1 WP 11322.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 11322 OF 2010 Narayan S/o Zogoji Shinde Age : 34 Yrs., Occ. Service as Laboratory Assistant at Vasantrao Naik High School, Parbhani, R/o : Mangalmurti Nagar, Parbhani, Tq. & Dist. Parbhani. .... PETITIONER V E R S U S 1. The State of Maharashtra Through its Secretary, Education Department, Mantralaya, Mumbai – 400 032. 2. Director Education Department, Pune. 3. Education Officer (Secondary) Zilla Parishad, Parbhani. 4. President, Marathwada Pradesh S.T. V.J. & B.C., Seva Sangh, Parbhani 2 WP 11322.10 Station Road, Parbhani, Tq. & Dist. Parbhani. 5. Head Master Vasantrao Naik High School, Parbhani, Near Super Market, Parbhani, Tq. & Dist. Parbhani. 6. Saleha Nasrin D/o Amar Chaus Age : 41 Yrs., Occ. Service, R/o : Mehraj Chaus Kenning Contractor, Gadiwan Mohalla, Arab Galli, Parbhani, Tq. & Dist. Parbhani. .... RESPONDENTS -------------------------------------------------------------------------------------------------------- Mr. H.A.Joshi, Advocate for the petitioner. Mrs. A.V.Gondhalekar, Asstt. Govt. Pleader for State. Mr. S.B.Bhapkar, Advocate for respondent nos. 4 & 5. Mr. Vivek Dhage, Advocate for respondent no. 6. -------------------------------------------------------------------------------------------------------- CORAM : NARESH H. PATIL & S.V. GANGAPURWALA, JJ. DATE : 18/01/2011 ORDER : 1. The petitioner assails the order dated 16/11/2010 issued by the respondent no. 4, thereby transferring the petitioner to the Secondary Post Basic Ashram School at Aundha Nagnath, Tq. Aundha Nagnath, Dist. Hingoli [ For short, ‘ the Ashram School ’ ]. 3 WP 11322.10 2. The petitioner was promoted to the post of Labotratory Assistant in Vasantrao Naik High School, Parbhani [ For short, ‘ the High School ’ ] by cancelling promotion of one Mr. A.S. Rathod. Said Mr. A.S. Rathod challenged the cancellation of his promotion and promoting the petitioner as Laboratory Assistant before the High Court by filing Writ Petition No. 4754 of 1997. Initially, the said Writ Petition was admitted and stay was granted to the order of cancellation of promotion of said Mr. A.S. Rathod. However, the said Writ Petition was subsequently dismissed and the promotion of the present petitioner was confirmed. 3. The petitioner as such joined as Laboratory Assistant on 23/7/2010. Thereafter, on 16/11/2010, the petitioner vide the Order impugned, is transferred to the Ashram School. The petitioner has assailed the said order. 4. Mr. H.A. Joshi, learned counsel for the petitioner contended that there was no reason for the respondents to transfer the petitioner. The respondent no. 6 is accommodated in the High School and for the said reason, the petitioner has been transferred. It is further contended by Mr. Joshi, learned counsel that the petitioner is transferred to the Ashram School from the High School. According to the learned counsel, the High School comes under the Education Department of the Govt. of Maharashtra, 4 WP 11322.10 whereas the Ashram School comes under the Social Welfare Department. As such, the petitioner could not have been transferred from the High School to the Ashram School. The learned counsel relied on the Judgment of the learned Single Judge of this Court in the case of Bajaj Auto Ltd. V/s Shrikant Vinayak Yogi & Oths. Reported in 2006 (4) Bom.C.R. - 197. 5. Mr. S.B. Bhapkar, learned counsel for the respondent nos. 4 and 5 and Mr. Vivek Dhage, learned counsel for respondent no. 6 contended that the management has power and authority to transfer the petitioner. The petitioner can not claim any right to be retained at the High School. Transfer is an incidence of service. In Writ Petition No. 4801 of 2004 filed by the respondent no. 6, the Division Bench of this Court has restrained the management from interfering in peaceful discharge of duties of the petitioner in the said Writ Petition i.e. the respondent no. 6 as Laboratory Assistant in the High school. The said order is still in force. In light of the said order, two (2 ) persons can not work on the said post and as the petitioner is to be promoted as Laboratory Assistant, the petitioner has been transferred to the Ashram School. There is no bar for the same. 6. Transfer is an incidence of service. The petitioner can not claim any right to be retained at a particular place. This Court would be slow in interfering with the orders of transfer in its extra ordinary writ 5 WP 11322.10 jurisdiction unless the transfer is the result of malafide action. In the present case, this Court in Writ Petition No. 4801 of 2004 has passed following order : “ Heard the learned Advocate for the respective parties. 2. Rule. 3. Read the petition especially para No. 14, which is not disputed. The petitioner was already relieved from place of her previous posting and she took over the charge of the new posting. On perusal of the orders placed on record, prima facie it appears that the order dated 5/6th July, 2004 has been issued malafidely. Interim relief in terms of prayer clause “ C ” and “ D ”. The learned Assistant Government Pleader appearing for respondent No. 1 and the Counsel appearing for respondent Nos. 2, 3 and 4 waive service for the respective respondents. It is hereby accordingly ordered that you, your Officers and your subordinates/agents be and are hereby restrained from interfering in peaceful discharging of duties of the petitioner as 6 WP 11322.10 Laboratory Assistant in Vasantrao Naik High School, Parbhani pending the hearing and final disposal of this Writ Petition ”. 7. In light of the aforesaid order passed by the Division Bench of this Court in Writ Petition No. 4801 of 2004, the management is constrained to retain respondent no. 6 at the High School. In view of the Judgment passed in Writ Petition No. 4754 of 1997, the respondent nos. 4 and 5 are duty bound to promote the present petitioner as Laboratory Assistant. Two ( 2 ) persons can not work on the same post. In view of the prohibitory orders against the respondent nos. 4 and 5 from transferring respondent no. 6 as Laboratory Assistant from the High School, there was no option with the management but to transfer the petitioner on promotion as Laboratory Assistant to the post available with the institution i.e. at the Ashram School. No malafides can be attributed on the part of the management in their action. On the contrary, it is in consonance with the orders passed by this Court in Writ Petition No. 4801 of 2004 and Writ Petition No. 4754 of 2009. If the order of transfer is interfered, then the same would be in conflict with the order of injunction already passed by this Court and which is in force in Writ Petition No. 4801 of 2004. 8. The learned counsel for the petitioner could not point out any provision, which would prohibit the management from transferring a 7 WP 11322.10 person from the High School to the Post Basic Ashram School. 9. The Judgment relied on by the learned counsel for the petitioner in the case of Bajaj Auto Ltd. referred supra is on the premise, wherein the Court come to the conclusion that the transfer was not exercised for achieving efficiency in administration or for other administrative reasons, but the same was exercised for extraneous purpose with ill motive. In the present case, no such malafides are put-forth by the petitioner nor are agitated. 10. In light of the same, the Writ Petition is dismissed, however with no order as to costs. [S.V. GANGAPURWALA, J.] [NARESH H. PATIL,J.] knp/WP 11322.10