2024:BHC-AUG:23893-DB IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5937 OF 2024 Bhaurao Shankar Potalkar .. Petitioner Versus The State of Maharashtra and others .. Respondents Shri Yogesh P. Deshmukh, Advocate for the Petitioner.

Shri K. N. Lokhande, A.G.P. for the Respondent Nos. 1 to 3.

CORAM : MANGESH S. PATIL AND SHAILESH P. BRAHME, JJ.

DATE : 12 JULY 2024.

FINAL ORDER (Per Shailesh P. Brahme, J.) :-

. Heard both the sides.

2. In the present petition following reliefs are claimed :

“A) By a writ of mandamus or orders or directions in the nature of mandamus, the Hon’ble Court may kindly be pleased to direct the respondents No. 4 management to transfer the petitioner on the post of grantable division for subject of biology as Assistant Teacher/Junior College Teacher as per his experience, qualification and Seniority forthwith.

B) By a writ of mandamus or orders or directions in the nature of mandamus, the Hon’ble Court may kindly be pleased to direct the respondent No. 3 to decide the representation dated 03.05.2024 filed by the petitioner forthwith (Exhibit “A”, Page No. 21).

C) By a writ of mandamus or orders or directions in the nature of mandamus, the Hon’ble Court may kindly be pleased to direct the respondent No. 3 may kindly be directed not the sanction of approval of the any other person for the subject of Biology except petitioner on the post of grantable division of the respondent Junior College.”

3. The petitioner was appointed in the respondent No. 5/Higher Secondary School on unaided post by order dated 30.06.2013. His appointment was approved by the respondent No. 3/Deputy Director of Education for unaided post by order dated 10.11.2015. His name was incorporated in the Shalarth Pranali vide order dated 09.09.2021. In the mean time his post started receiving partial grants. Fully aided post became vacant and available for the accommodation of the petitioner. He made representation on 22.12.2023 and thereafter on 03.05.2024 requesting the respondents to transfer him from partially aided post to fully aided post. It is further grievance of the petitioner that the management proposes to fill in the vacancies by direct recruitment.

4. Learned counsel Mr. Yogesh B. Deshmukh, for the petitioner would submit that appointment of the petitioner was made after following due procedure of law and it was approved. Considering vacancy of the fully aided post, the respondent/management ought to have transferred him. He would further submit that a mandamus would lie to direct the respondent/management to issue transfer orders under Rule 41 of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Rules, 1981 (for the sake of brevity and convenience hereinafter referred as to the “Rules of 1981).

5. He would further submit that it is not permissible for the management to resort to direct recruitment when petitioner is eligible for transfer. He would further submit that the action of the management is against Rule 41A(1)(e) of the Rules of 1981. It is further submitted that if a vacant post is filled in by nomination then prejudice would be caused to the petitioner, in case of retrenchment. According to him only mode available is to transfer the petitioner. He would also submit that Section 5 of the Maharashtra Employees of Private Schools (Condition of Service) Regulation Act, 1977 (for the sake of brevity and convenience hereinafter referred as to the “Act of 1977) and/or Rule 9 of the Rules of 1981 have not been amended after the amendment effected to Rule 41 vide notification dated

08.06.2020.

6. Learned Assistant Government Pleader opposes the submissions. He would submit that mandamus would not lie for direction to transfer the petitioner.

7. The facts are undisputed. Short question which falls for consideration is as to whether the mandamus would lie for directing private management to transfer an employee from partially aided post to fully aided post.

8. The respondent No. 5/s