1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 3791 OF 2005 Shri Harilal Bhanudas Khunepimpre .. Petitioner V/s The State of Maharashtra and others .. Respondents Mr. V. S. Deokar, for the petitioner Mr. A. H. Palekar, AGP for respondent Nos. 1 & 4 Mr. Manar Limaye for Respondent Nos. 2 & 3 CORAM: V. C. DAGA, & MRS. MRIDULA BHATKAR, JJ. DATED: 26th February, 2009 JUDGEMENT ( Per V. C. Daga, J. ) 1. Heard learned counsel for the petitioner and the learned Counsel appearing for respondents 2 and 3. Learned AGP appeared on behalf of Respondent 1 and 4. Perused petition. 2. The facts : The petitioner was appointed as Assistant Teacher in the Respondent No.2 school on probation for a period of 2 years by order dated 13.6.1994. The approval to his appointment was granted in the month of September, 2004. The petitioner, after completion of two years probation, became permanent Assistant Teacher. According to the petitioner, there is no adverse remarks against him. The petitioner worked to the satisfaction of the management in the Kalamboli Secondary School of 2 the respondent No.2- Society. Wife of the petitioner, appointed as Assistant teacher in the school of Respondent No.2, is also working as Assistant Teacher in the very same school at Kalamboli. The wife of the petitioner is working in the said school without payment and without approval from the concerned department. As such, the petitioner had taken up that issue with the management of the school. It appears that this act of the petitioner is taken as an act of confrontation by the management and the impugned transfer order dated 29.4.2005 was issued, transferring the petitioner to the school at Sutarwadi, Tq. Roha which is 110 Kms. away from the place where the petitioner was working as Assistant teacher since the year 1994. The transfer order dated 29.4.2005 mentions that the petitioner is being transferred on the ground of administrative exigency. This transfer order is the subject matter of challenge in this writ petition filed under Article 226 of the Constitution of India. 3. This Court, while issuing Rule, had also granted interim relief in terms of prayer clause (d), with the result, the transfer order did not take place. The person who was transfered in place of the petitioner did not join. At the same time, the petitioner also did not report at the place of transfer. In short, transfer order has not taken effect. 4. When this petition was admitted after issuance of rule, the petition was served on the respondents, but none of the 3 respondents have filed any counter affidavit or return to controvert the adverse allegations made in the petition. Consequently, all the adverse allegations made in the petition, for want of denial, are deemed to have been admitted. Consequently, in view of the allegations made in the petition and admission thereof, the transfer order cannot be sustained in the eye of law. 5. Consideration : Having heard rival parties, factual matrix reveal that, in the Council Meeting of the Society held on 14.4.2005, a decision was taken not to transfer any employee from any of the schools run by respondent no.2 society. However, in breach of the said decision, the transfer order appears to have been issued on 29.4. 2005 i.e. just within 15 days from their decision not to transfer any employee from one school to another. No justification was offered by the management as to what was the administrative exigency which made to them not to follow their on decision, not to effect transfers. 6. It is not in dispute that alongwith petitioner almost 25 teachers are serving as Assistant Teachers in the subject school. It is not in dispute that all of them are in the same category in which the petitioner is. The petitioner is the only person picked up and transferred. No rational is disclosed on record as to why the petitioner alone was picked up. The criteria adopted by the management while transferring the petitioner is not disclosed. As per 4 the Government policy if husband and wife are serving in the same institution or town, they are required to be retained at the same place as far as possible unless it is very much necessary to separate them. No such special circumstance is brought on record. 7. In the above scenario, the impugned order is clearly arbitrary and without any rational. It appears to be the outcome of vengeance only because the petitioner had taken up the issue of his wife, who was not being paid her regular salary. 8. In the result, the impugned order is liable to be quashed and set aside not being legal and valid. Accordingly, the same is set aside. Rule is made absolute. The petitioner shall be entitled for cost quantified in the sum of Rs.5000/- . Cost to be paid by the Respondent no.2 within 15 days from today. ( MRIDULA BHATKAR, J.) (V. C. DAGA, J.) jpc/-