Bombay High Court
Rupali Dhananjay Patil And Anr vs The State Of Maharashtra Thr. Secretary ... on 11 April, 2023
Author: Gs Patel
Bench: G.S.Patel, Neela Gokhale
2023:BHC-AS:11024 Rupali Dhananjay Patil & Anr v The State of Maharashtra & Anr
8-aswp-4314-2022-J-F.doc
Gaikwad RD
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 4314 OF 2022
1. Rupali Dhananjay Patil,
Aged 36 years Occupation Service,
R/o. Flat No. 406, Building No.23,
Regency Sarvam, Titwala (E), Dist
Thane 621 605.
2. Nagrik Seva Mandal,
Ganeshwadi, Kalyan (E), Dist Thane,
Through its Chairman/Secretary. ...Petitioners
~ versus ~
3. The State of Maharashtra,
Through the Secretary, School
Education Department, Mantralaya,
Mumbai 400 032.
4. The Administrative
Officer,
Education Department, Kalyan
Dombivali Municipal Corporation
Kalyan, Dist Thane. ...Respondents
A PPEARANCES
for the petitioners Mr NV Bandiwadekar, Senior
Advocate, with Rajendra
Khaire, i/b Vinayak Kumbhar.
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Rupali Dhananjay Patil & Anr v The State of Maharashtra & Anr
8-aswp-4314-2022-J-F.doc
For respondent Ms SS Bhende, AGP.
no.1-State
For respondent No.2 Mr Sandeep D Shinde.
CORAM : G.S.Patel &
Neela Gokhale, JJ.
DATED : 11th April 2023
ORAL JUDGMENT (Per GS Patel J):-
1. Rule. Rule returnable forthwith.
2. This is yet another instance where no amount of judicial pronouncement by this Court is enough for the Government to understand that a question of law of general applicability has been decided and is binding. On the one hand, our Courts are told that there are mounting arrears of cases, increase in backlogs, matters being adjourned and indefinite delays. What is forgotten in this is that much of the filing is completely unnecessary. Petitioners are often forced to come to this Court only because the Government continues to raise the same objections and to pass the same orders again and again despite Court after Court holding as a matter of law that such orders cannot be sustained. For some reason that we are unable to understand, officers in the Government believe that the law declared by this Court is not binding on the State Government. We proposed to disabuse employees of the State Government from these notions. It was not long ago that we found the same approach was being taken by the State Government's Forest Department in Page 2 of 13 11th April 2023 ::: Uploaded on - 13/04/2023 ::: Downloaded on - 14/04/2023 04:36:44 ::: Rupali Dhananjay Patil & Anr v The State of Maharashtra & Anr 8-aswp-4314-2022-J-F.doc regard to a decision of none other than the Supreme Court in Godrej & Boyce Manufacturing Co Ltd & Anr v State of Maharashtra & Ors. 1 Affidavits were filed saying that that detailed Supreme Court judgment which analysed the law was limited to the facts pertaining to the parties before the Court and none other. We had to compel the State Government to reconsider its position. It did.
3. Now in the education field we find the same thing happening all over again with judgments of this Court. From page 39 to 106 of this Petition are copies of previous orders that have all dealt with precisely the question that is being agitated before yet again us today.
4. Perhaps some functionary in the Government fears the institution of an enquiry or a departmental enquiry or disciplinary action and hence files the same Affidavit. Such functionaries are right in being fearful. They are wrong in their estimation of who or what should be feared. It is not an enquiry within the Government that should be of concern. What should matter is the law, and judgments of this court. We make ourselves clear. If we find this being done again, we will suo motu institute contempt action against any officer of the Government who even by necessary implication suggests that an order of this Court is not binding on the State Government. We will not hesitate to take the necessary steps in contempt because, to tour mind, nothing undermines the Rule of Law such as a wilful disobedience of the law pronounced by the Court and especially when that disobedience comes from persons 1 (2014) 3 SCC 430.
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5. Mr Bandiwadekar draws our attention to a Circular of 28th February 2017 on this principle. The matter arose out of proceedings in the Maharashtra Administrative Tribunal. We reproduce that circular:
Directions for adherence to General Judicial Principle in service matters.
Government of Maharashtra Law and Judiciary Department Government Circular No.: 681-2016/Misc./E Madam Cama Road, Hutatma Rajguru Chowk, Mantralaya, Mumbai-400032.
Date: 28 February, 2017 CIRCULAR
1. The Hon'ble Maharashtra Administrative Tribunal, Mumbai, vide order dated 14.12.2016 in O.A. Nos. 59, 61 and 90 of 2016, has expressed displeasure over rejection of the claim of the applicants therein, for grant of Time Bound Promotion on the ground that the applicants had declined 2 (2019) 5 Mah LJ 228.Page 4 of 13
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2. The Hon'ble Tribunal, in Para 8 of aforesaid Judgment, has observed as under:
"If a principle of general applicability is capable of being culled out from a particular pronouncement of this Tribunal, then similarly placed employees, though not before the Tribunal should be given the benefit thereof without actually moving this Tribunal for relief. If on the other hand, the relief is person specific, then of course, this direction will not apply."
Therefore, the Hon'ble Tribunal has directed the undersigned to inform all the concerned departments regarding applicability of general judicial principle as explained in Para 8 of the aforesaid Judgment.
3. The Hon'ble Supreme Court in the case of State of Uttar Pradesh & Ors Vs. Arvind Kumar Srivastava reported in 2015 (1) SCC 347 has laid down similar principle, thus:
"Normal rule is that when a particular set of employees is given relief by the Court, all other identically situated persons need to be treated alike by extending that benefit. Not doing so would amount to discrimination and would be violative of Article 14 of the Constitution of India. This principle needs to be applied in service matters more emphatically as the service jurisprudence evolved by this Court from time to time postulates that all similarly situated persons should be treated similarly. Therefore, the normal rule would be that merely because other similarly situated persons did not approach the Court earlier, they are not to be Page 5 of 13 11th April 2023 ::: Uploaded on - 13/04/2023 ::: Downloaded on - 14/04/2023 04:36:44 ::: Rupali Dhananjay Patil & Anr v The State of Maharashtra & Anr 8-aswp-4314-2022-J-F.doc treated differently".
4. In view of the above, all the departments are hereby directed to take action according to the above directions given by the Hon'ble Maharashtra Administrative Tribunal, reiterating the legal position expounded by the Hon'ble Supreme Court.
5. The aforesaid directions be also brought to the notice of the offices under the administrative control of the departments.
This Government Circular of Maharashtra Government is available at the website www.maharashtra.gov.in. Reference no. for this is 201702281752472812. This order has been signed digitally.
By order and in the name of the Governor of Maharashtra.
(Swadheen S Kshatriya) Chief Secretary Government of Maharashtra We are sorry to note that the continued intransigence of various Government officers is in defiance of even the Government Circular. Six years after the Circular, we still find a repetition of the same approach, i.e., proceeding on the basis that judgments of this Court are inconsequential and can be ignored.
6. The resultant problem is plain for all to see. The Government does the same wrongful thing again and again. Petition after Petition has to be filed. Judgment after judgment is delivered. Valuable Court time and resources are lost in this entirely unnecessary exercise. And then after a last judgment, the cycle simply repeats itself.
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7. To this, we now have only three words: enough is enough. We will not accept this any longer. We have made our position clear.
8. The issue is very simple. The question of a surplus teacher being available can never come in the way of a transfer of a teacher either within an aided section, within an unaided section. or from one section to another of the school or in a group of schools under the same management. Before we even turn to judgments that have been cited and brought before us, we note that there is simple logic in this principle. A fresh appointment cannot be made if there are surplus teachers available. That stands to reason. Those who are in surplus must be absorbed first. But if a teacher is already employed, there is no question of "absorption". That teacher is already 'absorbed'. She or he is on the payroll. A lateral move does not affect the staffing pattern. It does not affect the overall staff strength. It does not affect the roster.
9. We will deal first very briefly with the facts of the case. The 1st Petitioner is in the open category and holds an H.Sc., D.Ed and an M.A. The 2nd Petitioner is the institution in question. On 1st January 2010 the 1st Petitioner was appointed as an Assistant Teacher in the unaided section of a primary school run by the 2nd Petitioner. On 12th April 2008, the 2nd Respondent, the Administrative Officer of the Education Department of the Kalyan Dombivali Municipal Corporation issued a revised order of approval. This was for the 1st Petitioner's appointment in the unaided section. On 1st April 2019, Petitioner No.1 was transferred by the 2nd Petitioner management from her post as a teacher in Page 7 of 13 11th April 2023 ::: Uploaded on - 13/04/2023 ::: Downloaded on - 14/04/2023 04:36:44 ::: Rupali Dhananjay Patil & Anr v The State of Maharashtra & Anr 8-aswp-4314-2022-J-F.doc unaided section to the post of a teacher in the aided section in the very same school.
10. Since this was a transfer to the aided section, the Management had to submit a proposal to the 2nd Respondent for approval. Which it did. On 18th January 2021, came the impugned order rejecting the proposal. A copy of the 18th January 2021 order is at page 32 and the only ground that it notes for the rejection is that there are surplus teachers available.
11. Not only is this in defiance of logic, but it is contrary to all the judgments that have been cited before us.
12. A group of Petitions were decided by the Division Bench of BR Gavai J (as he then was) and Sandeep K Shinde J on 25th April 2019 in the case of Devkar Dipali Kisan and Ors v State of Maharashtra & Ors.3 Paragraph 2 of that order shows that the grievance was the rejection of proposals for transfer of the petitioners from the unaided section to aided sections. Some posts in the transferee section arose because of the various subsequent events. The transfers took place within the same management and sometimes within the same school. Paragraph 5 notes the submission that a transfer from an unaided post to an aided post is not a fresh appointment, but it is a transfer within the meaning of Rule 41 of the Maharashtra Employees Private Schools (Conditions of Service) Rules, 1981 ("MEPS Rules"). The decision notes the previous judgment of this Court in Sandhya Laxman Ghosalkar v 3 2019 SCC OnLine Bom 13118.
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"...The Education Officer has failed to make distinction so far as instant matter is concerned. Since Respondent No.2 Institution is not proposing to fill in the vacancy by appointing any new recruit, the vacancy is being filled in by transferring an Assistant teacher from the school which does not receive grant-in-aid run by the same Institution. There is no prohibition prescribed in Government policy for effecting such transfer from unaided school to aided school. Reliance is placed on the judgment in the matter of Ms. Sandhya Laxman Ghosalkar Vs. State of Maharashtra (Writ Petition No. 5258 of 2012 and other companion matters, decided at Bombay on 12.09.2012). While dealing with an identical issue, the Division Bench of this Court has observed that there is no prohibition for transfer of an Assistant Teacher appointed in unaided school to aided school on the basis of seniority and if such transfers are effected, it is incumbent upon the Education Office to accord approval."
(Emphasis added)
13. This was also the view of the Aurangabad Bench in Sudhir Dnyandev Gadakh & Ors v State of Maharashtra & Ors, 6 where the Division Bench held:
"We have considered the submissions canvassed by the learned counsel for the respective parties, so also, gone 4 Neutral Citation: 2012:BHC-AS:20122-DB 5 Writ Petition No.2960 of 2012 decided on 11th October 2012 6 Writ Petition No.5978 of 2014 decided on 9th October 2014.Page 9 of 13
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(Emphasis added)
14. Then in Writ Petition No. 11065 of 2014 and companion matters in the case of Shilparekha Vinayak Joshi & Ors v. State of Maharashtra & Ors,7 the Division Bench followed the same reasoning. The judgment in the case of Devkar Dipali Kisan notes that there was a Circular of 28th June 2016 which said that transfer will be subject to their not being a surplus. This circular was considered in Pramod Prabhakar Pokale v State of Maharashtra & Ors by an Aurangabad Division Bench.8 The relevant sub-clause which said that until surplus teachers were absorbed no approval should be given for transfer was struck down. That view was accepted and adopted by the Division Bench in Devakar Dipali Kisan.
7 Neutral Citation: 2017:BHC-AS:4904-DB. 8 2019 SCC OnLine Bom 43.
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15. Consequently, there are binding decisions of this Court that surplusage will not affect transfers.
16. On its own this would have been enough. But there is more. There is the decision of another Division Bench in Pramod Prabhakar Pokale which again considers comprehensively the law (including the cases of Sandhya Laxman Ghosalkar, Dattu Bhima Thorat, Sudhir Dnyandev Gadakh and Shilparekha Vinayak Joshi amongst others) This also considers the 18th June 2016 Circular and the relevant portion is to be found in paragraph 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 transfer of the Assistant Teacher from unaided school to 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."
(Emphasis added)
17. A learned Single Judge of this Court has followed this pronouncement of law in a group of Petitions in Ahtesham Husain Shafiqur Rehman Quazi & Anr v The State of Maharashtra & Ors.9 Another learned Single Judge did so as well in Geeta Yashwant Pagi 9 2020 SCC OnLine Bom 7847.
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18. That is a lot of law. That is more than enough law. We do not think that any Bench of this Court now needs to reiterate the same law over and over again. We do not believe that we should be compelled to do so by the Government adopting the same approach and raising the same objections once again.
19. We are on the limited aspect of whether transfers from one section to another, i.e., from aided to unaided or from unaided to aided, are subject to filling of vacancies of surplus staff (if any). We now state this as a general principle of broad applicability -- not limited to the facts of this case -- that approval to a transfer from an aided section to an unaided section or vice versa cannot be refused on the ground that there are surplus teachers in the aided section. This is the position in law. Any order refusing to grant approval on the basis that there are surplus teachers available will be treated as disobedience of an order of this Court and dealt with accordingly.
20. Rule is accordingly made absolute in terms of prayer clause
(b) which reads thus:
"b] By a suitable writ, order or direction, this Hon'ble Court may be pleased to quash and set aside the impugned order dated 18.1.2021 (EXHIBIT-G) issued by the Respondent No.2, and accordingly the Respondent No.2 may be directed to grant approval to the transfer of the 10 Neutral Citation: 2021:BHC-AS:903. 11 Writ Petition (St) No.1475 of 2020 decided on 29th January 2021.Page 12 of 13
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21. The 2nd Respondent will issue the necessary order of approval within two weeks from today. The Deputy Director of Education will thereupon issue the necessary Shalartha ID. We clarify that the Deputy Director of Education is not entitled to question the validity of the Petitioner's appointment or transfer as noted above.
22. Lest we forget, we add here that we are today and for the last time not making an order of costs. If we are driven to making such a judgment again there will be an order of costs -- extremely significant costs.
23. We request the learned AGP to ensure that a copy of this judgment is sent to the Principal Secretary of the Education Department and is circulated to all Education Officers in Maharashtra.
24. As a courtesy, a copy may also be sent to the learned Advocate General.
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