2010(1) ALL MR 341
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
A.H. JOSHI AND A.R. JOSHI, JJ.
Smt. Kausar Tasneem Khan Vs. Additional Commissioner, Amravati & Ors.
Writ Petition No.94 of 1995
11th November, 2009
Petitioner Counsel: Mr. P. C. MADKHOLKAR
Respondent Counsel: Mr. D. B. Yengal,Mr. M. K. PATHAN
Maharashtra Zilla Parishads and Panchayat Samitis (Discipline and Appeal) Rules (1964), S.14(a) - Constitution of India, Art.226 - Transfer and posting - Totally untenable plea pursued by petitioner and benefit derived by her - Benefit derived by her being wholly unjust, held, the petitioner would be liable to pay costs to the respondents which are quantified in a sum of Rs.5,000/- which be recovered from her salary and allowances wherever she is serving. (Para 24)
2. Petitioner was appointed as a Junior College Teacher in Zilla Parishad Girls High School, Yavatmal, on or before 9th November, 1990. She had applied for transfer to Zilla Parishad, Amravati. The order of transfer and absorption into the establishment of Zilla Parishad was passed on 3rd November, 1992. Perusal of order, copy whereof is at Annex. A at page 25 of paper-book reveals that the petitioner has been transferred against a vacant post.
3. Respondent no.5, who is an employee in the employment of Zilla Parishad, Amravati, as a Teacher in Secondary School, also possessed qualification, and claimed that she was entitled for transfer and posting as a Lecturer in Junior College in same Zilla Parishad.
4. Respondent No.5 had already applied for transfer and posting. The request of the respondent no.5 was forwarded by the Zilla Parishad, Amravati, to the Deputy Director of Education, who found that the respondent no.5 was qualified and eligible to be appointed by transfer as a Teacher in Junior College and directed under his letter 6th October, 1992 to consider petitioners case for said transfer and posting.
5. It is seen that before the application of respondent no.5 was considered, treating the post of a Teacher in Junior College to be vacant, present petitioner was appointed on the said post by transfer from Zilla Parishad, Yavatmal and order for absorption was passed.
6. Respondent no.5 herein was aggrieved, as, though she was qualified, eligible and entitled for transfer and posting to said post, having higher scale of pay, she was not given the same. She, therefore, filed an appeal under Section 14(a) of the Maharashtra Zilla Parishads & Panchayat Samitis (Discipline & Appeal) Rules, 1964 before the Additional Commissioner, Amravati.
8. By order dated 7th July, 1994, Additional Commissioner partly allowed the appeal, and directed the Chief Executive Officer, Zilla Parishad, Amravati, to consider petitioners claim and to scrutinize whether present respondent no.5 has been met with any injustice in the light of discussion contained in the judgment.
9. It is seen that the Chief Executive Officer has considered the matter and issued a communication dated 28th December, 1994, calling upon the petitioner herein to say whether she would accept absorption on post of Asstt. Teacher [Upper Division] and to relinquish her claim for the post of a Teacher in Junior College.
10. Parties have not brought before this Court on record as to whether after the decision of the Additional Commissioner dated 7th July, 1994, and before the decision dated 28th December, 1994, any order or decision is rendered by the Chief Executive Officer in compliance with the directions given by Additional Commissioner. It seems that the letter dated 28th December, 1994 by the Chief Executive Officer itself may be a part of the steps to be taken.
11. Perusal of affidavit filed by respondent no.2 discloses that respondent no.5 herein was possessing qualification and experience for transfer and posting as a Teacher in Junior College and a proposal for this was sent to the Deputy Director of Education, which was also approved by communication dated 6th October, 1992, which is Annexure-ZP-6 to the affidavit-reply of the respondent no.2.
12. It is also seen that it has been admitted in the said affidavit of respondent no.2 that by ordering transfer of the writ petitioner to Zilla Parishad, Amravati, rightful claim of the respondent no.5 was bypassed.
13. It is seen that in these premises, appropriate action to be taken by the respondent no.2 was to revoke or cancel the order of absorption of the petitioners services and repatriate the petitioner to Zilla Parishad, Yavatmal, unless there existed a vacancy for the respondent no.5. It appears that there was no vacancy to promote the respondent 5 and also to retain the petitioner as a Teacher in Junior College.
14. It seems that because of situation indicated in the preceding para, the respondent no.2 took steps to ascertain whether the writ petitioner would agree for absorption as Asstt. Teacher [Upper Division], and in that event her claim for the post of a Teacher in Junior College could be considered in future.
15. It is seen that the Respondent No.2 has also taken his stand, inter alia, on the point that petitioner was not eligible for inter-district/Zilla Parishad transfer, and tried to substantiate it by producing on record copy of Govt. Circular dated 25th September, 1992, which is at page 152 of the paper-book.
Perusal of policy decision of the State Govt. of writ petition, which is Annex.ZP-1], spells out that a district cadre employee, who has put in ten years of service in the employment of Zilla Parishad, alone can apply for a transfer to other Zilla Parishad.
16. It is pertinent to note that petitioner has not filed any rejoinder to reply-affidavit of the respondent no.2. Even during oral submissions, and points on facts raised by respondents have not been replied.
On this ground, present petitioner, in fact, is not eligible to apply and get transferred to another Zilla Parishad.
17. Arguing in support of the petition, learned Adv. Mr. Madkholkar holding for Adv. Mr. M. D. Lakhey has raised jurisdictional issue, namely in the matter of inter-district transfer, Additional Commissioner has no jurisdiction.
18. This Court finds that the point urged in support of the petition is addressed with ingenuity, however, it has been done without adverting to the rights of the person who stood superseded and denied his/her legal right due to wrongful absorption of writ petitioner.
19. Perusal of Appeal Memo preferred by the respondent no.5 discloses that she did not, in any manner, challenge the order of absorption. She made a grievance that though she was eligible and her claim was approved by Deputy Director of Education, for transfer and posting as a Lecturer/Teacher in Junior College, she has orders in her favour from competent authority. Of course, her promotion/transfer became impossible due to petitioner's transfer and absorption. Thus, petitioner's transfer came under scrutiny as a necessary, but consequential issue.
20. The grievance as made by the respondent no.5 was perfectly within the jurisdiction of Additional Commissioner. The Additional Commissioner was bound to consider all questions and adjudicate. This Court is satisfied that the questions, which fell for the consideration of Additional Commissioner, have been rightly considered by him.
[a] The petitioner had got the protection of status quo, and she has got the status to which she was not entitled.
[b] Respondent no.5 was wrongfully denied what she was entitled to.
[c] Petitioners claim and contentions contained in this petition are based on technicalities, which too do not find support in law.
[d] Any of the legal rights of the petitioner is not violated.
[e] There is no error of law, or that of jurisdiction creeping in the impugned orders.
24. In view that a totally untenable plea was pursued by the petitioner and benefit was derived by her being wholly unjust, the petitioner would be liable to pay costs to the respondents which are quantified in a sum of Rs.5,000-00 [rupees five thousand only] which be recovered from her salary and allowances wherever she is serving.