Bombay High Court
Sandhya D/O Balkrushna Teli And Ors vs The State Of Maharashtra And Ors on 12 March, 2021
Author: Surendra P. Tavade
Bench: S. C. Gupte, Surendra P. Tavade
WP.93919.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION (STAMP) NO.93919 OF 2020
Sandhya D/o. Balkrushna Teli & Ors. ....Petitioners
vs.
The State of Maharashtra & Ors. ...Respondents
Mr. Vilas S. Panpatte for the Petitioners.
Mr. V.M. Mali, AGP for the Respondent-State.
CORAM : S. C. GUPTE AND SURENDRA P. TAVADE, JJ.
DATE ON WHICH JUDGMENT IS RESERVED : 4 FEBRUARY 2021
DATE ON WHICH JUDGMENT IS PRONOUNCED : 12 MARCH 2021
JUDGMENT (PER SURENDRA P. TAVADE, J.) :
. Rule.
2. Rule made returnable forthwith by consent of both counsel. The petition is heard fnally.
3. The Petitioners seek direction against Respondent No.2-Education Officer (Secondaryi Zilla Parishad to grant approval to appoint all Petitioners on aided post of Assistant Teacher from their respective dates i.e. 15.06.2018, 15.06.2018, 01.10.2016, 15.06.2018 and 13.08.2018 on 100% grant-in-aid in Respondent Nos.4 and 5 Schools instead of Shikshan Sevak on 20% grant-in-aid. They also seek directions to release their arrears of salary.
4. Petitioners were initially appointed as Assistant Teachers on 01.02.2013 on unaided division of Respondent Nos.4 and 5 by following due procedure and against clear and vacant sanctioned posts. The Aarti Palkar 1 / 16 Digitally Aarti signed by Aarti G. Palkar G. Date:
2021.03.16 Palkar 17:33:43 +0530 WP.93919.2020.odt appointments of Petitioners were approved by Respondent No.2 by an order dated 14.08.2013 respectively. It is contended that fve posts of Assistant Teacher on 100% aided basis in the establishment of Respondent No.4 had became vacant on account of retirement or superannuation of earlier permanent teachers working on the said posts. On considering the seniority of Petitioners on unaided posts, Respondent No.3 transferred Petitioner Nos.1 to 5 on the said 100% aided posts of Assistant Teacher from 15.06.2018, 15.06.2018, 15.06.2018, 01.10.2016 and 13.08.2018 respectively and since then the Petitioners have been rendering services on the said aided posts.
5. It is contended that Respondent Nos.4 and 5 forwarded the proposals of Petitioners for approval to Respondent No.2. Respondent No.2 vide orders dated 20.12.2018 granted approval to the transfer of Petitioner Nos.1, 2, 4 and 5 from 15.06.2018, 15.06.2018, 15.06.2018 and 13.06.2018 respectively on 20% grant-in-aid, whereas Respondent No.2 vide order dated 17.02.2018 granted approval to the transfer of Petitioner No.3 as Shikshan Sevak by placing reliance on the Government Circular dated 28.06.2016 instead of granting such approval on 100% grant-in-aid in regular pay scales. It is contended that Respondent No.2 ought to have considered the services rendered by the Petitioners on unaided basis as Assistant Teachers for more than six years and their transfer to aided division of Respondent Nos.4 and 5 on sanctioned posts, which became vacant due to retirement or voluntary retirement of earlier teachers working on the respective aided posts. It is contended that the said posts were already on 100% grant-in-aid basis, and therefore, the Petitioners are entitled to get approvals to their transfer on aided divisions of Respondent Nos.4 and 5 Secondary School on 100% grant-in-aid in regular pay scales. It is contended that while passing orders dated 20.12.2018, 20.12.2018, 17.02.2018, 20.12.2018, 20.12.2018, Respondent No.2 thereby granted approvals to the transfers of Petitioner Nos.1, 2, 4 and 5 Aarti Palkar 2 / 16 WP.93919.2020.odt only at 20% grant-in-aid and in respect of Petitioner No.3 as Shikshan Sevak on honorarium basis and such approvals are wrong and erroneous;
the said orders be quashed and set aside and Respondent No.2 be directed to grant approvals to their transfers from unaided posts to aided posts as Assistant Teacher. They also claim arrears of salary from the date of their appointment as Assistant Teachers.
6. Respondent No.2 has fled an affidavit-in-reply through Sudha Maruti Salunke. It is contended that in view of Government Resolution dated 28.06.2016, the Education Officer (Secondaryi, Zilla Parishad, Solapur (Respondent No.2i has issued orders of approval to the present Petitioners on 20.12.2018 and 17.02.2018, respectively, from unaided division to aided division of Respondent No.3 school management on 20% grant. It is contended that Clause 3, sub-clause (1i and (2i of the Government Resolution dated 28.06.2016 have been held to be contrary to the view taken by various Division Benches of this Court, but clause 5 of said GR is still in force and existence. It is contended that the Petitioners have admitted the condition of 20% grant of salary and executed a bond or undertaking that they would accept salary of 20% as per GR dated 28.06.2016. It is contended that Respondent No.2-Education Officer has followed GR dated 28.06.2016 and issued approval on condition mentioned in clause 5 of the said GR. It is contended that the Court may pass appropriate orders in the interest of justice.
7. Heard learned counsel for the Petitioner and learned AGP for the Respondent-State. It is an admitted fact that by following due procedure, the Petitioners were initially appointed as Assistant Teachers in Respondent Nos.4 and 5 schools and since then they have been in continuous service. After completion of their probation period, the services of the Petitioners came to be confrmed and Respondent No.2 has even granted permanent approval to the services of Petitioners on Aarti Palkar 3 / 16 WP.93919.2020.odt unaided basis. It is also admitted that on account of retirement or voluntary retirement of earlier teachers in Respondent Nos.4 and 5 schools, the Petitioners were transferred from unaided division to aided division of Respondent Nos.4 and 5 schools. The proposals for transfer of the Petitioners from unaided division to aided division in Respondent Nos.4 and 5 schools were approved as per clauses of 5(Bi(1i(2i(3i(4i and (5i of the Government Circular dated 28.06.2016 on the condition that the Petitioners shall get 20% grant-in-aid in frst year, 40% in second year, 60% in third year, 80% in fourth year and 100% in frth year, out of their regular pay instead of granting such approval on 100% grant-in-aid from the date of their transfers in aided division.
8. Learned counsel on behalf of the Petitioners submits that various Division Benches of this Court have held that a transfer from unaided post to aided post is not a fresh appointment; it is a transfer within the meaning of Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Servicei Regulation Act, 1977 ('MEPS Rules' for shorti. He further submits that the Division Benches have held that Rule 41, sub-clause 1 could not be applied to such transfers. Hence, he submits that the impugned orders are bad in law.
9. It will be relevant to refer to the judgment of a Division Bench of this Court in Writ Petition No.5258 of 2012 (Ms. Sandhya Laxman Ghosalkar V/s. The State of Maharashtra & Ors.) dated 12.09.2012 (Coram : Hon'ble Shri. Dr. D.Y. Chandrachud, J. as his Lordship then was, and Hon'ble Shri. A.A. Sayyed, J.i. The Division Bench found that the teacher having completed her probationary period of three years in unaided section, there was no justifcation in granting approval only as Shikshan Sevak and approval ought to have been granted as Assistant Teacher.
Aarti Palkar 4 / 16WP.93919.2020.odt
10. In the case of Dattu S/o. Bhima Thorat V/s. The State of Maharashtra & Ors. (Coram : Hon'ble Shri. R.M. Borde and Hon'ble S.S. Shinde, JJ) in Writ Petition No.2960 of 2012 (order dated 11th October 2012i this Court also had an occasion to consider a similar issue. It will be relevant to refer to the following observations of the Division Bench in that case:
"The Education Ofcec has failed to make distinction so fac as instant mattec is concecned. Since Respondent No.2-Institution is not pcoposing to fll in the vacancy by appointing any new ceccuit, the vacancy is being flled in by tcansfeccing a Assistant teachec fcom the school which does not ceceive gcant-in-aid cun by the same Institution. Thece is no pcohibition pcesccibed in Govecnment policy foc efecting such tcansfec fcom unaided school to aided school. Reliance is placed on the judgment in the mattec of Ms. Sandhya Laxman Ghosalkac Vs. State of Mahacashtca (Wcit Petition No. 5258 of 2012 and othec companion mattecs, decided at Bombay on 12.09.2012). While dealing with an identical issue, the Division Bench of this Couct has obsecved that thece is no pcohibition foc tcansfec of an Assistant Teachec appointed in unaided school to aided school on the basis of seniocity and if such tcansfecs ace efected, it is incumbent upon the Education Ofce to accocd appcoval."
11. Another Division Bench of this Court at Aurangabad in Writ Petition No. 5978 of 2014 alongwith companion matters in the case of Sudhir Dnyandeo Gadakh and Ors. V/s. State of Maharashtra and Ors. (Coram :
Hon'ble Shri. S.V. Gangapurwala and Hon'ble Shri A.M. Badar, JJ, decided on 9th October, 2014i also had an occasion to consider a similar petition. It will be relevant to refer to the following observations :
"We have consideced the submissions canvassed by the leacned counsel foc the cespective pacties, so also, gone thcough the judgments. Pcoposal foc appcoval to the appointments/absocption of the petitionecs on the aided posts as Shikshan Sevaks has been cejected solely on the gcound that at the celevant time, thece was a ban on the fcesh ceccuitment. Pecusal of the Govt. Resolution in question does not ceveal that the Govt. Resolution would afect the cases of the petitionecs. Petitionecs claim to have been appointed by Aarti Palkar 5 / 16 WP.93919.2020.odt following due selection pcocess pcioc to the ban imposed by the State foc fcesh ceccuitment. Howevec, they wece appointed as Shikshan Sevaks on unaided posts. When vacancies acose in aided posts, they wece tcansfecced to the aided posts. It would not be a case of fcesh appointment. Nothing is bcought on cecocd to show that such cecoucse was not pecmissible oc thece was bac foc such cecoucse. In view of that, the ceason mentioned foc cejection of appcoval is unsustainable."
12. A similar view has also been taken by this Court in a bunch of petitions, being Writ Petition No.11065 of 2014 alongwith companion matters in the case of Mrs. Shilprekha Vinayak Joshi & Ors. V/s. The State of Maharashtra and Ors. decided on 14 th February, 2017 (Coram :
Hon'ble Shantanu Khemkar, J. as his Lordship then was, and Hon'ble Prakash D. Naik, Ji.
13. It appears that, after all these judgments were delivered, the State Government issued a Circular dated 28th June, 2016. The main Clauses of the said Circular on which the learned AGP relies are as under :
"3. Since the seniocity list of the Management is common, it is necessacy to take a policy decision foc gcant of appcoval to tcansfecs made on such posts falling vacant only due to ceticement. Thecefoce, the appcoval may be gcanted to the tcansfec fcom un-aided School of the Management to the aided School of the same Management subject to following conditions:-
1. Befoce making such appointment it should be ascectained by the concecned Competent Authocity that thece ace no sucplus Teachecs as pec the pcovisions of 5[1] of the MEPS Act, 1977.
2. If sucplus Teachec is available at the time of appointment, then appcoval should not be gcanted to the tcansfec of Teachec fcom un-aided School to aided School."
14. After the said Government Circular was issued, another Division Bench of this Court at Aurangabad had an occasion to consider the impact of the said Circular in Writ Petition No. 6114 of 2018 decided on 14 th Aarti Palkar 6 / 16 WP.93919.2020.odt January, 2019 (Coram : Hon'ble S.S. Shinde and Hon'ble K.K. Sonawane JJi supra. It will be relevant to refer to para-16 of the said judgment :
"The sub clause 1, 3 and 4 of Clause 3 of the Govecnment Cicculac dated 28 th June, 2016, cepcoduced hecein above, ace in confocmity with the discussion made hecein above. But sub clause 2 of Clause 3 of the said Cicculac is that, till the sucplus teachecs ace absocbed, no appcoval should be gcanted foc tcansfec of the Assistant Teachec fcom unaided school to aided school of the same Institution. In ouc opinion said clause cuns contcacy to the catio laid down in the afocesaid judgments of the High Coucts."
15. In the said judgment, it is held that there is no provision prescribed in Government policy for efecting transfer of teachers from unaided school to aided school run by the same institution. The Division Bench also considered the ratio laid down in the case of Dattu Thorat (suprai. It was held therein that Respondent No.2 institution was not proposing to fll in the vacancy by appointing any new recruit and when there was no condition prescribed in Government policy for efecting such transfer from unaided school to aided school, the decision of the Education Officer to refuse approval to such transfer was unsustainable. The ratio laid down by the aforesaid judgments (i) Dattu S/o. Bhima Thorat V/s. The State of Maharashtra & Ors., (ii) Ms.Sandhya Laxman Ghosalkar [supra] has been consistently followed in the following cases decided by this Court, namely, [i] Sudhir Dnyandeo Gadakh Vs. The State of Maharashtra & others in Writ Petition No.5978 of 2014 along with connected Writ Petitions, decided on 9th October, 2014, [ii] Shri Ganesh s/o. Raghu Jadhav Vs. The State of Maharashtra & others 1, [iii] Shri Sachin Babanrao Deshmukh Vs. The State of Maharashtra & others in Writ Petition No.7813 of 2015 along with connected Writ Petitions, decided on 9th September, 2015, [iv] Mrs. Rajabai Baba Shinde Vs. The State of Maharashtra & others in Writ Petition No.3979 of 2015 along with connected Writ Petition, decided on 18th April, 2015, [v] Chandrakali Aarti Palkar 7 / 16 WP.93919.2020.odt Secretary, Pandurang Department of Dhongde School Vs. The Education, Mantralaya, Mumbai & others in Writ Petition No.7230 of 2011 along with connected Writ Petitions, decided on 30.11.2011 [vi] Vs. The State of Maharashtra & anr. in Writ Petition No.9173 of 2013 along connected Writ Petitions decided on 18th February, 2014, [vii] Phiroj Chandsaheb Momin & Anr. Vs. The State of Maharashtra & Anr. in Writ Petition No.3197 of 2014, decided on 16th September, 2014, [viii] Ashok Dinkar Kale Vs. The State of Maharashtra & Others in Writ Petition No.676 of 2014, along with connected Writ Petitions, decided on 17th September, 2014, (ixi Rajashri Shahu Shikshan Sanstha Sillod through its Secretary and others Vs. The State of Maharashtra & another in Writ Petition No.11719 of 2016, decided on 9th November, 2017, [x] Rajashri Shahu Shikshan Sanstha Sillod others Vs. through The its State of Secretary and Maharashtra and another in Writ Petition No.11720 of 2016, decided on 9 th November, 2017, [xi] Manisha Kisan Jadhav Vs. The State of Maharashtra & others in Writ Petition No.11216 of 2016, decided on 9 th November, 2017, [xii] Rajya s/o.Divlya Tadvi Vs. The State of Maharashtra & others in Writ Petition No.10618 of 2016 along with connected Writ Petition, decided on 30.11.2017, [xiii] Shri. Laxman Shivaji Shindiwale & Anr. Vs. The State of Maharashtra & others in Writ Petition No.4871 of 2017, decided on 25 th April, 2017, [xiv] Mrs. Shilprekha Vinayak Joshi Vs. The State of Maharashtra & others in Writ Petition No.11065 of 2014 along with connected Writ Petition, decided on 14th February, 2017, and [xv] Shekhar P. Deshmukh Vs. Deputy Director of Education & others in Writ Petition No.1166 of 2018, decided on 3rd July, 2018.
16. In that view of the matter, when the transfer of teacher from unaided school to aided school is permissible what is supposed to be ascertained is, whether the Education Officer has granted approval to the appointment of such Assistant Teacher / Shikshan Sevak on regular basis Aarti Palkar 8 / 16 WP.93919.2020.odt on completion of two years & three years probation period, as contemplated under the provisions of Section 5 of the MEPS Act, 1977. Once such approval is granted in favour of the appointee by the concerned Education Officer on regular basis on completion of satisfactory probation period under Section 5 (2i of the MEPS Act, 1977, it can be safely presumed that the Education Officer has granted such approval after ascertaining compliance of the mandate of Section 5 of the MEPS Act, 1977. When the Education Officer grants approval on regular basis for appointment on the post of an Assistant Teacher, it presupposes that there were no surplus teachers on his roll, and the concerned Institution, after following the mandate of Section 5 (1i of the MEPS Act, 1977, has made such appointment. Therefore, once an appointment of a teacher is made on unaided basis in the school and approval to such appointment was granted on regular basis on satisfactory completion of two/three years period of probation by the appointee in conformity with the mandate of the provisions of the MEPS Act, 1977, and Rules framed thereunder, there is no question of making a fresh appointment of such candidate, who has already completed probation period satisfactorily, or refusing approval to the transfer of such candidate from unaided school to aided school run by the same institution, or transfer of an Assistant Teacher working on unaided post, whose services have been approved on satisfactory completion of probation period by Education Officer, to a vacant aided post of Assistant Teacher in same school. It is only when transfer of Shikshan Sevak is made on aided basis, the Education Officer and management have to ensure that such person has completed a minimum three years service on unaided post, and his services are approved by the Education Officer and the rule of seniority is followed, meaning thereby senior most Assistant Teacher, whose services have been approved by Education Officer on unaided basis, needs to be considered frst for transfer to an aided post, and thereafter, rule of seniority needs to be followed Aarti Palkar 9 / 16 WP.93919.2020.odt continuously. The principle of seniority shall be kept in view considering the concerned institution as one unit.
17. When there is a vacant post in an aided school, the Institution can transfer most senior qualifed Assistant Teacher working on an unaided post to fll up the said vacancy, and if such most senior teacher is available in the same school, such post on aided basis can be ofered to him. There is no prohibition to adopt the aforesaid course. When the management can legally transfer an Assistant Teacher serving in an unaided school under the same management to aided school, there is no reason to obtain an undertaking for such transfer as stated in sub clause 5(Bi of clause 3 of the aforesaid Circular. However, in case the State Government sanctions new post/posts on aided basis, and those are to be flled in afresh by giving fresh appointment/appointments, the State Government can make applicable the formula / percentage of proportionate salary to be disbursed by the State Government and the concerned Institutions in the manner stated in sub clause 5 (Bi of Clause 3 of the said Circular.
18. Upon careful perusal of sub clause 5 (Ai of clause 3 of the said Circular, which provides that, if a teacher appointed on unaided basis, has rendered less than 5 years on service, in case the management wishes to transfer such teacher from unaided school to aided school, in that case, an undertaking should be obtained from such teacher to work as Shikshan Sevak on consolidated pay, pcima facie such provision appears to be attractive. However, in case the candidate is appointed on the post of Assistant Teacher after following the mandate of Section 5 of the MEPS Act, 1977, and on completion of probation period, if the Education Officer has granted approval to his appointment on regular basis, and in case he is most senior teacher serving in the school on unaided basis run by the same Institution, he requests for his transfer from unaided school to aided school or on aided post from unaided post in same school, and if he has Aarti Palkar 10 / 16 WP.93919.2020.odt already completed 3 years' period, there is no justifable reason to ask him to work again as Shikshan Sevak on a consolidated pay for three years. Sub-clause 5 (Ai of clause 3 of the said Circular can be invoked when a teacher has not completed three years period after his appointment in the school on unaided basis, and he has not received approval to his services as an Assistant Teacher on regular basis.
19. In short, if the Assistant Teacher has not completed satisfactory probation period, and if his service or services are not approved by the Education Officer on regular basis or there is no adherence to the provisions of Section 5 of the MEPS Act, 1977, only in that case, the management is not entitled to transfer such teacher from an unaided school to aided school or from an unaided post to an aided post. It is only in case where the Assistant Teacher has acquired status of regular employee on completion of two years probation period, and his appointment is in adherence to the provisions of Section 5 of the MEPS Act, 1977, and the approval is granted by the Education Officer to his appointment on regular basis on the post of Assistant Teacher on completion of satisfactory probation period, and he is the most senior teacher working in the school on unaided basis, in that case, the question of invoking sub clause 5 (Ai of Clause 3 of the said Circular would not arise. In such case, invoking such provision would run contrary to the judgment of the Division Bench [Coram: Dr.D.Y.Chandrachud and A.A.Sayed, JJ.] of the Bombay High Court at Principal Seat in the case of Ms.Sandhya Laxman Ghosalkar [supra], wherein it is observed in para 4 that, there was no justifcation whatsoever for the Education Officer (Secondaryi to grant his approval only as Shikshan Sevaks to the three petitioners before the Court. It is further observed that, if the Petitioners had been appointed as Assistant Teacher in the aided school by transfer from the unaided school on the basis of seniority, the approval ought to have been granted to them as Assistant Teachers. This is especially so Aarti Palkar 11 / 16 WP.93919.2020.odt having due regard to the fact that they were similarly circumstanced with other Teachers in whose case approval was granted as Assistant Teachers.
20. In a recent judgment, another Division Bench of this Court in the case of Suryakant S/o Janardan Muge in Writ Petition No.1493 of 2018 has considered the provisions of MEPS Act visa-vis the impugned circular dated 28.06.2016. It is held therein that......
14. The MEPS Act applies unifocmly and equally to the assistant teachecs wocking on aided posts, so also unaided posts. No distinction is made in secvice conditions of the assistant teachecs wocking on aided and unaided posts. Section 13 of the MEPS Act gives authocity to the State Govecnment to fcame the Rules. Pucsuant theceto, the State Govecnment has fcamed Rules viz. the Mahacashtca Employees of Pcivate Schools (Conditions of Secvice) Rules, 1981. Rule 41 of the said Rules ceads thus:
"41. Transfer - (1) Subject to the pcovisions of this cule the Management conducting moce than one school shall not tcansfec any of its employees fcom one school to anothec except on administcative gcounds, pcomotion oc at the cequest of the employee concecned, if it is administcatively convenient to do so.
(2) Save in exceptional cases, and unless ceasons ace cecocded in wciting by the Management, such tcansfecs shall not be efected in the middle of the tecm.
(3) The Management shall see that the tcansfecs do not advecsely afect the pay oc pay scale of the employees concecned and that such tcansfec do not cesult into loss in the pensionacy benefts as admissible to them.
(4) The expendituce on Tcavelling allowance and Daily allowance, if any, at the cates applicable to the Govecnment employees of the compacable status, shall be bocne by the Management. If the tcansfec is at the cequest of the employee, this expendituce shall be bocne by the employee concecned;
Pcovided that the tcansfec involves change of headquactecs, the joining time to be allowed to an employee shall be limited to six days (excluding Sunday) and actual days of joucney. Subject to this limit, the peciod of joining time shall be tceated as "duty" foc all pucposes :
Aarti Palkar 12 / 16WP.93919.2020.odt Pcovided that, an employee shall not be entitled to joining time, if tcansfec is efected ducing the vacation.
(5) Whece a Management cuns a secondacy school oc secondacy schools and a Junioc College of Education -
(a) Teachecs in a Junioc College of Education shall not be tcansfecced to a secondacy school against theic will. Such tcansfecs may, howevec, be made if they ace at employee's own cequests, subject to availability of vacancies in secondacy schools. In the event of such a tcansfec, the pay dcawn by the teachec in the Junioc College of Education shall not be pcotected. He shall be deemed to be wocking in a secondacy school ducing the peciod he wocked in the Junioc College of Education, and his pay shall be accocdingly cefxed on his joining the secondacy school.
(b) Teachecs in secondacy school shall not be tcansfecced to a Junioc College of Education against theic will. Such tcansfecs may, howevec, be made if they ace at the employees' own cequests, subject to the following conditions, namely :
(i) Vacancies should be available in the Junioc College of Education;
(ii) The concecned employee shall cetain the same place in the common seniocity list; and
(iii) Theic pay in the Junioc College of Education shall be fxed at the same stage of pay as theic existing pay oc at the minimum of the scale of pay in the Junioc College of Education, whichevec is highec."
15. Rule 41 gives powecs to the management of the institution to efectuate tcansfecs foc the bettec administcation of the school and also considecing the administcative exigency foc convenience of the bettec administcation of the school. The impugned cicculac dated 28.06.2016 lays down cectain conditions foc the tcansfec of assistant teachecs fcom unaided to aided posts. Some of the salient featuces of the said cicculac is that the management shall confcm that thece ace no sucplus teachecs ace available foc flling in the posts becoming vacant on aided basis. Foc the said pucpose, the cicculac makes cefecence to Section 5(1) of the MEPS Act and that if the sucplus teachecs ace available, the appcoval should not be given to the teachecs tcansfecced fcom unaided to aided posts. The senioc most teachec on unaided post shall be entitled foc tcansfec to aided post and that the said assistant teachec who was wocking on unaided post, his appointment is cequiced to be appcoved. The fucthec embacgo is that the assistant teachecs should have wocked atleast fve yeacs on unaided post and if he has wocked foc less than fve yeacs, then an option should be Aarti Palkar 13 / 16 WP.93919.2020.odt taken fcom him that he would wock foc thcee yeacs as Shikshan Sevak on honocacium basis if tcansfecced to gcant-in-aid post and if the assistant teachec to be tcansfecced has wocked foc fve yeacs oc moce on an unaided post, then the teachec who has completed fve yeacs on unaided posts and upon tcansfec to the aided post will be entitled foc 20% gcant fcom the Govecnment and 80% will have to be bocne by the institution. Foc the second yeac he would be entitled foc 40% Govecnment gcant and 60% will be bocne by the institution. Foc the thicd yeac 60% gcant would be given by the Govecnment and 40% will be bocne by the institution. Aftec fouc yeacs of tcansfec, 80% will be bocne by the Govecnment and 20% by the institution and aftec fve yeacs of the tcansfec of the teachec who had alceady wocked foc fve yeacs on unaided post, he will ceceive 100% gcant fcom the Govecnment.
17. The question would be whethec by way of an executive instcuctions, the powecs of the management undec Rule 41 of MEPS Act foc tcansfec of an employee can be ciccumsccibed, cuctailed and ecoded. Rule 41 is fcamed undec the Rule making powec of the Govecnment as pcovided undec Section 13 of the MEPS Rules. The MEPS Rule is piece of subocdinate legislation. It is tcite that, executive instcuctions cannot oveccide the statutocy Rules. Pcecisely, this has been held by the Division Bench of this Couct at Pcincipal Seat at Bombay in Wcit Petition No.5313 of 2017 with connected wcit petitions decided on 25.04.2019. The Division Bench in the said judgment held that:
"The cicculac dated 28.06.2016 can hacdly be said to be Govecnment instcuctions. It has no statutocy focce in law. Rule 41 of the MEPS Act which is the subocdinate legislation, the administcative decisions which cun contcacy to them cannot be held to be valid in law. We fnd that, since Clauses 1 and 2 of the said cicculac, cun contcacy to the pcovisions of the subocdinate legislation as found in Rule 41, the same would not be valid in law."
While delivecing the said judgment, the Division Bench consideced the eacliec judgments of this Couct. Sub-clauses 1 and 2 of Clause 3 of the cicculac has alceady been held to be not valid in law by the Division Bench. Thece is no ceason foc us to take difecent view. The impugned cicculac as it afects the cights of the management to tcansfec, as such, same is impcopec and does not have any enfocceable status."
Aarti Palkar 14 / 16WP.93919.2020.odt
21. In view of the various judgments delivered by the Division Benches of this Court, the Government of Maharashtra has amended Rule 41 and inserted Rule 41(Ai a condition for transfer of a teacher from an un-aided to a partially aided or aided school or division. The said amendment came into efect on 08.06.2020; it has no retrospective efect. Therefore, that amendment is not applicable to the facts of the present case.
22. It appears from the perusal of the facts of the case that, the petitioners were appointed after following due procedure of law and thereafter, on successful completion of probation period, approval was granted to their appointment as Assistant Teachers and they have acquired the status as Assistant Teachers on regular/permanent basis. It appears that, they have rendered more than 5 years of satisfactory services as Assistant Teachers on unaided post. The Respondents have not brought on record contra material to contest the assertions on factual score made by the petitioners. Therefore, it will have to be concluded that, the petitioners have completed more than 5 years of satisfactory service on the posts of Assistant Teachers. In that view of the matter, and if the petitioners were most senior teachers in the Institution working in a school on unaided basis at the relevant time, their transfer from unaided posts to aided posts due to retirement of incumbent teachers was permissible, and there was no need to make fresh appointments on the posts of Shikshan Sevak, thereby practically denying them the benefts accrued by virtue of rendering more than fve years of service as Assistant Teachers on regular basis.
23. In view of the forgoing discussion, we are inclined to allow the petition. Respondent No.2 is directed to grant approval to all the Petitioners as 'Assistant Teacher' on 100% grant-in-aid in Respondent Nos.4 and 5-Schools in regular pay scales w.e.f. 15.06.2018, 15.06.2018, 17.02.2018, 15.06.2018 and 13.08.2018 within a period of six weeks from today and release their arrears of Aarti Palkar 15 / 16 WP.93919.2020.odt salary accordingly. The petition is disposed of in these terms. No order as to costs.
(SURENDRA P. TAVADE, J) (S.C. GUPTE, J.)
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