Rahul Prakash Nilgar v. State of Maharashtra

8. The learned AGP also placed reliance on Rule 41A of the MEPS Rules and would submit that in view of the said provision, which came to be added with effect from 8th June, 2020, the transfer from unaided junior college to aided secondary school is not permissible. Rule 41A of the MEPS Rules reads thus:- “41A. Conditions for transfer of teacher from unaided to partially aided or aided school or division. -

1) The management may transfer a teacher from un-aided school or partially aided school to the vacant post in partially aided school or aided school or division only if the following conditions are satisfed, namely: a) i) the Management and Education Offcer or Deputy Director shall, before making such transfer, verify that there is no surplus persons are available as provided in sub-section 1) of section 5 of the Act; ii) if the surplus persons are available, the Management shall not make such transfer; b) the transfer shall not be made from the teachers of self-fnanced school of the Management; c) before making such transfer, the teacher should have completed minimum fve years continuous service in un-aided school or division or partially aided school or division of the Management; d) the transfer shall be made in equal or same cadre. The transfer shall not be made from primary to higher primary, higher primary to secondary or secondary to higher secondary or higher secondary to D. El. Ed. schools or vice-versa; e) the transfer shall be made only by following the seniority and as per the requirement of the subject; f) before making transfer of a teacher, his appointment should have been approved by the Education Offcer or Deputy Director, as the case may be; g) the transfer shall be made on the vacant post; h) the transfer shall be subject to the approval of Education Offcer or Deputy Director, as the case may be.

2) If the post becomes vacant due to transfer, such vacant post shall be flled as per the procedure provided in Rule 9.

3) The transferred teacher shall be eligible for scale of pay and allowances as decided by the Government, from time to time.”

9. A perusal of the record indicates that it is an admitted position that the Petitioner was appointed as a Lab Attendant in a junior college run by the same Management, running the secondary school to which the Petitioner was transferred. The Petitioner was a non-teaching staff.

10. A perusal of Rule 41 5) clearly indicates that where a Management runs a secondary school and a junior college of education, teachers in a junior college of education cannot be transferred to a secondary school against their will and subject to various conditions. In our view, Rule 41 5) would not apply to the transfer from junior college to secondary school though run by the same Management in case of a non-teaching staff.

11. Insofar as the judgments of this Court relied upon by the learned counsel for the Petitioner, in case of Vidya Vikas Samiti, Paratwada And Another supra), Sudha Anant Gandhi supra), Sau. Kalpana w/o Jayant Kolarkar maiden name Ku. Kalpana d/o Gopalrao Jatkar) supra) and Rajaram S. Mandale and Another supra) are concerned, in all these judgments, this Court had considered the transfer of a teacher from one school to another school. In our view, none of these judgments would thus assist the case of the Petitioner seeking transfer under Rule 41 5) not applicable to non-teaching staff.

12. The next question that arises for consideration of this Court is whether a transfer from an unaided post in a junior college to aided post in secondary school of a non-teaching staff is permissible under Rule 41 1) of the MEPS Rules or not? A perusal of Rule 41 1) clearly indicates that the said provision applies not only to the school, but also to the junior college and the transfer from one school to another and also to non-teaching staff except on administrative grounds. Rule 41 1) has to be read with the defnition of ‘school’ provided under Section 2 24) of the MEPS Act, which includes junior college of education. The expression junior college of education is further defned under Section 2 10) of the MEPS Act which means a school imparting teacher education to persons for being appointed as teachers and Assistant Teacher Probationary) in pre-school centres or primary schools. However, the defnition of school under Section 2 24) is very wide and includes junior college of education. Section 2 24) has to be read with Rule 41 1) of the MEPS Rules.

13. On conjoint reading of Rule 41 1) with Section 2 24), i.e., defnition of ‘school’, transfer of non-teaching staff from unaided post in junior college to aided post in higher secondary school run by the same Management is thus permissible, subject to the conditions prescribed under Rule 41 1) and Rule 41 2) of the MEPS Rules. It is not the case of the Education Offcer in the impugned order that the other conditions prescribed under Rule 41 1) are not complied with by the Management. In our view, the impugned order is thus in violation of Rule 41 1) and Rule 41 2) of the MEPS Rules and deserves to be quashed and set aside.

14. Writ Petition is made absolute in terms of prayer clause [A].

15. The Education Offcer is directed to grant approval to the said transfer within a period of four weeks from today and shall release grant-in-aid in favour of the Management in respect of such transfer from the date of transfer within a period of four weeks thereafter.

16. Rule is made absolute in the above terms. No order as to costs.

17. Parties to act upon the authenticated copy of this order.

ABHAY AHUJA, J.) R.D. DHANUKA, J.)