24 Aug 2121

Rule 41 of MEPS Rules is contrary to sub clause (1) and (2) of clause 3 and hence it will be invalid law - Bombay High Court

Case : Ajay Vishwanath Kharade v. State of Maharashtra and Ors. Writ Petition No. 14234 of 2018

Court : Bombay High Court

Bench : Justice R. D. Dhanuka and Justice R. I. Chagla

Decided on : 24 Aug 2121

The Relevant Statutes

Article 226 of the Constitution of India

Rule 41, 41(1), 41(2) of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981

Brief facts of the Case

1. Ajay Vishwanath Kharade was appointed by the Shri Ganesh Shikshan Prasarak Mandal (“The Management”) of Sant Dnyaneshwar Primary Vidyamandir School as Assistant Teacher on 4th January 2014 for 2 years from 4th January 2013 to 3rd January 2015 in the pay scale of Rupees 5800-20200 with grade pay of Rupees 2800/-.

2. The management of the school submitted a proposal to The Education Officer (Primary), Zilla Parishad, Solapur for the appointment of Ajay Vishwanath Kharade as Assistant Teacher in school. Thereafter, approval was granted for his appointment in an unaided school. Ajay Vishwanath Kharade completed his probation period in school, the management of the school convened a meeting on 1st May 2016 in which it was unanimously decided that he can be transferred as assistant teacher of aided school on account of a vacancy that had arisen on the retirement of Shri Dhanvate Kalidas Shivram by superannuation on 31st May 2016.

3. On 20th June 2016, management submitted the proposal again to The Education Officer (Primary), Zilla Parishad, Solapur to seek approval for the transfer of Ajay Vishwanath Kharade from unaided to aided school for clear vacancy being arisen for the post of Assistant Teacher. Thereafter, on 1st March 2017, the proposal was rejected by The Education Officer.  So. Ajay Vishwanath Kharade, being aggrieved of this decision filed a writ petition before Bombay High Court.

The Issue of the Case

Whether respondent no. 4 was right in rejecting the management proposal for transferring the petitioner from unaided to aided school for the clear vacant post of Assistant Teacher?

Observations of the Court

1. The Honourable Bombay High Court opined that the impugned order has been passed contrary to the provisions of rule 41 of Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Court also opined that the impugned order placed reliance on clause 3, sub-clauses 1 and 2 and a government circular dated 28th June 2016.

2. The Honourable Bombay High Court relied on the judgment of Miss Devkar Dipali Kishan and Ors. vs. The State of Maharashtra and Ors. (Writ petition 5313 of 2017) and Suryakant s/o Janardan Muge vs. The State of Maharashtra and Ors. (Writ Petition 1493 of 2018) in these cases, it was held that if a surplus teacher is available at the time of appointment, then approval would not be granted regarding the transfer from unaided school to aided school but this rule has no statutory force.

3. The Honorable Bombay High Court opined that rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 is subordinate legislation and held that administrative decisions such as Government Circular which run contrary to law are not valid. So sub-clauses 1 and 2 of clause 3 is also contrary to rule 41 and it is also invalid law. So, the petition should be allowed regarding the transfer of the petitioner from unaided to aided school.

4. The Honorable Bombay High Court relied on the affidavit reply dated 1st July 2019 which was filed on behalf of respondent no. 4 and stated that Government Circular dated 28th June 2016 is binding on the petitioner since there are surplus teachers who are accepting salary without any work and it affects public exchequer and as the initial appointment of petitioner was in unaided school and he is claiming to be transferred in aided school in place of senior-most teacher which would affect the principle of justice and thus transfer would be bad in law.

The Decision Held by the Court

1. The impugned order dated 1st March 2017 is quashed and set aside.

2. Respondent no. 4, Education Officer (Primary) Zilla Parishad, Solapur is directed to grant approval to the petitioner regarding the transfer from unaided school to aided school in a post of Assistant Teacher as per the proposal dated 1st June 2016 within 6 weeks from the date of this order.

3. Respondent no. 4, Education Officer (Primary) Zilla Parishad, Solapur is directed to release the salary of the petitioner from the date of his transfer from unaided to aided school on 1st June 2016 within 12 weeks from the date of this order.

4. Writ petition is disposed of in the above directions.

5. Rule is made absolute accordingly.

  1. There shall be no order as to costs
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