( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 2961 OF 2009 1. Shashikant Sahebrao Barge, Age : 40 years, Occupation : Nil. 2. Sau. Manda Ankush Pawar, Age : 40 years, Occupation : Household. 3. Suryabhan Raibhan Watekar, Age : 40 years, Occupation : Nil. All R/o. : Puntamba, Taluka : Rahata, District : Ahmednagar. 4. Sanjay Babasaheb Chavan, Age : 38 years, Occupation : Nil, R/o. Devlali-Pravara, Taluka : Rahuri, District : Ahmednagar. 5. Dhananjay Subhash Sambare, Age : 33 years, Occupation : Nil, R/o. At Rampurwadi, Post : Ekrupee, Taluka : Rahata, District : Ahmednagar. ( 2 ) 6. Dnyaneshwar Nanasaheb Kadam, Age : 38 years, Occupation : Nil, R/o. At & Post : Garwadi, Taluka : Falthan, District : Baramati. 7. Rajnarayan Vishwas Barge, Age : 24 years, Occupation : Nil, R/o. Chinchkhed-Vandan, Taluka & District : Satara. 8. Milind Ramesh Lagade, Age : 30 years, Occupation : Nil, R/o. Indapur, Taluka and Dist. Osmanabad. .. Petitioners. versus 1. Pravra Rural Education Society, Pravra Nagar, Taluka : Rahata, District : Ahmednagar, Through its Secretary. 2. Education Officer (Secondary), Zilla Parishad, Ahmednagar. 3. Divisional Deputy Director of Education, Pune Division, Pune. 4. Director of Education (Secondary & Higher Secondary), Education Secretariat, Maharashtra State, Pune-1. ( 3 ) 5. State of Maharashtra, Through Upper Secretary, School Education and Sports Department, Maharashtra State, Mantralaya, Mumbai. 6. Shivaji s/o. Dada Gore, Age : 40 years, Occupation : Service, R/o. Rajuri, Taluka : Rahata, District : Ahmednagar. 7. Bhaskarrao s/o. Raosaheb Kadu, Age : 42 years, Occupation : Service, R/o. Pathare, Taluka : Rahata, District : Ahmednagar. 8. Raosaheb s/o. Lahanu Bramhane, Age : 43 years, Occupation : Service, R/o. Loni (Kh.), Opp. Police Station, Taluka : Rahata, District : Ahmednagar. 9. Sunil s/o. Shankar Hinge, Age : 42 years, Occupation : Service, R/o. Shiblapur, Taluka : Sangamner, District : Ahmednagar. 10. Suresh s/o. Dhondiba Bamne, Age : 43 years, Occupation : Service, R/o. Umari, Taluka : Sangamner, District : Ahmednagar. .. Respondents. ( 4 ) ....................... Mr. V.J. Dixit, Senior Advocate, holding for Mr. L.V. Sangit, Advocate, for the petitioners. Mr. V.D. Hon, Advocate, for respondent no.1. Mr. K.B. Chaudhary, Additional Government Pleader, for respondent nos.2 to 5. Mr. S.K. Shinde, Advocate, for respondent nos.6 to 10. ........................ CORAM : A.P. DESHPANDE & N.D. DESHPANDE, JJ. Date of reserving the judgment : 26th February 2010. Date of pronouncing the judgment : 4th March 2010. JUDGMENT (Per A.P. Deshpande, J.) : 1. Rule. Rule made returnable forthwith. Taken up for final hearing by consent of parties. 2. The subject matter of this Writ Petition, which is filed under Articles 226 and 227 of the Constitution if India, is a school, by name, Dnanamrut Secondary School, Rampurwadi (Taluka : Rahata, District : Ahmednagar), and the employees ( 5 ) working in the said school. The said school was initially established and administered by one Bhekarai Mata Shikshan Sanstha, Bhekarainagar, Fursungi (Taluka : Haveli, District : Pune). The school was started in the year 1996 when it did not have any recognition. However, it received a recognition in the year 2000. The petitioners in this petition, who are eight in number, were appointed as members of the teaching and non- teaching staff in the said school since its inception. The school initially was granted recognition on no grant basis. However, by passage of time, by an order dated 27th October 2005, having regard to the performance of the school, the school was admitted to 40 % grants under a Government Resolution dated 27th October 2005. Perusal of the Government Resolution reveals that certain parameters were fixed to assess the performance of the schools which were granted recognition on "no grant basis" and the schools of which performance was found to be good, the said schools are admitted to 40 % grant. The name of the school, in question, is to be found at Serial No.23 in the list of schools which came to be admitted to 40 % grants on 27th October 2005. 3. The earlier institution, by name, Bhekrai Mata Shikshan Sanstha, found it difficult to administer the school which was situated in different district and thus, was intending to transfer the school to the respondent no.1. The procedure for transfer of a school is regulated by Rule 12 of the Secondary ( 6 ) School Code and the competent authority to grant permission for transfer of a school is the Deputy Director of Education. The earlier school management moved the Deputy Director of Education, Pune Division, Pune, and assured that services of the teaching and non-teaching staff in the school would be continued without any break. The seniority of the employees will not be adversely affected. The Deputy Director of Education favourably considered the request of the erstwhile management and permitted transfer of the school in favour of the respondent no.1 by an order dated 26th January 2006. The permission to transfer was granted with effect from June 2005 i.e. from commencement of the academic session 2005-06. The Deputy Director of Education laid down the conditions subject to which the transfer was permitted. The material conditions which are to be found in the order are thus : (1) That, the transferee Management would absorb all the eligible teaching and non-teaching staff members in its employment; (2) By virtue of transfer of the school, service conditions of the employees should not be adversely affected; and ( 7 ) (3) That, if any difficulties are faced, on account of the transfer, both the institutions will be responsible for the same. It can thus be seen that, in law, the present respondent no.1 became the employer of the petitioners with effect from 23rd January 2006. It is the case of the petitioners, that four petitioners were granted approval by the Education Officer (Secondary), Zilla Parishad, Ahmednagar, vide communication dated 21st December 2002, with effect from 13-6-2000, it being the date of recognition of the school, on "no grant basis". A teacher, by name, Chavan S.B., was granted approval with effect from 13-6-2002 by communication dated 27-4-2005, on "no grant basis". Another teacher, by name, Lagade M.R., was granted approval with effect from 14-6-2004, by communication dated 30th September 2005, and two other employees, who are members of the non-teaching staff, were granted approval with effect from 10-6-2005 by the Education Officer. It can thus be seen that all the employees, who are petitioners in this petition, were not only appointed by the transferer institution, but their services were also approved by the Education Officer, even before the actual transfer was effected in law. 4. The petitioners' grievance is that after the transfer of the school in favour of respondent no.1, the first respondent ( 8 ) transferred the petitioners to different unaided schools and hence the petitioners objected to the said transfers by approaching the Deputy Director of Education. The Deputy Director of Education held that the transfer of the petitioners to unaided schools was not justified and was illegal. Aggrieved by the order passed by the Deputy Director of Education, the respondent no.1 approached the Director of Education. The Director of Education, concurring with the view taken by the Deputy Director, dismissed the appeal of the management and not being satisfied with the orders passed by the Deputy Director of Education and the Director of Education, the respondent no.1 approached the State Government by making a representation. It is this order passed by the State Government, which goes to set aside the orders passed by the Deputy Director of Education and the Director of Education, which is challenged by the petitioners in this petition. 5. One relevant fact which needs to be mentioned is that the school, in question, was informed vide communication dated 10th October 2006, by the Education Officer, that the said school has been admitted to the balance 60 % grants with effect from September 2006. Thus, it can be seen that the school was admitted to 40 % grants prior to the transfer and to 60 % grants, after the transfer. The main objection of the respondent no.1 is that they had not submitted any proposal to the Government for ( 9 ) releasing grants and/or for seeking approval to the appointments of employees working in the school. It is submitted that the employees themselves, in collusion with the Head Master, forwarded the proposal and, as such, neither the approval granted to the petitioners nor the financial aid granted to the school, is legal. 6. It is also the case of the respondent no.1, that on 21st October 2003 itself, the transferrer institution and the transferee institution (respondent no.1) had entered into an agreement for transfer of the school and under the said agreement, as a matter of fact, the respondent no.1 had taken over the administration and management of the school and hence any proposal sent by any one else, barring the respondent no.1, either for grant of approval or release of grants, could not have been considered. Suffice it to state, that a school cannot be treated as a property which could be transferred under a private agreement. The same would be opposed to public policy and hence, the submission of the respondent no.1, that it has assumed the control of the affairs of the school, even before the Deputy Director granted permission under Rule 12 of the Secondary School Code, cannot be accepted. 7. The transfer of the school in favour of respondent no. 1 can be accepted as legal only from the date on which the ( 10 ) Deputy Director of Education granted permission subject to the conditions imposed thereunder. The Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977, and the Rules framed thereunder, which regulate the service conditions of employees of the Secondary School, vest the employees with certain rights. It is a matter of common knowledge, that if an employee is working in an aided school, his salary is released by the Education Officer from the State's exchequer and the same is paid through a bank account, whereas in an unaided school, it is the management who pays the salary and decides the mode of payment. In case of employees working in an aided school, regular payment of salary from the State's exchequer is secured, which is not so in an unaided school. Relying on the approvals accorded by the Education Officer, to the appointments of the petitioners, initially on "no grant basis" and thereafter on "grantable basis", it is contended that the petitioners have a legal right to the status of an approved employee in an aided school. It is not in dispute, that none of the petitioners are being treated as approved employees in the aided school. 8. As stated herein above, the Deputy Director of Education had declared that the petitioners cannot be transferred to unaided schools by its order dated 28th January 2008, which order is confirmed on 25th November 2008 by the Director of ( 11 ) Education. The respondent no.1 challenged the said order by approaching the State Government and the State Government having set aside both the orders Deputy Director of Education and the Director of Education, this petition is filed. 9. The petitioners have contended that the orders passed in their favour by the authorities came to be quashed by the State Government without hearing the petitioners. This fact, that the impugned order has been passed without affording an opportunity of hearing to the petitioners, before passing the impugned order dated 1st June 2009, is not in dispute, rather it is an admitted position that opportunity of hearing was granted to the respondent no.1 only and without affording an opportunity of hearing to the petitioners, the impugned order has been passed. That being the position, the impugned order is wholly unsustainable in law and has to be quashed. A perusal of the order itself reveals that though all the high officials of the Education Department were invited at the time of hearing, the petitioners were not heard. The only reason that is spelt out in the impugned order, to set aside the order passed by the Director of Education, is that the proposal for claiming grants was submitted by the earlier institution, after 25th June 2005, it being the date from which transfer has been permitted under an order dated 23rd January 2006. As is evident from the orders of approval passed by the Education Officer, approving the ( 12 ) appointments of the petitioners, that the said orders are issued much prior in point of time than the order permitting transfer. The school was also admitted to 40 % grants, much before the transfer of the school was permitted. After the transfer of the school, the school has been admitted to balance 60 % grants. The schools are admitted to grants after assessing the performance and not on the basis of a proposal submitted by the management. We really fail to understand, as to how come the respondent no.1 be aggrieved if the school is admitted to 100 % grants, rather the same goes to benefit the respondent no.1. The endeavour on the part of respondent no.1 to object to the approvals and release of grants is to deny the benefits accrued to the petitioners mala fidely. This being the position, we have no iota of doubt that those staff members who were working in the subject school prior to transfer, are entitled to the protection in regard to their service under the orders permitting the transfer itself. All the petitioners seem to have received the approval orders even before actual transfer and with a risk of repetition, it is reiterated that the school was admitted to 40 % grants under the Government Resolution dated 27th October 2005, whereas the transfer of the school has been approved by an order dated 23rd January 2006 with effect from June 2005. 10. The order passed by the State Government is also attacked on the ground that there is no provision under the ( 13 ) Secondary School Code empowering the Government to entertain an appeal/revision against an order passed by the Director of Education. We do not propose to go into this question as we are of the clear view that the impugned order passed by the State Government is unsustainable in law, both on merit and being in violation of principles of natural justice, inasmuch as, the present petitioners were not afforded an opportunity of hearing before quashing and setting aside the order passed by the Director of Education, which is in favour of the petitioners. We have no hesitation to observe that as civil rights of the petitioners are adversely affected by the impugned order passed by the State Government, the State Government was obliged to afford an opportunity of hearing, which having not been done, the impugned order has to be set aside. 11. In the result, the Writ Petition is allowed. The impugned order passed by the State Government, dated 18th December 2008, is quashed and set aside. We direct the respondent no.1 to treat the petitioners, as approved members of teaching and/or non-teaching staff, as the case may be, of an aided school. We confirm the declaration made by the Director of Education, that a teaching or non-teaching staff member, whose services are approved, in an aided school, cannot be transferred to unaided school. ( 14 ) 12. Rule is made absolute in the above terms. There shall be no order as to costs. ( N.D. DESHPANDE ) ( A.P. DESHPANDE ) JUDGE JUDGE ......................... DATE : 4TH MARCH 2010 13. At this stage, Mr. V.D. Hon, learned Counsel appearing for respondent no.1 / Education Society, seeks stay of this order. 14. Having regard to the facts and circumstances of the case, we cannot accede to the request made by the learned Counsel for respondent no.1 and the prayer, thus, stands rejected. ( N.D. DESHPANDE ) ( A.P. DESHPANDE ) JUDGE JUDGE ......................... bgp/WP2961