Bombay High Court
Mrs. Mansi Mangesh Jadhav Nee Name Miss ... vs State Of Maharashtra, School Education ... on 9 August, 2024
Bench: Nitin Jamdar, M.M. Sathaye
2024:BHC-AS:31864-DB
1 50-WP-12563-23.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12563 OF 2023
Mansi Mangesh Jadhav, Nee name Miss. ...Petitioner
Bharati Ganpat Bhoir
Versus
The State of Maharashtra and Ors. ...Respondents
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SNEHA
NITIN Mr. M.S. Topkar a/w Pavitra Manesh for the Petitioner.
CHAVAN
Mr. V. M. Mali, AGP for Respondent/State.
Digitally signed
by SNEHA
NITIN CHAVAN
Date: 2024.08.09
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17:57:23 +0530
CORAM : NITIN JAMDAR AND
M.M. SATHAYE, JJ.
DATE : 9 AUGUST 2024
P.C. :
. Heard learned counsel for the Petitioner and learned AGP for
Respondent Nos. 1 & 2 / State. None appears for the Respondent
No. 3 Education Institute and Respondent No. 4 School / Junior
College, despite due service as per office note. We therefore proceed
on the basis that Respondent Management is not contesting the
petition.
2. Petitioner, an assistant teacher working with Respondent
Management is challenging the order dated 21 August 2023 passed
by Respondent No. 2- Education Officer (Secondary), Zilla Parishad,
Thane. By the said impugned order, Respondent Education Officer
Sneha Chavan
2 50-WP-12563-23.doc
has rejected the approval for transfer of Petitioner from un-aided to
aided division on various grounds including that of stay granted
under Government Circular dated 1 December 2022 and ban under
Government Resolution (GR) dated 4 May 2020.
3. The learned counsel for the Petitioner has relied upon the
judgment of Friends Social Circle, Akola & Ors. v/s State of
Maharashtra1 to contend that the impugned Order is unsustainable
so far as the ground based on said circular dated 1 December 2022 is
concerned. Learned AGP was at pains to justify the said ground but
could not distinguish the facts of this case from the said Judgment
relied. It is further submitted ban under said GR dated 4 May 2020
is no more existing. It is submitted that the rest of the grounds in the
impugned Order are taken without any notice to the Petitioner or
Respondent Management.
4. In the Judgment of Friends Social Circle, Akola (supra), this
Court has clearly held that Rule 41A of the Maharashtra Employees
Of Private Schools (Conditions Of Service) Rules, 1981 cannot be
stayed by issuance of Government Circular and has set side the said
Government Circular to the extent it stays operation and Rule 41A.
Indeed this view has been consistently followed thereafter in number
of decisions of this Court. In light thereof, the said ground in the
impugned Order cannot be sustained and it is set aside.
5. It is an admitted position before us that the ban imposed by
1 2023 SCC OnLine Bom 1503
Sneha Chavan
3 50-WP-12563-23.doc
the GR dated 4 May 2020 was due to the situation brought about by
Covid-19 Pandemic, which is no more existing and the ban has been
lifted. Therefore, this ground also would no longer survive and is
accordingly set aside.
6. So far as remaining grounds stated in the impugned order are
concerned, we note that they are factual in nature and they are taken
without any notice to Petitioner / Respondent Management and had
an opportunity been given, appropriate and necessary explanation
could have been given. Factual inquiry about such grounds can not
be done first time in this Court.
7. In light thereof, we dispose of the petition by directing that the
impugned order will be treated as notice to Petitioner / Respondent
Management of the proposed ground nos. 1 to 3 therein. The
proposal of the Petitioner is restored to file. Respondent Education
Officer is directed to send the proposal of Petitioner within a period
of two weeks from today, to the appropriate authority as per
Government Resolution dated 29 April 2024 for decision in
accordance with law.
8. If there are any other grounds on which the Authority intends
to return or reject the proposal, he is directed to communicate the
same to the Petitioner / Respondent Management within a period of
2 weeks thereafter.
Sneha Chavan
4 50-WP-12563-23.doc
9. The Respondent / Management shall thereafter submit its
explanation to the proposed grounds, along with supporting material
including government resolutions, case laws / orders of this Court
etc. if relied upon. The Authority is directed to decide the proposal
of Petitioner thereafter within a period of 8 weeks, by dealing with
the explanation given by the Educational Institute as also dealing
with case law/orders of this Court, by passing a reasoned order,
subject to other time bound directions. If the Authority proceeds to
grant proposal as prayed, consequent benefits will follow.
10. We have not expressed any opinion on the Petitioner's
proposal and the same shall be decided on its own merits in
accordance with law.
11. Writ Petition is disposed of in the above terms. No costs.
(M.M. SATHAYE, J.) (NITIN JAMDAR, J.)
Sneha Chavan
