Transfer of teaching and as well as non-teaching staff un-aided School to aided school to be permitted : Bombay High Court

 on 04 08 2021 on 06 08 8.wp.3154.21.docIN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTIONWRIT PETITION NO. 3154 OF 20211)Namdev Tukaram Patil Aged 35 Years Occ. ServiceR o. Ibrahimpur Tal. Chandgad Dist. Kolhapur.2)Sharada Shikshan Prasarak Mandal Yashwant Nagar(Office at Patane Phata Tal. Chandgad Dist. Kolhapur Through its Chairman Secretary… PetitionersVersus1)The State of MaharashtraThrough the Secretary School Education Department Mantralaya Mumbai 400 032.2)The Education Officer(Secondary) Zilla Parishad Kolhapur. …Respondents…...…Mr. N.V. Bandiwadekar a w Mr. Vinayak Kumbhar i b Ashwini N.Bandiwadekar for the Petitioners.Mr. N.C. Walimbe A.G.P. for the State Respondent Nos.1 and 2.…...…CORAM : R.D. DHANUKA & R.I. CHAGLA JJ. DATE : 28th JULY 2021. from un aided School to aidedWaghmare 2 6 on 04 08 2021 on 06 08 8.wp.3154.21.docSchool of Petitioner No.2 Management and seeks approval to the saidtransfer w.e.f. 15.06.2016 and for an order to release the grant in aidfor payment of monthly salary.4The Petitioner No.1 was appointed as a Peon on11.06.2003 in the unaided school of Petitioner No.2. The saidappointment was approved by the Education Officer on 24.08.2014.On 15.06.2016 Petitioner No.2 transferred the Petitioner No.1 from theun aided school to the aided school in the post of Peon. The proposalwas submitted by the Head Master of the aided school to RespondentNo.2. On 31.12.2016 the Head Master of the aided school submittedthe proposal to Respondent No.2 for approval in respect of the saidtransfer. On 31.12.2017 the Respondent No.2 refused to grantapproval to the said transfer of the Petitioner No.1 from unaidedschool to aided school. On 20.05.2020 the Head Master of the schoolresubmitted the proposal to Respondent No.2. Respondent No.2further declined to entertain the said proposal. The Petitionersaccordingly filed this Petition. 5Mr. Bandiwadekar learned Counsel for the Petitioners invited our attention to various documents annexed with the Petitionincluding order of approval granted by Respondent No.2 in respect ofWaghmare 3 6 on 04 08 2021 on 06 08 8.wp.3154.21.docthe appointment of the Petitioner as a Peon in the unaided school.Respondent No.2 refused to grant the approval. The learned Counselfor the Petitioners invited our attention to the judgment delivered bythis Court on 08.10.2020 in Writ Petition No.86419 filed byRajaram S. Mandale and another vs. The State of Maharashtra andvarious other judgments annexed to the Writ Petition. It is submittedby the learned Counsel for the Petitioners that Rule 41 of theMaharashtra Employees of Private Schoolswould clearly indicate that‘employee’ means any member of the teaching and non teaching of arecognized school. The Respondent No.2 does not dispute thatPetitioner No.2 School is recognized school. In our view the Petitionerwas holding post of Peon and was thus an employee within theWaghmare 5 6 on 04 08 2021 on 06 08 8.wp.3154.21.docmeaning of employee under Section 2(7) read with Rule 41 of theM.E.P.S. Rules. 10The Division Bench of this Court in case of Rajaram S.Mandalehas held that Rule 41 applies to all employees bothteaching and non teaching as defined in the Maharashtra Employeesof Private SchoolsRegulation Act 1977 of arecognized school. Rule 41 thus permits transfer of teaching and aswell as non teaching staff of a recognized school. 11In our view the said judgment of this Court applies to thefacts of this Petition. In our view the impugned order passed byRespondent No.2 thus deserves to be quashed and set aside. It isordered accordingly. Respondent No.2 is directed to approve thetransfer of the Petitioner No.1 w.e.f. 15.06.2016 and sanction thepayment of monthly salary applicable to the said post from that date.Respondent No.2 shall comply with this order within six weeks fromtoday. 12Rule is made absolute in aforesaid terms. Writ Petition isdisposed of. There shall be no order as to costs. Parties to act on theauthenticated copy of this order.( R.I. CHAGLA J. ) ( R.D. DHANUKA J. )Waghmare 6 6 

Summary: The intended meaning of Rules and Regulations in place can often be misunderstood to have only a specific, narrow application, however after careful analyzation, the application of the rule could be much wider. This was held in the judgment passed by a two bench judge comprising HON’BLE MR. JUSTICE R. D. DHANUKA AND JUSTICE R.I.CHAGLA, in the matter of Namdev Tukaram Patil, Sharada Shikshan Prasarak Mandal V. The State of Maharashtra, The Education Officer dealt with an issue where the petitioner impugned the order that refused grant approval to the transfer of the Petitioner No.1 as a Peon (non-teaching employee) from un-aided School to aided. On 15.06.2016, Petitioner No.2 transferred the Petitioner No.1 from the un-aided school to the aided school in the post of Peon. On 31.12.2016 the Head Master of the aided school submitted the proposal to Respondent No.2 for approval in respect of the said transfer. On 31.12.2017 the Respondent No.2 refused to grant approval to the said transfer of the Petitioner No.1 from unaided school to aided school. The Counsel for the Petitioners, invited attention to various documents annexed with the Petition including order of approval granted by Respondent No.2 in respect of the appointment of the Petitioner as a Peon in the unaided school. Respondent No.2 refused to grant the approval. The counsel for petitioner placed reliance on Rajaram S. Mandale and another vs. The State of Maharashtra. It is submitted by the Counsel for the Petitioners that Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules 1981, would apply not only to teaching staff but also to nonteaching staff including the Peon. The learned A.G.P. on the other hand submits that though in the impugned order passed by Respondent No.2 the proposal of the Petitioner No.1 was rejected only on the ground that there is no such provision.