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2013 Supreme(Bom) 2164
In the High Court of Bombay at Aurangabad
R.M. BORDE & SUNIL. P. DESHMUKH, JJ.
Smt. Manisha Bhimraj Patil & Others
Versus
The State of Maharashtra through its Principal Secretary, Social Justice & Special Assistance Department & Others
Writ Petition Nos.3728 of 2012 & 6537 of 2012
Decided On : 22-10-2013
For the Petitioners:D.S. Bagul, A.B. Girase, Advocates.
For the Respondents:Mrs. A.V. Gondhalekar, AGP., R5, Paresh B. Patil, R6 & R7, S.S. Chaudhary h/f V.M. Maney, Advocates.
Headnote:Constitution of India - Articles 226 and 227 - De-recognition and closing down of Ashram Schools. - Transfer of de-recognised and closed school, in absence of any Government Resolution, improper. - Government Resolution dated 1st August 2007 does not make any reference to transfer of de-recognised and closed school. Under Govt. Resolution dated 2nd January 2012 impugned transfer sought to be effected. It is apparent from same that none of terms and conditions were available under which transfer could have even been mooted. It is further to be noted that whenever voluntary transfer is sought, it would be on Government forming opinion on administrative ground or for convenience that such transfer is necessary, then Government may permit transfer.
It is unable to appreciate that as to how de-recognised and closed down school could be transferred. In process of transfer, it appears that recognition accorded to school is being considered and treated as if it is amenable to transfer as would be possible in cases of business licence. A non-est recognition after de-recognition at one place can hardly be revived or resurrected at other place.
Transfer is not preceded by any wide circulation about intention to transfer, which would have enabled other desirous institutions to explore possibility of putting in claims to have transfer of such school, which would have taken care of persons concerned with Ashram Schools, for whose benefit it was being conducted and for whom liabilities were incurred. Process of transfer has been undertaken without wide publicity and thus keeping out possible viable claims from institutions closer to location of school from where it is being transferred. Adequate transparency in process would have avoided present situation. Nor does it appear that convenience of erstwhile staff has been taken into account while issuing GR. Dated 2.1.2012. GR and transfer order is liable to be set aside.
Sunil P. Deshmukh, J.
1. Rule. Rule made returnable forthwith and heard finally by consent of the parties.
2. Banjara Magasvargiya Shikshan Prasarak Mandal, Talegaon Tanda, Taluka Chalisgaon, Dist Jalgaon, under its aegis, was running primary ashram school by the name Prabodhankar Thakare Prathmik Ashram Shala, Talegaon Tanda, TqChasligaon DistJalgaon. Petitioners, possessed of requisite qualifications, were appointed in their respective posts in said Ashram School, during the period from 1999 to 2004. Appointments of petitioners, in due course, were approved during 2004-2006. Their appointments are made permanent with effect from dates referred to in chart submitted by the petitioners at Exhibit-A.
3. Around 2009, Chief Executive Officer, Zilla Parishad, Jalgaon, on his visit, found certain irregularities and deficiencies in conducting the school and a report accordingly was submitted by him to the Director of VJNT, OBC, Social Welfare of Special Backward Class, Pune (Respondent No.2 herein). Subsequently, recognition granted to the school came to be withdrawn on 23.08.2010, which according to the petitioners occasioned for not taking corrective steps with regard to deficient infrastructural facilities.
4. In the very order, respondent No.2 directed Special District Social Welfare Officer, Jalgaon (Respondent No.4 herein) to take appropriate steps for absorption of students in nearby Ashram school of Zilla Parishad and / or a recognized institution, with a further direction to take appropriate steps in respect of services of staff and to make report pursuant thereto.
5. Vide order dated 15.12.2010, respondent No.2 gave permission / no objection to absorb petitioners in other primary Ashram Schools recognized by the Government. The petitioners were accordingly absorbed under order dated 29.03.2011, at the places referred to in said order.
6. Petitioners, pursuant to said order dated 29.03.2011, have joined their posts at the respective places and were discharging duties sincerely and honestly. There was a subsequent direction to cause certain changes in the placement of the petitioners by the Secretary, Social Welfare and Special Assistance Department, Mantayalaya, Mumbai, pursuant to which placements underwent change, under order dated 18.06.2011 of respondent No.3. Petitioners had accordingly joined said places. There were further changes caused to order dated 18.06.2011, moving placements of some of the petitioners and according to these subsequent changes, petitioners have joined and are discharging their duties accordingly. Some petitioners have got benefit of couple convenience. Accordingly the petitioners have been working at their respective places.
7. Under Resolution dated 2nd January, 2012 Government purported to transfer the derecognized and closed down Prabodhankar Thakare Prathamik Ashram School, Talegaon Tanda, TqChalisgaon, DistJalgaon then run by Banjara Magasvargiya Shikshan Prasarak Mandal, Talegaon Tanda, to Sant Dnyaneshwar Shikshan Sanstha, Islampur, TqWalva, DistSangli at its Punyashlok Ahilyadevi Holkar Prathamik Ashram School, Chondi, TqJamkhed, DistAhmednagar, directing that the presently working staff, having approval, of the closed school be absorbed. Pursuant to which communications dated 06.04.2012 were issued to present petitioners.
8. Petitioners have questioned propriety, legality and validity of the Government Resolution dated 2nd January, 2012, and the actions pursuant thereto so also the order dated 06.04.2012, whereby Assistant Commissioner, Social Welfare, Jalgaon purported to relieve the petitioners considering that as if they are staff of the closed down Ashram School.
9. Respondents No.1 to 4 submitted affidavit in reply and purported to contend that the petitioners were temporarily absorbed in Primary Ashram Schools, nearby the closed Ashram School and relied on, for said purpose on clause No.7 appearing in the orders issued to stress that petitioners’ absorptions are f
