Smt. Aruna Uttamrao Patil v. The State Of Maharashtra Thru The Secretary , School Edu. And ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 7781 OF 2022 Aruna Uttamrao Patil ...

Petitioner

Versus

The State of Maharashtra & Ors. ...

Respondents Mr. N. V. Bandiwadekar i/b. Mrs. Ashwini N. Bandiwadekar, Advocate for the Petitioner.

Mr. N. C. Walimbe, AGP for the Respondent No.1/State. Ms. Chaitrali Deshmukh, Advocate for Respondent No.2. Ms. Deepali Deherkar, Advocate for Respondent Nos.3 and 4.

CORAM:

S.V. GANGAPURWALA & R. N. LADDHA, JJ.

DATED :

OCTOBER 7, 2022 ORAL JUDGMENT : (Per : S.V.Gangapurwla, J.) 1.

Heard learned counsel for the Petitioner and learned AGP for the Respondents.

2.

Rule.

3.

Rule made returnable forthwith. By consent of the parties the writ petition is heard fnally.

4.

The learned Counsel for the Municipal Corporation submits that the petitioner had given undertaking dated 28th June 2016 in terms that the petitioner would accept the approval on a phase-wise grant-in-aid, now the petitioner cannot revert back.

5.

The undertaking on which the Corporation relies is certainly not in tune with the provisions.

1/4

6.

We have already held some of the clauses of Government Resolution dated 28th June 2016 are erroneous and should not be applied. Even otherwise the employee does not have any choice but to execute the undertaking at the dictate of the authorities concerned. Such an undertaking certainly cannot bind the petitioner, more particularly when the same is not in consonance with the provisions of rule.

7.

The contention of the petitioner is that the petitioner was appointed as the Assistant Teacher on the unaided post on 21st June 1991. The Education Offcer granted approval to the un-aided appointment of the petitioner under the order dated 23rd September 2009. The petitioner was transferred to the aided post on 1st February 2017. The Education Offcer has approved the transfer of the petitioner to aided post but in phase wise manner. The learned counsel for the petitioner submits that the same is erroneous. 8.

The learned AGP submits that in view of circular dated 28/06/2016, the order has been rightly passed. 9.

We have considered the submissions of learned counsel for the petitioner and learned AGP for the Respondent-State.

10.

The factual matrix does not appear to be disputed. The Petitioner is appointed on the unaided post on 21st June 1991 and after rendering services for more than twenty fve years was transferred on the aided post on 1st February 2017. This Court in the judgment and order dated 4th July 2019 passed in Writ Petition No.1493 of 2018 and connected 2/4

Writ Petitions has held that some of the clauses of Circular dated 28/06/2016 are erroneous. It has been held that if the candidate has worked for more than three years on the unaided post and transferred to 100% grant-in-aid post then approval is to be granted on 100% grant-in-aid. Of course the transfer being prior to the amendment of June 2020 to Rule 41A of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (hereinafter referred to as, "MEPS Rules").

11.

In the present case the petitioner is transferred prior to the amendment of Rule 41A of the MEPS Rules. The said amendment came into force on 8th June 2020.

12.

In the result, we pass the following order :

(i) The impugned order to the extent of granting approval to the Petitioner's transfer in phase wise manner is quashed and set aside.

(ii) The Respondent - Education Offcer shall reconsider the transfer of petitioner to 100% grant-in-aid and if the Education Offcer comes to the conclusion that the post on which the petitioner is transferred is 100% grant-in-aid then shall grant approval to transfer of the petitioner to the aided posts on 100% grant-in-aid from the date of transfer. The said exercise shall be carried out expeditiously and preferably within four months. Depending upon the order passed, the consequence shall follow.

13.

Rule is accordingly made absolute.

3/4

14.

The writ petition is disposed of. No costs.

(R. N. LADDHA, J.) (S.V. GANGAPURWALA, J.) Digitally signed by RAJU DATTATRAYA GAIKWAD Date:

2022.10.10 18:54:50 +0530 RAJU DATTATRAYA GAIKWAD 4/4