Navyuwak Education Society, ... vs The Director Of School Education, ...
2022 Latest Caselaw 8042 Bom

WP-1510-22(J)                                                                                        1/8




                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           NAGPUR BENCH, NAGPUR.

                             WRIT PETITION NO. 1510 OF 2022
      Navyuwak Education Society,
      New Babulkheda, Kunjilal Peth, Nagpur.
      Through its President-
      Smt. Birjulabai Pandurang Meshram,
      Aged about 72 years, Occupation-Retired Head Mistress.
                                                 ....... PETITIONER
                              ...V E R S U S...
1.     The Director of School Education,
       Secondary and Higher Secondary,
       State of Maharashtra, Pune.

2.     The Divisional Deputy Director of Education,
       Nagpur Division, Nagpur.

3.     The Education Officer (Secondary),
       Zilla Parishad, Nagpur.

4.     Shri Dinesh D. Kamdi,
       Aged about 40 years, Occupation-Service,
       R/o. Plot No.318, Vinkar Colony,
       28-B, Jaiprakash Nagar, Wardha Road,
       Nagpur.
5.     Sou. Shobha M. Khambadkar,
       Aged about 52 years, Occupation-Service,
       R/o. 47, Chikhali Layout,
       New Subhedar Nagar, Nagpur.
                                                                     ....... RESPONDENTS
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Shri A.Z.Jibhkate, Advocate for petitioner.
Shri D.P.Thakre, Additional Government Pleader for respondent nos. 1 to 3.
Shri B. G. Kulkarni, Advocate for respondent nos. 4 and 5.
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               CORAM :- A.S.CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.
               DATE :- AUGUST 19, 2022.
 WP-1510-22(J)                                                                      2/8




JUDGMENT (Per A.S.CHANDURKAR, J.)

Rule. Rule made returnable forthwith and heard the learned counsel for

the parties.

2. The challenge raised in this writ petition is to the order dated

02.09.2021 passed by the Education Officer (Secondary) cancelling the transfer of

respondent nos. 4 and 5 as made by the petitioner-Management and directing the

Management to permit the respondent nos. 4 and 5 to resume their duties at their

original school. A challenge is also raised to the order dated 21.02.2022 which is

also passed by the Education Officer (Secondary) by which the directions issued

earlier have been reiterated and the Management has been directed to comply with

the same.

3. It is the case of the petitioner-Management that it is a Society registered

under the provisions of the Maharashtra Public Trusts Act, 1950 (for short, the Act

of 1950) and is running six schools in the districts of Nagpur, Bhandara and Gondia.

A common seniority list of all the teaching and non-teaching staff in these schools

has been maintained. On 06.08.2021 the Co-ordination Committee passed a

resolution resolving to make transfers of certain Assistant Teachers considering the

exigency of administration. On 09.08.2021 the services of the respondent no. 4

were transferred from the school at Babhulkheda, Nagpur to the High School and

Junior College at Kesalwada, District Gondia. On the same day, the services of the WP-1510-22(J) 3/8

respondent no.5 were transferred from the High School at Nagpur to the High

School at Arjuni, District Gondia. It appears that the respondent nos. 4 and 5

approached the Education Officer (Secondary) raising a grievance against the orders

of transfer on the ground that the transfer orders were issued by one

Smt. B.P.Meshram as a President of the Society when she was not holding the said

post. The Education Officer (Secondary) conducted hearing on 02.04.2021 and held

that prior permission of the Education Officer had not been taken before making

such transfers and hence the same were illegal. After cancelling the orders of

transfer the respondent nos. 4 and 5 were directed to re-join at the school where

they were serving prior to their transfers.

4. On 02.11.2021 another resolution was passed by the Co-ordination

Committee resolving to transfer the services of the respondent no. 4 from High

School at Nagpur on a vacant post to the High School at Kesalwada, District Gondia.

On the same day, the services of the respondent no. 5 were transferred from the

High School at Nagpur to the High School at Arjuni, district Gondia. The

respondent nos. 4 and 5 again raised a grievance against their transfers and the

Education Officer (Secondary) conducted hearing on 21.02.2022 and it was held

that it was not clear from the record as to which Management was in-charge of the

affairs of the Society. He further directed that the respondent nos. 4 and 5 should

be permitted to re-join their duties at the original school at Nagpur. Being

aggrieved the Management has challenged the aforesaid orders.

WP-1510-22(J) 4/8

5. Shri A. Z. Jibhkate, learned counsel for the Management submitted that

the transfers of the respondent nos. 4 and 5 had been made in accordance with Rule

41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules,

1981 (for short, the Rules of 1981). The transfer was from one school run by the

Management to another school that is also run by the same Management. There

was no question of absorption of the services of the respondent nos. 4 and 5 in the

school of transfer. The Education Officer (Secondary) had no authority to examine

the validity of the orders of transfer effected under Rule 41 of the Rules of 1981 and

he could not have interfered in the same. Reliance in that regard was placed on the

decision Janta Shikshan Sanstha and another Vs. State of Maharashtra and others

[2022 (2) All M R 498] . Assuming that there was some dispute amongst the

members of the Management, the same was beyond the purview of the Education

Officer and he was not competent to go into that aspect. The transfers having been

effected considering the need of the respondent nos. 4 and 5 at the schools where

they were transferred, there was no reason for the Education Officer (Secondary) to

have intervened in the matter. It was thus submitted that the impugned orders were

liable to be set aside.

6. Shri D. P. Thakre, learned Additional Government Pleader for the

respondent nos. 1 to 3 supported the impugned orders. It was submitted that the

office bearers of the petitioner did not place before the Education Officer any record

of the Charity Commissioner to indicate who was in charge of the affairs of the

Society. Since the transfers were effected without obtaining prior permission of the WP-1510-22(J) 5/8

Education Officer, the same were rightly cancelled by him. After hearing all

concerned parties, the impugned orders have been passed and hence there was no

reason to interfere with the same.

Shri B.G.Kulkarni, learned counsel for the respondent nos. 4 and 5 also

opposed the prayers made in the writ petition. It was submitted that the transfer

orders were issued by the persons who were not authorised to do so. There was no

change report in favour of the persons claiming to be the President and Secretary of

the Society and hence the Education Officer was justified in interfering in the

matter. Since the Education Officer had heard all the parties and had directed the

respondent nos. 4 and 5 to re-join their duties at the original school, there was no

reason to interfere in the impugned orders. The writ petition was thus liable to be

dismissed.

7. We have heard the learned counsel for the parties and we have perused

the documents on record. The question to be considered is as regards the

jurisdiction of the Education Officer (Secondary) to entertain a grievance against an

order of transfer presumably on the ground that the authority issuing the order of

transfer was not empowered to do so. Before considering the said aspect, we may

refer to the judgment of the Division Bench in Murlidhar Janrao Kale and others Vs.

State of Maharashtra and others [2011 (1) Mh.L.J. 849] wherein it has been held by

the Division Bench that the Deputy Director of Education has no authority, power or

jurisdiction to decide which Board of Trustees or Trustees are entitled to run the

Management of the public Trust and its schools. Such jurisdiction is with the WP-1510-22(J) 6/8

authorities under the Act of 1950. In Janta Shikshan Sanstha (supra) it has been

held by the Division Bench that the Education Officer (Secondary) is not the

competent authority to adjudicate upon the rival contentions of the parties on the

issue of transfer effected under Rule 41 of the Rules of 1981 and cancelling the

orders of transfer. It is also not in dispute that under the Maharashtra Employees of

Private Schools (Conditions of Service) Regulation Act, 1977 or the Rules of 1981

there is no authority conferred on the Education Officer to examine the validity of

an order of transfer effected in exercise of the powers under Rule 41 of the Rules of

1981. It is to be kept in mind that in the present case the transfer of the respondent

nos.4 and 5 is from one school run by the Management to another school run by the

same Management.

8. Perusal of the order dated 02.09.2021 indicates that the Education

Officer has observed therein that the transfer orders were signed by

Smt. B.P.Meshram who was not shown to be holding any post in Society. Similarly

prior permission of the Education Officer had not been taken before effecting such

transfers. We find that it was not permissible for the Education Officer to interfere

with the orders of transfer on these counts. He had no authority to go into the

question as to who was in Management of the public Trust for effecting the orders of

transfer. The basis for seeking prior permission of the Education Officer before

making an order of transfer has also not been indicated. On this ground the order

dated 02.09.2021 is liable to be set aside.

WP-1510-22(J) 7/8

9. Insofar as the order dated 21.02.2022 is concerned, the Education

Officer has again gone into the question as to who was in Management of the affairs

of the Society in the context of Schedule I of the Public Trust Register. He has

further observed that since his earlier order dated 02.09.2021 had not been

complied with, it was necessary for the Head Master to permit the respondent nos. 4

and 5 to resume their duties at the original school prior to their transfers. It is thus

seen that even this subsequent order dated 21.02.2022 to the extent it interferes

with the orders of transfer is without jurisdiction. The Education Officer has not

indicated the source of power for him to interfere in an order of transfer issued by

the Management transferring its employees from one of its own schools to another.

He could not have gone into the question as to who was in charge of the affairs of

the public Trust. On these grounds the order dated 21.02.2022 is also liable to be

set aside.

10. Hence for aforesaid reasons it is held that the orders dated 02.09.2021

and 21.02.2022 whereby the Education Officer (Secondary) has interfered with the

orders of transfer are quashed and set aside to that extent. The other directions

issued on 21.02.2022 by the Education Officer (Secondary) in the matter of granting

financial and administrative authority to Smt. C.S.Dongre, Assistant Teacher is not

interfered with. It is open for the respondent nos. 4 and 5 to challenge the orders of

transfer in accordance with law, if they are aggrieved by the same. It is clarified that

this Court has not examined the reasons for effecting the orders of transfer and that WP-1510-22(J) 8/8

question is kept open. The statement made by the learned counsel for the petitioner

as recorded in the order dated 28.03.2022 regarding payment of pending salary

shall be complied with.

Rule is made absolute in aforesaid terms with no order as to costs .

                              (URMILA JOSHI-PHALKE, J.)            (A.S.CHANDURKAR, J.)




                   Andurkar..




Digitally Signed byJAYANT S
ANDURKAR
Personal Assistant
Signing Date:
19.08.2022 11:38