Samina Tahsin Iliyas Ahmed Hirapure vs Anjumane Targeeb E Talim Thr Its President and Ors. — Bombay HC (2025) — LawSathi Research

Samina Tahsin Iliyas Ahmed Hirapure vs Anjumane Targeeb E Talim Thr Its President and Ors. — Bombay HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Interim reliefs only: (i) amendment of the Petition permitted within one week to implead Shri Sayyad Zeba Tayyab and add grounds assailing his appointment; (ii) notice to the newly added Respondent returnable on 10th February, 2025, with Hamdast and liberty of private service; (iii) Respondent Management restrained in the interregnum from forwarding the new appointee's proposal to the Education Officer for receipt of approval. Final hearing of the transfer/section 41-A issue reserved.

Issue for consideration

Whether, under section 41-A, an employee can seek transfer from an unaided school/division to an aided school/division by way of right, given that the power is discretionary ('may') but hedged by mandatory conditions in Clauses (a) to (h) once the Management chooses to exercise it. +1 more

Court's answer

On reading section 41-A, the Court infers that although the power to transfer a teacher from an unaided to an aided school/division is discretionary ('may'), once the Management decides to exercise that discretion, sub-section (1) of section 41A contemplates exercise of the power only upon satisfaction of conditions stipulated in Clauses (a) to (h), which are couched in mandatory form; consequently, the Court considers that the Division Bench in Syeda Shahana Firdaus failed to consider the impact of this mandatory stipulation, and the aspect is reserved for hearing after notice.

Ratio / Principle

Amendment of the Petition is permitted, to implead the person appointed on the aided post (Shri Sayyad Zeba Tayyab) as a party Respondent and to add grounds assailing the said appointment, to be carried out within one week.

Key takeaways

Upon the amendment being carried out, notice is to be issued to the newly added Respondent, returnable on 10th February, 2025; Hamdast granted; private mode of service of notice permitted.ratio¶28
As an interim measure, in the interregnum the Respondent Management is restrained from forwarding the proposal of the new appointee to the Education Officer for receipt of approval.ratio¶33

Detailed headnote1 paragraphs

Bombay High Court (Dangre & Bhobe, JJ.), Writ Petition No. 2829 of 2024, order dated 03-01-2025 — Interim orders in a writ petition by a Shikshan Sevak appointed on unaided basis w.e.f. 28-10-2010, aggrieved by the Management's failure to shift her to a grant-in-aid post created in 2021 and kept vacant from 2019. The Management advertised in December, 2024 and appointed a third person (Shri Sayyad Zeba Tayyab) on the aided post w.e.f. 28-12-2024. The Court permitted the Petitioner to amend the Petition to implead the appointee and assail the appointment, and made the following prima facie observation on section 41-A: though the word 'may' indicates discretion in the Management to transfer a teacher from an unaided to an aided school/division, once the Management elects to exercise the discretion, sub-section (1) of section 41A and the conditions in Clauses (a) to (h) — couched in mandatory form — govern the exercise; on this basis the Court observed that the Division Bench in Syeda Shahana Firdaus (Writ Petition No. 14956 of 2017, decided 18-03-2024) had failed to consider the impact of the mandatory stipulation, and reserved the aspect for hearing. Notice was ordered returnable on 10-02-2025, and the Management was restrained in the interregnum from forwarding the new appointee's proposal to the Education Officer for approval.

905.wp2829.2024.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2829 OF 2024

Samina Tahsin Iliyas Ahmed Hirapure. … Petitioner. Versus

Anjumane Targeeb E Talim & Ors. … Respondents.

Mr. Prasad B. Kulkarni, for the Petitioner.

Mr. Akhil Kupade, for Respondent Nos. 1 and 2.

Ms. Anu C. Kaladharan h/f. Mrs. Anjali Helekar, for Respondent no. 6 (UOI).

Mr. Vikas M. Mali, A.G.P. for the State/Respondent Nos. 3 and 4.

CORAM: BHARATI DANGRE & ASHWIN D. BHOBE, JJ. DATED : 03^rd JANUARY, 2025

P.C:-

The grievance of the Petitioner who has been appointed as Shikshan Sevak in the Respondent Institute on unaided basis with effect from 28^th October, 2010 is that despite a post (grant-in-aid division) being created in the year 2021, the Respondent-management did not take any steps to transfer her.

The post was kept vacant from 2019 onwards though the Management issued advertisement from time to time, but

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ultimately an advertisement was issued in December, 2024 and today the learned Counsel for the Management has informed that pursuant to the advertisement, a candidate has been appointed on the aided post with effect from 28^th December, 2024.

The copy of the appointment order is placed on

record.

In the wake of the aforesaid development, Counsel for the Petitioner seeks leave to amend the Petition by impleading the person who is appointed in the said post, i.e. Shri Sayyad Zeba Tayyab as a party Respondent and also add the necessary grounds to assail the said appointment.

We permit the amendment to be carried within one week from today.

Though the learned Counsel representing the Management has invited our attention to the decision of the Division Bench in the case of Syeda Shahana Firdaus & Anr. v/s.

State of Maharashtra and Others (Writ Petition No. 14956 of 2017) and other connected Writ Petitions decided on 18^th March, 2024 and the relevant observations therein to the effect that use

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of the word “may” under section 41-A is indicative of discretion in the Management to transfer a teacher from unaided school to an aided school or division and it cannot be claimed by way of right, on reading this provision what is inferred by us is that despite the power being discretionary, once the Management decides to exercise the discretion, sub-section (1) of section 41A contemplate that the power shall be exercised upon certain conditions being satisfied and these conditions are being stipulated in the form of Clause (a) to (h) which are couched in the mandatory form.

We would therefore like to hear the respective Counsel as regards this aspect of the matter as the Division Bench in the case of Syeda Shahana Firdaus has failed to consider the impact of the mandatory stipulation which has hedged the discretion vested in the Management, while considering the submission of the Management that an employee cannot seek transfer by way of right.

Upon amendment being carried out, issue notice to the newly added Respondent by making it returnable on 10^th February, 2025. Hamdast granted. In addition, the notice is permitted to be served through private mode of service.

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In the interregnum, we restrain the Respondent

Management from forwarding the proposal of the new appointee to the Education Officer for receipt of approval.

(ASHWIN D. BHOBE, J.)

(BHARATI DANGRE, J.)

ARUNA SANDEEP TALWALKAR Digitally signed by ARUNA SANDEEP TALWALKAR Date: 2025.01.06 12:58:32 +0530

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