Case Note & Summary
The Bombay High Court, in a batch of writ petitions under Article 226 of the Constitution of India, examined the validity of orders passed by the Education Officer rejecting proposals for approval of transfers of non-teaching staff from unaided to aided schools. The four petitions involved employees and their respective educational societies as petitioners against the State of Maharashtra and the Education Officer. The transfers in question were from unaided to aided schools, and the rejection of approval was based on Government Resolutions dated 23 October 2013 and 12 February 2015, which imposed a ban on fresh recruitment. The employee petitioners had been appointed to unaided schools on various dates between 2004 and 2007, and their appointments to unaided posts had been approved on different dates. Their transfers to aided schools occurred later, between July 2017 and October 2017, but the approval proposals were rejected by orders dated 8 September 2017 and 22 March 2018. The legal issues before the court were two-fold: first, whether a transfer from an unaided school to an aided school constituted recruitment or fresh appointment; and second, whether Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 applied only to teaching staff and not to non-teaching staff. The petitioners argued that the transfers did not amount to fresh appointments and that the Government Resolutions banning recruitment were not applicable. The school managements supported the petitioners. The respondents, represented by Assistant Government Pleaders, contended that the Government Resolutions were applicable and the rejection orders were proper. The court, after hearing counsel and perusing the record, noted that both issues were squarely covered by previous decisions of the court. It referred to a judgment of the Aurangabad Bench in Sudhir Dnyandeo Gadakh v. State of Maharashtra, which had held that a Government Resolution imposing a ban on fresh recruitment would not apply to employees transferred from unaided to aided schools because such transfers did not constitute fresh appointments. The court observed that the employee petitioners in the present cases had been appointed prior to the Government Resolution banning fresh recruitment, and therefore the resolutions did not affect their transfers. The court further observed that the term 'transfer' under Rule 41 of the MEPS Rules did not amount to fresh recruitment or appointment. Rule 41 permits the management of more than one school to transfer employees from one school to another on administrative grounds, promotion, or at the employee's request, subject to certain conditions. The excerpt of the judgment provided did not include the final disposition on the second issue regarding non-teaching staff, but the court had quoted Rule 41 and indicated that the issue was already covered by earlier decisions. Ultimately, the court found the reason for rejection of approval unsustainable and proceeded to rule in favour of the petitioners, holding that the Government Resolutions banning fresh recruitment did not apply to transfers from unaided to aided schools.
Headnote
A) Education Law - Transfer from Unaided to Aided School - Not Fresh Recruitment - Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, Rule 41 - Government Resolutions dated 23 October 2013 and 12 February 2015 imposing a ban on fresh recruitment did not apply to employees transferred from unaided to aided schools who were appointed prior to the ban through due selection process - Held that such transfer was not a case of fresh appointment and the reason for rejection of approval was unsustainable (Paras 7-10). B) Service Law - Transfer of Non-Teaching Staff - Applicability of Rule 41 MEPS Rules - Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981, Rule 41 - The court considered whether Rule 41 applied only to teaching staff and not non-teaching staff, and quoted Rule 41 which permits transfer of any employee from one school to another on administrative grounds, promotion, or at request - The visible portion of the judgment did not contain the final conclusion on this issue (Paras 7, 11).
Issue of Consideration
Whether transfer of an employee from unaided school to aided school constitutes recruitment/fresh appointment; whether Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 applies only to teaching staff and not to non-teaching staff
Final Decision
The High Court held that Government Resolutions banning fresh recruitment did not apply to transfers from unaided to aided schools, as transfer did not amount to fresh appointment. The court relied on the Aurangabad Bench decision in Sudhir Dnyandeo Gadakh and Rule 41 of the MEPS Rules. The reason for rejection of approval was found unsustainable.
Law Points
- Transfer from unaided to aided school is not fresh recruitment
- Government Resolutions dated 12 February 2015 and 23 October 2013 imposing ban on fresh recruitment do not apply to transfers
- Rule 41 of Maharashtra Employees of Private Schools (Conditions of Service) Rules
- 1981 governs transfers and does not equate transfer with fresh appointment
- Employees appointed prior to recruitment ban through due selection process can be transferred to aided posts without fresh approval as recruitment
- Article 226 writ jurisdiction invoked to challenge rejection of transfer approvals
