Decided on November 29,1983

Nagarpalika, Upleta And Another Respondents


A.M.AHMADI - (1.) The petitioner who was initially appointed as a Junior Clerk in the primary school run by the Shikshan Samiti of Upleta Nagarpalika was promoted as Head-clerk-cum-Accountant pursuant to the recommendations of the staff selection committee. The petitioner was in due course confirmed as Head-clerk-cum-Accountant by the Administrative Officer Nagar Prathmik Shikshan Samiti Upleta by his order dated 3/10/1972. The President of the Nagarpalika by his order dated 15/04/1978 transferred the petitioner to the Accounts Branch of the Municipality. The petitioner has challenged this transfer order by this petition principally on the ground that the President of the Nagarpalika has no power or authority to transfer him since the said power vests in the Administrative Officer alone The petitioner therefore prays that appropriate writ be issued against the respondents for quashing and setting aside the said order dated 15/04/1978 whereby he is transferred to the Accounts Branch of the Municipality.
(2.) On behalf of the respondents no affidavit-in-reply is filed. Mr. S. M. Shah the learned advocate for the respondent no-1 stated at the Bar when the petition was called on for hearing that he was instructed to inform the court that the Nagarpalika has no strong views so far as the right to transfer the petitioner is concerned and it would abide by such order as the court may make in the light of the provisions of the Bombay Primary Education Act 1947 (hereinafter referred to as the Act).
(3.) The Act was enacted to provide for compulsory primary education and to make better provision for the management and control of primary education in the state. The Sections of the Act are divided into XI Chapters. sec. 2 defines various expressions used in the Act. We may notice a few of them with which we are concerned. sec. 2(1) defines Administrative Officer as an officer appointed under sec. 21 or 22. Sec. 21 provides that every school board shall have an Administrative Officer who shall be the chief executive officer of the board. If further provides that the Administrative Officer shall be appointed by and shall be a servant of the State Government he shall draw his pay and allowances from the State revenues. Sec. 22 which begins with a non-obstante clause enables the State Government to delegate the power to appoint an Administrative Officer to an authorized municipality. The Administrative Officer appointed by the authorised municipality shall be the servant of the authorized municipality and shall draw his pay allowance etc. from its primary education fund. It is clear from the above provisions that if an Administrative Officer is appointed under sec. 21 of the Act he shall be a servant of the State Government but if he is appointed by the authorized municipality to which the State Government has by notification delegated its power to make appointment he shall be the servant of the authorized municipality. Sec. 2(6)of the Act defines an Authorized Municipality to be a municipality which is authorized by the State Government under sec. 16(1) to control all approved schools within its area. The expression Approved school as defined by sec. 2 (2) of the Act means a primary school maintained by the State Government or by a School Board or by an authorized municipality or which is for the time being recognized as such by a School Board or by the State Government or by an Officer authorized by it in this behalf. sec. 16(1) is an enabling provision which empowers the State Government to authorise any municipality constituted under the Bombay District Municipal Act 1901 or under the Bombay Municipal Boroughs Act 1925 or under any other corresponding law to control all approved schools within its area. Sec. 17 enumerates the duties and functions of the authorized municipality. It is therefore clear that the municipality can control all approved schools within its area if the State Government has authorised it to do so under sec. 16(1) of the Act. It may be stated that there is no dispute that the Upleta Nagarpalika is an authorized municipality.;

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