103-WP-17791-2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 17791 OF 2024 Parvati Kashinath Pawar ...Petitioner Versus The State Of Maharashtra Through The Secretary, School Education And Sports Dept. And Others ...Respondents —————— 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 9th June, 2003. He further submits that by reason of a vacancy in the aided Harish 1 of 4 HARISH VITHAL CHAUDHARI Digitally signed by HARISH VITHAL CHAUDHARI Date: 2026.09.29 14:23:03 +0530 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 Harish 2 of 4 103-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 22nd July, 2019, and Rule 41A came to be inserted with efect from 8th 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 Harish 3 of 4 103-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 8th 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 11th 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 22nd 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.] Harish 4 of 4