Point of Law: Education department - Transfer of Teacher from aided post to unaided post is permissible in law.

JUDGMENT :

(Per R.I. Chagla, J)

1. Rule.

2. Learned AGP for Respondent Nos. 1 to 3 waives service. Learned Counsel appearing for Respondent No. 4 waives service. None appears on behalf of Respondent Nos. 5 and 6, inspite of service.

3. Heard finally by consent of parties.

4. By this Petition fled under Article 226 of the Constitution of India, the Petitioner seeks quashing and setting aside of the impugned order dated 1st March 2017 passed by the Respondent No. 4 and further directions against Respondent Nos. 4 to accord approval to the proposal dated 1st June 2016 of the Petitioner as Assistant Teacher transferred from the unaided school to the aided school of the same institution with applicable pay scale with effect from the date of his transfer. The Petitioner has also sought direction against Respondent No. 4 to release the salary of the Petitioner from the date of his transfer i.e. 1st June 2016 from unaided to aided school.

5. The Petitioner was appointed by the Shri Ganesh Shikshan Prasarak Mandal (“the Management”) of Sant Dnyaneshwar Primary Vidyamandir (“the School”) as Assistant Teacher on 4th January 2014 for a period of two years from 4th January 2013 to 3rd January 2015 in the pay-scale of Rs. 5200-20200 with the grade pay of Rs. 2800/-.

6. Thereafter, the Management of the School submitted a proposal to Respondent No. 4 seeking approval for appointment of the Petitioner as Assistant Teacher in the School.

7. Respondent No. 4 after considering the proposal, granted approval for appointment of the Petitioner as Assistant Teacher in the School, which was unaided.

8. As the Petitioner had successfully completed his probation period, the Management of the School convened a meeting on 1st May 2016, wherein it was unanimously resolved that the Petitioner will be transferred to its School, which was aided, as Assistant Teacher on account of the vacancy which had arising as one Shri. Dhanvate Kalidas Shivram was retiring by superannuation on 31st May 2016.

9. The Management of the School on 20th June 2016 submitted a detailed proposal with Respondent No. 4 to seek approval to the transfer of the Petitioner from unaided to the aided School as Assistant Teacher since clear vacancy arisen in the post of Assistant Teacher in the School.

10. Respondent No. 4 by the impugned order dated 1st March 2017 rejected the proposal of the Petitioner. Being aggrieved thereof, the present Petition has been fled.

11. Learned Counsel appearing for the Petitioner has submitted that the impugned order has been passed contrary to the provisions of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (“MEPS Rules” for short), especially, Rule 41 thereof. He has submitted that the impugned order places reliance upon the Government Circular dated 28th June 2016 and particularly Clause 3 Sub-Clauses 1 and 2 thereof. He has placed reliance upon several decisions of this Court including the decisions of this Court in case of Miss. Devkar Dipali Kisan & Ors. Vs. The State of Maharashtra & Ors., Writ Petition No. 5313 of 2017 which has been followed in subsequent decision of Division Bench of this Court (Bench at Aurangabad) in case of Suryakant S/o Janardan Muge Vs. The State of Maharashtra & Ors., Writ Petition No. 1493 of 2018. In the said decision, the Division Bench has held that the Government Circular dated 28th June 2016, in particular Clause 3 Sub-Clauses 1 and 2 thereof which provides that if surplus Teacher is available at the time of appointment, then approval should not be granted to the transfer of Teacher from unaided School to aided School, are instructions which cannot have statutory force in law. The Division Bench upon placing reliance upon Rule 41 of the MEPS Rules which is subordinate legislation held that administrative decisions such as the Government Circular which run contrary to the said Rule cannot be held to be valid in law. The Division Bench accordingly, held that since Sub-Clauses 1 and 2 of Clause 3 of