Neither M.E.P.S. nor the Rules confer any power on an Education Offcer to review the order once made.

28. Learned counsel for respondent No. 3 could not lay his

hands on any provision to indicate that the Education Offcer is

conferred with the power of review. Therefore, review of the order

dated 6th November, 2018 was incompetent. For this reason also, the

order of the Education Offcer transferring and appointing

respondent No. 3 as Shikshan Sewak for teaching Marathi subject in

aided school cannot be sustained.

29. Before parting with the record, we may also like to

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mention that this Court in the order dated 26 th April, 2019 while

staying the order dated 26th March, 2019 had severely indicated the

Education Offcer i.e. respondent No. 4 of having acted in an

arbitrary and high handed manner. Notwithstanding the same, he

went ahead and passed the order dated 17th September, 2019,

confrming the order dated 26th March, 2019, operation of which

continues to remain stayed. When the Court had taken cognizance of

the grievance of the petitioner and was in seisin of the matter, it was

highly improper on the part of respondent No. 4 to have passed the

order dated 17th September, 2019. It needs no reiteration that when

the Court is in seisin of a matter, an administrative or executive

authority cannot start a parallel proceeding on the very same subject

matter at its own ipse dixit and record a fnding. It would amount to

interfering with the dispensation of justice by the Courts. It is not

only unacceptable but is contumacious as well.

30. Thus, for the foregoing reasons, it has to be said that the

Education Offcer was initially justifed in transferring and appointing

the petitioner for teaching Marathi subject in aided school from

unaided school vide order dated 6th November, 2018. However, he

was not justifed in reviewing that order and transferring and

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appointing respondent No. 3 as Shikshan Sewak for teaching Marathi

subject in aided school from unaided school.

31. In this view of the matter, the writ petition is allowed as

under :-

i) The orders dated 26th March, 2019 and 17th

are set aside.

ii) The order dated 6th November, 2018 passed by respondent No. 4 transferring and appointing the petitioner as Shikshan Sewak in aided school from unaided school stands restored.

        iii)     Parties to bear their own costs.


        iv)      Rule made absolute in above terms.




( M. G. SEWLIKAR )                                   ( UJJAL BHUYAN )
        Judge                                              Judge

dyb





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