Bombay High Court
Milind S/O Sheshao Wankhede vs The State Of Maharashtra, Through ... on 27 October, 2021
Bench: S.B. Shukre, Anil Laxman Pansare
1
wp5528.2019.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH : NAGPUR.
WRIT PETITION NO.5528/2019
Milind S/o Sheshrao Wankhede,
age 32 Yrs., Occ. Service as Assistant
Teacher at the P.E.S. Vidyalaya Pimpalkhuta,
Patur, Tq. Patur, Dist. Akola. ..Petitioner.
..Vs..
1. The State of Maharashtra,
through it's Secretary, Education
Department, Mantralaya, Mumbai - 32.
2. The Education Officer (Secondary),
Zilla Parishad, Akola.
3. The Pimpalkhuta Education Society
Pimpalkhuta, Tq. Patur, Dist. Akola,
through it's Secretary.
4. The P.E.S. Vidyalaya Pimpalkhuta,
Tq. Patur, Dist. Akola, through
it's Headmaster. ..Respondents.
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Mr. N.B. Kalwaghe, Advocate for the petitioner.
Mr. N.R. Patil, A.G.P. for respondent Nos.1 and 2.
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CORAM :- SUNIL B. SHUKRE AND
ANIL L. PANSARE, JJ.
DATED :- 27.10.2021.
ORAL JUDGMENT (Per Sunil B. Shukre, J.)
Heard. Rule. Rule made returnable forthwith. Heard finally by
consent of the parties present before the Court.
wp5528.2019.odt
2. The case of the petitioner is that he was transferred from
unaided school to aided school by the management which schools are
run by the same management and although such transfer was within
the parameters of law, respondent No.2 on the ground that surplus
teachers are available, illegally refused to grant approval to such
transfer of the petitioner.
3. Shri Kalwaghe, learned counsel for the petitioner submits that
the case of petitioner is squarely covered by the view taken by this
Court in group matters starting with Writ Petition No.8556/2019
decided on 5th October, 2021 wherein it has been held that approval to
such transfer cannot be refused on the ground that first the vacant
post must must be attempted to be filled from amongst lot of surplus
teachers available. This view was taken by this Court on the same
lines as decisions taken in several writ petitions decided at principal
seat at Mumbai being writ petitions started with Writ Petition
No.5313/2017 decided on 25th April, 2019. In the instant case, the
petitioner was transferred on 2.1.2017 and refusal from respondent
No.2 came on 16.12.2019. On either of these dates, no amendments
were introduced to the Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Rules, 1981 (for short "MEPS
Rules, 1981") and, therefore, we are of the opinion that the issue
wp5528.2019.odt
involved in this petition is squarely covered by the decisions in the
aforestated writ petitions.
4. Speaking about the amendments incorporated in the MEPS
Rules, 1981 in particular introduction of Rule 41A, we must say that
this amendment having come into force w.e.f. 8.6.2020 would not
apply retrospectively to the facts of the present case especially when
the amendment has not been expressly made to be retrospective in
operation. This is also the view expressed in the case of Sandhya D/o
Balkrushna Teli & Ors. V/s. The State of Maharashtra & Ors., Writ
Petition Stamp No.93919/2020, decided on 12.3.2021 by Division
Bench at Mumbai and Rekha Ashok Khandare V/s. Bahuuddeshiya
Shikshan Prasarsak Mandal and others, Writ Petition No.4753/2019,
decided on 9.4.2021 by Division Bench at Aurangabad.
5. In view of the above, we allow the petition in terms of prayer
clause (B-i) and (C). Rule accordingly. There shall be no orders as to
costs.
JUDGE JUDGE
Tambaskar.
