The court emphasized that unless a statute or rule is specifically made retrospectively applicable, it should be applied prospectively from the date of its introduction.

JUDGMENT :

S.G. CHAPALGAONKAR, J.

1. Rule. Rule made returnable forthwith. Heard finally by consent of learned advocate for respective parties.

The petitioner approaches this Court under Article 226 of the Constitution of India thereby impugning the order dated 28.10.2020 passed by the respondent No.2 - Education Officer (Primary), Zilla Parishad, Latur, thereby refusing to approve her transfer from un-aided to aided post in respondent No.4 School. The petitioner seeks to issue writ of Mandamus against respondent No.2 to grant approval to her transfer.

2. The petitioner contends that she is qualified as B.A. B.Ed. In pursuance of the advertisement issued by respondent No.3 Latur Education Society, she had responded and after going through the selection process, she was appointed as Assistant Teacher with respondent No.4 w.e.f. 24.4.2013. Her services were approved on non-grant basis by the Education Officer vide order dated 31.9.2013. After successfully completing the probation period, she was granted permanent approval vide order dated 24.4.2015 in Pay Scale of Rs. 5200-20200 with Grade Pay of Rs. 2800, with continuity of service from the date of her initial appointment. On retirement of Shri S.K. Chanale, one post of Assistant Teahcer on grant-in-aid division became vacant. The respondent No.3 transferred petitioner to aided post vide order dated 26.4.2020. Consequently, proposal seeking approval to her transfer was forwarded to the Education Officer, however, vide impugned order dated 28.10.2020, the respondent No.2 rejected the proposal citing reason that surplus teachers are available in Latur District and unless such teachers are absorbed, the transfer of the petitioner can not be approved. The petitioner raises challenge to the aforesaid communication being arbitrary, and illegal.

3. The respondent No.2 Education Officer filed affidavit in reply stating that the petitioner was appointed on 5th to 7th Standard on non grant basis w.e.f. 24.4.2013. However, her services are sought to be transferred by the school authorities to 1st to 4th standards receiving grant in aid. Further, such transfer is effected without the permission from the School Education Department. There are surplus teachers available for absorption. The proposal is not in conformity with Rule 41A of the MEPS Rules.

4. Mr. V.D. Gunale, learned counsel for the petitioner submits that the petitioner is a qualified teacher. She was appointed on 24.4.2013 with respondent No.4 school on non-grant in aid basis. On completion of her probation, she was continued in service vide order dated 24.4.2015. The management transferred her vide order dated 26.4.2020 against vacancy created on account of retirement of a permanent teacher. The management has every right to transfer the employee. The amended provision of Rule 41A of the MEPS Rules has no application in the present case since said amendment is introduced in statute book w.e.f. 8.6.2020. The appointment of the petitioner is prior to introduction of such amendment which has no retrospective application.

5. Mr. U.B. Bondar, learned counsel for respondent No.2 referring to the affidavit in reply, submits that prior to introduction of amended Rule 41A, the circular dated 28.6.2016 was in operation and governing transfers of teachers. The circular also contains analogous provisions which are introduced by inserting Sec 41-A in MEPS Rules w.e.f. from June 2020. He would, therefore, justify the impugned order rejecting approval seeking transfer of the petitioner from unaided to aided division.

6. We have considered the submissions advanced by the learned advocates on behalf for respective parties. We have perused the documents annexed alongwith the petition as well as affidavit in reply. The issue that falls for consideration is, as to whether the impugned order can be justified in light of provision of Rule 41A of the MEPS Rules, 1981 read with circular dated 28.6.2016. Pertinently, this Court in W.P. No. 1493 of 2018 (Surya