B.P. Dharmadhikari, J.

1. Heard Shri Mohgaonkar, learned counsel for the petitioners and Shri Ghodeswar, learned Assistant Government Pleader for respondents 1 to 3. Perused the judgment of Division Bench of this Court reported at 1993 (2) Mh.L.J.1467 (Vidya Vikas Khandekar V/s. Balmandir Sanstha).

2. Looking to the nature of controversy, we have heard the matter finally with the consent of parties by issuing Rule and making it returnable forthwith.

3. Petitioner no.1 – Management runs four schools in Chandrapur district. All these schools are duly recognized and Samrat Ashok High School at Chinchpalli i.e. one out of these schools is only receiving grant-in-aid. One Shri Siddhartha Raut was working as Headmaster in unaided Samrat Ashok High School at Lohara. Headmaster Shri N.U. Ramteke working in aided school superannuated on 31/10/2012. Petitioners, therefore, transferred said Raut to aided school and sought approval thereto. The approval has not been granted on the ground that one Shri Meshram found surplus in aided school and absorbed in school of the other management, needed to be brought back in said aided school of the Petitioner. Hence present petition is filed.

4. Shri Mohgaonkar, learned counsel for the petitioners, submits that as vacancy has arisen in the cadre of Headmaster and is being filled in horizontally by transfer, there is no vacancy of Assistant Teacher in aided school to absorb the teacher earlier declared surplus. He contends that proceedings under Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 do not bar such transfer. He also seeks support from the Division Bench judgment mentioned supra.

5. Learned Assistant Government Pleader relied upon the reply affidavit and documents on record. He states that the proposal submitted to grant approval to the transfer as Headmaster was returned back and thereafter petitioners submitted a proposal to grant approval to transfer of said Raut as an Assistant Teacher to the school receiving grant-in-aid. This proposal dated 12/12/2012 also has not been accepted. He states that as per the provisions of Rule 26(4) of M.E.P.S. Rules, 1981 a teacher absorbed in other school has a right to come back to his parent school and therefore such an approval cannot be granted.

6. Shri Mohgaonkar, in reply, submits that Management never submitted any proposal seeking approval to transfer of said Raut as an Assistant Teacher in aided school.

7. With the assistance of respective counsel, we have perused the record. Education Officer has in his communication dated 31/12/2012 stated that the action of transferring an Assistant Teacher working in unaided school to aided school is not legal. He points out that one V.K. Meshram was declared surplus in aided school & was absorbed in Navbharat School at Antaragaon which is an aided school of other management. In communication dated 5/2/2013, the education officer has mentioned about proposal dated 5/11/2012 sent by the petitioners. It reveals an afterthought story of petitioners that on 21/6/2012 resignation was tendered by said Raut from the post of Headmaster of unaided school and thereafter Shri Raut has been transferred as Assistant Teacher to aided school and accordingly a proposal came to be submitted for grant of approval on 5/11/2012. This story is repeated again in a communication dated 5/7/2013 sent by petitioner to the Deputy Director of Education at Nagpur.

8. This communication states that Shri Raut was transferred as headmaster from unaided school on 1/11/2012 & proposal seeking approval to it was submitted on 12/10/2012. The return of said proposal by education officer due to lacunae therein on 26/11/2012 is also stated. It also states that thereafter Shri Raut was transferred as assistant teacher to the aided school & proposal was filed on 5/12/2012 to approve it.

9. Respondent no.2 Education Officer has filed reply affidavit and in paragraph 7 it is mentioned that on 26/11/2012 pro