Writ Petition Nos. 5328 and 5330 of 2008 and 1958 of 2009. Case: Sayada Mumtaz Jahan Sayad Ahteshamuddin and Ors. Vs Talat Shikshan Mandal and Ors.. High Court of Bombay (India)
| Case Number | Writ Petition Nos. 5328 and 5330 of 2008 and 1958 of 2009 |
| Counsel | For Appellant: Ajay S. Deshpande, Advocate and For Respondents: A.M. Karad, Advocate |
| Judges | S. S. Shinde and P. R. Bora, JJ. |
| Issue | Constitution of India - Article 226; Maharashtra Employees of Private Schools (Conditions of Service) Regulation Act, 1977 - Section 5(2) |
| Judgement Date | December 23, 2015 |
| Court | High Court of Bombay (India) |
Judgment:
S. S. Shinde, J.
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In Writ Petition No. 5328/2008, the petitioner has taken exception to the impugned order of transfer dated 16.04.2008 at Exhibit-B. In Writ Petition No. 5330/2008, the petitioner has taken exception to the impugned order of transfer dated 16.04.2008 at Exhibit-B. In Writ Petition No. 1958/2009, the petitioner therein has taken exception to the impugned order of transfer dated 28.03.2009 at Exhibit-A.
All these three Writ Petitions have been heard together since in all these Petitions exception is taken to the transfer orders against respondent No. 1 and also other respondents are common.
In view of the order passed by this Court on 10th February, 2010 in Writ Petition No. 1958/2009, even Writ Petition No. 1958/2009 was directed to be listed under caption 'final disposal' along with Writ Petition No. 5328/2008 and 5330/2008. Therefore, Rule, taken up for final hearing with the consent of the parties.
Brief facts necessary for adjudication of these Petitions, are as under:
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It is the case of the petitioners in Writ Petition No. 5328/2008 and Writ Petition No. 5330/2008 that, they have joined the services as Assistant Teachers in Talat High School, Barudgar Nala, Juna Bazar, Aurangabad, run by the respondent No. 1. The petitioners possessed H.S.C.D. Ed. qualifications, and thus, they are qualified for appointments as Primary Teachers. The appointments of the petitioners have been duly approved by the respondent No. 2.
It is further the case of the petitioner in Writ Petition No. 1958/2009 that, the petitioner joined the services as an Assistant Teacher in the same School, run by the respondent No. 1. The petitioner possessed H.S.C.D. Ed. qualification, and thus, she is qualified for appointment as an Assistant Teacher. The appointment of the petitioner has been also duly approved by the respondent No. 2.
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It is further the case of the petitioners that, they have acquired status of deemed permanent employees, by virtue of the provisions of Section 5 [2] of MEPSR Act. The petitioners have been rendering services as Assistant Teachers in Talat High School, Barudgar Nala, Juna Bazar, Aurangabad.
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It is further the case of the petitioners that, the petitioners are aware that, transfers are incident of service and since they have been transferred at a distance of few meters in Aurangabad itself, they may not be able to sustain challenge to the said order of transfers. Keeping this in mind, upon being transferred from one school to another by order of transfers, they immediately reported at transferred places. The petitioner in Writ Petition No. 1958/2009, joined at transferred place in the month of April, 2009.
It is further the case of the petitioners that, Therefore, for all practical purposes, they have submitted to the order of transfer and respected the same. The distance between the earlier place of transfer and the present place is hardly 300 meters. On this score, the petitioners are not in a position to demonstrate any inconvenience as such and as a result, they opted to submit to the order of transfers and immediately reported to duty.
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It is further the case of the petitioner that, in order to appreciate the nature of challenge and the reasons therefor, it would be appropriate to know the background on which the petitioners came to be transferred from one High School to another Primary School. Undoubtedly, the order of transfer in so many words state that, the salary, seniority, service protection shall continue to be as before, even after transfer, which was a predominant factor to dissuade the petitioners from taking recourse to the remedies available to them under law, challenging the order of transfers.
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It is further the case of the petitioners that, there has been extreme strained relations between most of the employees and management of Talat Shikshan Mandal. The root cause of the strained relations is exploitation of the employees in whatever possible manner. The employees have been made to suffer extreme financial hardship by paying them a meager amount of Rs. 1000/- or Rs. 2000/- as against their entitlement of Rs. 8500/- to Rs. 9000/-. Similarly, huge amount of loan has been shown from the Bank and Society, when in fact none of the employees have received any amount. Resultantly, regular installments towards repayment of the said so-called loan, of which no amount has ever been received by any of the employees, are being regularly deducted. The petitioners, however, were being paid an amount of Rs. 5000/- per month towards salary during 2005-06, 2006-07. It continued upto May 2007 and since then, they are actually receiving an amount of salary which they are legally entitled to, as per the pay scale prescribed. The petitioners are getting an amount of about Rs. 9000/- [Rs.Nine Thousand only] or thereabout and the installments are being deducted from the said amount, as the record shows that, they have availed a loan from Bank and society both.
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It is further the case of the petitioners that, extreme financial harassment of the employees culminated in unrest amongst the employees and there have been police cases/complaints and cross complaints against each other. The respondent Management has also fabricated the record to deprive its employees from their rightful legitimate claim and to bestow underserving benefits to those employees, who are in good books. Writ Petition No. 7375/2007 also came to be filed before this Court wherein this Court directed the Director of Education [Primary], Maharashtra State, Pune to hold a discrete enquiry and to take appropriate decision in respect of the representations of the employees. Pursuant to the aforesaid directions of this Court, on 03.03.2008, the Director of Education [Primary], M.S., Pune conducted an inquiry and having noticed many irregularities, illegalities, fabrication of record etc., recommended for withdrawal of recognition of Primary Schools run by the respondent No. 1 at Kabadipura, Shahanoorwadi at Aurangabad and also at Gangapur.
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It is further the case of the petitioners that, in spite of voluminous record against the respondent No. 1, which is good enough for withdrawal of recognition of all three primary schools of respondent No. 1, the respondent No. 1 could manage to abort the resolution regarding withdrawal of recognition in the General Body of the Zilla Parishad, Aurangabad. It is an open secret that such Resolutions can conveniently be disapproved for extraneous considerations, which are known to law. The voluminous record at Exhibit-A would make it absolutely clear that, withdrawal of recognitions of the Primary Schools run by the respondent No. 1 was very much warranted, having regard to the huge mal-practices, embezzlement of funds, fabrication of record etc. However, since the respondent No. 1 to afford to manage the things, the General Body of Zilla Parishad could not pass a Resolution as tabled, in view of horse-trading by the respondent No. 1.
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It is further the case of the petitioners that, they are indeed aggrieved by the transfer from the Talat High School, Juna Bazar to Talat Urdu Primary School, vide its order of transfers. The said transfers have been effected to rebuke the petitioners for having not acceded to the dictates of the management and thereby to remain associated with the employees who have been agitating against the management, to protest against the extreme financial harassment being made. It is further the case of the petitioner that, joining of the petitioners at transferred places is under compulsion. Had petitioners not joined at the transferred places, petitioners would not have been permitted to perform the duty and solely with an object to ensure earning of their daily bread for their livelihood, they opted to join at the transferred places. However, in the wake of the proceedings relating to withdrawal of recognition, in respect of which documents have been placed on record at Exhibit-A, it is more than clear and it leaves no room for doubt that, those who were not in the good book of respondent No. 1, were singled out for being posted in Primary Schools, of which recognition was in danger. In this view of the matter, if the things are viewed in its right earnest, the mala fides on the part of the respondent No. 1 are writ large, warranting interference to subserve the ends of justice.
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It is further the case of the petitioner that, since transfers are prerogative of the management, initially, the petitioners did not feel it appropriate to challenge the order of transfers. However, considering the background and the attending circumstances, petitioners later on felt it appropriate to challenge the said transfers. One of the prime consideration to assail the order of transfers is that, since they joined at the transferred places, their salary has not been released by the respondent No. 1. The respondent No...
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