Bombay High Court
Sarika D/O Madhukarrao Paturde (After ... vs The State Of Maharashtra, School ... on 5 May, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:4729-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 202 OF 2024
Sarika d/o Madhukarrao Paturde
(after marriage, Sarika w/o Satish Aghadte),
aged about 44 years,
Occ. Service, R/o. Panjabrao Colony,
Near Hanuman Mandir Samarth Nagar,
Tq. Dariyapur, District Amravati ...... PETITIONER
...V E R S U S...
1. State of Maharashtra,
School Education and Sports Department,
Mantralaya, Mumbai, through its Secretary,
2. Education Officer (Secondary),
Zilla Parishad, Amravati
3. Bhagyashree Shikshan Sanstha, Amravati,
through its President,
At P.B. Turkhade's Wada, Subodh Colony,
V.M.V. Road, Amravati
4. Bhagyashree Madhyamik and
Bapurao Patil Turkhade Uccha Madhyamik
Vidyala, Asadpur, Tah. Achalpur,
Dist Amravati, through its Headmaster.
5. Bhagyashree Madhyamik and Uccha
Madhyamik Vidyalaya, Surbhi Vihar,
Amravati,
through its Headmaster. ....RESPONDENTS
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Mr. H.A. Deshpande, Advocate for Petitioner.
Mr. A.M. Kadukar, AGP, for respondent Nos.1 & 2/State.
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CORAM:- AVINASH G. GHAROTE & ABHAY J. MANTRI, JJ.
DATE : 05.05.2025
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JUDGMENT (Per : Abhay J. Mantri, J.)
Heard. Rule. Heard finally with the consent of the learned
Advocate for the parties.
2. The petitioner seeks direction to the respondent No. 2
Education Officer, Zilla Parishad, Amravati, to decide the proposal
dated 09.06.2021 (page 92) and further to grant approval to her
services and transfer from unaided school/division to aided
school/division and to release her entire salary from the State
exchequer w.e.f. 03.10.2019.
3. The petitioner was initially appointed as an Assistant
Teacher on a non-grant-in section in the respondent No. 4 school from
01.07.2008. Respondent No. 2 has already approved her appointment
on a non-grant basis vide order dated 16.01.2009 (page 79) from
01.07.2008 until further orders. Thereafter, the petitioner was
transferred to the respondent No. 5 school on a non-granted basis vide
order dated 20.06.2014 (page 82).
4. Mrs. S.P. Turkhade, headmaster, retired on 30.06.2018;
hence, Senior Assistant Teacher Mr. Kharalekar was promoted as
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Headmaster, and thus, one post of Assistant Teacher fell vacant.
Therefore, in its meeting dated 02.10.2019, the education society
unanimously resolved to transfer the services of the petitioner, the
senior-most teacher, from the unaided division to the aided division of
the respondent No. 5 School. Accordingly, a transfer order was issued
on 03.10.2019, with the condition that the petitioner will receive a
proportionate salary from the State and the institution. Pursuant to
said order, her bond/undertaking was obtained to that effect. That
being so, the headmaster of respondent No. 5 School forwarded her
proposal to respondent No. 2 to grant approval to transfer the
petitioner from the non-grant section to the grant section vide letter
dated 03.11.2020 (page 88). Respondent No. 2 vide letter dated
11.11.2000 has refused to grant approval due to certain discrepancies
appearing in the proposal and informed the school about the
responsibility of payment of the petitioner. After removing the
discrepancies, the headmaster of respondent No. 5 School submitted a
proposal afresh with an explanation and documents to respondent No.
2 vide letter dated 09.06.2021(page 92). However, respondent No. 2
has neither responded to the said proposal nor taken any decision.
Therefore, vide communication 28.03.2023, the headmaster of
respondent No. 5 school again reminded and requested to respondent
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No. 2 about the consideration of the proposal dated 09.06.2021, but
till the filing of the petition, respondent No. 2 did not take any decision
on the said proposal nor responded about the same, hence, this
petition.
5. Mr. Deshpande, learned Counsel for the petitioner,
vehemently contended that despite submitting a proposal dated
09.06.2021 by the headmaster of respondent No. 5 School, respondent
No. 2 failed to take a decision for a long period and thereby caused
injustice to the rights of the petitioner. In fact, Rule 41 of the
Maharashtra Employees of Private School (Conditions of Service)
Rules, 1981 (for short, "Rules") permits the management who runs
more than one school, to transfer any of its employee from one school
to another on administrative grounds, due to promotion or at the
request of the employee concerned, provided, that the transfer doesn't
affect the pay scale of the employee concerned and doesn't result into
loss of pensionary benefit admissible to the employee.
6. He further argued that the issue of transfer of an employee
is considered by this Court in various cases and held that transfer of an
employee from an unaided to an aided school is permissible under the
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law. Therefore, non-consideration of approval by respondent No. 2 is
not justified and is contrary to the settled position of the law. Hence,
he urges that a direction be issued against respondent No. 2 to decide
the proposal and grant approval to it.
7. The learned Counsel to substantiate his contention relied on
the decision in Writ petition No. 6114/2018 dated 14.01.2019 and drew
our attention to paragraph No. 16 therein. In the said decision, the
Coordinate Bench of this Court has held that sub-clauses 1, 3 and 4 of
clause 3 of the Government Circular dated 28.06.2016 are in
conformity with law. In contrast, sub-clause 5(B) of Clause 3 of the
circular will be applicable when the government sanctions a new post
on an aided basis and will not apply to the old post already receiving
100% grant in aid. Therefore, he submitted that the non-takeover
decision by respondent No. 2 is contrary to the mandate laid down by
this Court. Consequently, it would be proper to direct respondent No. 2
to decide the proposal dated 09.06.2021 and grant approval.
8. Per contra, Mr. Madiwale, learned AGP, strongly opposes the
petition contending that vide order dated 11.11.2020, respondent No.
2 has rejected the proposal submitted by the headmaster of respondent
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No. 5 school, and therefore, there is no need to take a decision on the
proposal resubmitted on 09.06.2021. Hence, he urges dismissal of the
petition. However, he does not dispute the mandate laid down in Writ
Petition No. 6114/2018.
9. We have appreciated the rival contentions of the parties and
have gone through the record and the judgment in Writ Petition No.
6114/2018. Vide communication dated 11.11.2020 (page 91),
respondent No. 2 has informed about the refusal of the proposal due to
some discrepancies that appeared in it. The said discrepancies were
removed by the headmaster of respondent No.5 School, and a fresh
proposal dated 09.06.2021 was submitted; however, since then till the
filing of the petition, respondent No. 2 has not decided the said
proposal nor responded to the same despite issuance of a reminder
vide communication dated 28.02.2023. We would like to reproduce
paragraph 16 of the judgment in Writ Petition No. 6114/2018, as
under:
"16. The sub clause 1,3 and 4 of Clause 3 of the
Government Circular dated 28th June, 2016, reproduced
herein above, are in conformity with the discussion made
herein above. But sub-clause 2 of Clause 3 of the said
Circular is that, till the surplus teachers are absorbed, no
approval should be granted for the transfer of the Assistant
Teacher from an unaided school to an aided school of the
same institution. In our opinion said clause runs contrary to
the ratio laid down in the aforesaid Judgments of the High
Court".
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A perusal of paragraph 16 reveals that sub-clauses 1, 3, and
4 of Clause 3 of the Government Circular dated 28.06.2016 are held
contrary to the ratio laid down by the Coordinate Bench of this Court.
Therefore, there does not impede in considering the proposal dated
09.06.2021 submitted by respondent No. 5 School with respondent No.
2 in view of the mandate laid down in Writ Petition Nos. 6114/2018
dated 14.1.2019 and in Writ Petition No. 2960/2012 dated
11.10.2012.
10. It is to be noted that Rule 41-A of the Rules came to be
amended in the year 2020 whereas transfer of the petitioner was
effected on 03.10.2019, the proposal for approval was returned by
respondent No. 2 to remove discrepancies and after removing the
same, the proposal was submitted afresh on 09.06.2021 that doesn't
mean that after coming into force Rule 41-A, the proposal was received
to respondent No. 2 School.
11. Thus, for the foregoing reasons and the mandate laid down
in the Writ Petition Nos. 6114/2018, we are of the opinion that it
would not be justified on the part of respondent No. 2 not to consider
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the proposal dated 09.06.2021 to grant approval to transfer the
petitioner from the unaided division to the aided division and her
services in the aided school without any cogent reason. On the
contrary, it was incumbent on the part of respondent No. 2 to consider
the proposal submitted by respondent No. 5 school, in view of the
mandate laid down by this Court and in view of the Government
Circular dated 28.06.2016.
In such an eventuality, we partly allow the petition by
directing respondent No. 2, Education Officer (Secondary), Zilla
Parishad, Amravati, to consider the proposal dated 09.06.2021 and
take a decision on it within a period of eight weeks from the date of
receipt of a copy of this judgment. Rule is partly made absolute in the
above terms. No costs.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.)
Belkhede
Signed by: Mr. R. S. Belkhede
Designation: PA To Honourable Judge
Date: 06/05/2025 11:03:02
