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IN THE HIGH COURT OF BOMBAY
Vibha Kankanwadi, S.G.Chapalgaonkar, JJ.
Syeda Shahana Firdaus - Appellant
Versus
State of Maharashtra - Respondent
Writ Petition No. 14956 of 2017
Decided On : 18-03-2024
Writ of Mandamus - Transfer of Employees - Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1981 - Rule 41, 41-A - The court discussed the provisions of the MEPS Act and Rules, particularly Rule 41 and 41-A, which grant management the discretion to transfer employees from unaided to aided posts. The court interpreted these rules as not conferring a vested right upon employees to seek such transfers, emphasizing the management's authority in this regard. The court also highlighted the minority institution's rights under Article 30 of the Constitution, which limits judicial interference in their administrative decisions. This legal framework influenced the court's decision to dismiss the petition.
Fact of the Case:
The petitioners, appointed as Lecturers in Pharmacy at Kamla Nehru Polytechnic, sought a Writ of Mandamus to transfer them from the unaided wing to the aided wing of the college, claiming a right to such transfer based on their long service and the provisions of the MEPS Act and Rules.
Finding of the Court:
The court found that the petitioners did not have a legal right to demand transfer from unaided to aided posts under the MEPS Act and Rules. The management had the discretion to make such transfers, and the petitioners' claims were not supported by any statutory provision granting them such a right.
Issues: Whether the petitioners have a right to seek transfer from unaided to aided posts under the MEPS Act and Rules, and whether the court can issue a Writ of Mandamus against a minority institution regarding such transfers.
Ratio Decidendi: The court held that the MEPS Act and Rules do not confer a right on employees to seek transfer from unaided to aided posts. The management retains discretion over such transfers, and the rights of minority institutions under Article 30 of the Constitution limit judicial intervention in their administrative decisions.
Final Decision: The Writ Petition was dismissed, and the court ruled that the petitioners failed to establish a legal right to seek transfer, leading to the discharge of the rule.
JUDGMENT/ORDER
S.G.CHAPALGAONKAR, J. - Rule. Rule made returnable forthwith. With the consent of the parties, matter is taken up for final hearing at the stage of admission.
2. The petitioners have approached this Court under Article 226 of the Constitution of India praying for issuance of Writ of Mandamus against respondent nos.3 and 4 to transfer the petitioners from unaided wing to aided wing of respondent no.4-College and award consequential benefits from the date of their respective appointments.
3. The petitioners contend that they have been appointed as Lecturers in Pharmacy at Kamla Nehru Polytechnic (Pharmacy), Aurangabad in the year 2004-2005. Their appointments have been approved by the Director of Technical Education, Maharashtra State. They are serving in the unaided wing of respondent no.4, since last decade and assumed the status of confirmed employees. The respondent no.3 is recognized as minority institution. It is registered under the Bombay Public Trust Act.
4. The petitioners further contend that their services are governed by the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act and Rules of 1981, framed thereunder. The Rules provide for the transfer of the employees from unaided to aided wings. Many such transfers are approved under the orders of this Court. According to the petitioners, considering their continuous and prolonged services and vacancies of teachers in the aided wing of respondent-Institution, the petitioners represented respondent nos.3 and 4 to transfer them against vacancies in the aided wing. However, respondent nos.3 and 4 issued an advertisement inviting candidates by way of direct recruitment. According to the petitioners, they have every right to be considered for transfer to aided wing. The action of the respondents thereby inviting the applications for direct recruitment of the vacancies is arbitrary and detrimental to their rights.
5. The respondent nos.3 and 4 filed affidavit-in-reply and oppose the petition contending that the petitioners have no vested right to seek their transfers to aided wing. The management in its wisdom issued advertisement for direct recruitment of the qualified teachers. More than 54 candidates responded to the advertisement and 36 candidates appeared for online examination. The result of written examination communicated to the Regional Joint Director of Education. The interviews were held on 9/3/2020. The Panel consist of responsible officers/their representatives. The petitioners have also participated in the selection process. Final results are not declared in view of the interim order passed by this Court.
6. Mr. Barlinge, learned Advocate appearing for the petitioners submits that the petitioners are qualified and experienced teachers working in Kamla Nehru Polytechnic at Aurangabad and rendered unblemished valuable services. Rule 41, 41-A of the MEPS Rules, 1981 empowers management to transfer the employee from unaided to aided division. The MEPS Act and Rules framed thereunder are brought into statute book to secure the interest of the teachers against mighty management. The management is expected to exercise its powers and required to take pragmatic view in the matter of transfer of employees working in unaided wing to the aided wing. He would submit that, although the pay scale of the teachers on aided or unaided post is one and same, there are many privileges attached to the services rendered on aided post. The petitioners are deprived of such benefits. Now management has advertised the vacancies of aided posts. The petitioners could have been accommodated by transferring them against such vacancies. He would, therefore, urge to issue Writ of Mandamus directing respondents to transfer the petitioners against such vacancies.
7. Mr. Dighe, learned Advocate appearing for respondent nos.3 and 4 would submit that the petitioners have no vested right to seek issuance of Writ of Mandamus, particularly against minority ins
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