(1) WP. 1200.2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 1200 OF 2000 AND CIVIL APPLICATION NO. 9547 OF 2009 IN W.P.1200 OF 2000; CIVIL APPLICATION NO. 8551 OF 2003 IN W.P. 1200 OF 2000; CIVIL APPLICATION NO. 738 OF 2001 IN W.P. 1200 OF 2000 Smt Atiraj d/o Ramgopal Baldawa, Age 48 years, Occu.: Service, R/o Banshelki Road, Nai Abadi, Udgir, Taluka Udgir, Dist. Latur .. PETITIONER VERSUS 1] Shamlal Memorial Education Society, Udgir, Taluka Udgir, District Latur, Through its Secretary 2] The Organizer/Secretary, School Co-ordination Committee, Shamlal Memorial Education Society, Udgir, Taluka Udgir, District Latur 3] The Head Master, Shamlal Memorial Secondary & Higher Secondary School Udgir, Taluka Udgir, District Latur 4] The Head Mistress, Shamaraya Secondary & Higher Secondary Girls School, Udgir, Taluka Udgir, District Latur 5] Gyandeo s/o Eknathrao Suryawanshi Age : Major, Occu.: Service in Shamlal Higher Secondary School Udgir, Taluka Udgir, District Latur, R/o C/o as above (2) WP. 1200.2000 6] Ajay S/o Satishkumar Shrivastava, Age : Major, Occu.: Service in Shamraya Girls Higher Secondary School, Udgir, Taluka Udgir, District Latur, R/o C/o As above 7] The Deputy Director of Education, Aurangabad Region, Aurangabad 8] The Education Officer (Secondary), Zilla Parishad, Latur, Dist. Latur 9] The State of Maharashtra (Respondents 7 to 9 to be served through Government Pleader, High Court of Bombay, Bench at Aurangabad) .. RESPONDENTS Mr. V.V. Bhavthankar, Advocate for the Petitioner Mr. M.P. Gude, Advocate h/f. Mr. S.S. Arya, Advocate for the respondent nos. 1 to 4 None present for the respondent no.6 Mr. N.H. Borade, AGP for respondent nos. 7 to 9 ... CORAM : V.R. KINGAONKAR, J. DATED : 28TH JUNE, 2010 ORAL JUDGMENT:- 1] The petitioner challenges order dated 20.7.1006 whereby she was allegedly demoted to the original post as Assistant Teacher in Secondary Section. of the school from the post of Junior Lecturer in Higher Secondary School and the order (3) WP. 1200.2000 dated 24.2.2000 passed by the learned Presiding Officer, School Tribunal, Aurangabad in Appeal no. 223 of 1996 whereby the Appeal came to be dismissed. 2] It is an admitted fact that the petitioner was employed as Assistant Teacher on establishment of the respondent no.1. Respondent No.1 Shamlal Memorial Education Society, Udgir is a trust registered under the provisions of the Co-operative Societies Act as Educational trust. It runs various schools and colleges etc. The petitioner was appointed as Assistant Teacher on establishment of one of the school called Shamaraya Kanyya Vidyalaya, Udgir. The petitioner is M.A.B.Ed.. By her application (Exh.D to the Petition) dated 11.10.1990 she brought to the notice of the respondent no.2 her grievances regarding omission to show her educational qualification on the muster roll. The petitioner was shifted from Shamlal Memorial High School to Shamaraya Kanyya Vidyalaya as per the Officer order dated 1.1.1995 (Exh. G to the Petition). The order of transfer and promotion was made effective from 2.1.1995. There is no dispute about the fact that the petitioner joined the duties of the promotional post on 7.1.1995. She was assigned the duties as per the flow chart drawn by the Higher Secondary school. There is also no dispute about the fact that she was previously working in the pay scale of Rs.1400-2600 but after the joining duty on the promotional post, (4) WP. 1200.2000 her pay scale was Rs.2000-3200. It appears that due to non-approval of her posting in the Higher Secondary school, by the Educational Officer, she was again shifted to the original post as Assistant Teacher in the Shamlal Memorial High School. She preferred appeal (Appeal no. 223 of 1996) alleging that she was illegally demoted as Assistant Teacher without any fault on her part. Initially, the School Tribunal issued ex-parte ad-interim stay. The appeal preferred by the petitioner came to be dismissed vide order impugned in this Petition. 3] Heard learned counsel for the parties and learned AGP. 4] Question involved in the Petition is whether the petitioner was promoted by the respondent nos. 1 and 2 and as such was transferred to work in the Higher Secondary School. The School Tribunal held that there was only internal arrangement made by respondent nos. 1 and 2 and the petitioner was never promoted in lawful manner. It was the contention of the respondent nos. 1 to 3 that the shifting of the petitioner from Secondary school to Higher Secondary school was only by way of administrative convenience and it was not at all done with a view to promote the petitioner. In other words, it was contended that transfer of the petitioner was a part of the administrative requirement. It is the case of the (5) WP. 1200.2000 respondents 1 and 2 that temporary arrangement was made for shifting of the petitioner to the Higher Secondary school but lateron such arrangement was withdrawn owing to administrative exigency. It is the specific stand taken by the respondent nos.1 and 2 that the petitioner was not promoted as such to the higher post. 5] It is pertinent to note that the text of the order dated 1.1.1995 (Exh.G to the Petition) unmistakably show that the petitioner was not only transferred to the establishment of Shamlal Memorial Higher Secondary School but it was on promotion granted in her favour. The following part of the said order may be reproduced in order to consider the intention of the Co-ordinating Committe. " fuEu uke funsZfÓr fÓ{kd deZpkjh uke ds lEeqÂ nÓkZ;s x, vkLÉkiuk rÉk osruJs.kh es LÉykarjlg inksUurh nh tk jgh gS k ;g vknsÓ fn+. 02.01.1995 +ls fdz;kfUor gksxk." . The words " LÉykarjlg inksUurh" (transfer alongwith promotion) are more important. The management clearly intend to promote the petitioner. The scales for both the posts are quite different. It appears that the petitioner was working as Assistant Teacher in the scale of Rs.1400-2600 whereas she was appointed as Assistant Teacher In Shamlal Memorial Higher Secondary School (Junior College) on the scale of (6) WP. 1200.2000 Rs.2000-3200. It is nobody's case that any separate contract was entered into by the parties regarding the so-called arrangement of shifting the services of the petitioner to the Higher Secondary school from the Secondary school. 6] At this juncture, I shall proceed to examine purport of Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (for short "M.E.P.S. Rules"). Particularly, sub rule 5 of Rule 41 is required to be reproduced as below:- 41. Transfers : (1) ... (2) ... (3) ... (4) ... (5) Where a Management runs a secondary school or secondary schools and a Junior College of Education - (a) Teachers in a Junior College or Education shall not be transferred to a secondary school against their will. Such transfers may, however, be made if they are at employee’s own requests, subject to availability of vacancies in secondary schools. In the event of such a transfer, the pay drawn by the teacher in the Junior College of Education shall not be protected. He shall be deemed to be working in a secondary school during the period he worked (7) WP. 1200.2000 in the Junior College of Education, and his pay shall be accordingly refixed on his rejoining the secondary school. (b) Teachers in secondary school shall not be transferred to a Junior College of Education against their will. Such transfers may, however, be made if they are at the employees’ own requests, subject to the following conditions namely : (i) Vacancies should be available in the Junior College of Education; (ii) The concerned employee shall retain the same place in the common seniority list; and (iii) Their pay in the Junior College of Education shall be fixed at the same stage of pay as their existing pay at the minimum of the scale of pay in the Junior College of Education, whichever is higher. Perusal of the above rule would make it amply clear that a teacher in Junior College of Education cannot be transferred to a secondary school against his/her will. The inter-se transfer from the Junior College to the Secondary school cannot be effected without consent of the concerned employee. It is not the case of the respondents 1 and 2 that required consent of the petitioner was obtained before she was transferred from Higher Secondary School (Junior College) to Secondary School. The purport of Rule 41 (5)(a) is to dis-allow the management from frequent shifting of teaching staff members from one (8) WP. 1200.2000 section to another. The impugned order therefore was in flagrant violation of Rule 41(5). This aspect is not considered by the School Tribunal. 7] What appears from the record is that the learned Presiding Officer of the School Tribunal was much impressed by the observations in "Vidya Vikas Samiti, Paratwada and anr. Vs. Presiding Officer, School Tribunal, Amravati Division, Amravati and others 1998(2) Bom.C.R. 769". In the given case, the Hon'ble Division Bench held that in absence of promotion, the bringing back of the employee to his original position as Assistant Teacher could not amount to reversion. In the present case there is clear evidence to show that the petitioner was promoted. In the case of "Vidya Vikas Samiti, Paratwada" (supra), the aggrieved person was shifted from Middle School to Junior College as a Lecturer. The Hon'ble Division Bench observed "Shri Bonde was already working as an Assistant Teacher in the Middle School. He was M.A. IIIrd Class in Economics and also B.Ed. As such he could not have taught subject of Economics in Junior College." This is not the fact situation in the present case. The petitioner was well qualified being M.A. (Hindi) and B.Ed. to teach subject of Hindi language in the Junior College. The scale of Shri Bonde was not apparently changed inspite of his transfer from the Middle School to the Higher Secondary School. The facts (9) WP. 1200.2000 obtained in the present case show, however, that the petitioner was granted higher pay scale which was available to the post of Assistant Teacher in the Junior College. (Higher Secondary Division). Under these circumstances, the facts of the present case and "Vidya Vikas Samiti, Paratwada" (supra) stand on quite different footing. 8] Once it is found that the petitioner was promoted to the post of Assistant Teacher in higher scale of pay, it follows that she could not be re- transferred to the Secondary School without her consent. Such kind of re-transfer is impermissible in view of Rule 41(5)(a) of the M.E.P.S. Rules. It appears however that the respondent nos. 1 and 2 effected such transfer due to non-approval of the promotion granted to the petitioner by the Education Officer. The non-approval of such arrangement viz. "promotion" by itself cannot be sufficient ground to effect demotion of the petitioner. She was not given any notice before the demotion on the other hand she was served with a communication dated 30.5.1996 (Exh.R-4 to the Petition) whereby she was asked whether she wanted to continue her services in the Higher Secondary Section. She herself did not seek any such transfer order from Higher Secondary section to Secondary section of the school. Needless to say, unilateral action of the respondent no.1 and 2 was illegal and improper. The petitioner was not given (10) WP. 1200.2000 due opportunity of hearing before passing of such order of transfer and demotion. What appears from the record is that there were certain allegations of the petitioner's faults and alleged mis-conduct. The reversion of the petitioner in the lower scale could not be effected without giving her due opportunity of representing her case. If the promotion was not approved by the Deputy Director, then there was no occasion to issue the communication dated 30.5.1996 whereby the petitioner was informed that her appointment was approved by the Deputy Director. 9] The petitioner has retired from service on 28.2.2010. It is amply clear that she was deprived of the promotional post and pay without any fault on her part. The impugned judgment of the School Tribunal is perverse. School Tribunal did not consider any other issue and simply relied on the observations in the case of "Vidya Vikas Samiti, Paratwada" (Supra). Impugned judgment is therefore quite unsustainable and liable to be interferred with. For the reasons discussed hereinabove, the impugned judgment is set aside. Petition is allowed. Accordingly, the respondents shall pay the difference of pay to the petitioner in respect of the scale which was made available to her as Assistant Teacher in the Secondary School and pay scale available to the promotional post as Assistant Teacher in the Higher Secondary School, from the date of alleged (11) WP. 1200.2000 demotion till the date of her superannuation, including the amount of increased salary as a result of 4th, 5th and 6th pay commission and so on and so forth. The benefits of difference of pay, D.A. etc. shall be worked out and be paid to the petitioner within a period of 2 months. The pension papers shall be submitted by considering the higher pay available to the post of Assistant Teacher in the Higher Secondary School and the process of sending the pension papers shall be commenced immediately and the same shall be sent within a period of 4 weeks. Rule made absolute in the above terms. Civil Application nos. 738 of 2001, 8551 of 2003 and 9547 of 2009 also stand disposed of. Sd/- [V.R. KINGAONKAR, J.] arp