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2012 Supreme(Bom) 856
High Court of Judicature at Bombay
A.M. KHANWILKAR & S.S. SHINDE
Maya Munikumar Swami & Others
Versus
Shikshan Prasarak Mandal & Others
WRIT PETITION NO. 1044 OF 2012
Decided On : 24-04-2012
For the Petitioners:A.V. Anturkar i/b. S.B. Deshmukh, Advocates.
For the Respondent:R1 to R4 & R9 to R29, Mrs. Meena H. Doshi, R7, Sanjeev J. Rairkar, Advocates, R5 & R6, Ms. S.S. Bhende, AGP.
Headnote:Constitution of India - Article 226 - Transfer. Since transfer is an incidence of service and an employee has no right to be posted at a particular place of his choice hence if transfer is effected on administrative grounds, interference with such transfer order not permissible.
Constitution of India - Article 226 - Transfer orders. Disputed question of facts raised by petitioners cannot be gone into in writ jurisdiction. It is well settled position that transfer is incidence of se. If the transfer is effected on the administrative ground, no interference in such transfer order is permissible. The employee has no right to be posted at a particular place. In the present case, it is the assertion of the petitioners that, the orders of transfer of the petitioners, are on the communal basis. The petitioners have annexed annexure Exhibit ’D’ (Page 16 to 17) table showing the particulars of teachers who have been transferred from the respondent Institution from the year 2002 onwards till 14th November, 2011.
From careful perusal of the pleadings in the petition, we find that general averments are made in the petition that the transfer orders are passed on communal ground. There are no any material particulars about the transfer of each employee for the period 2002 up to 2011 and further how the said employee is transferred on communal basis and which of the respondent was instrumental in such transfers. Secondly, the petition is filed by three petitioners, who are aggrieved by their individual transfer orders from one place to another. They have not filed this petition in representative capacity for the employees whose names are mentioned in Exhibit ’D’ of the petition. Initially, the managing committee members were not made party respondent in this petition.
Bare perusal of paragraph 5(A) makes it abundantly clear that there are no material facts and particulars pleaded so as to adjudicate the issue raised by the petitioners that the transfer orders of the petitioners or other employees for the period 2002 up to 2011 are only on the communal basis. Anyhow, such assertion of the petitioners definitely raises the disputed question of facts which cannot be gone into in writ jurisdiction.
There is specific denial that the respondents have made attempt to discriminate on the basis of community, caste or creed as alleged by the petitioners. Therefore, in absence of any material and better particulars in the petition that the transfer orders are in fact issued only on communal basis, deserves to be rejected. Court is satisfied from the affidavit in reply filed by respondent Nos. 1 to 4 that the transfer of each petitioner is on administrative ground and there is no mala fide intention on the part of the respondents in effecting these transfers. The vague ground taken by the petitioners that the petitioners are transferred from one place to another only on communal basis is completely rebutted by the respondents herein, in their affidavit in reply and there is no any rejoinder affidavit filed by the petitioners controvert the said position stated in the affidavit in reply.
Constitution of India - Arti cle 226 - Transfer orders. In absence of any mala fide on part of respondent-1, therefore of petitioners serving in private school run by respondent-1 affected on administrative grounds in accordance with decision of Committee of School Management warrants no interference.
MAHARASHTRA EMPLOYEES OF PRIVATE SCHOOLS (CONDITIONS OF SERVICE) RULES, 1981 - Rule 41 - Secondary Schools Code, Clause 52.1 - Mid-term transfer. Since school term is divided into two terms under Clause 52.1 of Code hence transfer of petitioner commencing with second term of academic year 2011-12 is not a mid-term transfer.
The transfer of the petitioners is midterm transfer, has no any force and said contention deserves to be rejected in the facts and circumstances of this case. Even, according to the Counsel for the petitioners, the ’Term’ has not been defined under the provisions of MEPS Act and MEPS Rules. However, according to the Counsel for the petitioners, the Term would mean the complete academic year and therefore, the Rule 41 of the MEPS Rules prohibits the respondent Management from transferring a person, midterm. The transfer of the petitioners is not midterm transfer. We find force in the argument of the Counsel appearing for respondent Nos. 1 to 4 that as per Clause 52.1 of the Secondary Schools Code, which applies only to Secondary Schools, the school year will be divided into two terms. First term shall be from June to October and Second Term shall be from November to April.
In the facts and circumstances of this case, the transfer orders are issued on 14th November, 2011 commencing with the second term of the academic year 2011-12. The second term was to otherwise commence on the 14th November, 2011. The transfer orders were issued on the same day. Therefore, it is not a case of midterm transfer of the petitioners, as contended by them.
S.S. Shinde, J.
This Writ Petition under Article 226 of the Constitution of India is filed seeking two fold relief, firstly, to issue the writ of mandamus or writ in the nature of mandamus or any other appropriate direction for quashing and setting aside the transfer orders of the Petitioners herein, effected by Respondent No. 1, 2 and 3 and secondly, to issue writ of mandamus or writ in the nature of mandamus or any other appropriate direction or order, directing Respondent Nos. 4 and 5 to look into the matter and withhold the grant payable to Respondent Nos. 1, 2 and 3 for making discrimination for violating the provisions of the Maharashtra Employees of Private Schools (terms and conditions) Act and also using power of the transfer by making discrimination on communal basis.
The Learned Counsel appearing for the Petitioner submits that, the transfer order of the Petitioners are clearly in violation of the provisions of the Maharashtra Employees of Private Schools (Terms and Conditions) Act, 1977 (“the MEPS Act” for short) and the Rules which have been framed there under i. e. Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (“MEPS Rules” for short). It is submitted that the provisions of Rule 41 of the said Rules provides that, except in case of exceptional circumstances and without recording the reasons in writing, midterm transfers should not be effected. It is further submitted that, Respondent Shikshan Prasarak Mandal, Pune runs various schools and colleges. These schools and colleges receive the grant from the Government of Maharashtra and therefore they are amenable to the writ jurisdiction. It is submitted that the service terms and conditions of teachers are governed by the MEPS Rules, 1981 and therefore it is not open for the Respondents to have their own Service Terms and Conditions. It is further submitted that, Respondent No. 1 is also discharging the duty of implementing the right to education, which is accepted as the fundamental right now. It is further submitted that Respondent No. 1, while discharging the public duty is working as a State, within the meaning of Article 12 of the Constitution of India and while exercising the powers, it cannot discriminate against any person, on the ground of religion, caste, place of birth or any of them. The Learned Counsel for the Petitioner invited our attention to Para 8 of the exposition of the Supreme Court in case of ManmohanSingh Jaitla vs. Commission, Union Territory of Chandigarh and Ors, 1984 (Supp) SCC 540 and submitted that, Respondent No. 1 herein is the Aided School receiving grant from the public exchequers and it is subject to regulations made by the Education Department and appointments of the said schools are required to be approved by the Respondent State Authorities, would certainly be amenable to the writ jurisdiction of the High Court. The Learned Counsel further invited our attention to the provisions of Rule 41 of the Rules of 1981 and submitted that midterm transfers are not permissible. According to the Learned Counsel for the Petitioner, midterm transfers not only causes inconvenience to the concerned employees, however, such transfers are also not permissible. Learned Counsel further submits that as per the provisions of Secondary Schools Code if the directions issued by the Respondent Authorities are not followed by the Respondent No. 1, the recognition of Respondent No. 1 institution can be withdrawn. The Learned Counsel, in support of this contention, pressed into service provision of Clause 7.1 of Secondary Schools Code and submitted that when a school, including a permanently recognised school, has ceased in the opinion of the Department, to fulfill any of the condition of recognition, recognition of that school may be withdrawn.
2) The Learned Counsel invited our attention to the pleadings in the Petition and submitted that the transfers of the Petitioners have been made on communal ground. Respondent
