Bombay High Court
Smt. Geeta Yashwant Pagi @ Geeta ... vs The State Of Maharashtra Through ... on 29 January, 2021
Bench: Makarand Subhash Karnik
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Bhogale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2381 OF 2020
Geeta Yashwant Pagi
@ Geeta Subhash Uartna & anr. .. Petitioners
vs.
The State of Maharashtra & anr. .. Respondents
------------------------
Mr. Vinayak Kumbhar I/b. Mrs. Ashwini Navjyot Bandiwadekar for
the Petitioners.
Mr. Prashant Kamble I/b. Mr. A.S. Rao for Respondent No.2.
Mr. S.H. Kankal, AGP for the State.
------------------------
CORAM : M.S.KARNIK, J.
DATE : JANUARY 29, 2021
P.C.:-
Heard learned counsel for the parties.
2. The challenge in this Petition under Articles 226 and 227 of
the Constitution of India is to an order passed by the Respondent
No.2 refusing to grant approval to transfer of the Petitioner No.1
as Assistant Teacher from unaided post to aided post. The
impugned order dated 29.11.2019 refusing the approval is on the
ground that there are surplus teachers available in the aided
school within the area of Kalyan Dombivali Municipal Corporation.
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3. My attention is invited to the order of this Court in case of
Ahtesham Husain Shafiur Rehman & anr. Vs. The State of
Maharashtra & ors. in Writ Petition No. 1542 of 2019 and other
connected Writ Petitions where a similar issue had arisen. This
Court followed the decision of the Division Bench in case of
Pramod Prabhakar Pokale vs. The State of Maharashtra
and Ors.1, Ms. Deokar Deepali Kisan and Ors. vs. The
State of Maharashtra and Ors. dated 25.04.2019 in Writ
Petition No.5313 of 2017 while concluding that the Circular dated
28.06.2016 is not valid in law. It would be pertinent to reproduce
Paragraphs 12, 13, 14, 15, 16 and 17 of the decision in the case
of Ahtesham Husain Shafiur Rehman & anr. (supra) which
reads thus :-
"12. The Circular dated 28/06/2016 lays down certain
conditions for the transfer of the Assistant Teachers from
unaided to aided posts. Clause Nos. 3 (1) of the Circular provides
that before making such appointment, the Competent Authority
should ascertain that there are no surplus teachers asper the
provisions of Section 5 (1) of the M.E.P.S. Act, 1971. Sub Clause
2 of Clause 3 prohibits grant of approval to such transfer if
surplus teachers are available at the time of appointment. Sub
Clause 3 of Clause 3 provides that the senior most teacher on
unaided post shall be entitled to transfer on aided post. Sub
Clause 5(a) of Clause 3 provides that when the Management
proposes to transfer a teacher, who has rendered less than fve
years service, from unaided to aided posts, an undertaking
1 2019 (4) Mh.L.J. 278
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should be obtained from such teachers that he is willing to work
as Shikshan Sevak for three years on consolidated pay. Sub
Clause 5(b) of Clause 3 requires the teacher, who is proposed to
be transferred to aided school after rendering service of fve
years or more in an unaided school, to give an undertaking for
acceptance of stage wise release of grant as follows:-
13. That upon such transfer, the Assistant Teacher who has
completed fve years on unaided post would be entitled for
20%grant from the Government in the frst year of his transfer
and that the balance 80% will be borne by the Education
Institution. Similarly, for the second, third and fourth year he will
be entitled for 40%, 60% and 80% Government grant and the
balance 60%, 40% and 20% respectively will be borne by the
Institution. It is only on completion of fve years of the transfer
that the Assistant Teacher will receive 100% grant from the
Government.
14. The validity of this Circular has been considered by the
Division Bench of this Court in Pramod Pokale. It has been held
that Sub Clause 2 of Clause 3, which prohibits grant of approval
till absorption of surplus teachers is contrary to the ratio laid
down by the Division Bench of this Court in Sandhya
Ghosalkar vs. The State of Maharashtra and Ors. (Writ
Petition 5454 of 2004 alongwith connected writ petitions
and in Dattu Thorat Vs. The State of Maharashtra in
WritPetition No.2960 of 2012 and several other decisions of
this Court. It is further held that there are no justifable reasons
to ask Assistant Teacher on unaided post, who has completed
three years period on the said post, to work again as Shikshan
Sevak on consolidated pay as required under Sub Clause 5(a) of
Clause3 of the said Circular. It is held that the said sub clause
can be made applicable only when the Assistant Teacher has not
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completed three years period in an unaided school and his
appointment as Assistant Teacher on regular basis has not been
approved by the Education Ofcer. The Division Bench has
observed that when the Management can legally transfer
Assistant Teacher serving in an unaided school to aided
school,there is no reason to obtain an undertaking from such
teacher as required under Sub Clause 5 (b) of Clause 3 of the
aforesaid Circular. It is further held that the formula of
proportionate salary to be disbursed by the State Government
and the concerned institution in the manner stated in Sub
Clause 5(b) of Clause 3 of the said Circular can be made
applicable only when afresh appointment is made on a new
sanctioned post on aided basis. It is only in such cases that the
State Government can issue directions to the institutions to fulfll
its obligation to the extent of disbursement of salary amount as
indicated in Sub Clause 5(b) (1) to (5) of Clause (3) of the said
Circular. The Division Bench has held that there is no reason to
ask for such undertaking from a teacher, who is transferred on
existing vacant post on aided basis.
15. In Devkar Deepali (supra) the Division Bench of this
Court, upon considering the earlier judgments, has reiterated
that the transfer of a teacher from unaided post to aided post is
permissible in law. It has been held that Sub Clauses 1 and 2 of
Clause 3 of Circular dated 28/06/2016, which afect the rights of
the Management to transfer such teachers, are not valid in law.T
he Division Bench has further held that the Circular
dated28/6/2016, has no statutory force in law and being
contrary to the subordinate legislation, the same is not valid in
law.
16. In Suryakant Janardan Moghe vs The State of
Maharashtra Writ Petition No.1493 of 2018 and other
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group matters the Division Bench of this Court has reiterated
that the Circular dated 28/06/2016, which afects the rights of
the Management to transfer does not have any enforceable
status. It has been held that the proposal for approval has to
satisfy the test of roster being adhered to and seniority being
followed. It has been held that it is only when the Assistant
Teacher on unaided post has worked for less than three year
sand is transferred to aided posts, that he will have to work as
Shikshan Sevak till he completes three years of service from the
date of his initial appointment on unaided post.
17. It is thus well settled that the transfer is not a fresh
appointment and that the Management has a right to transfer a
teacher from unaided post/school to aided post/school. The right
of the Management to transfer the senior most teacher from
unaided post/school to sanctioned aided post/school cannot be
circumscribed on the ground of non absorption of surplus
teachers. A teacher, who has completed three years in an
unaided school and whose appointment has been approved
cannot be asked to work again as a Shikshan Sevak for a period
of three years in an aided school. It is only when the transfer of
Assistant Teacher from unaided to aided post is efected within
three years from the date of his appointment that he is required
to work as Shikshan Sevak till he completes three years of
service from the date of his initial appointment.
Furthermore,teacher transferred from unaided post to an
existing sanctioned post on aided basis, is entitled to receive
salary with 100% grant and that the Government cannot
withhold the grant in the manner stated in Sub Clause 5 (b) (1)
to (5) of Clause 3, by issuing such Circular, which has no
statutory force in law."
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4. Learned AGP tried to support the impugned order as
according to him despite validity of surplus teachers the
Petitioner No.1 has been transferred from unaided post to aided
school and therefore according to him the approval was rightly
refused by the Respondent No.2.
5. I fnd that the present Petition is squarely covered by the
decision in the case of Ahtesham Husain Shafiur Rehman &
anr. (supra). The Petition is therefore allowed. The impugned
order is set aside.
6. The Petition is allowed in terms of prayer clause (b) which
reads thus :-
"b) By a suitable writ, order or direction, this Hon'ble Court be
pleased to quash and set aside the impugned order dated
29.11.2019 (EXHIBIT-G) issued by the Respondent No.2 refusing
approval to the transfer of the Petitioner No.1 from un-aided
post aided post in the Primary School of Petitioner No.2
Institution, and accordingly the Respondent No.2 may be
directed to grant approval to the said transfer as Assistant
Teacher with efect from 13.06.2018, and to release the grant in
aid for payment of monthly salary in pay scale, together with
arrears from the said date of transfer."
Digitally
(M.S.KARNIK, J.)
signed by
Urmila Urmila P.
Ingle
P. Date:
Ingle 2021.01.29
18:40:19
+0530
