Bombay High Court
Friends Social Circle, Akola Thr. ... vs State Of Maharashtra, Thr. Secretary, ... on 8 April, 2025
Author: Avinash G. Gharote
Bench: Avinash G. Gharote
2025:BHC-NAG:3761-DB
1 wp5862.24
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5862 OF 2024
1) Friends Social Circle,
Akola, Near Mustafa Baba Dargah,
Old City Akola, through its
Secretary -Mohd. Farooque Gulas Gaus.
2) Mughal National Urdhu Girls High
School, Near Mustafa Baba Dargah,
Old City Akola, through its Headmaster.
3) Bezazeer Khan Shahabaj Khan,
Aged about 35, Occupation - Service,
C/o Mughal National Urdhu Girls
High School, Near Mustafa Baba Dargah,
Old City Akola. .... PETITIONERS
VERSUS
1) State of Maharashtra,
through its Secretary, Education and
Sports Department, Mantralaya,
Mumbai-32.
2) Education Officer (Secondary),
Zilla Parishad, Akola, District - Akola.
3) Deputy Director of Education,
Amravati Division, Amravati. .... RESPONDENTS
________________________________________________________________
Mr. Ram Karode, Counsel for the petitioners,
Mr. N.R. Patil, A.G.P. for the respondents/State.
________________________________________________________________
CORAM : AVINASH G. GHAROTE &
ABHAY J. MANTRI, JJ.
DATE : 08-04-2025
2 wp5862.24
JUDGMENT :(Per : AVINASH G. GHAROTE, J.) Heard Mr. Ram Karode, learned Counsel for the petitioners and Mr. N.R. Patil, learned Assistant Government Pleader for the respondents.
2. Rule. Rule returnable forthwith by consent of the learned Counsel for the parties.
3. The petition questions Clause (2) of the Government Resolution dated 29-4-2024 (Page No.78), on the ground, that it is contrary to the provisions of Rule 41A of the Maharashtra Employees of Private School (Conditions of Service) Rules, 1981 (hereinafter referred to as the "MEPS Rules").
4. The learned Assistant Government Pleader opposes the same and contends, that the power to issue directions in the form of Government Resolution vests with the Government and, therefore, cannot be found fault with.
5. To understand the controversy, it is necessary to understand what Clause (2) of the Government Resolution dated 29-4-2024 (Page No.78) purports to do the same is, therefore, reproduces as under :
3 wp5862.24 "2- rlsp] foukvuqnkfur@va'kr% vuqnkfur o#u vuqnkfur@va'kr% vuqnkfur inkoj cnyh lanHkkZrhy moZfjr U;k;ky;hu izdj.ks T;ke/;s ek-
U;k;ky;kus vkns'k ikfjr dsysys ukghr vkf.k U;k;ky;hu izdj.ks nk[ky u >kysyh mijksDrizek.ks cnyhph izyachr izdj.ks loZ foHkkxh; f'kz{k.k milapkyd o f'k{k.kkf/kdkjh ;kauh 'kklu Lrjkoj fu.kZ;kFkZ lknj dj.;kr ;kohr- rlps] ojhy fu;ekuqlkj dj.;kr ;s.kk&;k cnY;kaph izdj.ks loZ foHkkxh; f'k{k.k milapkyd o f'k{k.kkf/kdkjh ;kauh iq<hy vkns'kki;Zar 'kklukP;k ekU;rsLro lknj djkohr-"
6. A perusal of the aforesaid Clause in the Government Resolution dated 29-4-2024 would indicate, that proposals for transfer of teachers, from non aided to partially aided, from partially aided to aided, in respect of those matters which have not been decided by this Court, are directed to be placed before the State, for approval.
7. As against the above, Rule 41A of the MEPS Rules, which prescribes the condition for transfer of a teacher from unaided to partially aided or aided school or division, by virtue of sub-rule (1)(h) requires that such transfer, shall be subject to the approval of the Education Officer or the Deputy Director, as the case may be. Rule 41A, therefore, does not contemplate any power or authority of the State to grant any approval for such transfer, of any nature whatsoever. There is absolutely no control of the State or for that matter any role to be played by the State, in the matter of consideration and decision of a proposal for transfer of a teacher from an unaided to partially aided or 4 wp5862.24 aided division of a school. That being the position, since it is the settled position of law, that any Government Resolution cannot have any overriding effect over statutory rules, we find that Clause (2) of the Government Resolution dated 29-4-2024 cannot be sustained in the lights of the provisions of Section 41A of the MEPS Rules.
8. We, therefore, hereby declare Clause (2) of the Government Resolution dated 29-4-2024, as illegal and contrary to the mandate of Rule 41A of the MEPS Rules.
9. In view of the above, the proposal of the petitioner dated 14-7-2022 shall be considered by the appropriate authorities in terms of the mandate of Rule 41A of the MEPS Rules and decided accordingly.
10. The petition is, therefore, allowed in the above terms. No costs.
(ABHAY J. MANTRI, J.) (AVINASH G. GHAROTE, J.) adgokar Signed by: MR. P.M. ADGOKAR Designation: PS To Honourable Judge Date: 09/04/2025 15:43:59