Bombay High Court
Surekha Vitthal Navale vs The State Of Maharashtra Through ... on 4 January, 2022
Bench: A.S. Gadkari, S. G. Mehare
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.14703 OF 2021
Mahendra s/o Karbahari Thite,
age : 45 years, occu. Service,
R/o Plot No.73, Gulab Nagar,
Pipeline Road, Vasant Tekdi,
Savedi, Taluka and District :
Ahmednagar ..PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai - 400032
2. The Education Officer (Secondary),
Zilla Parishad, Ahmednagar ..RESPONDENTS
WITH
WRIT PETITION NO.14717 OF 2021
Surekha Vitthal Navale,
age : 43 years, occu. Service,
R/o "Shabdashree", 12,
Lekha Nagar, Pipeline Road,
Near Datta Mandir, Savedi Road,
Ahmednagar, Tal. And Dist. Ahmednagar ..PETITIONER
VERSUS
1. The State of Maharashtra,
Through its Secretary,
School Education Department,
Mantralaya, Mumbai - 400032
2. The Education Officer (Secondary),
Zilla Parishad, Ahmednagar ..RESPONDENTS
::: Uploaded on - 18/01/2022 ::: Downloaded on - 24/04/2022 17:53:02 :::
wp14703.21, etc.
(2)
Mr. N.K. Chaudhari, Advocate for petitioners;
Mr. S.B. Pulkundwar, A.G.P. for respondents in W.P.
No.14703 of 2021;
Mr. P.K. Lakhotiya, A.G.P. for respondents in W.P. No.14717
of 2021
CORAM : A.S. GADKARI
AND
S. G. MEHARE, JJ.
DATE : 4th January, 2022
P.C (Per S.G. MEHARE,J.).
1. Petitioners in W.P. No.14703 of 2021 and Writ Petition
No.14717 of 2021 have impugned Order dated 06.11.2019
granting phase-wise grant-in-aid approval to the transfer of
petitioners from unaided division to aided division. Petitioner
in W.P. No. 14717 of 2021 has, also assailed the Order dated
9.12.2021 approving the appointment of the petitioner from
08.04.2020.
In both the petitions, a common question is raised.
Hence, taken up for disposal together.
2. All the petitioners have rendered services on the
unaided post from 22.07.2013. The school management
transferred the petitioners from unaided post to the 100%
aided post on 17. 03.2018. Respondent No. 2 by the
impugned order dated 06.11.2019 granted approval to the
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transfer of the petitioners. However, respondent No. 2
approved the transfer in a phase-wise grant-in-aid manner.
Respondent No. 2 has passed the said impugned Orders
considering the Government Resolution dated 28.06.2016.
3. The learned Counsel for the petitioners vehemently
argued that, the Government Resolution dated 8.06.2016,
has been dealt with by this Court in various petitions. He
submitted that, the period of service rendered on an
unaided post should be considered while posting on the
aided post. Granting the grant-in-aid in a phase-wise manner
has been declared illegal by this Court. He also argued that,
the approval to the appointment shall be given effect from
the date of the transfer on the grant-in-aid post. However,
Respondent No. 2 in defiance of earlier judicial
pronouncements, followed again the same Government
Resolution dated 08.06.2016 and is causing harassment to
the litigants. The impugned orders therefore are illegal and
hence, the petitions deserve to be allowed.
4. The learned A.G.P. for the Respondents has conceded
to the settled provisions of law that, the services rendered
on the unaided post cannot be ignored. He also conceded
that, the approval shall be granted on the same grant in aid
post on which the person is transferred. In other words, he
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conceded that the approval to the transfer of petitioners
ought to have been granted on 100% grant-in-aid post. He
also fairly conceded that, approval to the appointment of the
petitioners should have been granted from the date of the
transfer of the petitioners on a grant-in-aid post.
5. The circular dated 28.06.2016, restricting the rights of
the management to transfer the assistant teachers from
unaided post to aided post was impugned before this Court
in W.P.No. 1493 of 2018 with connected writ petitions which
were decided on 04.07.2019. The Division Bench of this
Court considered the provisions of Rule 41 of Maharashtra
Employees of Private Schools (Conditions of Service) Rules,
1981. The Division Bench had referred to the judgment of
this Court delivered at principal seat at Bombay passed in
Writ petition No. 5313 of 2017 with connected writ petitions
decided on 25.04.2019, in which the Government Resolution
dated 28.06.2016 is dealt with. The observations made in
paragraph 17 therein are as follows:-
"The circular dated to 8.06.2016 can hardly be said to be
Government instructions. It has no statutory force in
law. Rule 41 of the MEPS Act which is the subordinate
legislation, the administrative decision which runs
contrary to them cannot be held to be valid in law. We
find that, since Clauses 1 and 2 of the said circular, run
contrary to the provisions of subordinate legislation as
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found in Rule 41, the same would not be valid in law".
6. The Division Bench of this Court in Writ Petition No.
2278 of 2021 along with other connected petitions, decided
on 4th February 2021, has dealt with the issue of the date of
granting approval to the appointment of Assistant teachers
from the date of transfer to the aided post from unaided
post. The Division Bench of this Court has observed in
paragraph No. 5 as follows:-
"5. In case the petitioners are transferred on 100%
grant-in-aid posts since the date of completion of three
years, they shall be considered on 100% grant in aid
post. In case the petitioners are transferred on grant-
in-aid posts, for example on 60%, then from the date
of transfer, they would be on 60% grant-in-aid posts,
but if the petitioners, after having completed three
years on an unaided posts and are transferred on
100% grant in aid posts, their services will have to be
considered on 100% grant-in-aid posts. This aspect has
been ignored by the director of education/ Dy. Director
of Education/Education Officer."
7. A clear mandate of law has been given by the Division
Bench of this Court in the above pronouncement with an
example as to how to deal with the transfer of a teacher
from an unaided post to the aided post. Once again, after
the above judgment, the Division Bench has passed similar
Order in Writ Petition No. 13289 of 2021 on 2 nd December
2021. In all the above Writ Petitions the State of
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Maharashtra through its Secretary, Education Department,
Mantralaya, Mumbai and the Education Officers of the
concerned Zilla Parishads were the parties.
8. It is really unfortunate that even after having repeated
authoritative pronouncements, with examples of, how to
deal with the transfer of the teachers from an unaided
division to aided division and setting aside the clauses of
Government Resolution dated 28.06.2016 on the issue
involved in the case, the respondents still adhere to the
same. Such repeated acts of the respondents do not only
appear to be ignorance but deliberate turning of blind eye to
the Orders of this Court. The judicial pronouncement on the
subject before this Courts is the answer to the confusion as
regards the interpretation of the law and its implementation.
Every pronouncement of the High Court on the issues
involved before it is binding on the parties thereto. The State
is supposed to be more cautious of the judicial
pronouncements and is bound to implement the same in its
letter and spirit, unless the same are set aside or modified
by the higher court. Such pronouncements are having the
binding effect. The Executives should implement such
judicial pronouncements not only to bring uniformity but to
ease the life of the citizens as well as to avoid unwanted
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litigations. Defying the judicial pronouncement by the
executive is nothing but harassment to the litigants and
putting unnecessary burden on the State Exchequer due to
the litigations filed against it. Passing orders as impugned
herein, in defiance of the judicial pronouncement on the
subject is nothing but disrespect to the judicial system. We
are also of the opinion that, not following the judicial
pronouncement by the responsible public servants is total
non-assistance to the administration of justice. Such an
officer or the public servant should not be excused on any
count and stringent action should be taken against such
public servants/executives. Committing the said repeated
acts by the Department of Education and its Officer cannot
be held unintentional but leads to draw adverse inference of
deliberate defiance of law and must be looked seriously.
9. In view of the above observations, we feel it
appropriate to request the Secretary, Education
Department, State of Maharashtra to take serious note of
defying judicial pronouncements on the subject and consider
to adopt suitable legal action against all such erring officers
in the State. The Secretary is requested to take regular
review of the implementation of the judicial pronouncements
in its letter and spirit to avoid unwarranted litigation and
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harassment to the teachers.
10. In view of the settled law on the issue involved in this
case, we set aside the impugned orders granting approval in
a phase-wise grant-in-aid manner and direct respondent
no.3 to grant the approval on 100% grant-in-post if the
petitioners are transferred on 100% grant-in-aid posts as the
case may be, from the date of their transfer to the aided
post and consequently issue approval to their appointments
from the date of their transfer to the aided posts.
11. Petitions are allowed in the aforesaid terms.
(S. G. MEHARE, J.) (A.S. GADKARI, J.)
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