Bombay High Court
Marathwada Banjara Seva Sangh vs State Of Maharashtra And Ors. on 12 April, 2004
Equivalent citations: 2004(4)MHLJ8
Author: R.M.S. Khandeparkar
Bench: R.M.S. Khandeparkar, V.G. Munshi
JUDGMENT R.M.S. Khandeparkar, J.
1. Heard. Rule. By consent, heard forthwith.
2. The petitioner seeks to quash the order dated 25-11-2003 passed by the respondent No. 2, and confirmed by the respondent No. 3 by his order dated 1-12-2003 whereby the grants to the institution of the petitioner have been withheld on the ground that the respondent No. 4 was transferred in contravention of law debarring mid-term transfer.
3. The learned Advocate for the petitioner, referring to Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, hereinafter referred to as the "said Rules", submitted that there is no need of any permission from the authorities for transfer of the headmaster from one high school to another high school. He also further submitted that there is no prohibition against mid-term transfers and each case has to be considered on the facts of that case and it has been left to the discretion of the management to take appropriate decision in each case, depending upon the circumstances of the case. The learned AGP appearing for the respondent Nos. 1 to 3 has fairly submitted that indeed there is no requirement of prior permission for transfer of headmaster and the same is well clarified by the circular dated 26-8-1985. The learned Advocate for the respondent No. 4, however, submitted that the guidelines issued under the circular dated 20-11-1997 clearly prohibits mid-term transfer, otherwise than in exceptional cases, and the petitioner has not made out any such exceptional case to justify the mid-term transfer of the respondent No. 4.
4. The controversy involved in the petition does not call for adjudication of the issue relating to the validity of transfer but in fact relates to entitlement to withhold the grant on the ground that the transfer of the petitioner's employees is not in consonance with the provisions of law applicable to transfers.
5. The Rule 41 of the said Rules provides that subject to the provisions of the said Rules the management conducting more than one school shall not transfer any of its employees from one school to another except on administrative grounds, promotion or at the request of the employee concerned, if it is administratively convenient to do so. It further provides that save in exceptional cases, and unless reasons are recorded in writing by the management, such transfers shall not be effected in the middle of the term. It also provides that the management shall see that the transfers do not adversely affect the pay or pay scale of the employees concerned and that such transfers do not result into loss in the pensionary benefits as admissible to them.
6. Plain reading of the provisions contained in Rule 41 would therefore disclose that it is left to the discretion of the management to take appropriate decision in the matter of transfer of its employees, albeit the transfers cannot be at the whims and fancies of the management but are necessarily to be for administrative reasons or at the request of the employee/s concerned. Certainly it can also result from the promotion granted to an employee. Undoubtedly, Sub-rule (2) of Rule 41 also clarifies that except in exceptional cases mid-term transfer should be avoided. However, the rule nowhere provides that permission or consent is required from the authorities for effecting transfer of the employees of the institution. It is not in dispute that the decision to withhold the grant was taken solely on the ground that permission of the authorities was not taken, and secondly that mid-term transfer is prohibited. As already seen above, there is neither requirement of permission nor total prohibition against mid-term transfer. Being so, the basis on which the decision to withhold the grant was arrived at was itself contrary to the provisions of law and the authorities could not have withheld the grant to the petitioner on either of the grounds.
7. The circular dated 20-11-1997, sought to be relied upon by the learned Advocate for the respondent No. 4, does not lay down anything more than what is contemplated under Sub-rule (2) of Rule 41 of the said Rules. Undoubtedly, in case the respondent No. 4 has any grievance against his mid-term transfer, certainly nothing prohibits him from challenging the decision in appropriate forum and taking resort to the appropriate remedy. However, the grievance of the respondent No. 4 in that regard would not entitle the authorities to withhold the grant to the institution of the petitioner as no such ground is contemplated for withholding the grant under the provisions of law. The grievance of the respondent No. 4 in that regard will have to be adjudicated independently in case any appropriate proceeding are initiated at the instance of the respondent No. 4.
8. In the facts and circumstances of the case, therefore, the impugned orders withholding the grant of the petitioner-institution on the grounds on which they were passed cannot be sustained and are liable to be quashed and set aside and accordingly are hereby quashed and set aside.
9. The petition therefore succeeds. The impugned orders are hereby quashed and set aside. The respondent-authorities are directed to release the grant forthwith and in any event to pay the same within a period of two weeks along with the interest on the arrears at the rate of 6% p.a. The respondent Nos. 1 to 3 to pay costs of Rs. 1000/- to the petitioner-institution. The rule is made absolute