Pradeep S/O Devendra Munde vs State Of Maharashtra, Thr. The ...
2022 Latest Caselaw 10588 Bom

45-J-WP-5417-21                                                        1/3


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

                      WRIT PETITION NO.5417 OF 2021


Pradeep s/o Devendra Munde
a/a 42 years, occ. Service
Permanent r/o Brahman wada,
Post Kamargaon, Tq. Karanja (Lad),
District Washim                                ... Petitioner

-vs-

1. State of Maharashtra,
   Through the Secretary,
   Education Department,
   Mantralay, Mumbai-32

2. Education Officer, Secondary,
   Zilla Parishad, Akola,
   Tq. And Dist. Akola,
   (Office situated near Santoshi Mata
   Mandir, Akola)

3. Gram Sudhar Shikshan Prasarak Mandal,
   Ghota, Tq. Barshitakali, Distt. Akola

4. Pradhyapak Madhukarrao Mendhe,
   Madhyamik Vidyalay, Borta,
   Tq. Murtizapur, Distt. Akola
   Through its Headmaster                         ... Respondents

Shri C. A. Joshi, Advocate for petitioner.
Smt S. S. Jachak, Assistant Government Pleader for respondent Nos.1 and 2.
Shri N. A. Gaikwad, Advocate for respondent Nos.3 and 4.

                  CORAM : A. S. CHANDURKAR AND M. W. CHANDWANI, JJ.

DATE : October 12, 2022

Oral Judgment : (Per : A. S. Chandurkar, J.)

Rule. Rule made returnable forthwith and heard the

learned counsel for the parties.

45-J-WP-5417-21 2/3

The petitioner came to be appointed as Assistant Teacher on an

un-aided post at the respondent No.4-School. His appointment was

duly approved on 30/12/2011. On retirement of one teacher who was

serving on an aided post, the services of the petitioner were sought to

be transferred from the un-aided post on the vacant aided post. The

Management thereafter sought approval to such transfer. By the

impugned order the Education Officer (Secondary) has refused to grant

such approval on the ground that the seniority list was not annexed,

there were surplus teachers in the list who were not absorbed and that

such transfer was not permissible in view of the Government

Resolution dated 04/05/2020. Being aggrieved the petitioner has

challenged the aforesaid order.

2. On hearing the learned counsel for the parties and after perusing

the documents on record, it is clear that the issue with regard to

permissibility of transfer of an employee from an unaided post to aided

post has been decided in several cases and it has been held that such

transfer is not in the nature of fresh appointment. Reference in this

regard can be made to the judgment in Writ Petition No.5313/2017

(Miss Devkar Dipali Kisan and ors. vs. The State of Maharashtra and

ors. with connected writ petitions.) decided on 25/04/2019 at the

Principal Seat. The Government Resolution dated 04/05/2020 only 45-J-WP-5417-21 3/3

restrains filling up of new posts and same has also been held to be not

applicable in such situation. Insofar as absorption of surplus teachers

is concerned, that cannot be a reason to refuse approval to the transfer

from an un-aided post to an aided post. Surplus teachers can be duly

absorbed on other vacant posts. We find therefore the reasons

assigned in the impugned order are not sustainable. It is also informed

that the seniority list has been furnished by the Management to the

Education Officer.

3. In view of aforesaid, the order dated 12/03/2021 passed by the

Education Officer (Secondary) is set aside.

The Education Officer shall re-consider the aforesaid proposal in

the light of aforesaid observations and take a decision on the proposal

for grant of approval to the transfer of the petitioner within a period of

four weeks of receiving copy of this judgment. If the approval is

granted, the petitioner would be entitled for all consequential benefits

in that regard.

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

costs.

(M. S. Chandwani, J.) (A. S. Chandurkar, J.)

Digitally signed byASMITA ADWAIT BHANDAKKAR Asmita Signing Date:13.10.2022 18:54:33