1 wp1044.11.sxw IN THE HIGH COURT OF JDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1044 OF 2011 Deepa Dattatraya Patil-Sokashi Age 57 Y., Occu: Service (Headmistress), R/o: 'Shital' Datta Vasahat, Ashta, Tal. Walwa, District : Sangli ...Petitioner. Vs. 1. State of Maharashtra 2. The Deputy Director of Education (Secondary & Higher Secondary), Kolhapur Region, Kolhapur. 3. Educational Officer (Secondary) Zilla Parishad Sangli 4. Rayat Shikshan Sanstha Satara, Tal. Satara, Dist. Satara Through Secretary J.G. Jadhav 5. Shri G.S. Khot, Joint Secterary (sec) Rayat Shikshan Sanstha Satara Tal. Satara, Dist. Satara 6. Pushpavati Dadasaheb Patil Shantinagar, Hupari, Tal. Hatkanagle 2 wp1044.11.sxw Dist. Kolhapur. 7. Krantildevi Ashok Meheta Patrakarangar, Tal. Miraj Sangli 8. Smt. Bebi Ramesh Lad Rukminibai Kadam Kanya Vidyalayta at Umbraj, Tal. Karad, Dist. Satara ... Respondents. Mr. S.A. Rajeshirke for the Petitioner. Mr. Milind Deshmukh for the Respondent Nos. 4 and 5. None for Respondent Nos. 6 to 8. CORAM : J.P. DEVADHAR AND A.A. SAYED, JJ. DATE : 2ND MAY, 2011. JUDGMENT (PER A.A. SAYED, J.) 1. Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2. By the above petition, the petitioner has challenged her transfer order dated 29-12-2010 and the consequent relieving order dated 31-12-2010. 3 wp1044.11.sxw 3. By the impugned order dated 29-12-2010 the petitioner, who was working as a Head Mistress in Dadasaheb Admute (Langade) Kanya Vidyalaya, Dudhgaon, Taluka Miraj, District Sangli, was transferred to New English School for Girls, at Malkapur. 4. The case of the petitioner is that the transfer order was contrary to the mandate of Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981 (hereinafter referred to as 'MEPS Rules'). It is submitted by the learned Counsel for the petitioner that the transfers are generally prohibited by Rule 41 unless they are required to be made for administrative reasons or as a consequences of promotion or where the employee himself makes the request for transfer. It is contended that in the present case, none of the three exceptions exists and therefore, the transfer order is bad in law. It is also submitted that the transfer order is malafide inasmuch as the transfer order has been passed to accommodate respondent No.6 in the the Laxmi Devi Girls School at Hupari. It is further pointed out that though Rule 41 of MEPS Rules specifically provides that the transfer shall not be effected in the middle of term, save in exceptional cases and unless the reasons are recorded in writing by the management, in the present case no reasons have been stated in the transfer order why the 4 wp1044.11.sxw transfer has been effected in the middle of term. It is asserted that this is not an exceptional case where the transfer should have been effected in the middle of the term. It is further pointed out that the petitioner is on the verge of retirement and she is due to retire on 31-5-2012. The learned Counsel for the petitioner has relied upon the order dated 22nd October, 2010, passed by the Division Bench of this Court in the case of Pawar Bhagwantrao Bhivrao Vs. Shri Swami Vivekanand Shikshan Sanstha, Kolhapur & Ors. in Writ Petition No. 4819 of 2010 to contend that in a similar case, the transfer order was set aside as contrary to the Rule 41 of the MEPS Rules. The learned Counsel for the petitioner has also relied upon the case of Meera Sahani Vs. Lieutenant Governor of Delhi & Others, reported in (2008) 9 SCC 177 in support of his contention that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed and in no other manner. 5. The learned Counsel for the respondent No.5 Management on the other hand submitted that the post of Head Mistress fell vacant in Rukminibai Kadam Kanya Vidyalaya at Umbraj due to retirement by superannuation of the Head Mistress working there and as the post become vacant, it become necessary to fill the said post and therefore, it was necessary for the Management to make transfers on administrative ground. 5 wp1044.11.sxw The learned Counsel submitted that there was no malafides and the transfer was effected looking to the exigencies of the situation. It is submitted that the petitioner herself was transferred to the present school at Dudhgaon where she is the Headmistress in the middle of the term. 6. We have heard the learned Counsel for the parties and perused the material on record. It would at the outset be apposite to extract Rule 41(1) and (2) of MEPS Rules. They read as under : "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." 7. Perusal of the aforesaid sub-rule (1) of Rule 41 makes it clear that the transfer of employees of recognized private schools are generally prohibited. There are three exceptions to this general rule, which are as under : (1) When the transfers become necessary on administrative grounds, (2) When employee is being promoted, (3) When employee himself requests for transfer. 6 wp1044.11.sxw Sub-rule (2) of Rule 41 provides that only in exceptional cases and unless reasons are recorded in writing by the Management, transfers shall not be effected in the middle of the term. 8. Perusal of the impugned transfer order indicates that transfer is effected in the middle of the term and further that no reasons have been given for the transfer in the middle of the term. The transfer order merely states that "you have been transferred on administrative grounds". The language of Rule 41(2) makes it abundantly clear that save in exceptional cases, and unless reasons are recorded in writing, the transfers should not be effected in the middle of the term. 9. In the circumstances, we find that the transfer order impugned in the petition is contrary to the provisions of Rule 41 and on this count alone the petitioner is entitled to succeed and we need not go into the ground of malafides alleged by the petitioner. We also note that the petitioner is on the verge of retirement and she is due to retire on 31st May, 2012. 10. In the result therefore, the petition succeeds. Rule is made absolute in terms of prayer clause (b), which reads as under : 7 wp1044.11.sxw "The Hon'ble Court may after considering legality, validity and proprietary of orders be pleased to quash and set aside order bearing no.Est/Tr/SR/16659 dated 29-12-2010 of transfer of the Petitioner with effect from 1-1-2011 issued by Respondent no. 5 (Exh.D to Petition) and order of relieving bearing outward no. 293/2010-2011, dated 31-12-2010 (Exh. F to the Petition)." 11. The petition to stand disposed of accordingly. ( A.A. SAYED, J. ) (J.P. D EVADHAR, J.)