Case Note & Summary
The petitioners, Syeda Shahana Firdaus and Zameerudding Farooqui, filed a writ petition under Article 226 of the Constitution of India before the Bombay High Court, Bench at Aurangabad, seeking a writ of mandamus directing respondent nos. 3 and 4 (Maulana Azad Education Society and the Principal of Kamla Nehru Polytechnic (Pharmacy), Aurangabad) to transfer them from the unaided wing to the aided wing of the college and grant consequential benefits from the date of their respective appointments. The petitioners were appointed as lecturers in the pharmacy department of the polytechnic, which is a minority educational institution. They contended that they were entitled to be absorbed in the aided wing as per government policies. The respondents opposed the petition, arguing that the petitioners were appointed in the unaided wing and there were no vacancies in the aided wing. The court analyzed the facts and legal position, noting that the petitioners did not have a legal right to seek transfer as their appointments were specifically in the unaided posts. The court also considered the rights of minority institutions under Article 30 of the Constitution. The court held that a writ of mandamus cannot be issued to enforce a non-existent right. Consequently, the court dismissed the writ petition and the accompanying civil application. The judgment was delivered by a division bench comprising Smt. Vibha Kankanwadi and S. G. Chapalgaonkar, JJ., with the judgment pronounced on 18th March 2024.
Headnote
A) Constitutional Law - Writ of Mandamus - Right to Transfer - Petitioners sought mandamus to transfer from unaided to aided wing of minority polytechnic college - Court held that no legal right exists for such transfer as appointments were in unaided posts and no vacancy in aided wing - Held that writ of mandamus cannot be issued to enforce a non-existent right (Paras 1-10).
Issue of Consideration
Whether the petitioners, appointed as lecturers in the unaided wing of a minority polytechnic college, have a legal right to seek transfer to the aided wing and consequential benefits.
Final Decision
The writ petition is dismissed. Rule discharged. No order as to costs. Civil Application No.377 of 2018 also stands disposed of.
Law Points
- Article 226 of Constitution of India
- Writ of Mandamus
- Transfer of employees from unaided to aided wing
- Minority educational institution rights
- No vested right to transfer
