Bombay High Court
Satish Balasaheb Nirwal vs The State Of Maharashtra Through Its ... on 7 May, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:9784-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 13003 OF 2023
Satish S/o. Balasaheb Nirwal,
Age 35 years, Occ. Service,
R/o. Somthana, Taluka Manwat
dist. Parbhani. .. Petitioner
versus
1. The State of Maharashtra,
through its Secretary
Education and Sports Department,
Mantralaya, Mumbai - 32.
2. The Deputy Director of Education
Aurangabad Division, Aurangabad.
3. The Education Officer (Secondary)
Zilla Parishad, Parbhani.
4. Pathri Taluka Shikshan Prasarak Mandal,
Manvat, Tal. Manvat, Dist. Parbhani.
Through its Secretary
5. Smt. Shakuntalabai Kanchanrao Katruwar
Vidyalaya, Manvat, Tal. Manvat, Dist. Parbhani
through its Head Master.
6. Late Sa. Go. Nakhate, Secondary and
High Secondary School, Devnandra,
Tal. Pathri, Dist. Parbhani,
through its Head Master.
7. Siddharth Uttam Waghmare,
Age 43 years, Occ. Service,
R/o. Dnyaneshwar Nagar, Pathri,
Tal. Pathri, Dist. Parbhani. .. Respondents.
Mr. Ramesh I. Wakade, Advocate for petitioner
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Mr. S.K. Shirse, AGP for respondent Nos. 1 to 3.
Mr. R.R. Chandak, Advocate for respondent Nos. 4 and 6.
Mr. S.B. Choudhari, Advocate for respondent NO.7.
with
WRIT PETITION NO. 8525 OF 2023.
Siddharth S/o. Uttam Waghmare,
Age 43 years, Occ. Service,
R/o Dnyaneshwar Nagar, Pathri,
Tal. Pathri, Dist. Parbhani.
.. Petitioner
versus
1. The State of Maharashtra,
through its Secretary
Education and Sports Department,
Mantralaya, Mumbai - 32.
2. The Education Officer (Secondary)
Zilla Parishad, Parbhani.
3. Pathri Taluka Shikshan Prasarak Mandal,
Manvat, Tal. Manvat, Dist. Parbhani.
Through its Secretary/President.'
4. Kai. S. G. Nakhate, Secondary and
High Secondary School, Devnandra,
Tal. Pathri, Dist. Parbhani,
through its Head Master. ... Respondents.
Mr. S.B. Chaudhari, Adv. For petitioner
Mr. S.K. Shirse, AGP for respondent Nos. 1 and 2.
Mr. R.R. Chandak, Advocate for respondent Nos. 3 and 4.
CORAM : SMT. VIBHA KANKANWADI
& S.G. CHAPALGAONKAR, JJ.
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RESERVED ON : 30TH APRIL, 2024
PRONOUNCED ON : 7TH MAY, 2024.
JUDGMENT :
(PER S.G. CHAPALGAONKAR, J.]
1. Rule. Rule made returnable forthwith. Since controversy
raised in these writ petitions is as regards to grant of approval to the
transfer from un-aided to aided post, on the basis inter-se seniority of
Assistant teachers on establishment of schools run by same management,
both these petitions are heard and decided together by consent of
advocates appearing for respective parties.
3. The petitioner in W.P. No. 13003 of 2023 approached this
Court under Article 226 of the Constitution of India impugning the order
dated 7.8.2023 thereby declining proposal seeking approval to his
transfer from partially aided to 100% aided post of Assistant Teacher.
4. Mr. Wakade, learned counsel for the petitioner submits that
in pursuance of advertisement dated 5.6.2013, issued by respondent
No.4 - Management, petitioner responded and after going through the
selection process, came to be appointed as Assistant Teacher with
respondent No.5 school. His appointment was approved vide order dated
18.10.2013 issued by the Education Officer. On completion of period of
probation his services were continued w.e.f. 16.8.2016. Even the
continuation of the petitioner has been approved by the Education
Officer vide order dated 12.12.2007. After rendering the service of
almost ten years on non-grant basis, the respondent No.6 school started
receiving 20% grant in aid. On 1.7.2023, a post of Assistant Teacher
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eligible for 100% grant in aid had fallen vacant. Consequently, vide
order dated 3.7.2023, the management transferred the petitioner as
Assistant Teacher on that post. Then proposal was moved for approval to
the transfer. However, the Education Officer declined approval merely on
the ground that the respondent No.7 (petitioner in W.P. 8525 of 2023)
had raised objection as to seniority.
5. Mr. Wakade, would submit that in all 5 employees have been
transferred by the management in pursuance of the order passed by this
Court in W.P. No. 6010 of 2023. The petitioner has already rendered
service of more than 10 years on unaided post. Therefore, he has been
transferred to aided post against clear vacancy. The respondent No.7 has
never challenged the transfer order issued by the management and
directly raised objection before education officer to grant approval to the
transfer of petitioner. Therefore, impugned order is not sustainable in
law.
6. Mr. S.B. Chaudhari, learned advocate for respondent No.7
submits that this court vide order dated 15.6.2023 passed in W.P. No.
6010 of 2023 in the case of Dipali Madhukarrao Patekar and others. Vs.
State of Maharashtra, directed the management to take steps on the
request of the petitioners therein for transfer to aided division strictly in
accordance with the Rules, regulations and the Govt. Resolutions issued
from time to time. He would invite attention of this Court to the
combined seniority list for the academic year 2013-14 which depicts that
the name of the petitioner - Satish Nirwal is at Sr. No.49, whereas, the
name of respondent no.7 appears at Sr. No. 40. He would, therefore,
submit that the management has flouted the rules while transferring
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petitioner on 100% aided post, ignoring the claim of respondent No.7.
As such, he urges to maintain the impugned order.
7. Mr. Chaudhari would further submit that the respondent
No.7 has filed companion W.P. No. 8525 of 2023 seeking direction against
respondent management to transfer him from partially aided post to
100% aided post in terms of Rule 41-A of the MEPS Rules, 1981. As
such, the petitioner and respondent No.7 are claiming right against
vacant post on 100% aided division.
8. Mr. R.R. Chandak, learned advocate appearing for the
Education Officer supports impugned order contending that the senior-
most teacher would be entitled for transfer on aided post with
respondent No.6 School. Respondent no. 7 claimed his seniority over
petitioner by raising objection. The management of the school did not
follow the rule of seniority while issuing the transfer order in favour of
the petitioner. Hence approval to such transfer is rightly declined.
9. Having considered the submissions advanced, apparently,
there is no dispute that petitioner as well as respondent No.7 are
employees of the schools run by respondent No.4. Both of them are
appointed as Assistant Teachers on same day. Prima-facie, the combined
seniority list of Assistant Teachers on the establishment of the schools i.e.
Secondary School, Devnandra and Smt. Shakuntalabai Katruwar
Vidyalaya, Manvat (at Exhibit "N") for the academic year 2013-14, depict
name of petitioner at Sr. No. 49, whereas, name of respondent No.7
appears at Sr. No. 40. The seniority appears to have been fixed on the
basis of the date of birth, since respondent No.7 is senior by age to
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petitioner. Be that as it may, when the petitioner was transferred on
100% aided post from partially aided post, the management of the school
was under obligation to follow the conditions of transfer laid down under
Rule 41-A of the M.E.P.S. Rules, which prescribes that the transfer of the
employee from unaided to aided post is permissible, however, subject to
conditions. Clause (e) of Sub-Rule (1) of Rule 41-A, prescribes that
transfer shall be made only by following the seniority and as per the
requirement of the subject.
10. It was, therefore, incumbent upon the Education Officer to
examine the inter-se seniority of the employees and approve the transfer
of senior-most teacher working on the unaided or partially aided post.
The Education Officer should have taken necessary steps to call the
seniority list from the respondent No.4 and also decide the issue of
seniority amongst teachers instead of rejecting the proposal merely on
the basis of the complaint given by respondent No.7. If the seniority list
is already approved by the Education Officer, same can be acted upon
while deciding the proposal seeking approval to the transfer of employee
from unaided to aided division.
11. In the present case, apparently, Education Officer has not
followed the procedure nor made endeavour to resolve controversy as
regards the seniority and declined to grant the proposal seeking approval
to transfer of the petitioner from unaided to aided post. Such an
approach on the part of the Education Officer cannot be countenanced.
We find that the Education Officer has utterly failed to discharge his
obligations, particularly, in the light of Rule 12(3) of the MEPS Rules,
which provides that the dispute, if any, in the matter of inter-se seniority
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shall be referred to the Education Officer for his decision. Therefore, if
any dispute was raised before the Education Officer, it was obligatory on
his part, to decide rival claims after following the due process of law.
12. Resultantly, we deem it appropriate relegate the matter for
re-consideration to the Education Officer by setting aside impugned order
in W.P. No. 13003 of 2023 and direct him to reconsider proposal seeking
approval to the transfer of the petitioner in accordance with Rule 41-A of
the MEPS Rules, as well as observations made in this order.
13. So far as W.P. No. 8525 of 2023 is concerned, we find that
the petitioner (respondent No. 7 in W.P. No. 13003 of 2023) seeks
direction against the management to forward the proposal seeking
approval to his transfer from partially aided to aided establishment and
also seeks directions against the Education Officer to decide such
proposal in accordance with law. Pertinently, the petitioner has not
raised any challenge to the transfer of Mr. Satish Balasaheb Nirwal
(petitioner in W.P. No. 13003 of 2023). However, as per the scheme
under MEPS Rules, no right is created in favour of the employee to seek
transfer from unaided to aided post. But, when management of the
school takes a decision to transfer employee from unaided to aided
division, it is obligatory for the management to follow the mandate under
Rule 41-A. Eventually, the management would be under obligation to
transfer the employee who complies the conditions of eligibility, so also,
senior-most amongst eligible employees for transfer to aided post. The
gamut of the aforesaid provisions would bring within its sweep, right of
senior employee to seek redressal of his grievance, in case the employee
junior to him is transferred to the aided post. In that view of the matter,
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although we are not inclined to grant prayer as made in this petition, we
are inclined to direct the Education Officer to grant an opportunity of
hearing to the petitioner while considering the proposal seeking approval
to the transfer of Mr. Satish Nirwal from unaided to aided post.
14. Hence, we proceed to pass the following order :-
ORDER
[a] W.P. Nos. 13003 of 2023 and 8525 of 2023 are partly
allowed;
[b] The impugned orders dated 7.8.2023 passed by the
Education Officer (Secondary), Zilla Parishad, Parbhani in W.P. No. 13003
of 2023 thereby declining to grant approval to the transfer of the
petitioner - Satish Balasaheb Nirwal, is hereby quashed and set aside;
[c] The respondent No.3 Education Officer shall reconsider the
proposal seeking transfer of the petitioner from unaided to aided post
alongwith objection raised by respondent No.7 - Siddharth Uttam
Waghmare (Petitioner in W.P. No. 8525 of 2023) and decide the issue of
inter-se seniority, if not already settled, by invoking the powers under
Rule 12 of the MEPS Rules and pass appropriate orders in accordance
with law;
[d] Respondent No.3 , Education Officer shall call record from
the respondent - Management and after hearing all concerned, pass
appropriate orders on the proposal seeking approval to transfer of the
petitioner from unaided to aided post, in accordance with law.
[e] Aforesaid exercise to be completed within 8 weeks from date
of this order. Decision so taken, be communicated to the petitioners and
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management of school.
[f] Rule is made absolute with aforesaid directions.
[g] Civil application, if any, stands disposed of.
[S.G. CHAPALGAONKAR, J] [ SMT. VIBHA KANKANWADI, J]
grt/-
