Ajay Vishwanath Kharade vs State Of Maharashtra Through Its ...
2021 Latest Caselaw 11672 Bom

                                                                   WP-14234-18.doc

             Sharayu Khot.
                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION

                                  WRIT PETITION NO. 14234 OF 2018


                  Ajay Vishwanath Kharade
                  Age: 25 yrs. Occ: Teacher,
                  R/o: Arsoli, post: Wanjarwadi, Tal: Bhoom
                  District: Osmanabad - 413 504                   ...Petitioner

                         Versus

                  1.   State of Maharashtra,
                       Through its Secretary School
                       Education Department,
                       State of Maharashtra,
                       Mantralaya, Mumbai - 32
                  2.   Director of Education,
                       Directorate of Education
                       (Secondary and Higher Secondary)
                       Maharashtra State, Pune
                       Having its offce at Central Bldg, Pune.
                  3.   Deputy Director of Education,
                       Pune Region, Pune,
                       17, Dr. Ambedkar Marg,
                       Pune-01.
                  4.   The Education Offcer (Primary),
                       Zilla Parishad, Solapur
                  5.   Shri. Ganesh Shikshan Prasarak
                       Mandals' Institute
                       Sant Dnyaneshwar Primary
                       Vidyamandir, Barshi, Tal: Barshi, Dist.:
                       Solapur, Through its
                       Chairman/Secretary.
SHARAYU
PANDURANG
KHOT
                  6.   Head Master,
                       Sant Dnyaneshwar Primary
Digitally
signed by
                       Vidyamandir, Barshi, Tal: Barshi,
                       Dist.: Solapur                             ...Respondents
SHARAYU
PANDURANG
KHOT
Date:
2021.08.24
14:29:04
+0530




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                                                         WP-14234-18.doc

                                  ----------
Mr. Akhil Kupade i/by Manoj Harit and Co. for the Petitioner.
Mr. N. C. Walimbe, AGP for the Respondent Nos. 1 to 3.
Mr. Anand S. Kulkarni for the Respondent No.4.
                                  ----------

                                  CORAM :       R.D. DHANUKA &
                                                R.I. CHAGLA, JJ.

                        Reserved on :           03 August 2021
                        Pronounced on :         24 August 2021


JUDGMENT : (Per R.I. Chagla, J)


1.          Rule.

2. Learned AGP for Respondent Nos. 1 to 3 waives

service. Learned Counsel appearing for Respondent No. 4

waives service. None appears on behalf of Respondent Nos. 5

and 6, inspite of service.

3. Heard fnally by consent of parties.

4. By this Petition fled under Article 226 of the

Constitution of India, the Petitioner seeks quashing and setting

aside of the impugned order dated 1st March 2017 passed by

the Respondent No. 4 and further directions against

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Respondent Nos. 4 to accord approval to the proposal dated 1st

June 2016 of the Petitioner as Assistant Teacher transferred

from the unaided school to the aided school of the same

institution with applicable pay scale with effect from the date of

his transfer. The Petitioner has also sought direction against

Respondent No. 4 to release the salary of the Petitioner from

the date of his transfer i.e. 1st June 2016 from unaided to aided

school.

5. The Petitioner was appointed by the Shri Ganesh

Shikshan Prasarak Mandal ("the Management") of Sant

Dnyaneshwar Primary Vidyamandir ("the School") as

Assistant Teacher on 4th January 2014 for a period of two

years from 4th January 2013 to 3rd January 2015 in the pay-

scale of Rs. 5200-20200 with the grade pay of Rs. 2800/-.

6. Thereafter, the Management of the School

submitted a proposal to Respondent No. 4 seeking approval for

appointment of the Petitioner as Assistant Teacher in the

School.

7. Respondent No. 4 after considering the proposal,

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granted approval for appointment of the Petitioner as Assistant

Teacher in the School, which was unaided.

8. As the Petitioner had successfully completed his

probation period, the Management of the School convened a

meeting on 1st May 2016, wherein it was unanimously resolved

that the Petitioner will be transferred to its School, which was

aided, as Assistant Teacher on account of the vacancy which

had arising as one Shri. Dhanvate Kalidas Shivram was

retiring by superannuation on 31st May 2016.

9. The Management of the School on 20th June 2016

submitted a detailed proposal with Respondent No. 4 to seek

approval to the transfer of the Petitioner from unaided to the

aided School as Assistant Teacher since clear vacancy arisen in

the post of Assistant Teacher in the School.

10. Respondent No. 4 by the impugned order

dated 1st March 2017 rejected the proposal of the Petitioner.

Being aggrieved thereof, the present Petition has been fled.

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11. Learned Counsel appearing for the Petitioner

has submitted that the impugned order has been passed

contrary to the provisions of the Maharashtra Employees of

Private Schools (Conditions of Service) Rules, 1981 ("MEPS

Rules" for short), especially, Rule 41 thereof. He has submitted

that the impugned order places reliance upon the Government

Circular dated 28th June 2016 and particularly Clause 3 Sub-

Clauses 1 and 2 thereof. He has placed reliance upon several

decisions of this Court including the decisions of this Court in

case of Miss. Devkar Dipali Kisan & Ors. Vs. The State of

Maharashtra & Ors.1 which has been followed in subsequent

decision of Division Bench of this Court (Bench at Aurangabad)

in case of Suryakant S/o Janardan Muge Vs. The State of

Maharashtra & Ors.2. In the said decision, the Division Bench

has held that the Government Circular dated 28th June 2016,

in particular Clause 3 Sub-Clauses 1 and 2 thereof which

provides that if surplus Teacher is available at the time of

appointment, then approval should not be granted to the

transfer of Teacher from unaided School to aided School, are

instructions which cannot have statutory force in law. The

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Division Bench upon placing reliance upon Rule 41 of the MEPS

Rules which is subordinate legislation held that administrative

decisions such as the Government Circular which run contrary

to the said Rule cannot be held to be valid in law. The Division

Bench accordingly, held that since Sub-Clauses 1 and 2 of

Clause 3 of Government Circular, run contrary to the

provisions of subordinate legislation as found in Rule 41, the

same has no validity in law. Thus, it was held that the transfer

of Teacher from aided post to unaided post is permissible in

law. Equally, the transfer of an employee from unaided post to

an aided post in another school run by the same Management

would also be permissible in law. He has accordingly, submitted

that since the issue that has arisen in this Petition is covered

by the above referred decisions of this Court, the Petition be

allowed.

12. Learned Counsel appearing for Respondent

No. 4-Education Offcer (Primary), Zilla Parishad has opposed

this Petition. He has relied upon the Affdavit in Reply dated 1st

July 2019 fled on behalf of Respondent No. 4. He has submitted

that the Government Circular dated 28th June 2016 is binding

on the Petitioner and since there are surplus Teachers who are

WP-14234-18.doc

accepting salary without any work and which would affect the

public exchequer and that the initial appointment of the

Petitioner is unaided, claiming right on aided post as Assistant

Teacher being senior most Teacher is against the principle of

justice and such transfer is bad in law.

13. Learned Counsel for the Respondent No. 4 has

placed reliance upon a subsequent Government Resolution

dated 1st April 2021 wherein a similar direction has been

issued as Government Circular dated 28th June 2016. He has

submitted that it is the consistent view of the Respondent-State

that in the event of there being surplus Teachers, transfer from

unaided to aided post as Assistant Teachers cannot be

approved.

14. The learned AGP appearing for the

Respondent-State has opposed this Petition and supported the

argument of the learned Counsel for Respondent No. 4.

15. Having considered these submissions, it is

apparent from the decisions of this Court in the compilation

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tendered by the learned Counsel for the Petitioner that the

issue arising in this Petition is no longer res integra. It is clear

from the decisions of the Division Bench of this Court in Miss.

Devkar Dipali Kisan (supra) that the Government Circular

dated 28th June 2016 and in particular, Clause 3 of Sub-

Clauses 1 and 2 has been held to have no statutory force in law.

The relevant Clauses of the Government Circular of which the

impugned order is passed read as under :-

"3. Since the seniority list of the Management is common, it is necessary to take a policy decision for grant of approval to transfers made on such posts falling vacant only due to retirement. Therefore, the approval may be granted to the transfer from un- aided School of the Management to the aided School of the same Management subject to following conditions :-

1. Before making such appointment it should be ascertained by the concerned Competent Authority that there are no surplus Teachers as per the provisions of 5[1] of the MEPS Act, 1977.

2. If surplus Teacher is available at the time of appointment, then approval should not be granted to the transfer of Teacher from un-aided School to aided School."

WP-14234-18.doc

16. The Division Bench of this Court in Miss.

Devkar Dipali Kisan (supra) has placed reliance on Rule 41 of

the MEPS Rules and held that the said Government Circular in

particular Clause 3, Sub-Clauses 1 and 2 thereof runs contrary

to the provisions of Rule 41 which is subordinate legislation

and is thus, not valid in law. It is clear from this decision as well

as the subsequent decision in the case of Suryakant S/o

Janardan Muge (supra) that transfer of Teacher from unaided

post to aided post is permissible in law. Equally, the transfer of

an employee from unaided post to an aided post in another

school run by the same Management is also permissible in law.

17. The subsequent Government Resolution dated 1st

April 2021 upon which reliance has been placed by the learned

Counsel for the Respondent No. 4 as well as by the learned AGP

appearing for Respondent Nos. 1 to 3 cannot apply

retrospectively to the transfer of the Petitioner as Assistant

Teacher from unaided to aided school which transfer was on

1st June 2016.

18. In view of the well settled position in law, the

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impugned order dated 1st March 2017 rejecting the proposal

dated 1st June 2016 of the Petitioner as Assistant Teacher

transferred from unaided to aided school of the same

institution is required to be quashed and set aside. Hence, the

following order is passed:-

(i) The impugned order dated 1st March 2017 is quashed

and set aside.

(ii) The Respondent No. 4-Education Offcer (Primary),

Zilla Parishad is directed to grant approval to the

transfer of the Petitioner as Assistant Teacher from

unaided post to aided post as per the proposal dated

1st June 2016 within a period of six weeks from the

date of this order.

(iii) Respondent No. 4-Education Offcer (Primary), Zilla

Parishad is directed to release the salary of the

Petitioner from the date of his transfer on 1st June

2016 from unaided to aided school within a period of

12 weeks from the date of this order.

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(iv) Writ Petition is disposed of in the above directions.

(v) Rule is made absolute accordingly.

(vi) There shall be no order as to costs.

[R.I. CHAGLA J.]                         [R.D. DHANUKA, J.]