Point of Law: Employment and Service matter - Transfer of Employees - Rule 41 of the MEPS Rules applies to all employees, both teaching and non-teaching of a recognised school and that it permits transfer of teaching as well as non-teaching staff of a recognised school.

JUDGMENT :

ABHAY AHUJA, J

1. Rule. Rule made returnable forthwith. Learned counsel for Respondents in all the petitions waive service.

2. By consent of learned counsel for the parties, all these petitions are heard finally.

3. By these petitions, filed under Article 226 of the Constitution of India, the employee-Petitioners are aggrieved by the orders rejecting the proposals for the grant of approval pursuant to the transfers of the employees from unaided to aided schools, in view of Government Resolutions dated 12th February 2015 and 23rd October 2013 (the “GRs”).

4. For the sake of convenience the relevant facts in respect of the employee-Petitioners in the above petitions as submitted by counsel for the Petitioners, are set forth as under:-

The school managements are supporting the case of employee-Petitioners.

5. On behalf of Respondents No. 1 and 2, affidavits in reply have been filed in the above petitions. Learned AGP has no objection to the above facts but supports the orders of rejection submitting that the GRs are applicable to the case of the Petitioners.

6. We have perused the petitions and have heard Mr. Narendra V. Bandiwadekar, learned counsel for the Petitioners as well as Mr. Mali, Mr. Kalel, Ms. Bhende and Ms. Solunke, learned AGPs for the State in all the petitions respectively and with their able assistance we have perused the papers and proceedings in the above petitions.

7. Facts not being in dispute in all these petitions, two common issues arise for our consideration: i) whether the transfer of the employee(s) from unaided school to aided school would be a case of recruitment/fresh appointment, ii) whether Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (the “MEPS Rules”) would apply only to teaching staff, but not to non-teaching staff.

8. In our view both the issues stand squarely covered by decisions of this Court.

9. With respect to the first issue, it has been held by the Aurangabad Bench of this Court in the case of Sudhir Dnyandeo Gadakh/Smt. Ujwala Sunil Hande/Smt. Sonali Ashok Pathare Vs. The State of Maharashtra & Ors. in Writ Petition No. 5978 of 2014 with Writ Petition No.5979 of 2014 with Writ Petition No.5980 of 2014, while considering the Government Resolution on ban on fresh recruitment that the said Government Resolution would not apply to the case of petitioners who have been transferred from unaided school to aided school having been appointed following due selection process, prior to the said ban imposed by the State for fresh recruitment, as it would not be a case of fresh appointment. The relevant paragraph 5 of the said decision is quoted as under:-

“5] We have considered the submissions canvassed by the learned counsel for the respective parties, so also, gone through the judgments. Proposal for approval to the appointments/absorption of the petitioners on the aided posts as Shikshan sevaks has been rejected solely on the ground that at the relevant time, there was a ban on the fresh recruitment. Perusal of the Govt. Resolution in question does not reveal that the Govt. Resolution would affect the cases of the petitioners. Petitioners claim to have been appointed by following due selection process prior to the ban imposed by the State for fresh recruitment. However, they were appoint