Bombay High Court
PARVATI KASHINATH PAWARversusTHE STATE OF MAHARASHTRA THROUGH THE SECRETARY, SCHOOL EDUCATION AND SPORTS DEPT. AND ORS
- Disposal
- Disposed Off
Holding
The transfer of the petitioner from the unaided to the aided post is permissible under Rule 41 of the MEPS Rules, and the order rejecting it for lack of a State policy is set aside.
Summary
The petitioner, appointed as a Junior Clerk on an unaided post in 2003, was proposed for transfer to an aided Junior Clerk post in July 2019. The State of Maharashtra rejected the transfer, citing the absence of a government policy for transferring non‑teaching staff. The petitioner argued that Rule 41 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 permits such transfers and that the later amendment, Rule 41A (effective June 2020), should not apply retrospectively. The State relied on Section 5 of the MEPS Act and the need to identify a surplus person, but the court held these arguments misplaced. Relying on the earlier decision in Namdev Tukaram Patil v. State of Maharashtra (Writ Petition No. 3154 of 2021), the bench held that Rule 41 governs the transfer and the lack of a state policy does not bar approval. Consequently, the impugned order was quashed, and the transfer was ordered to be effected.
Issues considered
- Whether Rule 41 of the MEPS Rules permits transfer of a non‑teaching employee from an unaided to an aided post in the absence of a State policy.
- Whether the amendment introduced by Rule 41A (effective June 2020) or Section 5 of the MEPS Act is applicable to a transfer that occurred in July 2019.
Legislation cited
Subjects
- transfer of non‑teaching staff
- unaided to aided post
- Rule 41
- MEPS Rules
- State policy
- employment law
- school education
Judgment
103-WP-17791-2024.doc
Digitally signed
by HARISH
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
HARISH VITHAL
VITHAL CHAUDHARI
CHAUDHARI Date:
CIRCUIT BENCH AT KOLHAPUR
2026.09.29
14:23:03 +0530 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 17791 OF 2024
Parvati Kashinath Pawar ...Petitioner
Versus
The State Of Maharashtra Through The ...Respondents
Secretary, School Education And Sports Dept.
And Others
——————
Mr. Prashant Bhavake for the Petitioner.
Mr. R. P. Kadam “B” Panel counsel for the Respondent-State.
Mr. Utkarsh Desai for Respondent Nos. 6 & 7.
——————
Coram : Sharmila U. Deshmukh &
Neeraj P. Dhote, JJ.
Date : September 28, 2026.
P. C. :
1. By the present petition, the challenge is to the impugned order
dated 11th December, 2023, by which the petitioner’s proposal seeking
approval to the transfer from the unaided post of Junior Clerk to the
aided post of Junior Clerk came to be rejected on the ground that there
is no policy of the State Government in respect of transfers of non-
teaching staf, and therefore the proposal cannot be considered and
came to be returned.
2. Learned counsel appearing for the petitioner would submit that
the petitioner was appointed on the unaided post of Junior Clerk on 9 th
June, 2003. He further submits that by reason of a vacancy in the aided
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103-WP-17791-2024.doc
post due to the retirement of a Junior Clerk, the management decided
to transfer the petitioner from the unaided post to the aided post by a
resolution dated 7th July, 2019, with efect from 22nd July, 2019. He
submits that the proposal which was submitted came to be rejected on
the ground of absence of policy in that respect by the State
Government as regards the transfer of non-teaching staf. He would
point out that Rule 41 of the Maharashtra Employees of Private Schools
(Conditions of Service) Rules, 1981 (MEPS Rules) governs such transfers
and was the subject matter of various decisions of this Court. He would
point out that it is settled that Rule 41 of the MEPS Rules permits
transfer of teaching as well as non-teaching staf of a recognized school,
and the Courts have permitted approvals from the unaided post to the
aided post as regards non-teaching staf. He points out the decisions
which are annexed from page 61 of the petition.
3. Learned AGP would submit that before the transfer could have
been efected, it was necessary to ascertain whether there is any
surplus person who is available, drawing support from the provisions of
Rule 41A of the MEPS Rules. He would also point out Section 5 of the
Maharashtra Employees of Private Schools (Conditions of Service)
Regulation Act, 1977 (MEPS Act) in order to contend that before such a
transfer could have been efected, it was necessary to ascertain
whether any suitable person is available from the list of surplus persons
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103-WP-17791-2024.doc
maintained.
4. In rejoinder, learned counsel for the petitioner would point out
that the transfer of the petitioner was with efect from 22 nd July, 2019,
and Rule 41A came to be inserted with efect from 8 th June, 2020, and
will not have any retrospective application.
5. Insofar as the transfer of non-teaching staf from the unaided
post to the aided post is concerned, in the case of Namdev Tukaram Patil
And Another v. State of Maharashtra And Another. (Writ Petition No. 3154
of 2021), the Hon’ble Division Bench of this Court considered an
identical issue of transfer of the petitioner therein to the post of Peon
from an unaided post to an aided post. Considering the provisions of
Rule 41 of the MEPS Rules, this Court held that the petitioner therein
was holding the post of Peon and was thus an 'employee' within the
meaning of employee under Section 2(7) read with Rule 41 of the MEPS
Rules, which applies to all employees and permits transfer of teaching
as well as non-teaching staf of a recognized school. The said decision
squarely applies to the facts of the present case. The petitioner herein
would fall within the deinition of 'employee' under Section 2(7), and in
light of Rule 41 of the MEPS Rules, the transfer of the petitioner would
be governed by the statutory rules. The absence of any policy on behalf
of the State Government would not come in the way of grant of
approval to the transfer of the petitioner in view of Rule 41 of the MEPS
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103-WP-17791-2024.doc
Rules.
6. The submission of the learned AGP as regards Rule 41A of the
MEPS Rules is misplaced, as the amendment was introduced on 8 th June,
2020, and the transfer of the petitioner is prior to the amendment. No
reliance can also be placed on Section 5 of the MEPS Act, as the
impugned order does not return the proposal on the said ground, and
the proposal has been returned only on the ground of the absence of
any policy of the State.
7. As the impugned order dated 11 th December, 2023 is clearly
unsustainable, the same is hereby quashed and set aside. Respondent
No. 5 is directed to grant approval to the transfer of the petitioner from
the unaided post to the aided post with efect from 22 nd July, 2019,
expeditiously and, in any event, within a period of four weeks from
today.
8. Respondent No. 4 is directed to include the name of the
petitioner in the Shalarth Pranali and issue the Shalarth ID within a
period of two weeks thereafter, and release the grant-in-aid salary
within a period of three weeks thereafter.
9. The petition is allowed in the above terms.
[Neeraj P. Dhote, J.] [Sharmila U. Deshmukh, J.]
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