Bombay High Court
Vanmala K. Jadhav-Kochare vs Kshatrakulotpnna Maratha Samaj And 4 ... on 27 July, 2018
Author: Bharati H. Dangre
Bench: S.C. Dharmadhikari, Bharati H. Dangre
jud-wp-2053-18, 2116-18 and 2248-18 and
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.2053 OF 2018
Vanmala K. Jadhav-Kochare
B-902, Shri Ganesh CHS, Sector-I
Vashi, Navi Mumbai-400 703. ...Petitioner
V/s.
1. Kshatrakulotpnna Maratha Samaj,
Through its Secretary,
Having Office at 142/49 Dr.Borges
Road Parel, Mumba- 400 012.
2. K.M.S. Dr.Shirodkar High School
& Junior College,
Through its Headmaster
Having Office at 142/49 Dr.
Borges Road, Parel, Mumabi-400 012.
3. KMS Shri.Rameshwar High School,
Mithbav, Through its Headmaster,
Having Office at KMS Shri Rameshwar
High School, Mithbav Village-Mitbhav,
Tal.Devgad, Dist-Sindhudurg.
4. Director of Education,
Having Office at Central Building,
Dr.B.R. Ambedkar Road, Pune.
5. State of Maharashtra, Through the
Department of School Education
and Sports Mantralaya Annexe,
Mumbai - 400 032.
6. Ramesh Raghunath Raut
Presently having Office at KMS
Dr.Shirodkar High School,
Parel, Mumbai. ...Respondents
N.S. Kamble page 1 of 28
jud-wp-2053-18, 2116-18 and 2248-18 and
----
Mr.Mihir Desai, Senior Counsel a/w Mr.Swaraj S. Jadhav for the
Petitioner.
Mr.N.V. Bandiwadekar a/w. Mr.V.R. Kumbhar for Respondent No.1.
Ms.Jyoti Chavan, A.G.P. for Respondent Nos.4 and 5.
Mr.S.V.Chaugule for Respondent No.6.
----
WITH
WRIT PETITION (L) NO.2248 OF 2018
Sadhana Dnyaneshwar Patil
402, Shubhkalash, Plot No.60,
Sector-5, Karanjade, Old Panvel ...Petitioner
V/s.
1. Kshatrakulotpnna Maratha Samaj,
Through its Secretary,
Having Office at 142/49 Dr.Borges
Road Parel, Mumba- 400 012.
2. K.M.S. Dr.Shirodkar High School
& Junior College,
Through its Headmaster
Having Office at 142/49,
Dr.Borges Road, Parel, Mumabi-400 012.
3. KMS Shri.Rameshwar High School,
Mithbav, Through its Headmaster,
Having Office at KMS Shri Rameshwar
High School, Mithbav Village-Mitbhav,
Tal.Devgad, Dist-Sindhudurg.
4. Director of Education,
Having Office at Central Building,
Dr.B.R. Ambedkar Road, Pune.
5. State of Maharashtra, Through the
Department of School Education
and Sports Mantralaya Annexe,
N.S. Kamble page 2 of 28
jud-wp-2053-18, 2116-18 and 2248-18 and
Mumbai - 400 032.
6. Sachin Sahdev Pawar
Presently working at,
K.M.S. Dr.Shirodkar High School,
Parel, Mumbai. ...Respondents
----
Mr.Mihir Desai, Senior Counsel a/w Mr.Swaraj S. Jadhav for the
Petitioner.
Mr.N.V. Bandiwadekar A/w Mr.V.R. Kumbhar for Respondent Nos.1
and 2.
Mr.Kedar Dighe, AGP for Respondent Nos.4 and 5.
Mr.S.V. Chaugule for Respondent No.6.
----
WITH
WRIT PETITION (L) NO.2116 OF 2018
Dattatray Dhonddeo Walke
Residing At : B/20, Ashirwad Society
Acharya Done Marg, Sewree,
Mumbai- 400 015. ...Petitioner
V/s.
1. State of Maharashtra
Through the Secretary,
Ministry of Education,
Mantralaya, Mumbai-400 032.
2. The Education Inspector,
Gr.Mumbai South Zone,
Guilder Lane Municipal Shcool,
Secondary Bldg, 3rd Floor,
Opp. Mumbai, Central Station, Mumbai-8
3. Kshatrakulotpnna Maratha Samaj,
Through its Secretary,
Having Office at 142/49 Dr.Borges
Road Parel, Mumba- 400 012.
N.S. Kamble page 3 of 28
jud-wp-2053-18, 2116-18 and 2248-18 and
4. The Principal
K.M.S. Dr.Shirodkar High School
Having Office at 142/49,
Dr.Borges Road, Parel, Mumabi-400 012.
5. The Principal
KMS Shri.Rameshwar High School,
Having Office at KMS Shri Rameshwar
High School, Mithbav Village-Mitbhav,
Tal.Devgad, Dist-Sindhudurg.
6. Vishnu Rajaram Dagare
R/at: At Post Mithbav,
Tal. Devgadh, Dist-Sindhudurg. ...Respondents
----
Ms.Pranita Pramod, Hingmire for the Petitioner.
Ms.Himanshu Takke, AGP for Respondent Nos.1 and 2.
Mr.N.V. bandiwadekar a/w Mr.V.R. Kumbhar for Respondent No.s3
and 4.
----
CORAM : S.C. DHARMADHIKARI &
SMT.BHARATI H. DANGRE, JJ.
DATE : 27th JULY 2018
JUDGMENT :(Per Smt.Bharati H. Dangre,J)
1. Transfer is taken to be an incidence of service, both according to the service condition and also as has been held by various judicial pronouncements, however, when such an order of transfer suffers from arbitrariness and smacks of capriciousness, whether it is still to be accepted as an incidence of service is the moot question involved in the present group of three petitions.
N.S. Kamble page 4 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and
2. The petitioner in all the three Writ Petitions have approached this Hon'ble Court being aggrieved by the highhanded and the arbitrary action on behalf of the Kshatraklopatan Maratha Samaj, a registered trust which runs and manages the Educational Institutions in the State of Maharashtra and the petitioners who are working at one of its school located at Parel, Mumbai are transferred by the impugned order to another school located at Mithbav, Taluka-Devgad, District-Sindhudurg. Before going to the crux of the matter it would be necessary to refer to the cause of action to the three petitioners to approach this Court.
3. The respondent No.1-Society is registered Trust and it runs a High School and Junior College in the name and caption of KMS, Dr.Shirodkar High School and Junior College, having Office at 142/49, Dr.Borges Road, Parel, Mumbai-400 012. The Respondent No.1-Trust also runs a High School at Mithbav and it is styled as KMS Shri.Rameshwar High School, office at KMS Shri.Rameshwar High School, Mithbav Village-Mitbav, Tal.Devgad, District- Sindhudurg.
4. The petitioner Mrs.Vanmala K. Jadhav, petitioner, in Writ Petition Lodging No.2053 of 2018 is qualified as M.A., M.Ed.
N.S. Kamble page 5 of 28
jud-wp-2053-18, 2116-18 and 2248-18 and
(English) and was appointed as an Assistant Teacher in KMS,
Dr.Shirodkar High School and Junior College, Parel, Mumbai with effect from 08.03.1994. Initially she was appointed in the S.C.C., D.Ed. Scale and later on she progressed and upgraded her educational qualification and was placed in the Trained Graduate Scale with effect from 04.01.2005. It is the specific case of the petitioner that she is working in the High School and Junior College at Parel, Mumbai since date of initial appointment and has rendered unblemished service to the respondent and she has assisted to achieve excellence in academic as well as extra-curricular activity of the students pursuing the education in the said school.
It is the case of the petitioner that the end of the academic year 2017-2018 and to be precise on 27.04.2018, she was informed that she has been placed in the Second Shift i.e. in the afternoon shift of the Institute and she was directed to report at 12.30 p.m. (afternoon shift) when the institute would reopen for the academic year 2018-2019. The petitioner protested the said shifting and represented to the Respondent No.1 by highlighting her personal difficulties and by stating that her husband is privately employed and her in-laws are aged and they require constant help and medication throughout the day. She further stated that she is having a six year old son and a daughter studying in 9 th Standard in N.S. Kamble page 6 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and a private school. She represented to the Respondent No.1 that she and her husband had arranged their family affairs in such a way so that both of them discharge their respective duties towards the family in shifts, and the proposed action to ask her to work in the afternoon shift would disturb the said arrangement and she will not be able to concentrate and focus on her family affairs and teaching responsibilities. However, it is the specific case of the petitioner that instead of redressing her grievance, she received a letter dated 11.06.2018 addressed by the Respondent-Management, thereby transferring the petitioner to KMS Shri Rameshwar High School, Village-Mithbav, Taluka-Devgad, District-Sidhudurg and stating that the said order of transfer is issued purely on administrative grounds and for administrative convenience. The said order mentions that she being transferred on the said position, there will be no change in the applicable scale, pay with allowances and her pay will be subject to approval of the Competent Authority. The said order also mentioned that she stood relieved from her present post on receipt of the order and she was directed to resume at transferred place of posting on or before 22.06.2018 and report compliance through the head of the Institution. It is this order which is impugned by her in the present petition along with an undated order, thereby relieving her from the post which she was holding with effect from N.S. Kamble page 7 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and 15.06.2018 so as to enable her to join the transfer place of posting in terms of the order dated 11.06.2018.
5. In Writ Petition Lodging No.2248 of 2018, the petitioner Smt.Sadhana Dnyaneshwar Patil, belonging to Scheduled Caste category was appointed as an Assistant Teacher in the KMS, Dr.Shirodkar High School and Junior College, Parel, Mumbai with effect from 22.02.1985 on a post reserved for Scheduled Caste. The petitioner who was appointed under the SSC., D.Ed. Scale subsequently upgraded her educational qualification and placed in the Trained Graduate Scale in the Respondent No.2-Institute. It is also the case of this petitioner that she had rendered continuous and unblemished service to the respondent and possessed an exceptional service record. The petitioner has also placed reliance on the seniority list of the teaching staff of 20.03.2018 and as per said list the petitioner is shown at serial number 4. The case of the petitioner is that she was communicated a letter dated 27.04.2018 asking her to work in the second shift, to which she objected by making a representation to the effect that she is a single parent and her son is currently pursuing his studies and therefore it is not possible for her to shift her in the afternoon batch. Further she also represented to the authority that she was required to undergo an ear N.S. Kamble page 8 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and surgery on 12.06.2018 and she has applied for a medical leave from 15.06.2018 to 23.06.2018. However, while she was on medical leave she received the impugned order dated 11.06.2018, thereby transferring her from the present school in which she is working to another school run by the Respondent-Management located at Mithbav, Taluka-Devgad, District-Sindhudurg on administrative grounds. On 15.06.2018, she was communicated by a letter informing her that she is relieved from her duties and that she should join Respondent No.3-School in Mithbhav, Taluka-Deogad, District-Sindhudurg so as to enable her to join duties before 22.06.2018. The petitioner made a request on 22.06.2018 seeking extension of her medical leave till 08.07.2018 on account of her scheduled surgery. However, the management did not oblige her by considering her request and therefore the petitioner, being aggrieved by the impugned order of transfer has approached this Court by filing the present Writ Petition.
6. In the third Writ Petition Lodging No.2116 of 2018, the petitioner Shri.Dattatray Dhonddeo Walke has approached this Court again aggrieved by the impugned order dated 11.06.2018 transferring him from KMS, Dr.Shirodkar High School and Junior College, Parel, Mumbai to KMS Shri Rameshwar High School, N.S. Kamble page 9 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and Village-Mithbav, Taluka-Devgadh, District-Sindhudurg. The petitioner in the said Writ Petition is duly qualified and was appointed as Assistant Teacher in the Respondent No.4-School and is working there from 09.11.1992 on being regularly selected to occupy the post of Assistant Teacher. It is the case of the petitioner that he was continued in the same school in view of his sincere and diligent services rendered to the respondents and he was taken by surprise when he was served with the impugned order dated 11.06.2018 thereby transferring his service to the KMS Shri Rameshwar High School, Village Mithbav, Taluka-Devgadh, District- Sindhudurg that is Respondent No.5 appended to the said petition. The petitioner assails the said impugned order of transfer on the ground that in place of the petitioner one Shri.Vishnu Rajaram Dagare resident of Village-Mithbav, Taluka-Devgadh, District- Sindhudurg has been transferred and even he is not willing to join and resume at the School at Parel, Mumbai. Further the petitioner has set out the case that he is permanent resident of Mumbai and on his transfer to Village-Mithbav he will have to bear burden of rented premises as no accommodation is provided and this would result into tremendous financial loss and hardship to him.
7. It is a common ground raised in all the three Writ N.S. Kamble page 10 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and Petitions that the impugned order of transfers have been passed with oblique and ulterior motive. In case of the two lady petitioners they have been asked to work in different shifts from the academic sessions 2018-2019 and on their protest to work so, they have been met with the consequences by issuing the order of transfer. It is the specific case of the petitioner that there is no administrative convenience nor any administrative exigency to transfer the petitioners who have been working in Mumbai for a considerable long period of time and have rendered satisfactory services. All the three petitioners have admitted the power conferred in view of Rule 41 of the Maharashtra Employees of Private School (Conditions of Service) Rules, 1981, (for short 'MBPS Rules 1981') which permits transfer of teacher from one place to another on administrative grounds however, it is common ground raised by all the petitioners that in issuing the impugned transfer orders the respondent No.1- Management has failed to demonstrate any administrative necessity and rather all the petitioners have specifically avered that there is none. The petitioners have also set out a specific ground that transferring the petitioner at a distance of approximately 400-500 kilometers would serve no useful purpose and therefore the decision of the Respondent-Management is arbitrary and the said order of transfer has been assailed on the ground that it is in total violation N.S. Kamble page 11 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and of the Rule 41 of the MEPS Rules 1981. The petitioners have also cited a reason that there is no principle followed by the Management while effecting such transfers inasmuch as the seniority list has not been followed and thus picking and choosing the petitioners randomly is in utter violation of Article 14 of the Constitution and they have approached this Court praying for quashing and setting aside the impugned orders of transfer.
8. When Writ Petition Lodging No.2053 of 2018 was listed before us on 21.06.2018, we had pass the following order:-
"1. Let Mr.Bandiwadekar take instructions, and particularly on the point as to whether the respondent Nos.1 to 3's transfer affects the teaching staff merely because they have worked at a particular place for more than two decades and that there is defined policy based on which they are shifted or transfered to the schools in Kokan Division. Though this is purely to achieve quality results and improve the standards of education that the Management is pursuing such policy ought to be clearly spelt out on affidavit, before us.
2. Since, Mr.Bandiwadekar states, on instructions, that the teacher posted in place of the petitioner in Mumbai has already been relieved from the school in Devgad and had reported to work at Mumbai, we do not wish to send him back and particularly on account of no fault on his part, but until further order of this Court, no disciplinary action should be taken against the petitioner for not reporting to work at her transferred place.
3. Stand over to 6th July 2018."
N.S. Kamble page 12 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and
9. Further on 13.07.2018 the following order was passed:-
"On the earlier occasion this Court adjourned the matter so that the parties can report to the Court any workable solution being arrived at by them. It appears that no solution is arrived at.
2. In the circumstances, the Petitioners desire to contest the position as reflected from the management's affidavit. They also want to join in each of the Petitions as party Respondents, the teachers who have been transferred from a school in Devgad Taluka, District - Sindhudurg in place of the Petitioner.
3. We grant one week's time for both carrying out the amendment, serving the affected party and filing a rejoinder. Else, we are not happy with the situation where the Petitioner, though relieved from Mumbai, has not joined the school at Devgad and continues to enjoy the benefit of the ad-interim order and equally a protection thereunder. The ad-interim order therefore will continue for a period of one week in Writ Petition (Lodg.) No. 2053 of 2018.
4. Stand over to 23rd July 2018."
10. In response to the petition, the Respondent- Management through its Chairman has filed an Affidavit in reply opposing the relief sought in the petition. It is stated in the affidavit that the Respondent No.1 is an Educational Institution and it is running the Respondent No.2-School at Mumbai and the Respondent No.3-School at Mithbav and the said schools are Government recognized and are receiving the grant-in-aid from the State Government. It is stated that the service conditions of the N.S. Kamble page 13 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and employees working in the said school are governed by the conditions of the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 (said Act) and the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 framed under the said Act (said Rules). The Chairman has responded to the query of this Hon'ble Court as to whether there was any definite policy with regard to transfer of its employee from one school to another and it is stated that the service conditions are governed by the said Act and the said Rules, the transfers are effected as per the provisions of Rule 41 of the said Rules, which lays down the guidelines for effecting transfers of the employees. It is categorically stated in the affidavit that in view of this the Management has not framed any other policy for regulating the transfers of its employees from one school to other and the Management has effected the transfer of the petitioners in accordance with the said Rule 41 of MEPS Rules 1981. The affidavit which is filed in all the three petitioners is almost on the similar lines and it is stated that the petitioners, from the date of the initial appointment, having been working in Mumbai School and that too for period ranging 24 years to 33 years and considering the said fact, and also considering the need to have a trained Teacher of the concerned subjects for Mithbav School, the petitioners have been N.S. Kamble page 14 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and transferred from Mumbai school to Mithbav School at Taluka- Devgad, District-Sindhudurg by the impugned orders. It is categorically stated that the transfer of the petitioner is purely on the administrative ground and it is in consonance with the provisions of the MEPS Rules 1981, more particularly Rule 41, and these rules are admittedly applicable to the petitioner and that there are no malafides, at all in the transfer order of the petitioners.
11. Then the affidavit has also referred to the practical difficulty that has been highlighted by the petitioners, with a request to interfere in the order of transfer since the persons/teachers who have been transferred in place of the petitioners have already reported to their respective posting in the school at Mumbai and therefore, the posts which were held by them in the Mithbav School have fallen vacant and it is necessary that the petitioners should immediately report and fill up the said vacancies, in light of the commencement of the academic session.
12. Perusal of the affidavit would reveal that continuous working at a Mumbai school right from the initial date of appointment is cited as a foremost reason for transfer at School at Mithbav and it is asserted that the petitioners are much due for N.S. Kamble page 15 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and transfer and therefore the transfers have been effected. In case of petitioner in Writ Petition Lodging No.2053 of 2018, it is stated that the petitioner was teaching English and Geography subjects in Mumbai School and she is the senior most teacher in both the schools, so far as the said subjects are concerned and therefore even on the basis of the seniority and having worked in the same place for about 24 years, the petitioner was due for transfer. In case of petitioner in Writ Petition Lodging No.2248 of 2018, it is stated that the petitioner is working in the said school at Mumbai right from the date of initial appointment in the year 1985 and is there since last 33 years and hence she was also due for transfer and therefore, the transfer cannot be assailed as illegal, malafide or in breach of law or the Rules specifically rule 41 of the MBPS Rules 1981.
Another common ground on which the petitions are opposed by the Respondent-Management in the affidavit is the existence of domestic difficulties which have been narrated by the petitioners and have put forward in order to oppose the impugned orders of transfer. It is stated in the affidavit that the job of the petitioners is a transferable job and transfer being an incident of service, the so called domestic difficulties cannot be used as a shield to oppose the order of transfer which have been effected after a considerable long period of time and the petitioners enjoyed a long N.S. Kamble page 16 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and tenure school at Mumbai and when the transfer has been effected on administrative ground, the exigency cannot be watered down on account of the domestic difficulties cited by the petitioner in the petition.
13. In support of the petition we have heard the learned senior counsel Shri.Mihir Desai in Writ Petition Lodging No.2053 of 2018 along with Mr.Swaraj S. Jadhav for the petitioner and in Writ Petition Lodging No.2248 of 2018. Ms.Pranita Pramod Hingmire for the Petitioner in Writ Petition Lodging No.2116 of 2018. We have also heard Shri.N.V. Bandiwadekar representing the Respondent Nos.1 and 2, Ms.Jyoti Chavan, AGP appearing for the Respondent Nos.4 and 5 in Writ Petition Lodging No.2053 of 2018, Mr.Kedar Dighe, AGP for Respondent Nos.4 and 5 in Writ Petition Lodging No.2248 of 2018 and Mr.Himanshu Takke, AGP for Respondent Nos.1 and 2 in Writ Petition Lodging No.2116 of 2018. Mr.S.V. Chaugule for Respondent No.6 that is transferred employee in Writ Petition Lodging No.2248 and 2053 of 2018. It is not in dispute that the Respondent No.1 is a registered trust which runs and manages several institutions in the State of Maharashtra which includes a high school and junior college at Parel, Mumbai and a school at Mithbav, Taluka-Devgad, District-Sindhudurg.
N.S. Kamble page 17 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and
14. The learned senior counsel Shri.Mihir Desai would submit that he has no quarrel about proposition of law that the transfer is incident of service and Rule 41 of the MEPS Rules 1981 contemplates the power of the Management to transfer its employee from one school to another. He would however, submit that the said power is to be exercised bona fide and strictly in light of the contingencies enumerated in Rule 41, namely on administrative grounds. He would submit that "administrative grounds" are not merely a matter of subjectiveness as far as the management is concerned but it must be exercised and must be apparently in existence which would necessitate the exercise of power of transfer. The learned senior counsel would submit that the petitioners whom he represents are working for considerable long period of time in the school at Mumbai and were never transferred, since their initial appointment. The learned Senior Counsel would submit that in any case the petitioner is not attempting to canvass before the Court that they can never be transferred but the precise submission is that when the power to transfer has been exercised by the Management it must be for a bona fide purpose and in real sense for administrative exigencies. However, in the present case the petitioners are tried to be uprooted, when they find themselves deeply rooted in the city of Mumbai, since they have been retained N.S. Kamble page 18 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and in said place for considerable length of time and both the petitioners according to Shri.Desai are women and transferring them at a distance of 400-500 kilometers would disrupt their life and separate them from their families, resultantly causing distraction in discharge of their duties, which they are efficiently discharging at present. Shri.Desai would submit that had the power conferred in the Management being exercised bonafide, the petitioner would have no grievance since he did not dispute the power of the Management to effect transfer. However, he would submit that there is no specific criteria adopted by the Management while transferring the employee's and nonetheless the rule of seniority nor the rule of necessity has been followed.
15. The learned counsel Shri.Bandiwadekar would justify the said impugned order of transfers issued by the Management and would submit that the administrative exigencies are not for the employees to decide but it is for the Management to determine how the administration could be better served by shuffling its employees. Shri.Bandiwadekar vehemently submits that the petitioners have never been transferred through out their service career though the post on which they came to be appointed were transferable posts and the Management is perfectly within its powers to transfer the N.S. Kamble page 19 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and petitioners in exercise of its power for administrative convenience. Shri.Bandiwadekar would submit that when trained teachers were required in the school at Mithbav and since the petitioners are exceptionally good in discharge of their duties as teachers, they have been picked up and ultimately since there are no allegations that the transfers are effected mala fide, there can be no interference in the orders of transfer. He would submit that in the preceding years also the Management has exercised the powers of transfer of the employees, and those who came to be transferred, joined without any protest, and since the petitioners have now been transferred, after being retained at a station for long time, they are objecting to it. He would submit that exercise of power of transfer by the Management as conferred by Rule 41 of the MBPS Rules 1981 strictly adheres to the parameters set out in Rule 41 and hence he would submit that no inference is called for in the said orders of transfer and he would submit that Writ Petition should be dismissed.
16. On perusal of the Writ Petitions and the affidavits filed by the respondents in all the three petitions along with the rejoinder filed by the petitioners and on hearing the submission of the learned counsel, it is not in dispute that Rule 41 of the MEPS Rues, 1981 N.S. Kamble page 20 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and confers the power on the Management of more than one school to effect transfer of its employees. The exercise of the said power is however subject to rider that the Management continuing more than one school would not transfer any of its employee from one school to another except on administrative ground, promotion or at the request of the employee concerned, if it is administratively convenient to do so. It is also permissible to effect the transfer orders in midterm after recording reasons in writting by the Management and the Management should ensure that the transfers do not adversely affect the pay or the pay scale of the employees concerned and it does not result into loss in the pensionary benefits as admissible to the employees of the school.
Undistputedly, the power to transfer is vested in the Management however, the restrictions imposed in Rule 41 would permit the Management to exercise, the said power purely on administrative grounds. The Respondent-Management before us has taken recourse to Rule 41 of the MBPS Rules 1981 and has submitted that since the service conditions of the petitioners are governed by the MBPS Act and Rules, transfers are effected as per provisions of Rule 41, which provides guidelines for effecting transfer of the employees. On specific query from this Court as to whether Management has a defined policy for effecting such transfer N.S. Kamble page 21 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and of its employees from one school to another, the Management has conceded to the fact that, it has not framed any policy for regulating the transfer of its employees from one school to another. It is not in dispute that the petitioners have continued working in the school run by the respondent-Management in Mumbai for a considerable length of time namely 33 years and 24 years in case of two women teachers and for a period of 26 years in case of Shri.Dattatray Walke. It is a specific stand of the Management that all the petitioners, from their date of initial appointment continued to work only in Mumbai school and hence they were due for transfer and there was a need of trained teacher in the concerned subject in the Mithbav School and in light of the said circumstances, the Management transferred the petitioners, purely on administrative grounds and strictly in accordance with the provisions of Rule 41. It is no doubt true that the petitioners have been recruited at Mumabi School and from the date of the initial appointment they have been continued in the same school and came to be transferred for the first time by the impugned order and have been asked to move out of Mumbai. Apart from the aforesaid reason justifying the order of transfer namely that the petitioners are due for transfer, another reason was cited that there was a need for trained teachers at Mithbav School. No other ground has been cited by the N.S. Kamble page 22 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and Respondent-Management to justify the order of transfer.
17. When we have carefully scrutinized the said ground, what is noted by us is that the Respondent-Managarment has never exercised the power vested in them to transfer its employees and barring two occasions that the transfers have been effected in the year 2008 and 2010. However it has been brought on record that in the year 2008 one Mrs.Anjali Lokegaonkar came to be transferred from Mithbav to Mumbai on her request since she was to get married in Mumbai and in another incident in 2010 one Mrs.Kavita also came to be transferred from Mithbav to Mumbai on account of the same reason. Both transfers were on request and on account of own volition of the employees. Except these two transfers, the respondent-Management has not exercised the power vested in it under Rule 41 to transfer its employees.
'Administrative exigency' is not a term merely to be used on paper but there must be circumstances justifying the incidences of such administrative exigencies. The Management has stated that there was a requirement of trained teacher in Mithbav. The petitioner has filed rejoinder and brought on record the result of the School at Mithbav for the last four years and it is noted that the result is satisfactory and it is not the case that there are no N.S. Kamble page 23 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and trained teachers in the subjects at Mithbav and in fact the norms require that the teachers must be trained and there are infact twelve trained teachers in the school at Mithbav.
The said reason cited by the Management is therefore not worth consideration and the Management also do not have policy in place as to how the transfers have effected. The petitioners have placed on record the seniority list of the teachers and the respondents have not at all adhered to the said seniority list and has not transferred either the senior teachers or junior teachers and rather it is specific stand of the management that it did not have any policy in place as to how the transfers are to be effected. What thus transpires from the entire material on record is that, the transfers have been effected and the petitioners have been chosen randomly and there is no justification offered by the Management as to what was the administrative convenience which required only the petitioners to be transfered and the affidavit as well as the arguments of Mr.Bandiwadekar fall short of any justification to explain this aspect. Since the respondents have failed to spell out the administrative necessity in effecting is the transfers, the exercise of the power conferred in the Management under Rule 41 becomes a arbitrary exercise of power, since the exercise is not founded on any justifiable reason, germane to the power conferred on N.S. Kamble page 24 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and Management by the Rule 41.
The principle of rule of law, on which our entire system is based, provides a safeguard against arbitrary exercise of power and requires other public functionary and public authority to act fairly, reasonably and prudently in public interest and for public good. It is settled position of law that the authorities while exercising the power conferred on them must be mindful of public purpose and public good. In absence of any guideline been provided or formulated for exercise of a power conferred in an authority it would permit the authority to exercise its power in an unbridled manner, without any restriction of whatsoever nature and this would lead to arbitrary exercise of power which is anathema to the principle of rule of law, which is omnipotently present in Article 14 and 21 of the Constitution of India. When such a power is exercised in an arbitrary manner the principles of judicial review can always be invoked to prevent the exercise of that power in arbitrary manner and for any collateral purpose. As the Hon'ble Apex Court has observed in case of Kumari Shrilekha Vidyarthi and Ors. V/s. State of Uttar Pradesh and Ors.1 has determined as to what is arbitrariness in the following words "The true import of arbitrariness is more easily visualized than precisely stated or defined. The 1 (1991) 1 SCC 212 N.S. Kamble page 25 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and circumstances of the given case. An obvious test to apply is to see whether there is discernible principle emerging from the impugned act and if so, does it satisfy whether the mode is prescribed and there is no impediment following that procedure, performance of the Act otherwise as in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws are above you'. This is what men in power must remember, always".
When we examine the action of the Respondent-
Management of transferring the petitioner by passing the impugned order in light of the aforesaid principle laid down by the Hon'ble Apex Court, the arbitrariness is eloquent and it is apparent that the exercise of power do not reflect fair play in action. The exercise of discretion is not founded in any public interest but it is vitiated on account of unfairness. The right to choose, by itself cannot be considered to be an arbitrary power but when the exercise of such N.S. Kamble page 26 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and power is for any collateral purpose, then the exercise of that power is liable to be struck down. The unfettered discretion and other action of authority sans display fair play, thus deserves to struck down.
Though Mr.Bandiwadekar have emphasised that the transferred teachers have already joined at their respective posting in places of the petitioner, since we are of the clear opinion that the exercise of power by the Management in issuing the transfer orders suffers from arbitrariness and cannot be sustained, as a necessary concomitant, the employees who have been joined in place of the petitioner and have replaced the petitioner from their place of posting in school at Mumbai cannot disable us from interfering with the impugned transfer orders which have noted to be an abuse of the power by the Management.
18. For the aforesaid reasons we pass following order:-
ORDER The orders of transfer impugned in these petitions are quashed and set aside. The petitioners be allowed to resume their duties at the school at Mumbai from where they have been transferred to District Sindhudurg. The petitioners if at all they are on leave or have not joined duties at the transferred place, shall not N.S. Kamble page 27 of 28 jud-wp-2053-18, 2116-18 and 2248-18 and be visited with any disciplinary proceedings, nor their services shall be taken as interrupted in terms of the applicable rules. They shall be granted all the benefits including continuity of service, seniority and merely because the petitioners did not comply with the directions of the management, they cannot be deprived of the same.
(SMT.BHARATI H. DANGRE, J.) (S.C. DHARMADHIKARI,J.)
Digitally signed by
Nilam Nilam Santosh
Santosh Kamble
Date: 2018.08.09
Kamble 01:58:03 +0530
N.S. Kamble page 28 of 28