WRIT PETITION NO. 1493 OF 2018

4th July 2019

Petitioner Counsel: Mr. V. S. Panpatte Smt. S. P. Mahajan Shri A. N. Nagargoje Shri D. M. Mane Shri R. A. Shedge Shri Shaikh Layak S. Shri N. L. Choudhari Shri S. S. Thombre Shri B. T. Bodkhe Shri R. I. Wakade Shri S. R. Kolhare Shri V. S. Tanwade Shri T. G. Gaikwad Shri N. K. Chaudhari Shri C. V. Thombre Shri S. B. Dambe Shri N. L. Jadhav
Respondent Counsel: Mrs. A. V. Gondhalekar Mr. S. G. Rudrawar Shri A. R. Kale Shri S. S. Deshmukh Shri G. S. Rane Shri N. S. Kadam Shri A. S. Savale Shri B. N. Magar Shri V. S. Panpatte Shri S. P. Shah Shri M. S. Karad Shri I. D. Maniyar Shri G. D. Kale Shri Dr. R. J. Godbole Shri M. M. Patil (Beedkar) Shri A. S. Kakade Smt. A. D. Chate Smt. Y. M. Kshirsagar Shri S. B. Pulkundwar Shri S. S. Panale Shri S. S. Bora Shri R. V. Naiknavare Smt. Sangeeta Jadhav(Pimpre) Shri M. S. Adate
Act Name: Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981

Section :
Section 5 Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 Section 13 Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977

Cases Cited :
Para 5: Ms. Sandhya Laxman Ghosalkar Vs. The State of Maharashtra and Ors., dated 12.09.2012 in Writ Petition No.5258 of 2012
Para 5: Dattu s/o Bhima Thorad Vs. The State of Maharashtra & Ors., dated 11.10.2012 in Writ Petition No.2960 of 2012
Para 5: Mrs. Rajabai Baba Shinde Vs. The State of Maharashtra & Ors., dated 18.04.2015 in Writ Petition No.3979 of 2015 with connected writ petition
Para 5: Chandrakali Pandurang Dhongde Vs. The Secretary, Department of School Education, Mantralaya, Mumbai & Ors., dated 30.11.2011 in Writ Petition No.7230 of 2011
Para 5: Shekhar P. Deshmukh Vs. Deputy Director Education and Ors., dated 03.07.2018 in Writ Petition No.1166 of 2018
Para 5: Sudhir Dnyandeo Gadakh Vs. The State of Maharashtra & Ors., dated 09.10.2014 in Writ Petition No.5978 of 2014 with connected writ petitions
Para 5: Rajashri Shahu Shikshan Sanstha Sillod through its Secretary and Ors. Vs. The State of Maharashtra & Anr., Dated 09.11.2017 in Writ Petition No.11719 of 2016
Para 5: Rajay s/o Divly Tadvi Vs. The State of Maharashtra & Ors., dated 30.11.2017 in Writ Petition No.10618 of 2016 with connected writ petition
Para 5: Shri. Ganesh s/o Raghu Jadhav Vs. The State of Maharashtra & Ors., dated 15.04.2015 in Writ Petition No.1648 of 2015
Para 5: Pramod s/o. Prabhakar Pokale Vs. The State of Maharashtra & Ors., dated 14.01.2019 in Writ Petition No.6114 of 2018. 11. Dattatraya s/o Raosaheb Gunjal & Ors. Vs. The State of Maharashtra & Ors. dated 02.11.2012 in Writ Petition No.5651 of 2012
Para 10: Priyadarshini Education Trust & Ors. Vs. Ratis (Rafia) Bano d/o Abdul Rasheed & Ors., dated 16.08.2007 in Letters Patent Appeal No. 166 of 2004
Para 10: Sau. Kalpana w/o Jayant Kolarkar Vs. The State of Maharashtra & Ors., dated 21.09.2010 in Writ Petition No.1241 of 2010
Para 10: Ms. Sandhya Laxman Ghosalkar Vs. The State of Maharashtra and Ors., dated 12.09.2012 in Writ Petition No.5258 of 2012
Para 10: Chandrakali Pandurang Dhongde Vs. The Secretary, Department of School Education, Mantralaya, Mumbai & Ors., dated 30.11.2011 in Writ Petition No.7230 of 2011
Para 10: Dattatraya s/o Raosaheb Gunjal & Ors. Vs. The State of Maharashtra & Ors., dated 02.11.2012 in Writ Petition No.5615 of 2012
Para 10: Sheetal d/o Shivkant Chavan Vs. State of Maharashtra & Ors., dated 23.03.2018 in P.I.L. No.20 of 2018
Para 10: Rajeshree Hanumantrao Rokade Vs. State of Maharashtra & Ors., dated 30.01.2018 in Writ Petition No.7963 of 2016
Para 10: Tanaji Madhukar Barbade Vs. State of Maharashtra & Ors., dated 26.10.2010 in Writ Petition No.1688 of 2010
Para 10: Vasant Shikshan Prasarak Mandal through its President & Ors. Vs. The State of Maharashtra & Ors., dated 31.08.2016 in Writ Petition No.9076 of 2016
Para 10: Maharashtra Seva Sangh, Solapur & Anr. Vs. Shaikh Jamalchand & Anr., Dated 21.03.2009 in Writ Petition No.5556 of 1999
Para 10: State of Gujarat Vs. Akhilesh C. Bhargav & Ors., AIR 1987 Supreme Court 2135
Para 10: Ramesh Prasad Singh Vs. State of Bihar & Ors., AIR 1978 Supreme Court 327
Para 10: Bajaj Hindustan Limited Vs. Sir Shadi Lal Enterprises Limited, (2011) 1 Supreme Court Cases 640

JUDGEMENT

S. V. Gangapurwala, J.

1. Rule. Rule made returnable forthwith. With the consent of parties, taken up for final hearing

2. All these writ petitions are based on similar set of facts and involve common question of law. To avoid rigmarole they are decided by common judgment.

3. The petitioners in all these petitions are appointed as assistant teachers on unaided posts. They are transferred to grant­ in­aid posts. The proposal seeking approval to their transfer to the aided posts are rejected. Aggrieved thereby, the present petitions.

4. All the learned counsel for the petitioners viz. Mr. Panpatte, Ms. Mahajan, Mr. N. L. Choudhari, Mr. Nagargoje, Mr. Mane, Mr. Shedge, Deshmukh, Mr. Thombre, Mr. Bodkhe, Mr. Wakade, Mr. Kolhare, Mr. Tanwade, Mr. Gaikwad, Mr. N. K. Choudhari, Mr. D. J. Choudhary, Mr. Dambe, Mr. N. L. Jadhav, Mr. Ghatge, Mr. Gunale, Mr. Bali, Mr. Bhavthankar, Mr. Sangeet, Mr. Choukidar, Mr. Shelke, Mr. S. V. Deshmukh, Mr. Gorde, Mr. S. N. Suryawanshi, Mr. Madan, Mr. C. K. Shinde, Mr. Salgare, Mr. Tele, D. J. Patil, canvassed the submissions on behalf of petitioners.

5. The arguments of learned counsel for petitioners can be summarized as under:
(i) The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 is uniformly applicable to the teachers working on aided and unaided posts. The service conditions to the teachers serving on unaided and aided posts are same. Rule 41 of the MEPS Act permits the management to transfer an employee from one school to another school run by the same management. The petitioners are appointed by following due procedure of law on the unaided posts. Their appointments are approved by the Education Officer after satisfying himself of the entire procedure being properly followed. Their appointments are as per the roster. The petitioners are senior persons working on unaided posts. The circular dated 28.06.2016 is not in consonance with the Rules. The said circular also cannot have retrospective effect. They are transferred by the management either by passing Resolution or issuing transfer orders. The transfer of petitioners from unaided to aided division is not fresh appointment. The learned counsel submits that by catena of judgment it has been held that the management has right to transfer the assistant teachers from unaided to aided division and the said views are consistent views of various Division Benches of this Court. The learned counsel for the petitioners relied on the following judgments:
1. Ms. Sandhya Laxman Ghosalkar Vs. The State of Maharashtra and Ors. dated 12.09.2012 in Writ Petition No.5258 of 2012.
2. Dattu s/o Bhima Thorad Vs. The State of Maharashtra & Ors. dated 11.10.2012 in Writ Petition No.2960 of 2012.
3. Mrs. Rajabai Baba Shinde Vs. The State of Maharashtra & Ors. dated 18.04.2015 in Writ Petition No.3979 of 2015 with connected writ petition.
4. Chandrakali Pandurang Dhongde Vs. The Secretary, Department of School Education, Mantralaya, Mumbai & Ors. dated 30.11.2011 in Writ Petition No.7230 of 2011.
5. Shekhar P. Deshmukh Vs. Deputy Director Education and Ors. dated 03.07.2018 in Writ Petition No.1166 of 2018.
6. Sudhir Dnyandeo Gadakh Vs. The State of Maharashtra & Ors. dated 09.10.2014 in Writ Petition No.5978 of 2014 with connected writ petitions.
7. Rajashri Shahu Shikshan Sanstha Sillod through its Secretary and Ors. Vs. The State of Maharashtra & Anr. Dated 09.11.2017 in Writ Petition No.11719 of 2016.
8. Rajay s/o Divly Tadvi Vs. The State of Maharashtra & Ors. dated 30.11.2017 in Writ Petition No.10618 of 2016 with connected writ petition.
9. Shri. Ganesh s/o Raghu Jadhav Vs. The State of Maharashtra & Ors. dated 15.04.2015 in Writ Petition No.1648 of 2015.
10. Pramod s/o. Prabhakar Pokale Vs. The State of Maharashtra & Ors. dated 14.01.2019 in Writ Petition No.6114 of 2018. 11. Dattatraya s/o Raosaheb Gunjal & Ors. Vs. The State of Maharashtra & Ors. dated 02.11.2012 in Writ Petition No.5651 of 2012.

6. The learned counsel submits that recently the Division Bench of this Court at its Principal Seat at Bombay (Coram: Shri. B. R. Gavai and Shri. Sandeep K. Shinde, JJ.) considering various judgments has held that the circular dated 28.06.2016 can hardly be said to be Government instructions and it has no statutory force in law.

7. Mrs. Gondalekar, learned A.G.P. submits that by and large these petitioners are appointed in schools which are on no grant­in­aid basis as assistant teachers. After putting in service for few years, they are transferred to another school of same management receiving grant­in­aid. The approvals to these teachers are granted by Education Officers on no grant­in­aid basis.

8. The proposals seeking approval to their transfer from unaided to aided posts are rejected by the Education Officer, as the required permission is not obtained from the State for filling in the aided posts. Section 5 of the MEPS Act is not adhered to. It is further submitted by the learned A.G.P. that there would be heavy burden on the State exchequer. The Shikshan Sevak scheme is made applicable to only aided schools from the year 2000 as per Government Resolution dated 13.10.2000 and further modified by the Government Resolution dated 17.02.2004 and 10.06.2005, wherein they are only paid honorarium for first three years. By such transfers, there is a possibility of flouting reservation policy. The petitioners have not placed on record the advertisement at the time of appointment of assistant teachers / petitioners on no grantin­aid school. These petitioner have not placed on record any document such as appointment order, professional qualification certificate and seniority list to show that the proper procedure has been followed. The surplus assistant teachers are available throughout the State of Maharashtra. In view of the proviso to Section 5, the petitioners could not have been directly transferred to aided posts. The efforts will have to be made to absorb surplus assistant teachers. The roster is also not verified by the B.C. cell while making transfers. Section 5 of the MEPS Act creates obligation upon the management of the private schools. The Government Resolution dated 06.02.2012 provides procedure for grant of individual approval, promotions and consequential benefits. The said procedure is required to be complied with and followed.

9. The learned A.G.P. submits that the impugned circular dated 28.06.2016 is issued to streamline filling in the vacant aided posts. The said circular dated 28.06.2016 provides the manner of filling in the aided posts and governs transfer of persons from aided to unaided division. The said circular is in consonance with Section 5 of the MEPS Act. The said circular prescribed for following the seniority, so also the management is required to confirm about the nonavailability of the surplus candidates and if the surplus candidates are available, then approvals shall not be granted to the teachers transfer from unaided to aided division.

10. The learned A.G.P. to substantiate her contentions relies on the following judgments:
1. Priyadarshini Education Trust & Ors. Vs. Ratis (Rafia) Bano d/o Abdul Rasheed & Ors. dated 16.08.2007 in Letters Patent Appeal No.166 of 2004.
2. Sau. Kalpana w/o Jayant Kolarkar Vs. The State of Maharashtra & Ors. dated 21.09.2010 in Writ Petition No.1241 of 2010.
3. Ms. Sandhya Laxman Ghosalkar Vs. The State of Maharashtra and Ors. dated 12.09.2012 in Writ Petition No.5258 of 2012.
4. Chandrakali Pandurang Dhongde Vs. The Secretary, Department of School Education, Mantralaya, Mumbai & Ors. dated 30.11.2011 in Writ Petition No.7230 of 2011.
5. Dattatraya s/o Raosaheb Gunjal & Ors. Vs. The State of Maharashtra & Ors. dated 02.11.2012 in Writ Petition No.5615 of 2012.
6. Sheetal d/o Shivkant Chavan Vs. State of Maharashtra & Ors. dated 23.03.2018 in P.I.L. No.20 of 2018.
7. Rajeshree Hanumantrao Rokade Vs. State of Maharashtra & Ors. dated 30.01.2018 in Writ Petition No.7963 of 2016.
8. Tanaji Madhukar Barbade Vs. State of Maharashtra & Ors. dated 26.10.2010 in Writ Petition No.1688 of 2010.
9. Vasant Shikshan Prasarak Mandal through its President & Ors. Vs. The State of Maharashtra & Ors. dated 31.08.2016 in Writ Petition No.9076 of 2016.
10. Maharashtra Seva Sangh, Solapur & Anr. Vs. Shaikh Jamalchand & Anr. Dated 21.03.2009 in Writ Petition No.5556 of 1999.
11. State of Gujarat Vs. Akhilesh C. Bhargav & Ors. reported in AIR 1987 Supreme Court 2135.
12. Ramesh Prasad Singh Vs. State of Bihar & Ors. reported in AIR 1978 Supreme Court 327.
13. Bajaj Hindustan Limited Vs. Sir Shadi Lal Enterprises Limited reported in (2011) 1 Supreme Court Cases 640.

11. We have considered the submissions canvassed by the learned counsel for the respective parties.

12. The petitioners have assailed the circular dated 28.06.2016 restricting the rights of the management to transfer assistant teachers from unaided posts to aided posts.

13. It appears that, all these petitioners are appointed on unaided posts. Their services are approved as assistant teachers on unaided posts by Education Officer. It would be presumed that, the Education Officer at the time of granting approvals to the appointment of the petitioners has considered that the institution has followed proper procedure while appointing these candidates, so also these petitioners possess required educational qualification and that they are appointed on substantive vacant posts.

14. The MEPS Act applies uniformly and equally to the assistant teachers working on aided posts, so also unaided posts. No distinction is made in service conditions of the assistant teachers working on aided and unaided posts. Section 13 of the MEPS Act gives authority to the State Government to frame the Rules. Pursuant thereto, the State Government has framed Rules viz. the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981. Rule 41 of the said Rules reads thus:
“41. Transfers. ­ (1) Subject to the provisions of this rule 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.
(2) 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.
(3) The Management shall see that the transfers do not adversely affect the pay or pay scale of the employees concerned and that such transfer do not result into loss in the pensionary benefits as admissible to them.
(4) The expenditure on Travelling allowance and Daily allowance, if any, at the rates applicable to the Government employees of the comparable status, shall be borne by the Management. If the transfer is at the request of the employee, this expenditure shall be borne by the employee concerned:
Provided that the transfer involves change of headquarters, the joining time to be allowed to an employee shall be limited to six days (excluding Sunday) and actual days of journey. Subject to this limit, the period of joining time shall be treated as "duty" for all purposes :
Provided that, an employee shall not be entitled to joining time, if transfer is effected during the vacation.
(5) Where a Management runs a secondary school or secondary schools and a Junior College of Education­
(a) Teachers in a Junior College of Education shall not be transferred to a secondary school against their will Such transfers may, however, be made if they are at employees own requests, subject to availability of vacancies in secondary schools. In the event of such a transfer, the pay drawn by the teacher in the Junior College of Education shall not be protected. He shall be deemed to be working in a secondary school during the period he worked in the Junior College of Education, and his pay shall be accordingly refixed on his joining the secondary school.
(b) Teachers in secondary school shall not be transferred to a Junior College of Education against their will. Such transfers may, however, be made if they are at the employees' own requests, subject to the following conditions, namely :
(i) Vacancies should be available in the Junior College of Education;
(ii) The concerned employee shall retain the same place in the common seniority list; and
(iii) Their pay in the Junior College of Education shall be fixed at the same stage of pay as their existing pay or at the minimum of the scale of pay in the Junior College of Education, whichever is higher.”

15. Rule 41 gives powers to the management of the institution to effectuate transfers for the better administration of the school and also considering the administrative exigency for convenience of the better administration of the school. The impugned circular dated 28.06.2016 lays down certain conditions for the transfer of assistant teachers from unaided to aided posts. Some of the salient features of the said circular is that the management shall confirm that there are no surplus teachers are available for filling in the posts becoming vacant on aided basis. For the said purpose, the circular makes reference to Section 5(1) of the MEPS Act and that if the surplus teachers are available, the approval should not be given to the teachers transferred from unaided to aided posts. The senior most teacher on unaided post shall be entitled for transfer to aided post and that the said assistant teacher who was working on unaided post, his appointment is required to be approved. The further embargo is that the assistant teachers should have worked atleast five years on unaided post and if he has worked for less than five years, then an option should be taken from him that he would work for three years as Shikshan Sevak on honorarium basis if transferred to grant­in­aid post and if the assistant teacher to be transferred has worked for five years or more on an unaided post, then the teacher who has completed five years on unaided posts and upon transfer to the aided post will be entitled for 20% grant from the Government and 80% will have to be borne by the institution. For the second year he would be entitled for 40% Government grant and 60% will be borne by the institution. For the third year 60% grant would be given by the Government and 40% will be borne by the institution. After four years of transfer, 80% will be borne by the Government and 20% by the institution and after five years of the transfer of the teacher who had already worked for five years on unaided post, he will receive 100% grant from the Government.

16. The circular is issued by the Secretary, School Education and Sports Department. The orders in some of the matters are referred to therein. The reference is made to the some of the writ petitions.

17. The question would be whether by way of an executive instructions, the powers of the management under Rule 41 of MEPS Act for transfer of an employee can be circumscribed, curtailed and eroded. Rule 41 is framed under the Rule making power of the Government as provided under Section 13 of the MEPS Rules. The MEPS Rule is piece of subordinate legislation. It is trite that, executive instructions cannot override the statutory Rules. Precisely, this has been held by the Division Bench of this Court at Principal Seat at Bombay in Writ Petition No.5313 of 2017 with connected writ petitions decided on 25.04.2019. The Division Bench in the said judgment held that:
"The circular dated 28.06.2016 can hardly be said to be Government instructions. It has no statutory force in law. Rule 41 of the MEPS Act which is the subordinate legislation, the administrative decisions which run contrary to them cannot be held to be valid in law. We find that, since Clauses 1 and 2 of the said circular, run contrary to the provisions of the subordinate legislation as found in Rule 41, the same would not be valid in law."
While delivering the said judgment, the Division Bench considered the earlier judgments of this Court. Sub­clauses 1 and 2 of Clause 3 of the circular has already been held to be not valid in law by the Division Bench. There is no reason for us to take different view. The impugned circular as it affects the rights of the management to transfer, as such, same is improper and does not have any enforceable status.

18. The proposal while considering for approval certainly will have to satisfy the test of roster being adhered to, seniority been followed. We had asked the learned A.G.P. that if the management runs more than one school, one which is on grant­inaid and other non grant­in­aid, then how the seniority list and roster is maintained. The learned A.G.P. on instructions submitted that, if a management runs two or more schools and even if one is on no grant­in­aid, still common seniority list is required to be maintained, so also the common roster is maintained for both the schools.

19. In such a scenario, when common seniority list is maintained and common roster is maintained for two or more schools run under the same management, then question of imbalance of reservation may not arise.

20. One anomalous situation that requires to be considered is that if a person is appointed on grant­in­aid post for three years, he is required to work as Shikshan Sevak on honorarium basis, whereas, on an unaided post a person is directly appointed as assistant teacher. For example, if a person has worked as assistant teacher for one year on unaided post and is transferred on grant­in­aid post, he would claim that he was working as assistant teacher and should be considered as assistant teacher that would not be in tune with the scheme of Shikshan Sevak as framed by the Government under the Government Resolutions.

21. If the assistant teacher on unaided post has worked for less than three years and is transferred to aided post, he will have to work as Shikshan Sevak till he completes three years of service from the date of his initial appointment on an unaided post. That would be in conformity with the scheme of Shikshan Sevak framed by the State.

22. In light of the above, we quashed and set aside the orders rejecting the approvals of petitioners.

23. Upon confirming about the adherence to the seniority list that is those who are transferred to aided post are senior most amongst those working on unaided post and that the roster is maintained, so also their appointments are approved on unaided post, the Education Officer shall grant approvals to their appointments. If the assistant teachers who have been transferred from unaided to aided posts had not completed three years while working on unaided post, then they will be granted approvals as Shikshan Sevaks for a period they would complete three years from the date of their initial appointments and thereafter as assistant teachers. Of course, upon satisfying about the seniority and roster. However, the Education Officer shall not reject the proposal on the ground of circular dated 28.06.2016 and that there is availability of surplus teachers. The Education Officer will have to consider that services of these petitioners are approved on unaided posts.

24. Rule made absolute in above terms. No costs.