Bombay High Court
Mastan Nabisha Murshad vs The Education Officer Secondary ... on 29 September, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 8518 OF 2021
Mastan Nabisha Murshad,
Age : 53 Years, Occu. : Service as Peon,
R/o Kranti Nagar, Ambajogai,
Tq. Ambajogai, Dist. Beed. .. Petitioner
Versus
1. The Education Officer (Secondary),
Zilla Parishad, Beed,
District Beed.
2. Shri Gurulingeshwar Public
Education Society, Devani (Bk),
Tq. Udgir, Dist. Latur,
Through its President/Secretary.
3. Headmaster,
Swatantryaveer Savarkar Madhyamik
Vidyalaya, Pimpla (Dhaiguda),
Tq. Ambajogai, Dist. Beed.
4. Headmaster,
Yogesheari Devi Madhyamik
Vidyalaya, Devani, Tq. Devani,
Dist. Latur.
5. Shri Untwale Sayyad Mosin Chandpasha,
Age : 57 Years, Occu. : Service as Peon,
R/o C/o Swatantryaveer Savarkar Madhyamik
Vidyalaya, Pimpla (Dhaiguda),
Tq. Ambajogai, Dist. Beed. .. Respondents
Shri Sachin S. Deshmukh, Advocate for the Petitioner.
Shri A. S. Shinde, A.G.P. for the Respondent No. 1.
Shri S. R. Kolhare, Advocate for the Respondent Nos. 2 to 4.
Shri Pundlik S. Kochar, Advocate for the Respondent No. 5.
CORAM : MANGESH S. PATIL AND
SANDEEP V. MARNE, JJ.
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CLOSED FOR JUDGMENT ON : 23.09.2022
JUDGMENT PRONOUNCED ON : 29.09.2022
JUDGMENT (Per Sandeep V. Marne, J.) :
. Rule. Rule made returnable forthwith. With the consent
of parties taken up for final hearing.
2. The petitioner challenges transfer order dated 31.05.2021,
by which the respondent-management has transferred him from
Swatantryaveer Savarkar Secondary School, Pimpla (Dhaiguda),
Tq. Ambajogai, Dist. Beed to Shri Yogeshwaridevi Secondary
School, Devani, Tq. Devani, Dist. Latur. The transfer is assailed
on the ground that it violates the provisions of Rule 41 of the
Maharashtra Employees of Private Schools (Regulation of
Service Condition) Rules, 1981 (for short "Rules of 1981").
3. Appearing for the petitioner Mr. Deshmukh, learned
counsel would submit that under Rule 41 of the Rules of 1981,
the transfer can only be on administrative grounds, promotion or
at the request of the employee concern. He submits that except
these three eventualities, transfer of an employee is
impermissible. He would further submit that the petitioner has
neither been promoted, nor had he requested for transfer. This
leaves only the ground of administrative exigency. Inviting our
attention to the impugned transfer order dated 31.05.2021, he
would contend that the order does not state that the transfer has
been effected on administrative grounds. Relying on the
judgment of the Constitution Bench of the Apex Court in the case
of Mohinder Singh Gill and another Vs. Chief Election
Commissioner reported in AIR 1978 SC 851, he would submit
that the validity of the transfer order is required to be adjudged
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only by the reasons stated in the transfer order and the reasons
supplemented in the form of affidavit in reply are required to be
ignored. Inviting our attention to Petitioner's representation
dated 12-09-2022, Mr. Deshmukh would, lastly, submit that the
Petitioner has not been permitted to join the transferred school.
4. Per contra, Mr. Kolhare, learned counsel appearing for the
respondent-management submits that the petitioner has been
transferred on administrative ground as he had completed 21
years of service in Swatantryaveer Savarkar Secondary School
Pimpla (Dhaiguda), Tq. Ambajogai. He would further submit
that the transfer orders of the petitioner and the respondent No.
5 have been duly approved by the Education Officer by order
dated 28.07.2021. He would further submit that in place of the
petitioner, the respondent No. 5 was transferred and that he has
already joined on 01.06.2021 in place of the petitioner. He would
further submit that, after filing application for leave on
07.07.2021, the petitioner has failed to report the place of
transfer till date. Lastly, he would submit that the respondent
No. 5 is due for retirement on 30.06.2023. This is also one of the
grounds why he has been transferred in place of the petitioner.
5. We have heard the learned counsel for the parties and have
perused the records.
6. Rule 41 of the Rules of 1981 deals with the issue of transfer
in respect of multiple schools being operated by the management.
Sub Rule 1 of Rule 41 of the Rules of 1981 provides as under :
41. Transfers. - (1) Subject to the provisions of this rule
the Management conducting more than one school shall
not transfer any of its employees from one school to
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another except on administrative grounds, promotion or at
the request of the employee concerned, if it is
administratively convenient to do so.
7. In the present case, as rightly submitted by Mr.
Deshmukh, the petitioner is neither promoted, nor has requested
for his transfer. This leaves only the reason of administrative
grounds. Undoubtedly, the transfer order does not specify any
particular reason for effecting transfers. By that order, four non
teaching staff members have been transferred. In the affidavit
in reply, it is stated on oath that transfers are effected on
administrative grounds. Two administrative grounds viz.
petitioner working at same place for 21 years and the respondent
No. 5 is on the verge of retirement have been stated in the
affidavit in reply. Mr. Deshmukh submits that the transfer
order must indicate reasons. We are unable to agree. Transfer or
postong at a particular place is not a matter of right of an
employee. Effecting transfers for administrative exigencies is an
inherent right of the employer. Since the employee does not have
a right to be posted or continued at a particular place, none of his
rights would get violated by reason of his/her transfer. Since
rights are not violated, there is no necessity of recording reasons
for effecting transfer.
8. As long as it is not demonstrated that the transfer order
violates the statutory rules or is actuated by malice, the same
cannot be interfered with on the ground that reasons for transfer
are not indiacted in the order. We are therefore, of the view that
it was not at all necessary for the respondent-management to
record reasons for effecting transfers. It is also to be seen that
four employees have been transferred by order dated 31.05.2021.
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If the contention of Mr. Deshmukh is to be accepted, the
respondent-management would be required to record reasons for
transfer of each of the four employees.
9. Now, we turn to the reasons for transfer as disclosed in the
affidavit in reply. A specific averment has been made in the
affidavit in reply that the transfer has been effected on
administrative ground under the provisions of Rule 41 of the
Rules of 1981. Though it was not required, the respondent-
management has gone ahead and disclosed the exact
administrative ground in the form of petitioner completing 21
years of service at the same school as well as the respondent No.
5 being on the verge of retirement. Firstly, despite the exact
administrative reasons being disclosed in the affidavit in reply,
the same are not challenged in any manner by the petitioner.
The petitioner has not disputed the position that he has been
working at the place for 21 long years. Thus, we are not even
called upon to decide the correctness or otherwise of the
administrative ground mentioned in the affidavit in reply, as the
same is uncontroverted. Even otherwise in exercise of power of
judicial review, we are not expected to decide correctness of the
reasons of transfer. We, therefore, hold that the transfer of the
petitioner has been effected on administrative ground as
provided in Rule 41 of the Rules of 1981.
10. Reliance of Mr. Deshmukh on the decision of the
Constitution Bench in the case of Mohinder Singh Gill (supra) is
misplaced. We have already arrived at a conclusion that it is not
necessary for the employer to record reasons in support of
transfer order in that order. Once there is no requirement of
recording of reasons in the transfer order, the law enunciated by
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the Constitution Bench in the case of Mohinder Singh Gill (supra)
would automatically become inapplicable to the present case. In
Mohinder Singh Gill (supra), the Constitution Bench of the Apex
Court has held that when a statutory functionary makes an
order based on certain grounds, it's validity must be judged by
the reasons so mentioned and cannot be supplemented by fresh
reasons in the shape of affidavit. In Mohinder Singh Gill (supra)
the Constitution Bench was dealing with an order passed by the
Election Commission in exercise of its statutory powers which
required recording of reasons. In the instant case, there is no
requirement of recording reasons for transfers. Therefore, we
find that the decision in the case of Mohinder Singh Gill (supra)
has no application to the present case.
11. We would have ended the judgment here. However, we
have noticed the conduct of the petitioner in not joining the
transferred place since 31.05.2021. Here we may make profitable
reference to the judgment of the Apex Court in the case of S. C.
Saxsena Vs. Union of India reported in (2006) 9 SCC 583, in
which the Apex Court has held as under :
6. We have perused the record with the help of the
learned counsel and heard the learned counsel very
patiently. We find that no case for our interference
whatsoever has been made out. In the first place, a
Government servant cannot disobey a transfer order
by not reporting at the place of posting and then go to
a court to ventilate his grievances. It is his duty to
first report for work where he is transferred and
make a representation as to what may be his personal
problems. This tendency of not reporting at the place
of posting and indulging in litigation needs to be
curbed. Apart therefrom, if the appellant really had some
genuine difficulty in reporting for work at Tejpur, he could
have reported for duty at Amritsar where he was so posted.
We too decline to believe the story of his remaining
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sick.Assuming there was some sickness, we are not satisfied
that it prevented him from joining duty either at Tezpur or
at Amritsar. The medical certificate issued by Dr. Ram
Manohar Lohia Hospital proves this point. In the
circumstances, we too are of the opinion that the appellant
was guilty of the misconduct of unauthorisedly remaining
absent from duty.
(emphasis & underlining supplied)
12. Even otherwise the restrictive scope for Courts to interfere
in the matter of transfer is well established. We may refer to the
judgment of the Apex Court in the case of Punjab and Sindh Bank
and others Vs. Durgesh Kuwar reported in (2020) 19 SCC 46,
wherein it is held as under :
17. We must begin our analysis of the rival submissions
by adverting to the settled principle that transfer is an
exigency of service. An employee cannot have a choice of
postings. Administrative circulars and guidelines are
indicators of the manner in which the transfer policy has
to be implemented. However, an administrative circular
may not in itself confer a vested right which can be
enforceable by a writ of mandamus. Unless an order of
transfer is established to be malafide or contrary to a
statutory provision or has been issued by an authority not
competent to order transfer, the Court in exercise of
judicial review would not be inclined to interfere. These
principles emerge from the judgments which have been
relied upon by the appellants in support of their
submissions and to which we have already made a
reference above. There can be no dispute about the
position in law.
13. The petitioner has not challenged the transfer order on the
ground of malafides. The only objection is violation of Rule 41 of
the Rules of 1981, which we have already repelled hereinabove.
The impugned transfer is also approved by the Education Officer
by order dated 28.07.2021, which is not challenged before us.
Thus, there is otherwise no scope for interference in the
impugned transfer order.
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14. Mr. Deshmukh has placed on record letter dated
12.09.2022, by which the petitioner has shown willingness to join
the school at which he has been transferred. In that letter, the
petitioner has contended that he had dispatched leave
application dated 07.07.2021 to the school at which he was
transferred and that he had made several requests for joining at
that school, but the management did not permit him to do so.
We find these contentions of the petitioner to be contrary to the
records. The letter dated 12.09.2022 does not refer to any
previous letter by which the petitioner had attempted to join the
transferred school. Therefore, it is highly doubtful as to whether
the petitioner ever attempted to join or that the respondent-
management refused his joining as alleged. Be that as it may.
Since the transfer order dated 31.05.2021 continues to remain
valid, it would be always open to the petitioner to join the school
at which he has been transferred. It has also been averred in the
affidavit in reply that the respondent No. 5 would be
superannuating on 30.06.2023. Mr. Kolhare has also submitted
before that after retirement of the respondent No. 5, the case of
the petitioner can be considered for transferring back to the
original school. This is something, which is for the management
to consider. We do not express any opinion in this regard.
15. Consequently, we do not find any merit in the petition. The
same is dismissed without any orders as to costs.
Rule is discharged.
[SANDEEP V. MARNE, J.] [MANGESH S. PATIL, J.]
bsb/Sept. 22
