Pralhad Mariba Pawar v. The State Of Maharashtra Through Its Secretary And Others
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD 937 WRIT PETITION NO. 571 OF 2023 WITH CIVIL APPLICATION NO.2137 OF 2023 AND CIVIL APPLICATION NO.2139 OF 2023 PRALHAD MARIBA PAWAR
VERSUS
THE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND OTHERS ...
Advocate for Petitioner: Mr. Avishkar S. Shelke AGP for Respondent Nos. 1 and 4: Mr. P.S. Patil Advocate for Respondent Nos. 2 and 3 : Mr. S.S. Thombre a/w Mr. S.B. Pulkundwar Advocate for intervener in CA No. 2139/2023: Mr. I. D. Maniyar .....
CORAM : RAVINDRA V. GHUGE AND SANJAY A. DESHMUKH, JJ.
DATED : 31st MARCH, 2023.
PER COURT :- 1.
On 17.01.2023, we had passed a speaking order, vide which we had directed the status quo to be maintained with regard to the Petitioner's posting. We had left it open to the Petitioner to opt for some other place, if he desires seeking a transfer. We were informed that the transfer process was ongoing.
2.
The Petitioner points out the computer generated order dated 21.3.2023, which is a transfer order issued to him. His grievance is that though this Court had protected him, such a transfer order has been generated.
-23.
The learned advocate representing the Zilla Parishad submits that this transfer order is generated by the "Teacher Transfer Management System" which is operated by the Government of Maharashtra, Rural Development Department. It is an automated system, which does not permit human interference. The candidates have to apply online for transfers and options are to be indicated through such online transfer.
4.
An intervention application has been filed. The applicant is aggrieved that he has been transferred in place of the Petitioner, as the Petitioner opted for a transfer and the vacancy shown against his name has been allotted to the intervention applicant. Because of the interim orders of this Court, his transfer is stuck. 5.
The confusion amongst the litigating parties, except the Petitioner, is as regards clauses 3.1 and 3.2 under clause 3 of the Scheme for regulating the transfer, introduced by the Government Resolution dated 7.4.2021. For proper understanding, we are reproducing clauses 3.1 and 3.2, as under:-
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शिक्षकांकडूनबदलीसाठीपसंतीक्रमघेणे:
३.
बदलीसपात्रशिक्षकयांचेकडूनजिल्ह्यातील३० शाळांचापसंतीक्रमत्यांच्याबदलीनेद्यावयाच्यानेमणूकीसाठी मागविण्यातयावा. ( सोबतच्याविवरणपत्रानुसार).
३.
बदली अधिकार पात्र शिक्षकांना बदली हवी असल्यासत्यांनीजिल्ह्यातील३०शाळांचापसंतीक्रमत्यांना बदलीने द्यावयाच्या नेमणूकीसाठी देणे आवश्यक राहील.
( सोबतच्याविवरणपत्रानुसार)"
6.
Clause 3.1 deals with those teachers, who are eligible to be transferred ( बदलीसपात्र). This can also be interpreted to mean that these would be the teachers, who would be liable/due to be transferred. Clause 3.2 pertains to certain teachers, who are working in the difficult areas, which include hilly/naxalite affected areas etc. who acquired a right to be transferred after three years. They, therefore, acquired this right and can exercise the same. Acquiring such a right can be stated in Marathi as " अधिकार प्राप्त होणे".
Unfortunately, the State Government has used a wrong word "अधिकार "
पात्र instead of "
"
अधिकारप्राप्त, in clause 3.2. The actual wording should have been "
"
बदलीअधिकारपात्रशिक्षक, means such a teacher, who has acquired a right to seek transfer. It is these teachers, who are working in difficult areas, who have a right to be transferred out of the difficult area, upon completion of three years tenure by setting out 30 choices/options at the places where they can be transferred.
-47.
We do not find such condition either in clauses 3.2.1. and 3.2.2, which pertain to special teachers (physically challenged teachers), falling in Part I and Part II couple convenience. For ready reference, we are reproducing clauses 3.2.1 and 3.2.2, as under:- "३.२.
१विशेषसंवर्गशिक्षकभाग१मधीलशिक्षकांनाबदलीहवी असल्यासकिंवाबदलीसपात्रयादीतनावअसतानाबदलीनको असल्यासत्यांनीसोबतच्याविवरणपत्रातनमूदकेलेप्रमाणेअर्ज करावा.
३.२.
२विशेषसंवर्गशिक्षकभाग२मधीलशिक्षकांनाबदलीहवी असल्यास, किंवाबदलीसपात्रयादीतनावअसल्यास, त्यांनी सोबतच्याविवरणपत्रातनमूदकेलेप्रमाणेअर्जकरावा.
विशेषसंवर्ग शिक्षकभाग२मधीलशिक्षकांनीपसंतीक्रमदेतानाजोडीदाराच्या शाळेपासूनच्या३०कि. मी.
अंतरातीलअथवात्यातालुक्यात असलेल्याशाळांचापसंतीक्रमद्यावा."
8.
The learned advocate Shri Thombre, representing the Zilla Parishad, on the basis of clause 1.10 contends that even these candidates, who are liable to be transferred should exercise their 30 options for transfer. For clarity, clause 1.10 reads, as under:- "१.
१०बदलीसपात्रशिक्षक:- बदलीपात्रशिक्षकम्हणजेज्या शिक्षकांचीसर्वसाधारणक्षेत्रातबदलीसाठीनिश्चितधरावयाचीसलग सेवा१०वर्षेपूर्णझालेलीआहेआणि विद्यमानशाळेतसदर शिक्षकाचीसेवा५वर्षेपुर्णझालेलीआहेअसेशिक्षक. तथापि, अवघड क्षेत्रातील शाळांमध्ये रिक्त असलेली पदेभरावयाची
-5झाल्याससर्वसाधारणक्षेत्रात१०वर्षेपुर्णझालेल्याशिक्षकांना विद्यमानशाळेतील५वर्षेसेवेचीअटलागूराहणारनाही. अवघड क्षेत्रातील रिक्त जागा प्राथम्याने भरणे आवश्यक असल्याने सेवाजेष्ठताविचारातघेऊनसर्वसाधारणक्षेत्रात१०वर्षेपुर्णसेवा केलेल्याशिक्षकांनावास्तव्यजेष्ठतेप्रमाणेआवश्यकतेनुसारअवघड क्षेत्रामध्येबदलीकरुनपदस्थापितकरण्यातयेईल."
9.
The literal translation of clause 1.10, is as under:- "1.10 Eligible Teachers For Transfer:- Eligible teachers for transfer means the teachers who have completed 10 years of continuous service to be considered for transfer in the general cadre and have completed 5 years of service in the present school. However, the condition of 5 years of service in the present school shall not be applicable to the teachers who have completed 10 years in the general cadre in order to fill up the vacant posts in schools in difficult areas. The vacancies in difficult areas are required to be filled on priority, teachers who have completed 10 years of service in the general cadre will be transferred considering the seniority and posted in difficult areas as per the requirement."
(This translated portion is provided by the official translator of the High Court) 10.
Considering the above submissions and the provisions, we are of the view that this scheme of 7.4.2021, requires fine tuning. The State authorities will have to introduce an unambiguous provision
-6to indicate that a person, who has acquired a right for transfer, will have to be defined as "
"
बदलीअधिकारप्राप्तझालेलाशिक्षक. Similarly, the State authorities specifically need to provide in the said GR that, the teacher who has acquired a right to transfer, should indicate 30 options, akin to clause 3.2.
11.
The learned advocate for the Zilla Parishad submits that, on the one hand, it is regretted that the TTM system generated a transfer order which could not be held back. Consequentially, the only option is that the Petitioner will have to remain at the same place i.e. CPS, Martala Loha and will not be transferred to ZPPS, Pangar Pahad, Kinwat. He however, clarifies that this is a concession being given only for one year. On the other hand, since the Petitioner has worked at the same place for more than 10 years, in the next transfer season, in the academic year 2024-25, he would be due and liable to be transferred.
12.
The learned advocate for the Petitioner submits that the Petitioner understands this scheme to mean that if his choice of transfer is not accepted, being a special teacher, he will not be transferred and he will not be liable to be transferred. We leave this issue open to the ZP in so far as it's interpretation. So also, let the State Government venture into the fine tuning of the scheme dated 7.4.2021. In view of the concession extended by the Zilla Parishad, the Petitioner would continue at the same place for the academic
-7year 2023-24 and no equities would be created in his favour with regard to he being liable to be transferred in the next academic year. 13.
In so far as the intervention applicant is concerned, he is at liberty to approach the Chief Executive Officer, Zilla Parishad, in the light of clause 5.10 of the GR dated 07.4.2021. Let him follow the said scheme to seek redressal of his grievance. 14.
With the above directions, this Writ Petition is disposed off.
15.
The civil applications do not survive and stand disposed off.
(SANJAY A. DESHMUKH, J.) (RAVINDRA V. GHUGE , J.) rlj/