{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3333 OF 2009 Madhukar Sonaji Shinde R/o Koushayanagar, Shrirampur Dist-Ahmednagar PETITIONER VERSUS 1. The State of Maharashtra Through its Secretary, Department of Secondary Education, Mantralaya, Mumbai 2. Hind Seva Mandal, Ahmednagar Borkarnagar, Sarda College Ground, Nagar Savedi Road, Ahmednagar Through its Honorary Secretary 3. Kashinath Sonaji Murkute R/o C/o Bharat Vidyalaya, Mirajgaon Taluka-Karjat, Dist-Ahmednagar RESPONDENTS ....... Mr.S.S.Jadhavar, Advocate for petitioner Mr.V.B.Ghatge, AGP for respondent No.1 Mr.V.J.Dixit Sr. Counsel i/b Mr.S.B.Yavalkar for Respondents 2 & 3 ....... [CORAM : P.V.HARDAS, and A.V.POTDAR, J.J.] DATE : 28th July 2009 {2} ORAL ORDER (PER A.V.POTDAR, J.) : 1. By the present writ petition, under Article 226 of the Constitution of India, the petitioner challenges order of transfer issued by respondent No.2 management on 25.05.2009 thereby transferring the petitioner from Shrirampur to Mirajgaon. 2. Facts which gave rise to file the present writ petition may briefly be stated thus- The petitioner is serving in the educational institution run by respondent No.2 management i.e. Hind Seva Mandal, Ahmednagar. Respondent No.2 runs 17 high schools and 3 primary schools. The petitioner joined services of respondent No.2 as Assistant Teacher on 12.08.1977 and during his service tenure he came to be promoted to the post of Head Master. During this period, the petitioner was transferred about 12 times at various places and presently he is working as Head Master in the school run by respondent No.2 at Shrirampur. According to the petitioner these transfers were contrary to the provisions of Rule 41 of the Maharashtra Employees of Private Schools Rule. Though the transfers were arbitrary yet the petitioner accepted it without any hindrance. Wife of the petitioner is also serving in the school run by respondent No.2 management and at present she is working as Head Mistress in the school at Shrirampur. The wife of the petitioner is also transferred at various places for about 4 times. {3} These transfers were also accepted by the wife of the petitioner and petitioner himself. According to the petitioner, at present his age is 56 years and he is due for retirement in the month of June 2011. It is contended that he suffers from blood pressure and allergic asthma and due to the said ailments he requires to take only home food. According to the petitioner though there was no administrative necessity yet the petitioner came to be transferred on 25.05.2009 from Shrirampur to Mirajgaon, which is 150 kms away from Shrirampur. According to the petitioner, it is the policy that couple should be posted at one place, however due to this transfer family of the petitioner is disturbed at the time when he was on the verge of retirement and suffering from health problems. It is alleged that it is the modus operandi of respondent No.2 management to transfer employees working with them, who are at the verge of retirement, at inconvenient place so as to compel the employee to opt for voluntary retirement to avoid hardships and harassment due to transfer at inconvenient place and if the employee opts for voluntary retirement respondent No.2 immediately fills up that vacancy by accepting huge donations. Therefore, as the transfer of the petitioner is malafide and without any administrative necessity the petitioner is constrained to file the present writ petition challenging the impugned transfer order. 3. Respondent No.2 has filed affidavit in reply. It is contended that though the petitioner was already relieved from Shrirampur yet due to interim orders passed by this Hon’ble Court, {4} he is allowed to join at Shrirampur inspite of the fact that respondent No.3 has also joined at Shrirampur and due to this the post of Head Master at Mirajgaon is lying vacant at present and functioning of both the schools has disturbed. According to respondent No.2, the transfer of the petitioner is due the administrative necessity and because of the said transfer neither the petitioner is reduced in rank nor his pay scale is affected. In paragraphs No.6 and 7 of the affidavit in reply management has given instances of transfer of the petitioner at various places during his service tenure from 1977 till today. It is contended that barring one or two occasions, the petitioner has rendered his entire service in the vicinity of Shrirampur and nearby schools which did not cause any inconvenience to the petitioner. In paragraph 8 the respondent has given instances of transfer of wife of the petitioner, which shows that barring one or two occasions, that too only for few months, the wife of the petitioner rendered her entire service in the vicinity of Shrirampur. It is also contended that due to complaints received against the petitioner as well as against his wife, the management was constrained to transfer the petitioner from Shrirampur to Mirajgaon. The documents annexed with the reply indicate that on various counts leave was obtained by the petitioner and was granted by the management, however the leave applications do not disclose that petitioner has availed leave on account of his ill health or that he is taking medical treatment. In the premise, it is prayed to dismiss the writ petition. {5} 4. The petitioner has filed affidavit in rejoinder to the reply filed by the management. 5. In this backdrop heard learned counsel for the parties. Entries in service book of the petitioner clearly disclose that the petitioner as well as his wife were accommodated by respondent management as they rendered their entire service in the close vicinity of Shrirampur. 6. Rule 41 of the MEPS Rules mandates that employees working in the educational institutions can be transferred from one school to another school run by the same management in case of administrative convenience and necessity. Certain exceptions are given under this Rule when the transfer can be challenged i.e. if the transfer is on malafide grounds and without any administrative exigency, or the transfer is in punitive nature except this transfer of employee cannot be challenged under this Rule. The documents on record clearly indicate that the petitioner has not placed on record any document to show that the petitioner is suffering from ill health. It is not the contention of the petitioner that at the place where he is sought to be transferred i.e. Mirajgaon no medical facilities are available. The only objection raised by the petitioner is that due to his ill health and advanced age, as he is on the verge of retirement, he is in need of home food. As it is not the case of the petitioner that medical facilities are not available at Mirajgaon and no medical papers are coming forth disclosing ailment of the {6} petitioner, this ground, to challenge the impugned transfer, is of no avail. So far as allegations in respect of malafides are concerned, there is no denial about the complaints against the petitioner and his wife by parents of pupils studying in the schools, and the justification of the petitioner that those instances took place in past, is also of no avail to the petitioner to agitate against the impugned transfer. Contention in respect of the ill motive of respondent No.2 in respect of alleged modus operandi, as alleged by the petitioner, does not stand to reason as there is nothing on record to show that that such type of tactics are placed by the management and the employees working with respondent No.2 are forced to opt for voluntary retirement. In short, grounds on which the impugned transfer is challenged by the petitioner are without any substance and the petition is devoid of any merits and, therefore, requires to be dismissed. Accordingly, writ petition, which is sans merits, is dismissed in liminie with no order as to costs. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/wp3333-09