1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 742 OF 2010 Sudhakar S/o Bhanudas Gaikwad } Age : 52 Years, Occ. Head Master, } Vasant Dada Patil High School, } Lohara & Netaji Subhashchandra Bose } Junior College of Arts, Science and } Commerce, Lohara, } R/o : Lohara, Tq. Lohara, } Dist. : Osmanabad. } .... PETITIONER V E R S U S 1. The State of Maharashtra } Through the Secretary, } Department of School Education } Mantralaya, Mumbai - 32. } 2. The Education Officer (Secondary) } Zilla Parishad, Osmanabad. } 3. Bhartiya Rashtriya Shikshan Sanstha } Lohara, Tq. Lohara, Dist. } Osmanabad through its President. } 4. Ramesh S/o Shankarrao Patil } Age : 50 Years, Occ. Agriculture, } Secretary of Bhartiya Rashtriya } Shikshan Sanstha, Lohara, Tq. Lohara, Dist. Osmanabad } 5. Urmila Vasantrao Patil } Age : 40 Yrs., Occ. Service, } R/o C/o Dattaji Vasantrao Jawale } 2 Patil, in front of Wagh Guruji’s House} Lohara, Tq. Lohara, Dist. } Osmanabad. } .... RESPONDENTS Mr. A.L.Tikle, Advocate for petitioner. Mr. K.G. Patil, Assistant Govt. Pleader for State. Mr. V.D.Salunke, Advocate for respondent nos. 3 & 4. Mr. S.S. Jadhavar, Advocate for respondent no. 5. CORAM : P.V.HARDAS & S.V.GANGAPURWALA, JJ. DATE OF JUDGMENT : 29/04/2010 ORAL JUDGMENT : ( PER – P.V.HARDAS J.) 1. Rule. Rule made returnable forthwith. With the consent of the parties, this petition is heard finally at the stage of admission. 2. A very peculiar situation has arisen in the present case. Respondent no. 5, who was working as the Head Mistress in the school at Lohara came to be transferred to the school at Nagur while the petitioner came to be posted as Head Master at Lohara on being promoted . Respondent no. 5 who was aggrieved by the order of transfer, filed Writ Petition No. 6302 of 2009 in this Court. The Division Bench of this Court, it appears, declined to grant any interim relief of stay to the order of transfer. Ultimately, the petitioner on 10/12/2009 tendered certain documents to the Court and requested the 3 Court that the respondent no. 5 i.e. the petitioner in that Writ Petition may be allowed to withdraw the Writ Petition as the impugned order of transfer had been cancelled by the respondents. The learned counsel, who was appearing on behalf of respondent Management strenuously objected by pointing out that the management had not withdrawn the impugned transfer order. Since the petitioner therein i.e. respondent no. 5 before us, desired to withdraw the petition, the Division Bench disposed of the petition as withdrawn with categorical finding that it had expressed no opinion as regards the dispute. A dispute, it appears, had been raised in the said petition, which was an ancillary dispute. The dispute was as to whether the order of cancellation of the transfer of the petitioner therein ( respondent no. 5 ) had been validly cancelled by issuance of the cancellation order by a person who was authorized in law to do so. Since the Division Bench was not concerned with the aforesaid dispute, it only permitted the withdrawal of the Writ Petition without expressing any opinion as far as merits of the matter was concerned. 3. It appears that since the petitioner had been posted as the Head Master at Lohara, certain proposal seeking approval came to be forwarded to the respondent no. 2 Education Officer. The said proposals are dated 27/10/2009 and 3/11/2009. Mean while, the Education officer issued the impugned communication which is dated 23/8/2009. The Education Officer, it appears, mis-interpreted the 4 order of the Division Bench of this Court. The Education Officer came to the conclusion, by mis-interpreting the order of the Division Bench, that the Division Bench while permitting the petitioner therein (respondent no. 5 ) had accepted the order by which her transfer came to be cancelled and, therefore, informed the Management as well as the petitioner that they would be guilty of contempt in disobeying the directions issued by the Division Bench. 4. At the out set, we may state that the impugned communication in the present petition is wholly unsustainable. The Education Officer has completely mis-read and mis-interpreted the order of the Division Bench of this Court. To reiterate once again, the Division Bench only permitted the petitioner therein i.e. respondent no. 5 before us to withdraw the Writ Petition. The Division Bench in no uncertain terms expressed that it did not express any opinion as regards the dispute which was raised in respect of the order cancelling the transfer of the petitioner therein i.e. respondent no. 5. Since a litigant had sought withdrawal of the petition, the Court permitted the litigant to withdraw the Writ Petition. Obviously, no findings of merits have been recorded in respect of the transfer of the petitioner therein or the order cancelling the aforesaid transfer. The Education Officer, however, mis-interpreted that order to mean that the Division Bench had accepted the order by which the transfer of respondent no. 5 came to be cancelled. We wish to state at the out set that such an 5 interpretation is wholly impermissible and the impugned order on the face of it is unsustainable. 5. The core question which is raised in the present petition is with respect to the alleged order produced by the respondent no. 5 cancelling her transfer. According to the petitioner, the aforesaid order was issued by an authority who was not authorized in law to issue such an order. The respondent – management supports the plea of the petitioner while the respondent no. 5 who had produced the order obviously disputes the said proposition. In any event, since proposal seeking approval to the transfer of the petitioner is pending consideration with respondent no. 2, according to us, it would be appropriate to direct respondent no. 2 Education Officer to decide the aforesaid proposal, in accordance with law, after hearing the petitioner, respondent – management and respondent no. 5 and giving them opportunity of producing documents. While deciding the aforesaid proposal, an ancillary question is likely to arise for determination and that question is whether the order cancelling the transfer of respondent no. 5 is a valid order issued by an authority competent in law to do so. The aforesaid question can only be answered by respondent no. 2 after hearing the parties, who are at dispute. 6. We accordingly allow this petition, quash and set aside the impugned communication of the Education Officer dated 19/12/2009 6 and direct the Education Officer to decide the pending proposal of the petitioner in respect of seeking approval to his appointment as the Head Master of the school at Lohara and then also to decide the question as to whether the transfer of respondent no. 5 ( petitioner in Writ Petition No. 6302 of 2009 ) has been validly cancelled. The Education Officer to give opportunity to the petitioner, respondent – management and respondent no. 5 of producing documents and also liberty of hearing and then to decide the said question, in accordance with law and communicate decision thereon to the parties. 7. Rule is thus made absolute on the above terms with no order as to costs. We expect the Education Officer to expeditiously comply with the directions issued by us and in any event not later than two months from today. [ S.V.GANGAPURWALA ] [ P.V.HARDAS ] JUDGE JUDGE knp/WP 742.10 ( J )