S.S. Shinde, J.@mdashThis Writ Petition under Article 226 of the Constitution of India is filed seeking two fold relief, firstly, to issue the writ of mandamus or writ in the nature of mandamus or any other appropriate direction for quashing and setting aside the transfer orders of the Petitioners herein, effected by Respondent No. 1, 2 and 3 and secondly, to issue writ of mandamus or writ in the nature of mandamus or any other appropriate direction or order, directing Respondent Nos. 4 and 5 to look into the matter and withhold the grant payable to Respondent Nos. 1, 2 and 3 for making discrimination for violating the provisions of the Maharashtra Employees of Private Schools (terms and conditions) Act and also using power of the transfer by making discrimination on communal basis.
The Learned Counsel appearing for the Petitioner submits that, the transfer order of the Petitioners are clearly in violation of the provisions of the Maharashtra Employees of Private Schools (Terms and Conditions) Act, 1977 ("the MEPS Act" for short) and the Rules which have been framed there under i. e. Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 ("MEPS Rules" for short). It is submitted that the provisions of Rule 41 of the said Rules provides that, except in case of exceptional circumstances and without recording the reasons in writing, midterm transfers should not be effected. It is further submitted that, Respondent Shikshan Prasarak Mandal, Pune runs various schools and colleges. These schools and colleges receive the grant from the Government of Maharashtra and therefore they are amenable to the writ jurisdiction. It is submitted that the service terms and conditions of teachers are governed by the MEPS Rules, 1981 and therefore it is not open for the Respondents to have their own Service Terms and Conditions. It is further submitted that, Respondent No. 1 is also discharging the duty of implementing the right to education, which is accepted as the fundamental right now. It is further submitted that Respondent No. 1, while discharging the public duty is working as a State, within the meaning of Article 12 of the Constitution of India and while exercising the powers, it cannot discriminate against any person, on the ground of religion, caste, place of birth or any of them. The Learned Counsel for the Petitioner invited our attention to Para 8 of the exposition of the Supreme Court in case of
The Learned Counsel invited our attention to the pleadings in the Petition and submitted that the transfers of the Petitioners have been made on communal ground. Respondent Nos. 8 to 29 are the Trustees of Respondent No. 1. The decision has been taken to the best of knowledge of the Petitioners, by all the Respondents and therefore, all of them passed orders granting the transfers and allowing the transfers only on the communal basis and they have been impleaded as the party respondents in this Petition. The Learned Counsel invited our attention to amended Paragraph No. 5.9 of the Petition and submitted that if the transfers are effected on the communal ground, said are required to be interfered with and deserve to be set aside by this Court.
The sum and substance of the arguments of the Counsel appearing for the Petitioners is that, Respondent No. 1 is bound to follow the directions issued by the State Authorities from time to time. The transfers of the Petitioners are midterm transfers, which have caused not only inconvenience to the Petitioners but same are also not permissible. It is submitted alternatively that even it is assumed for the sake of argument that the term would be of 6 months, even then it is also midterm transfer which has been effected after 11th November, 2011 and such transfers were violative of Rule 42 of the MEPS Rules. Therefore, Learned Counsel appearing for the Petitioner submits that this Petition deserves to be allowed.
2. On the other hand, Learned Counsel for the Respondents invited our attention to affidavit in reply filed on behalf of Respondent Nos. 1 to 4. It is submitted that the Writ Petition is not maintainable since the answering respondents are not "Authorities" within the meaning of Article 12 of the Constitution of India. Respondent No. 1 is a Society registered under the Societies Registration Act. It is also a public trust and is registered under the Bombay Public Trust Act.
It is submitted that the transfer orders were issued on 14th November, 2011 and the Petitioner has been filed on 30th January, 2012, that too after the Petitioners had joined at the Schools at Solapur. It is further submitted that, in fact after joining at Solapur, the Petitioners have, on different grounds, continuously remained absent from the work. The work of the schools at Solapur has thus been disrupted, affecting interest of students. It is further submitted that, the transfer is an incident of service of the teaching and nonteaching staff of Respondent No. 1. It is the prerogative of the management to take decision with regard to the functioning of the institution administered by it. Respondent No. 1 runs various institutions in the State of Maharashtra and the Petitioner No. 1 has been transferred from N.M.V. Primary School, Pune to N.M.V. Primary School, Solapur. Petitioner No. 2 has been transferred from N.M.V. Secondary School, Pune to H.D. Secondary School, Solapur. Petitioner No. 3 has been transferred from N.M.V. Primary School Pune to N.M.V. Primary School, Solapur. It is further submitted that in the past, Petitioner Nos. 1 and 3 admittedly have been transferred by Respondent No. 1. Petitioner No. 3, along with two other employees Me. Ananda Gholap and Mrs. Deshpande did file Writ Petitions in this Court, but said Writ Petitions were rejected by the Division Bench of this Court.
It is further submitted that the Management has a right to effect the transfers on administrative grounds under Rule 41 of the MEPS Rules. There is no iota of material produced by the Petitioners as regards allegation of malafide on the part of Respondent Nos. 1 to 4. It is submitted that the determination of administrative grounds would involve the adjudication of disputed questions on facts, which cannot be gone into by this Court in its writ jurisdiction. It is submitted that, the specific averment in respect of malafide intention is required to be made in the Petition. The documentary evidence is also required to be shown before seeking any relief on the ground that the action of Respondent Nos. 1 to 4 is malafide. No such material has been produced on record. It is submitted that, material relied upon by the Petitioners, in support of prayer clause (b), i. e. as regards discrimination on communal basis, is factually incorrect. It is further submitted that a subcommittee is constituted for the purpose of considering questions with regard to transfers of teaching and non teaching staff employed in various educational institutions administered by the Respondents. This committee is referred to as the ''Badli'' committee. It is empowered to effect transfers and submit its report to the managing council in due course. The Learned Counsel invited our attention to the fact that, for the current academic year, such committee is constituted consisting of 5 members. It is submitted that on regular basis, the said committee considers the issue of transfers based upon administrative grounds, exigency of work or requests for transfers made by the teaching and nonteaching staff of the schools/Jr. College. It is submitted that, no prior permission is required to be obtained from the Deputy Director of Education or the Education Officer, before transferring the employees. It is submitted that, for the last few years, the managing council of Respondent No. 2 has observed that the performance of the children in Pune School is better than that of the children of N.M.V. School at Solapur. The percentage of results of the children in Pune School is much higher than that in Solapur and consequently, some teachers have been transferred from Solapur to Pune.
It is submitted that Smt. Nagmode (Petitioner No. 3), Shri. Ananda Gholap and Smt. Deshpande were issued transfer orders amongst other in the year 2009. These employees filed three Writ Petitions, i.e. Writ Petition Nos. 5541/2009, 5542/2009 and 5543/2009 respectively. These three Writ Petitions came to be dismissed after hearing the parties by order dated 6th August, 2009 passed by this Court. The Petitioner No. 3, thereafter, worked at Solapur. However, repeated representations were made by the said Petitioner. She assured the managing committee that if her request for retransfer to Pune was considered by the managing committee, she will not challenge her subsequent transfer if any. She represented that there were certain family problems faced by her. Petitioner No. 3 was thereafter retransferred to Pune School (Primary) in 2010. This itself shows that there is no malafide intention on the part of the Respondents to victimize and/or discriminate against the present Petitioners and/or reserved category employees of the institution administered and managed by Respondent No. 1. It is submitted that there are even periodic transfers made of various employees belonging to the open category as well as reserved category, based upon the requests made by them. Such request transfers are considered on sympathetic grounds and wherever possible, the said request transfers are granted by the Badli Committee.
During the period 2005 to 2011, almost equal number of request transfers were made from open category and reserved category employees working as teaching and nonteaching staff in various institutions, which are run by Respondent No. 1. It is submitted that common rosters are required to be maintained of all Primary Schools administered by Respondent No. 1 so also in respect of Secondary School and Junior Colleges. Further, as regards the institution referred to above, it is found that the number of reserved category employees are more that the employees in the open category belonging to the teaching staff. The Learned Counsel invited our attention to Exhibit ''B'' annexed to the affidavit in reply and submitted that said chart would clearly demonstrate the number of open category and reserved category employees in the teaching staff of the school mentioned hereinabove. It is submitted that during the period 2002 to 2009, there have been total number of 78 transfers approximately from the teaching and non teaching category of employees of which, nearly 40% of the employees were belonging to the open category. It is submitted that there is no any attempt by the Respondents to discriminate on the basis of community/caste as alleged in the Petition.
3. It is further submitted that the transfer orders have been issued in compliance with Rule 41 of the MEPS Rules framed under the MEPS Act. It is denied that the transfers are midterm transfers. The Learned Counsel invited our attention to Clause 52.1 of the Secondary Schools Code, which defines the School Terms. Relying upon said clause, Counsel for Respondent Nos. 1 to 4 submits that the School year will be divided into two terms. First term shall be from June to October and the Second term shall be from November to April. The Counsel further submits that in the academic year 201112, the second term was to commence on 14th November, 2011. The transfer orders were issued on the same day. However, as per the direction of the Government dated 5th November, 2011, all the schools were required to commence their term on 11th November, 2011 in order to celebrate and comemorate the 100th Birth Anniversary of Moulana Abdul Kalam Azad. Said direction is dated 5th November, 2011 and the message of the Hon''ble Prime Minister was to be readout in the schools on 11th November, 2011. Therefore, the transfers effected on 14th November, 2011 were not and cannot be considered as midterm transfers. The Counsel invited our attention to the averments in affidavit in reply and factual position, under which circumstances transfers were required to be effected. It is submitted that, the allegation that the transfer orders have been issued on the communal basis by the Respondents, is totally false and fictitious and the same is not acceptable to the Respondents. It is submitted that almost 40% of the transfers effected from 2002 On wards are of open category employees. It is specifically denied that 94% of the total transfers from amongst the employees belonging to the teaching and nonteaching category are from reserved category. It is further submitted that the letters issued by the Respondent Authorities are without hearing the Respondent Nos. 1 to 4 and therefore, in the facts and circumstances of this case, the reliance of the Petitioners on said letters written by Respondent Nos. 6 and 7 are of no avail to the Petitioners. Therefore, Counsel for Respondent Nos. 1 to 4 submitted that the Writ Petition is devoid of any merit, hence, may be dismissed.
The Learned Counsel appearing for Respondent No. 7 invited our attention to Page Nos. 35 and 36 of the compilation of the Writ Petition and submitted that Respondent No. 7 had written two letters to Respondent No. 1 and Respondent Nos. 1 to 4 were told not to transfer the employees devorce the relevant Rules and procedure prescribed for transfer.
Though the Director of Education and Deputy Director of Education, Pune are Party Respondents, no any specific arguments are advanced on their behalf, by the Learned AGP appearing in the matter.
4. We have heard the Learned Counsels appearing for the respective parties at length. We have also perused the pleadings in the Petition, annexures thereof, affidavit in reply filed by the Respondents and we are of the considered opinion that, the Writ Petition deserves to be rejected for more than one reasons, which are stated hereinafter.
The contention of the Counsel for the Petitioners that, the transfer of the Petitioners is midterm transfer, has no any force and said contention deserves to be rejected in the facts and circumstances of this case. Even, according to the Counsel for the Petitioners, the ''Term'' has not been defined under the provisions of MEPS Act and MEPS Rules. However, according to the Counsel for the Petitioners, the Term would mean the complete academic year and therefore, the Rule 41 of the MEPS Rules prohibits the Respondent Management from transferring a person, midterm. In our opinion, the transfer of the Petitioners is not midterm transfer. We find force in the argument of the Counsel appearing for Respondent Nos. 1 to 4 that as per Clause 52.1 of the Secondary Schools Code, which applies only to Secondary Schools, the school year will be divided into two terms. First term shall be from June to October and Second Term shall be from November to April. Clause 52.1 of the Secondary Schools Code states School Term as under:
52.1. The school year will be divided into two terms. First term shall be from June to October and Second term shall be from November to April. There shall be a short vacation generally in October/November to fit in with the Diwali Festival. The summer vacation shall ordinarily be from May to June. In order to secure uniformity in the date of opening of schools, the appropriate authority concerned will fix uniform dates for all schools in the district and issue orders in good time before a school year begins. Changes, if any, may however, be allowed with the previous permissions of the said authority."
In the facts and circumstances of this case, the transfer orders are issued on 14th November, 2011 commencing with the second term of the academic year 201112. The Second Term was to otherwise commence on 14th November, 2011. The transfer orders were issued on the same day. Therefore, in our opinion, it is not a case of midterm transfers of the Petitioners, as contended by them.
5. It is well settled position that transfer is incidence of service. If the transfer is effected on the administrative ground, no interference in such transfer order is permissible. The employee has no right to be posted at a particular place. In the present case, it is the assertion of the Petitioners that, the orders of transfer of the Petitioners, are on the communal basis. The Petitioners have annexed annexure Exhibit ''D'' (Page 16 to 17) table showing the particulars of teachers who have been transferred from the Respondent Institution from the year 2002 onwards till 14th November, 2011. Relying upon said Exhibit, Counsel appearing for the Petitioners would submit that only the persons who belong to the Scheduled Caste and Scheduled Tribes and Other Backward Classes and V. J. N. T. have been transferred and the persons belonging to Higher Castes and other casts have not been transferred at all by the Respondents herein. It is submission of the Counsel for the Petitioners that out of 52 transfers (teaching and nonteaching for the period 2000 to 2011) 49 transfers are transfers belonging to Scheduled Caste, Scheduled Tribes and Other Backward Classes and the V. J. N. T.
6. From careful perusal of the pleadings in the Petition, we find that general averments are made in the Petition that the transfer orders are passed on communal ground. There are no any material particulars about the transfer of each employee for the period 2002 up to 2011 and further how the said employee is transferred on communal basis and which of the Respondent was instrumental in such transfers. Secondly, the Petition is filed by three Petitioners, who are aggrieved by their individual transfer orders from one place to another. They have not filed this petition in representative capacity for the employees whose names are mentioned in Exhibit ''D'' of the Petition. Initially, the managing committee members were not made Party Respondents in this Petition. The Petitioners, with the Leave of this Court, have amended the Petition and inserted Paragraph No. 5(A) therein. Para 5(A) reads thus:
5(A) The Petitioner submit that the Respondent No. 5 is the Director of Education Respondent No. 6 is the Deputy Director of Education and the Respondent No. 7 is the Shikshan Mandal functioning under the Bombay Primary Education Act. These are the Officers and the Authorities who are entitled to pass the order directing the Respondent No. 1, 2, 3 and 4 to cancel the orders of the transfers which have been made on communal ground. Respondent No. 8 to Respondent No. 29 are the Trustees of the Respondent No. 1. Out of them, Respondent No. 9, 10, 11, 12 and 20 are the members of the Transfer committee. The decision has been taken, to the best of knowledge of the Petitioner, by all the Respondents, and therefore, all of them passed the order granting the transfer and allowing the transfer only on the communal basis and they have been impleaded as the party Respondent in this Petition.
Bare perusal of paragraph 5(A) makes it abundantly clear that there are no material facts and particulars pleaded so as to adjudicate the issue raised by the Petitioners that the transfer orders of the Petitioners or other employees for the period 2002 up to 2011 are only on the communal basis. Any how, such assertion of the Petitioners definitely raises the disputed question of facts which cannot be gone into in writ jurisdiction.
In reply to the contention of the Petitioners that the transfers of the Petitioners are only on the communal basis, the Respondents have given detail facts and circumstances in their affidavit in reply, under which the transfer orders, in respect of the Petitioners, have been passed by the Respondents. It is stated by the Respondent Nos. 1 to 4 that the said transfers are on administrative grounds. Respondent Nos. 1 to 4, in their affidavit in reply, have stated that those respondents have constituted a committee, who is empowered to effect the transfers and submit its report to the Managing Council in due course. Therefore, we find that the decision of transferring the Petitioners, from one place to another, is not taken by one individual as such and there is committee of 5 members, which looks into the issue on transfers and accordingly, effects the transfers. The Petitioners have not brought any relevant provision to the notice of this Court to hold that the prior permission of the Government Authorities is required before such transfers are effected. From careful perusal of the affidavit in reply, filed by Respondent Nos. 1 to 4, we find that the various factors are taken into account before effecting transfers of the Petitioners from one place to another. The Managing Committee considered the transfer of teachers from Pune to Solapur and some teachers are transferred from Solapur to Pune. The Respondents have also stated in the affidavit in reply that, the Petitioner No. 3 was transferred and retransferred from one place to another place, on her repeated representations, which would be indicative of the fact that said transfers are not with a malafide intention on the part of the Respondents to victimize and/or discriminate against the Petitioners. The affidavit in reply, filed by Respondent Nos. 1 to 4 has remained uncontroverted. Respondent Nos. 1 to 4, in their affidavit in reply in Paragraph No. ''g'' and ''h'' have stated that during the period 2002 to 2009 there have been total number of 78 transfers approximately, from the teaching and nonteaching category of employees, of which, nearly 40% of the employees were belonging to the open category. There is specific denial that the Respondents have made attempt to discriminate on the basis of community, caste or creed as alleged by the Petitioners. Therefore, in our considered opinion, in absence of any material and better particulars in the Petition that the transfer orders are in fact issued only on communal basis, deserves to be rejected. We are satisfied from the affidavit in reply filed by Respondent Nos. 1 to 4 that the transfer of each Petitioner is on administrative ground and there is no malafide intention on the part of the Respondents in effecting these transfers. The vague ground taken by the Petitioners that the Petitioners are transferred from one place to another only on communal basis is completely rebutted by the Respondents herein, in their affidavit in reply and there is no any rejoinder affidavit filed by the Petitioners controverting the said position stated in the affidavit in reply. Therefore, we reject the contention of the Petitioners that the transfer orders are issued on communal basis.
7. The another ground taken by the Counsel for the Petitioners is that Respondent Nos. 1 to 4 and other office bearers of Respondent No. 1 are bound by the Directions issued by Respondent No. 7 is devoid of merits. The observation made by Respondent No. 7 is admittedly without hearing the Respondent Nos. 1 to 4 before issuing such directions. Therefore, viewed from any angle, in our considered opinion, no case is made out to interfere in the transfer orders, which are issued by Respondent No. 1. We are more than satisfied that the said transfer orders are issued on administrative grounds and there is no malafide intention on the part of the Management of the Respondent School.
8. In view of the aforesaid discussion, we do not feel it necessary to issue any direction to the State Authorities to withhold the grant payable to Respondent Nos. 1, 2 and 3 or to take any other action including derecognition of the concerned institution. The Writ Petition is devoid of merits. The same stands rejected.
