Ramchandra Maruti Gonte vs The State Of Maharashtra And Ors
2021 Latest Caselaw 16695 Bom

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO.12198 OF 2019

1. Janta Shikshan Sanstha, Pune           )
C/o. Swami Vivekanand Vidya Mandir,       )
Dapodi, Pune                              )
Through its President                     )
Mr.Sanjay Narayan Wadekar                 )
Age about 56 years, Occ. Service.         )

2. Janta Shikshan Sanstha, Pune           )
C/o. Swami Vivekanand Vidya Mandir,       )
Dapodi, Pune                              )
Through its General Secretary             )
Mr.Subhash Namdeo Gargote                 )
Age about 54 years, Occ. Service.         )        .. Petitioners

       Versus

1. State of Maharashtra                   )
Education Department                      )
Mantralaya, Mumbai.                       )
through its Principal Secretary           )


2. Education Officer (Secondary)          )
Zilla Parishad, Pune                      )

3. Rajanikant Chandrakant Patange        )
age about 55 yrs, Occ.Promoted Headmaster)
Swami Vivekanand Vidya Mandir,           )
& D.T. Patil Junior College, Dapodi Pune )
R/o. Survey No.66/1/5, Dhone Farm,       )
Behind Bharat Bakery,                    )

4. Headmaster,                          )
Shripati Baba Maharaj Madhyamik Vidyalaya,)
Mahalunge Ingale, Taluka Khed,          )
District Pune.                          )




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5. Ramchandra Maruti Gonte                 )
Age about 53 years,                        )
Occ. Headmaster,                           )
R/o."Krishnai Park" Sahyadri Park,         )
Pimple Gurav, Pune- 411 061.               )

6. Smt. Anjali Ajit Ghodke,                )
age about 55 yrs, Occ.Assistant Teacher    )
Swami Vivekanand Vidya Mandir,             )
& D.T. Patil Junior College, Dapodi Pune   )         .. Respondents

                             ALONG WITH
                   WRIT PETITION (ST.) NO.3568 OF 2021

1. Ramchandra Maruti Gonte                 )
Age about 52 years,                        )
Occ. Headmaster,                           )
R/at. Harshada, B-17, Vidya Nagar          )
Lane No. 2, Pimple Gurav,                  )
Pune- 411 061.                             )          ..    Petitioner

       Versus

1. The State of Maharashtra                )

2. The Education Officer (Secondary)       )
Pune Zilla Parishad, Pune.                 )

3. Janata Shikshan Sanstha                 )
having address at                          )
Swami Vivekanand Vidya Mandir,             )
Dapodi, Pune                               )
Through its President                      )
Mr.Popat Vyankatrao Deokar                 )
Age 57 years, Occ. Service.                )

4. Subhash Namdeo Gargote                 )
Age about 56 years, Occ. Head Master & )
also General Secondary of respondent no.3 )
having address at Janata Shikshan Sanstha )
Swami Vivekanand Vidya Mandir,            )
Dapodi, Pune                              )




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                  ----
Mr.Dilip Bodake a/w Ms.Shraddha Pawar for the petitioners in Writ
Petition No.12198 of 2019.

Mr.M.L. Patil for the petitioner in Writ Petition Stamp No.3568 of 2021
and for the respondent no.5 in Writ Petition No.12198 of 2019.

Mr.N.K. Rajpurohit, AGP for the respondent nos.1 & 2 in Writ Petition
No.12198 of 2019.

Ms.S.S. Bhende, AGP for the respondent nos.1 & 2 in Writ Petition
Stamp No.3568 of 2021.

Mr.S.T. Bhosale for the respondent nos.3 & 4 in Writ Petition No.12198
of 2019.
                  ----

                                 CORAM : R.D. DHANUKA &
                                         ABHAY AHUJA, JJ.

RESERVED ON : 15th November2021 PRONOUNCED ON : 2nd December 2021

Judgment :-(per R.D.Dhanuka, J.)

. Rule in both the petitions. Learned counsel appearing for the

respondents waives service. By consent of parties, both the petitions are

heard finally.

2. Learned counsel for the parties jointly state that since the

facts in both these petitions are identical, both these petitions be heard

together and be disposed of finally by this common order. Statement is

accepted. Both these petitions were heard together and are being disposed

of finally by common order.

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3. Parties before this Court have addressed this Court in Writ

Petition No.12198 of 2019 and the facts in the said writ petition are

summarised as under :-

4. In Writ Petition No.12198 of 2019, the petitioners have

prayed for writ of certiorari for quashing and setting aside the impugned

letter/communication dated 17th September 2019 issued by the Education

Officer (Secondary), Zilla Parishad, Pune. The petitioners have also

prayed for a writ of mandamus against the respondent no.2 to grant

sanction and accord permission to the respondent no.3 for submitting

the pay bills and signing authority etc. as a Headmaster of the

respondent no.3 and for various other reliefs.

5. In Writ Petition (St.) No.3568 of 2021, the petitioner has

prayed for a writ of certiorari for quashing and setting aside the impugned

order dated 31st May 2019 issued by the management thereby transferring

the petitioner from Dapodi School to Shripati Baba Maharaj

Madhyamik Vidyalaya, Mahalunge Ingale, Taluka Khed, District Pune

w.e.f. 1st June 2019 which is Rural area.

Facts in Writ Petition No.12189 of 2019 :-

6. It is the case of the petitioners that the petitioner no.1 is a

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President and the petitioner no.2 is a General Secretary of Janta

Shikshan Sanstha, Pune which is a Charitable Trust registered under the

Maharashtra Public Trust Act, 1950 (for short "the said Trust Act") as

also under the provisions of Societies Registration Act, 1860. The

Petitioners Trust is running 17 schools in the State of Maharashtra. As per

the routine, in the meeting of the Governing Council of the Petitioner

Society held on 25th June 2019, there was an agenda in respect of

promotion and inter-se transfers of the Headmasters in the schools run by

the Petitioner no.1.

7. It was resolved that there was vacancy in Hinjewadi school.

There was also requisition/ demand to have a Headmaster having

experience and good in administration at the Mahalunge Ingale School.

It was resolved to make certain transfers. It was further resolved that

Respondent No. 5 Gonte R.M. who was working as a Headmaster at

Swami Vivekanand Vidya Mandir and D.T. Patil Junior College, Dapodi

be transferred to Shripati Baba Maharaj Madhyamik Vidyalaya,

Mahalunge Ingale w.e.f. 1st June 2019. It was further resolved to promote

Shri Rajanikant C. Patange - Assistant Headmaster (Junior College) to

Headmaster at Swami Vivekanand Vidya Mandir and D.T. Patil Junior

College, Dapodi.

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8. On 31st May 2019, the petitioner no.1 issued a transfer

order thereby transferring the Respondent No.5 from Swami Vivekanand

Vidya Mandir and D.T. Patil Junior College, Dapodi to Shripati Baba

Maharaj Madhyamik Vidyala, Mahalunge-Ingale, Tal. Khed, District:

Pune. The Respondent No.5 was informed that he should be relieved

immediately and the relieving and joining reports should be forwarded to

the petitioner no.1. No representation and cancellation would be

entertained from the respondent no.5. Copy of the said order was

forwarded to the concerned Headmaster of the school for necessary

action.

9. It is the case of the petitioners that in pursuance of the said

transfer order, the Respondent No. 5 has been relieved on 1 st June 2019

from the Respondent No. 3 School to join the Respondent No. 4 School.

Copy of the said relieving order has also been forwarded to the Education

Officer (Secondary), Zilla Parishad, Pune and the Respondent No. 4 for

information and necessary action.

10. It is the case of the petitioners that in pursuance of the said

transfer order dated 31st May 2019, the Petitioner no.1 submitted proposal

dated 1st June 2019 addressed to the Education Officer (Secondary) Zilla

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Parishad, Pune for seeking authority to Shri Patange R.C. from 1 st June

2019 at Respondent No.3 School as the signing authority. The

Respondent No. 5 did not join the Respondent No. 4 School though was

served with transfer order dated 31st May 2019 and relieving order dated

1st June 2019. The petitioners vide letter dated 1st June 2019, reminder

letters dated 12th June 2019, 23rd August 2019 and 23rd September 2019

addressed to the Respondent No. 5 made it clear that if the transfer order

would not be obeyed, the same would be amount to indiscipline on the

part of the respondent no.5.

11. Since the Respondent No. 5 did not resume/ join the

respondent no.4 school, the Petitioner no.1 vide letter dated 21st June

2019 appointed the senior most Assistant Teacher Mr. Yuvraj Das Gholve

as In-charge Headmaster of Respondent No. 4 School and requested him

to submit his joining report to the Petitioner no.1.

12. It is the case of the petitioners that in pursuance of the said

letter dated 21st June 2019, the said Mr. Yuvraj Das Gholve took charge

of In-charge Headmaster of Respondent No. 4 School and submitted the

report dated 21st June 2019 to the Petitioner no.1. The petitioner no.1

vide letter dated 4th July 2019 addressed to the Education Officer

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(Secondary) Zilla Parishad, Pune, applied for authorising the said Mr.

Yuvraj Das Gholve as signing authority w.e.f. 21 st June 2019. The

Education Officer (Secondary), Zilla Parishad, Pune, vide letter dated 25 th

July 2019 informed the Petitioner no.1 that Shri Yuvraj Das Gholve was

the signing authority from 21st June 2019 to 31st December 2019 of the

Respondent No. 4 School. On 29 th June 2019, the respondent no.2

addressed a letter to the petitioner no.1 directing to submit the existing

information regarding Trusts Governing Council recorded with the Joint

Charity Commissioner, Pune.

13. The petitioners thereafter informed the Education Officer

(Secondary), Zilla Parishad, Pune about the judgment and order passed

by this Court in First Appeal No. 262 of 2019 which was in favour of

the Petitioner no.1 thereby allowing the First Appeal No. 262 of 2019

filed by the petitioner no.1 and impugning the order dated 29 th June 2019

passed by the Joint Charity Commissioner, Pune Region under Section

41-E of the Maharashtra Public Trusts Act, 1950. The Joint Charity

Commissioner restrained the petitioner no.1 from holding meeting of

General Body on 26th March 2017 or any time thereafter without issuing

notices of the General Body Meeting to all the confirmed teachers, who

had been confirmed in service in any of the branches of the Trust prior to

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issuing date of such notices. The Joint Charity Commissioner also

directed the petitioner no.1 to hold meeting of the Governing Council of

the Petitioner Society as expeditiously as possible and in any event

within a period of two months from the date of the said order.

14. The petitioner no.1 requested the Education Officer to take

decision on the proposals submitted by the petitioners for granting

various approvals of transfers and promotions.

15. The Respondent No.3 has joined as Headmaster of the

Respondent No. 3 School and submitted a written application dated 2 nd

July 2019 to the Superintendent, Pay and Provident Fund Squad, Pune

Zilla Parishad for sanctioning the pay bills for the month of June, 2019.

The Respondent No. 3 also requested to include the names of the

transferred employees of the Respondent No. 3 School in the Online Pay

Bill Software (Shaley Pranali). Though the petitioner no.1 submitted

various reminders to the Director of Education, Pune, Deputy Director of

Education, Pune and Education Officer (Secondary) Zilla Parishad, Pune

etc. inter alia praying for granting signing authority to the Respondent

No. 3 to avoid further inconvenience to all the employees of the school,

no such order is however passed.

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16. In the meeting of the Governing Council, the petitioner no.1

passed a Resolution dated 25th May 2019 for issuance of transfer order

dated 31st May 2019 of Headmaster Shri Otari Atul S. working at Shripati

Baba Maharaj Madhyamik Vidyalaya, Mahalunge Ingale, Tal. Khed,

District: Pune at Headmaster New English School and Junior School,

Hinjawadi, Tal. Mulashi, District: Pune effective from 1 st June 2019.

Copy of the said transfer order and relieving order has been served to

Shri Otari Atul.

17. The petitioner no.1 thereafter submitted the proposal to the

Education Officer (Secondary), Zilla Parishad, Pune, thereby seeking

signing authority to Shri Otari A.S. Headmaster of New English School

and Junior College, Hinjawadi as signing authority w.e.f. 1st June 2019.

The Education Officer (Secondary), Zilla Parishad, Pune, vide letter dated

12th July 2019 accorded the signing authority to Shri Otari Atul as a

Headmaster of New English School & Junior College, Hinjewadi from 6 th

June 2019 to 30th November 2019. The petitioner no.1 also issued two

transfer orders dated 26th June 2019 of Headmaster Shri Gore Dilip D.

working at Shri Shivaji Vidya Mandir, Ambale, Tal. Purandar at

Headmaster of Radhakrishna Vidyalaya, Perane, Tal. Haveli, District:

Pune and Headmaster Shri Inamdar Ajamuddin J. working at New

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English School, Khalate Vasti (Late), Tal. Baramati at Headmaster of

Punyashlok Ahilyadevi Vidyamandir and A.C. Hunekari Jr. College,

Jejuri, Tal. Purandar effective on 1st July 2019. Copy of the said transfer

orders along with relieving orders have been served to Shri Gore Dilip D.

18. The petitioner no.1 thereafter submitted proposal to the

Education Officer for granting signing authority to the said Headmaster.

The Education Officer (Secondary), Zilla Parishad, Pune accorded the

sanction to the said transfer to the said Headmaster. The Education

Officer (Secondary), Zilla Parishad, Pune vide letter dated 7 th August

2019 addressed to the Headmaster of Respondent No. 3 School and

informed that Respondent No. 6 Smt. Anjali Ajit Ghodke, the senior most

Assistant Teacher have been accorded the signing authority to submit the

pay-bills and school administration from 1st June 2019 to 31st December

2019.

19. On 17th September 2019, the Eduation Officer (Secondary),

Zilla Parishad, Pune informed the petitioners that in pursuance of the

order passed by this Court, in First Appeal No.262 of 2019, the tenure of

the Managing Committee came to an end and therefore they should not

take any policy decisions. By the said order dated 7 th August 2019, the

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signing authority given was cancelled on the ground that transfer order of

Respondent No.5 fell within the policy decisions and therefore

Respondent No. 5 would work as a Headmaster as he was working earlier

at Respondent No. 3 School.

20. It is the case of the petitioners that pursuant to the said

letter/ communication, the Respondent No. 5 forcibly took keys of the

Office and cupboards of the Headmaster of Respondent No.3 School and

further forcibly signed the muster as if he was present from 1 st June 2019

and issued further illegal direction to the members of staff.

21. It is the case of the petitioners that some alleged members

of the Petitioner Trust submitted Application No.15 of 2017 under section

41-E of the Maharashtra Public Trust Act, 1950 before the Joint Charity

Commissioner, Pune Region, Pune, praying for restraining the office

bearers of the Trustees of the Petitioner Trust from holding meeting of

General Body on 26th March 2017 or any time thereafter without issuing

notices of the General Body Meeting to all the confirmed teachers, who

had been confirmed in service in any of the branches of the Trust prior to

issuing date of such notices. By order dated 9 th February 2018, the Joint

Charity Commissioner, Pune Region, Pune allowed the said application

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filed by some of so-called members of the Petitioner Trust.

22. The petitioner no.1 trust filed the First Appeal No. 262 of

2019 alongwith Civil Application No. 989 of 2019 before this Court. On

16th August 2019, this Court delivered a Judgment thereby allowing the

said First Appeal and setting aside the Order dated 9th February 2018

passed by the Joint Charity Commissioner and granting liberty to the

Respondents therein to prefer an application for declaring them as a

members of the Trust as per its Constitution according to law and also

passed certain further orders.

23. Being aggrieved by the said communication dated 17 th

September 2019 passed by the Education Officer (Secondary), the

petitioners have filed this writ petition.

24. Mr. Bodake, learned counsel for the petitioners invited our

attention to some of the exhibits annexed to the writ petition and also to

the order dated 17th September 2019 passed by the Education Officer

(Secondary), Zilla Parishad, Pune and would submit that the Education

Officer (Secondary) had no jurisdiction to set aside the transfer order

passed by the petitioners by holding that the said transfer of the

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respondent no.5 was not as per the policy decision of the petitioner no.1

and also consequently cancelling the earlier letter dated 7 th August 2019

granting signing authority to the respondent no.6.

25. It is submitted that this Court in its judgment dated 16 th

August 2019 passed in First Appeal filed by the petitioners has set aside

the order passed by the Joint Charity Commissioner on 9 th February

2018. The said Application No.15 of 2017 filed by some of the alleged

Members was under Section 41-E of the said Trust Act. The dispute

involved in the said application under Section 41-E of the said Trust

Act was in respect of becoming members of the Trust of the petitioner

no.1 as per its Constitution and election of the Governing Council.

There was no direction or order passed by the Joint Charity

Commissioner that the petitioner Institution should not take any policy

decision till new Governing Council is duly elected as per the

Constitution of the Trust.

26. Learned counsel for the petitioners submits that the

impugned order passed by the Education Officer (Secondary) is contrary

to his own earlier order granting approval to the transfer of other

employees carried out by the petitioner no.1. In pursuance of the

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resolution passed in the meeting of Governing Council dated 25 th June

2019, all such orders effected by the petitioner no.1 were routine

transfers and promotion orders of the employees and not by way of any

policy decision of the petitioner no.1 trust. No opportunity was granted

by the Education Officer to the petitioners of being heard before setting

aside the transfer orders effected by the petitioner no.1 in routine course.

27. Learned counsel for the petitioners invited our attention to

the Agenda of the Meeting of Governing Council proposed to be held on

25th June 2019 and also the Minutes of Meeting and would submit that

two of the Headmasters were transferred in the said meeting. He strongly

placed reliance on clause of Constitution of Trust of the petitioner no.1

dealing with 'Governing Council' at page 65 of the petition and would

submit that under the said clause, till new Governing Council was

appointed by holding election, the old council was allowed to carry

out functions as Governing Council. It is submitted by the learned

counsel that the order passed by the Joint Charity Commissioner was ex

facie illegal and was set aside by this Court by the said judgment and

Order dated 16th August 2019. The said order was passed by this Court

prior to the date of the impugned order dated 17 th September 2019 passed

by the Education Officer (Secondary).

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28. Mr.Patil, learned counsel for the petitioners in Writ Petition

(St.) No.3568 of 2021 and for the respondent no.5 in Writ Petition

No.12198 of 2019, on the other hand, submits that the petitioner no.2

who was working as a Headmaster at Shri Shivaji Vidyamandir and

C.Patole Junior College, Chakan is also a General Secretary of the

petitioner no.1 and is vindictive against his client. Out of 6 schools

Junior Colleges run by the petitioner no.1, schools at Dapodi and Aundh

are in urban area and rest of the schools are in rural area. He submits

that his client being the senior most Headmaster amongst all the 11

Headmasters could not have been transferred by the impugned decision

taken by the petitioner no.1.

29. Learned counsel for the respondent no.5 placed reliance

on the order passed by the Joint Charity Commissioner and would

submit that when the petitioner no.1 passed a resolution transferring

various employees including the respondent no.5, interim injunction

granted by the Joint Charity Commissioner against the petitioner no.1

was in force. Upon raising a query by this Court, as to how his client

was affected by the impugned transfer, learned counsel contended that

house rent allowance being paid to the Headmaster in urban area is

more than what is paid to the Headmaster working in rural area. He urged

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that the total pay packet of the respondent no.5 would be seriously

affected in view of the impugned transfer.

30. Learned counsel for the respondent no.5 placed reliance on

the judgment of the Hon'ble Supreme Court in case of Mohammad

Swalleh & Ors. Vs. Third Addl. District Judge, Meerut & Anr., (1988)

1 SCC 40 and in particular paragraph 7 in support of the aforesaid

submission. In support of this submission, he also placed reliance on

the judgment of the Hon'ble Supreme Court in case of P.C. Wadhwa

Vs. Union of India & Anr., AIR 1964 SC 423 and in particular

paragraph 15 thereof. He submits that the order of transfer passed by

the petitioner no.1 is punitive in this case in view of reduction in salary

of the respondent no.5.

31. The respondent State did not file reply in any of these

petitions but supported the impugned order passed by the Education

Officer (Secondary) by inviting our attention to the said order.

32. Mr.Bodake, learned counsel for the petitioners in his

rejoinder arguments disputed the statement of the learned counsel for

the respondent no.5 that in view of the order of transfer of the respondent

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no.5 from Dapodi School to Shripati Baba Maharaj Madhyamik

Vidyalaya, Mahalunge Ingale, Tal. Khed, District. Pune w.e.f. 1 st June

2019, the total salary payable to the respondent no.5 is drastically

reduced. He submits that the basic salary of the respondent no.5 was not

affected at all. The house rent allowance was also paid according to the

service condition. The respondent no.5 having been transferred to the

rural area could not have been paid the house rent allowance payable in

case of teacher working in urban area.

33. It is submitted by the learned counsel that by the resolution

passed by the petitioner no.1 from time to time, several orders were

passed also in favour of the respondent no.5 by the same management

including the promotional order. The respondent no.5 had not alleged

any malafide against the petitioners for transferring the respondent no.5

by the resolution in question.

34. A question that arises for consideration of this Court is

whether the Education Officer (Secondary) is empowered to set aside the

transfer order issued by the petitioners by exercising powers conferred

under Rule 41 of the Maharashtra Employees of Private Schools

(Conditions of Service) Rules, 1981 (for short the said MEPS Rules,

ppn 19 wp.12198.19 wt wpst.3568.21(J).doc

1981") and if yes, whether he can set aside the transfer effected on

administrative ground and being a routine transfer.

35. It is not in dispute that the respondent no.5 did not challenge

the said impugned transfer in any Competent Court of law but

approached the Education Officer (Secondary) for seeking intervention

in the matter and for cancelling the transfer order. In our view, the

Education Officer has no power to set aside the order of transfer effected

after complying with the provisions of MEPS Rules, 1981. By the said

resolution passed by the petitioner no.1, several transfers and promotions

were effected. If the respondent no.5 was aggrieved by the said order of

transfer, the respondent no.5 ought to have filed appropriate proceedings

for impugning such transfer in accordance with law. The Education

Officer (Secondary) is not a competent authority to adjudicate upon the

rival contentions of the parties on the issue of transfer effected under

Rule 41 of the MEPS Rules, 1981 and to cancel the order of transfer.

36. In so far as the reliance placed by the respondent no.5 on the

order passed by the Joint Charity Commissioner, Pune on 9 th February

2018 is concerned, the said judgment was delivered on an application

filed by five persons who claimed to be the members of the petitioner

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no.1 trust by invoking Section 41-E of the said Trust Act inter alia

praying for granting temporary injunction against the members of

Governing Council, their agents, servants, assigns etc. from holding the

meeting of the General Body on 26th August 2019 or any time thereafter

without issuing the notices of the General Body Meeting to all the

confirmed teachers, who had been confirmed in service in any of the

branches of the petitioner no.1 prior to 26 th July 2016 and for issuing

mandatory injunction directing the petitioner no.1 to take the voting by

secret ballot in the meeting of the General Body and not by show of

hands.

37. The Joint Charity Commissioner in the said order rendered a

finding that the said application filed under Section 41-E of the said

Trust Act was maintainable and that the applicant therein had made out

a case for grant of temporary injunction. The Joint Charity Commissioner

restrained the Governing Council of the petitioner no.1 from holding

the meeting of the General Body on 26 th August 2019 or any time

thereafter without issuing the notices of the General Body Meeting to

all the confirmed teachers, who had been confirmed in service in any of

the branches of the petitioner no.1 prior to issuance of the said notice.

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38. A learned Single Judge of this Court in the said judgment

dated 16th August 2019 in First Appeal filed by the petitioner no.1

against the said order passed by the Joint Charity Commissioner has held

that in the said application filed by the applicant therein, there was

prayer to restrain the petitioner no.1 from holding General Body Meeting

without issuing the notices to all the confirmed teachers, who had been

confirmed in service in any of the branches of the petitioner no.1 prior

to 26th July 2016. There was no prayer for injunction restraining the

members/society from wasting any trust's property. This Court has held

that at the most, the Joint Charity Commissioner under Section 41-E of

the said Trust Act could pass suo moto order only in respect of protection

of charities. For granting any relief under Section 41-E of the said Trust

Act by way of injunction, there has to be an essential requisite and

prima facie case to show such eminent danger in respect of the property

of the trust.

39. This Court accordingly held that the Joint Charity

Commissioner has no power under Section 41-E of the said Trust Act

to direct the trust to hold election. This Court accordingly was pleased to

quash and set aside the order dated 9 th February 2018 passed by the

Joint Charity Commissioner. This Court has however granted liberty to

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the applicant therein, if they so desired, to prefer appropriate application

for declaring them as General Members of Janata Shikshan Sanstha,

Pune as per its Constitution according to law. In our view, since the said

order passed by the Joint Charity Commissioner was totally perverse

and without jurisdiction, learned Single Judge of this Court rightly set

aside the said order. No reliance thus could be placed by the respondent

no.5 on the order passed by the Joint Charity Commissioner.

40. Be that as it may, even if the tenure of Governing Council

would have expired and no fresh elections were immediately held, the

constitution of the petitioner no.1 trust permitted the existing Governing

Council to continue till new Governing Council was elected. There is

thus no merit in the submission of the learned counsel for the respondent

no.5 that the Governing Council of the petitioner no.1 could not have

passed any such resolution thereby transferring the respondent no.5. In

our view, the impugned order passed by the Education Officer

(secondary) is without jurisdiction, perverse and contrary to Rule 41 of

the MEPS Rules and thus deserves to be quashed and set aside.

41. In so far as the submission of the learned counsel for the

respondent no.5 that there was monetary loss to the respondent no.5 by

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virtue of reduction of house rent allowance in view of transfer from

urban area to rural area and thus the impugned transfer being punitive is

concerned, there is no merit in this submission of the learned counsel for

the respondent no.5. In our view, the house rent allowance may be

different in case of employees working in urban area and in rural area.

The Headmaster or teachers working in rural area cannot demand house

rent allowance payable to the Headmaster or teacher working in urban

area. It is not the case of the respondent no.5 that house rent allowance

paid to a Headmaster working in rural area is not paid as per conditions

of transfer. In our view, lesser amount of house rent allowance payable

as per service condition to the Headmaster working in rural area on

transfer cannot be held punitive transfer nor would it attract Rule 41(3)

of MEPS Rules.

42. In so far as the judgment of the Supreme Court in case of

Mohammad Swalleh & Ors. (supra) relied upon by the learned counsel

for the respondent no.5 in support of his submission is concerned, in our

view, the said judgment would not apply to the facts of this case even

remotely.

43. In so far as the judgment of the Supreme Court in case of

ppn 24 wp.12198.19 wt wpst.3568.21(J).doc

P.C. Wadhwa Vs. Union of India & Anr. (supra) relied upon by the

learned counsel for the respondent no.5 is concerned, in our view, the

said judgment also would not advance the case of the respondent no.5. In

this case there is neither any reduction of house rent allowance then

payable nor any reduction of basic salary. The difference, if any, in total

pay packet may be due to lesser rate of house rent allowance in view of

the respondent no.5 having been transferred to rural area considering the

cost of living being on lower side in comparison in cost of living in

urban area. There is thus no merit in the contention of the respondent

no.5 that transfer was contrary to Section 41 of the said MEPS Rules.

44. In our view, the resolution passed by the petitioner no.1 to

transfer some of the employees including the respondent no.5 and also

promote one or the other employees was a routine transfer effected on

administrative ground and thus no interference of Education Officer

with such order of transfer even otherwise would be permissible.

45. We accordingly pass the following order :-

(i) Rule is made absolute in terms of prayer clause (b) to (d) of the

Writ Petition No.12198 of 2019.

 ppn                                    25                wp.12198.19 wt wpst.3568.21(J).doc


(ii)     The Education Officer (Secondary), Zilla Parishad, Pune shall

grant, sanction and accord permission to the respondent no.3 for

submitting the pay bills and signing authority etc. as a Headmaster of

the respondent no.3 within four weeks from the date of communication of

this order.

(iii) For the reasons recorded aforesaid, Writ Petition (St.) No.3568 of

2021 is dismissed. Rule is discharged. No order as to costs.

(iv) Parties to act on the authenticated copy of this order.

                  ABHAY AHUJA, J.               R.D. DHANUKA J.