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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 94 of 1995
Smt. Kausar Tasneem Khan,
aged about 31 years,
working as Junior College Teacher
in Govt. Girls High School &
Junior College, Amravati,
Distt. Amravati. .... Petitioner.
Versus
1. Additional Commissioner,
Amravati Division,
Amravati, Distt.
Amravati.
2. Chief Executive Officer,
Zilla Parishad,
Amravati,
Distt. Amravati.
3. Principal, Zilla Parishad
Urdu Girls High School &
Junior College,
Amravati Camp,
Amravati,
Distt. Amravati.
4. Education Officer (Primary),
Zilla Parishad,
Amravati,
Distt. Amravati.
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5. Khalid Yasmeen Reheman,
working as Asstt. Teacher
in Zilla Parishad Urdu Girls
High School & Junior College,
Amravati,
resident of Amravati Camp.
6. Ku. Khurshid Anwar d/o Abdul Rahman,
aged about 38 years,
occupation service,
resident of Jail Road,
Camp, Amravati. .... Respondents.
*****
Mr. P.C. Madkholkar, Adv., for the petitioner.
Mr. D.B. Yengal, Asstt. Govt. Pleader for Respondent
No.1.
None for respondent nos. 2 to 5.
Mr. M.K. Pathan, Adv., for respondent No.6.
*****
CORAM : A.H. JOSHI AND
A.R. JOSHI, JJ.
Reserved on : 04th November,2009.
Pronounced on : 11th November,2009.
ORAL JUDGMENT [Per A.H. Joshi, J]:
1. Heard learned Adv. Mr. P.C. Madkholkar for the
petitioner, learned Asstt. Govt. Pleader Mr. D.B.
Yengal for respondent no.1 and learned Adv. Mr. M.K.
Pathan for respondent no.6.
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2. Petitioner was appointed as a Junior College
Teacher in Zilla Parishad Girls High School, Yavatmal,
on or before 9th November, 1990. She had applied for
transfer to Zilla Parishad, Amravati. The order of
transfer and absorption into the establishment of Zilla
Parishad was passed on 3rd November, 1992. Perusal of
order, copy whereof is at Annex. A at page 25 of
paper-book
reveals that
transferred against a vacant post.
the petitioner has been
3. Respondent no.5, who is an employee in the
employment of Zilla Parishad, Amravati, as a Teacher in
Secondary School, also possessed qualification, and
claimed that she was entitled for transfer and posting
as a Lecturer in Junior College in same Zilla Parishad.
4. Respondent No.5 had already applied for
transfer and posting. The request of the respondent no.
5 was forwarded by the Zilla Parishad, Amravati, to
the Deputy Director of Education, who found that the
respondent no.5 was qualified and eligible to be
appointed by transfer as a Teacher in Junior College
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and directed under his letter 6th October, 1992 to
consider petitioner s case for said transfer and
posting.
5. It is seen that before the application of
respondent no.5 was considered, treating the post of a
Teacher in Junior College to be vacant, present
petitioner was appointed on the said post by transfer
from Zilla Parishad, Yavatmal and order for absorption
was passed.
6. Respondent no.5 herein was aggrieved, as,
though she was qualified, eligible and entitled for
transfer and posting to said post, having higher scale
of pay, she was not given the same. She, therefore,
filed an appeal under Section 14 (a) of the Maharashtra
Zilla Parishads & Panchayat Samitis (Discipline &
Appeal) Rules, 1964 before the Additional Commissioner,
Amravati.
7. The petitioner herein got herself impleaded
before the Additional Commissioner, and was heard, and
has been dealt with in accordance with principles of
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natural justice.
8. By order dated 7th July, 1994, Additional
Commissioner partly allowed the appeal, and directed
the Chief Executive Officer, Zilla Parishad, Amravati,
to consider petitioner s claim and to scrutinize
whether present respondent no.5 has been met with any
injustice in the light of discussion contained in the
judgment.
9. It is seen that the Chief Executive Officer
has considered the matter and issued a communication
dated 28th December, 1994, calling upon the petitioner
herein to say whether she would accept absorption on
post of Asstt. Teacher [Upper Division] and to
relinquish her claim for the post of a Teacher in
Junior College.
10. Parties have not brought before this Court on
record as to whether after the decision of the
Additional Commissioner dated 7th July, 1994, and
before the decision dated 28th December, 1994, any
order or decision is rendered by the Chief Executive
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Officer in compliance with the directions given by
Additional Commissioner. It seems that the letter
dated 28th December, 1994 by the Chief Executive
Officer itself may be a part of the steps to be taken.
11. Perusal of affidavit filed by respondent no.2
discloses that respondent no.5 herein was possessing
qualification and experience for transfer and posting
as a Teacher in Junior College and a proposal for this
was sent to the Deputy Director of Education, which was
also approved by communication dated 6th October, 1992,
which is Annexure-ZP-6 to the affidavit-reply of the
respondent no.2.
12. It is also seen that it has been admitted in
the said affidavit of respondent no.2 that by ordering
transfer of the writ petitioner to Zilla Parishad,
Amravati, rightful claim of the respondent no.5 was
bypassed.
13. It is seen that in these premises,
appropriate action to be taken by the respondent no.2
was to revoke or cancel the order of absorption of the
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petitioner s services and repatriate the petitioner to
Zilla Parishad, Yavatmal, unless there existed a
vacancy for the respondent no.5. It appears that there
was no vacancy to promote the respondent 5 and also to
retain the petitioner as a Teacher in Junior College.
14. It seems that because of situation indicated
in the preceding para, the respondent no.2 took steps
to ascertain whether the writ petitioner would agree
for absorption as Asstt. Teacher [Upper Division], and
in that event her claim for the post of a Teacher in
Junior College could be considered in future.
15. It is seen that the Respondent No.2 has also
taken his stand, inter alia, on the point that
petitioner was not eligible for inter-district/Zilla
Parishad transfer, and tried to substantiate it by
producing on record copy of Govt. Circular dated 25th
September, 1992, which is at page 152 of the paper-
book.
Perusal of policy decision of the State Govt.
of writ petition, which is Annex.ZP-1], spells out that
a district cadre employee, who has put in ten years of
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service in the employment of Zilla Parishad, alone can
apply for a transfer to other Zilla Parshad.
16. It is pertinent to note that petitioner has
not filed any rejoinder to reply-affidavit of the
respondent no.2. Even during oral submissions, and
points on facts raised by respondents have not been
replied.
On this ground, present petitioner, in fact,
is not eligible to apply and get transferred to another
Zilla Parishad.
17. Arguing in support of the petition, learned
Adv. Mr. Madkholkar holding for Adv. Mr. M.D. Lakhey
has raised jurisdictional issue, namely in the matter
of inter-district transfer, Additional Commissioner has
no jurisdiction.
18. This Court finds that the point urged in
support of the petition is addressed with ingenuity,
however, it has been done without adverting to the
rights of the person who stood superseded and denied
his/her legal right due to wrongful absorption of writ
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petitioner.
19. Perusal of Appeal Memo preferred by the
respondent no.5 discloses that she did not, in any
manner, challenge the order of absorption. She made a
grievance that though she was eligible and her claim
was approved by Deputy Director of Education, for
transfer and posting as a Lecturer/Teacher in Junior
authority.
College, she has orders in her favour from competent
Of course, her promotion/transfer became
impossible due to petitioner s transfer and absorption.
Thus, petitioner s transfer came under scrutiny as a
necessary, but consequential issue.
20. The grievance as made by the respondent no.5
was perfectly within the jurisdiction of Additional
Commissioner. The Additional Commissioner was bound to
consider all questions and adjudicate. This Court is
satisfied that the questions, which fell for the
consideration of Additional Commissioner, have been
rightly considered by him.
21. This Court is satisfied that:-
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[a] The petitioner had got the
protection of status quo, and she
has got the status to which she was
not entitled.
[b] Respondent no.5 was wrongfully
denied what she was entitled to.
[c] Petitioner s claim and contentions
contained in this petition are based
on technicalities, which too do not
ig find support in law.
[d] Any of the legal rights of the
petitioner is not violated.
[e] There is no error of law, or that of
jurisdiction creeping in the
impugned orders.
22. In these premises, Petition has no merit.
23. Rule is, therefore, discharged.
24. In view that a totally untenable plea was
pursued by the petitioner and benefit was derived by
her being wholly unjust, the petitioner would be liable
to pay costs to the respondents which are quantified in
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a sum of Rs.5,000-00 [rupees five thousand only] which
be recovered from her salary and allowances wherever
she is serving.
JUDGE JUDGE
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