The requirement of the subject should have precedence in transferring teachers from unaided to aided school. Seniority should only be considered when there are multiple teachers in the subject in which the post has fallen vacant.

JUDGMENT

M.G. Sewlikar, J. - Rule. Rule made returnable forthwith.

2. With the consent of the parties, heard finally at the stage of admission.

3. By this petition under Articles 226 and 227 of the Constitution of India, petitioner is seeking the relief of quashing of order dated 26th March, 2019 passed by respondent No. 4 canceling transfer of the petitioner as Shikshan Sewak from unaided to aided school and order dated 17th September, 2019 transferring respondent No. 3 as Shikshan Sewak from unaided school to aided school.

4. Facts as set out in the petition are that the qualifications of the petitioner are B.A., B.Ed. and M.A. Respondent No. 1 is the school of which respondent No. 2 is the Head Master. Respondent No. 4 is the Education Officer.

5. It is contended in the petition that respondent No. 1 runs the school from 5th to 10th standards. The school has one division from 5th to 10th standards on grant-in-aid basis and another division on non-grant basis. Petitioner was appointed as Assistant Teacher in the year 2013 in unaided school. Petitioner teaches Marathi subject to 9th and 10th standards.

6. It is also contended in the petition that one Kishor Shankar Patil, an Assistant Teacher in aided school died in an accident on 12th April, 2015. Being the teacher of Marathi subject, respondent No. 1 transferred the petitioner in the vacant post created on account of death of said Kishor Patil. Accordingly, respondent No. 1 submitted proposal to respondent No. 4 for approval. Respondent No. 4 - Education Officer accorded his approval vide order dated 06th November, 2018 for the appointment of petitioner as Shikshan Sewak.

7. It is further contended that respondent No. 3 who holds B.A. and B.Ed. Degree in Hindi and Politics was also appointed by respondent No. 1 in unaided school as Assistant Teacher vide order dated 16th February, 2013. Respondent No. 1 teaches subject Hindi. Respondent No. 1, because of the threats given by respondent No. 3 forwarded the proposal of respondent No. 3 to respondent No. 4 for approval to the transfer of respondent No. 3 as Shikshan Sewak. Respondent No. 4-Education Officer by order dated 26th March, 2019 revoked the order dated 06th November, 2018 whereby petitioner was appointed as Shikshan Sewak and, accorded approval of the even date i.e. 26th March, 2019 to the transfer and appointment of respondent No. 3. Petitioner has assailed the order dated 26th March, 2019.

8. This Court (Coram : Hon'ble Shri P.B. Varale and Hon'ble Shri N.W. Sambre, JJ) on 26th April, 2019 passed the following order :-

6. On perusal of the impugned order, we hardly see any reason to be refected in the said order. The order itself speaks of an arbitrariness and high handed exercise of powers by the Education Officer (Secondary), Zilla Parishad, Jalgaon.

7. In that view of the matter, we direct the respondent - Education Officer, Zilla Parishad, Jalgaon, who has passed the aforesaid impugned order dated 26th March, 2019, to file his personal affdavit explaining and justifying the passing of the said impugned order.

8. We also expect that the Education Officer (Secondary), Zilla Parishad, Jalgaon shall also explain what prompted him not to hear the petitioner before passing the order of cancellation of transfer, which was already awarded in his favour.

9. It is further clarified that the Education Officer must explain as to what prompted him in the matter not to pass any reasoned/speaking order.

10. Till the returnable date, the impugned order dated 26th March, 2019 is stayed.

11. Needless to clarify that in case, if this Court is not satisfied with the explanation by the Education Officer, this Court will be constrained to pass an order of recovery of salary payable to the petitioner from the salary of the Education Officer.

9. It appears that after this order was communicated to respondent No. 4, respondent No. 4 issued notices to the petitioner and respondents for rehearing on the proposal for appointment of respondent No. 3 as