Bombay High Court
Shikshan Vikas Mandir, Kuralpurna, ... vs The State Of Maha., Thr. Secretary, ... on 23 January, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:711-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 2030 OF 2024
1) Shikshan Vikas Mandir,
Kuralpurna, Tahsil - Chandur Bazar,
District - Amravati, through its
President.
2) Anand Primary School,
Chandur Bazar, Tq. Chandur Bazar,
District Amravati, through its
Head Mistress.
3) Gajendra Madhukarrao Mural,
Aged about 48 years,
Occupation - Service,
R/o Prabhag No.5, Chandur Bazar,
District - Amravati. .... PETITIONERS
VERSUS
1) The State of Maharashtra,
through its Secretary,
Ministry of Education and Sports
Department, Mantralaya, Mumbai-32.
2) The Education Officer (Primary),
Zilla Parishad, Amravati .... RESPONDENTS
______________________________________________________________
Mr. Ram Karode, Counsel for the petitioners,
Mr. A.V. Palshikar, A.G.P. for respondent No.1,
Mr. J.B. Kasat, Counsel for respondent No.2.
______________________________________________________________
CORAM : AVINASH G. GHAROTE &
ABHAY J. MANTRI, JJ.
DATE OF RESERVING THE JUDGMENT : 20-01-2025
DATE OF PRONOUNCEMENT OF THE JUDGMENT : 23-01-2025
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JUDGMENT :
(Per : Abhay J. Mantri, J.)
Rule. Heard finally with the consent of the learned
Counsel for the parties.
2. The petitioners challenge the order/communication dated
12-03-2024 issued by respondent No.2-Education Officer (Primary),
Zilla Parishad, Amravati, whereby the proposal forwarded by petitioner
No.1-society for grant of approval to the transfer of services of
petitioner No.3 from 60% aided division to 100% aided division has
been rejected.
3. Petitioner No.1 is a society and runs Petitioner No.2 school.
Petitioner No.3 is the employee of petitioner Nos.1 and 2 and is
working on the post of Assistant Teacher.
4. Petitioner No.3 possesses a B.A. B.Ed. qualification. By
appointment order dated 26-04-2012, he was appointed to the post of
Teacher with effect from 26-04-2012 in petitioner No.2's school on no
grant basis, which was approved by respondent No.2-Education Officer
vide order/communication dated 26-06-2013.
5. As per the policy decision of 12-10-2023 respondent No.2
issued order granting 60% grant-in-aid to 4th and 7th Standards of
petitioner No.2 school with effect from 01-01-2023.
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6. It is further averred that Shri Dipak Keshavrao
Kalamkhede, who was working on the 100% grant-in-aid section, was
superannuated with effect from 31-01-2024 in petitioner No.2-School,
run by petitioner No.1-Society. Therefore, the post which he occupied
became vacant. As a sequel, as per the seniority, petitioner No.3,
working on the 60% grant-in-aid division of 4 th and 7th Standard, was
eligible to transfer to the 100% grant-in-aid division. Accordingly, the
Executive Body/School Committee of petitioner No.1 on 06-02-2024
unanimously passed the resolution to transfer petitioner No.3 from
60% grant-in-aid division to 100% grant-in-aid division with effect
from 01-02-2024. Pursuant to the said resolution, on 22-02-2024,
petitioner No.2 forwarded the proposal for the grant of approval to
transfer of petitioner No.3. However, vide communication dated
12-03-2024, respondent No.2 rejected the proposal on the ground that
respondent No.1-State Government has issued Circular dated
01-12-2022 and thereby granted stay to the G.R. dated 08/06/2020
and G.R. dated 01/04/2021 i.e. provisions of Section 41 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Rules, 1981 (for short, "the Rules of 1981")}. Being aggrieved by the
said communication/order, the petitioners have preferred this petition.
7. Mr. R.D. Karode, learned Counsel appearing for the
petitioners, has vehemently argued that petitioner No.3 had completed
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five years of service on an unaided section as contemplated under Rule
41 of the Rules of 1981. Therefore, he submits that the issue in the case
is squarely covered by the Judgment of this Court in Friends Social
Circle, Akola & Ors. v. State of Maharashtra & Ors., 2023 SCC Online Bom.
1503, as well as the judgment in Writ Petition No.16078/2023 (Mangaon
Taluka Education Society & Ors. v. The State of Maharashtra and Anr. )
along with other connected matters, decided on 01-03-2024 and
followed in Writ Petition No.3630/2024, vide order dated 19-08-2024.
Therefore, it is contended that the petitioner is entitled to the relief as
prayed. Accordingly, he urged for allowing the petition.
8. As against, Mr. A.V. Palshikar, learned Assistant
Government Pleader, has gone through the said judgments and
submitted that the said judgments cover the issue in the case and,
therefore, submitted that an appropriate order may be passed.
9. We have appreciated the rival submissions, perused the
impugned order and record, as well as the law laid down in the case of
Friends Social Circle, Akola & Ors. and W.P. No.3630/2024 (cited supra).
10. At the outset, it seems that the issue raised in this petition
is no more res integra as the same is squarely covered by the judgment
in the case of Friends Social Circle, Akola & Ors. (cited supra). It clearly
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appears from the record that petitioner No.3 has completed five years
of service in an unaided/partially aided division/school. After arising of
the vacancy in petitioner No.2-School run by petitioner No.1-society
from 31-01-2024, the Executive Body/School Committee of petitioner
No.1, on 06-02-2024, has resolved to transfer petitioner No.3 from
60% grant-in-aid section to 100% grant-in-aid section with effect from
01-02-2024 as he was the senior-most teacher working on 60% aided
section. The respondents do not controvert the said facts. Moreover, by
the Government Resolution dated 29-04-2024, respondent No.1-State
Government has set aside the Circular dated 01-12-2022. Similarly,
despite granting opportunities, the respondents failed to file replies.
11. In the background above, it is evident that based on the
law laid down in the case of Friends Social Circle, Akola & Ors. and the
Government Resolution dated 29-04-2024, petitioners No.1 and 2 are
entitled to transfer petitioner No.3 from partially 60% grant-in-aid
division to 100% grant-in-aid division. Hence, we deem it appropriate
to allow the petition by passing the following order.
(i) The impugned order/communication dated 12-03-2024
issued by respondent No.2-Education Officer (primary) is
hereby quashed and set aside.
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(ii) The proposal for a grant of approval to transfer petitioner
No.3 from a partially 60% grant-in-aid division to a 100%
grant-in-aid Division/school is hereby restored.
(iii) It is clarified that if there are any other grounds on which
respondent No.2 intends to return or reject the proposal of
petitioner No.3, he is directed to communicate the same to
petitioner No.3 within four weeks from the date of
production of a copy of this Judgment.
(iv) Respondent No.2 is directed to decide the proposal of
petitioner No.3 within eight weeks by dealing with the
explanation submitted by the petitioners.
(v) We have not expressed any opinion on the proposal of
petitioner No.3, and the same shall be decided on its own
merits and in accordance with the law.
(vi) Needless to clarify, if respondent No.2 proceeds to grant the
proposal of petitioner No.3 as prayed, the consequential
benefits will follow, and in that case, the aforesaid directions
will not apply.
12. Rule is made absolute in the above terms.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
Signed by:adgokar
MR. P.M. ADGOKAR
Designation: PS To Honourable Judge
Date: 23/01/2025 14:47:59
