Jitendra Jain, J.

1. Rule. Rule made returnable forthwith by consent of the parties.

2. This petition filed under Article 226 of the Constitution of India seeks quashing of communication dated 24th January 2017, whereby respondent no. 3 – Joint Director of Higher Education rejected the proposal sent by respondent no. 4 educational institution for approving transfer of the petitioners from unaided institution to aided institution under the same management.

BRIEF FACTS:-

3. Petitioners were appointed as peons by respondent no. 4, Dhule Education Society, to work in an unaided institution of the said Society. Petitioners have been working in the unaided institution of the Society for more than two decades. In 2016, the Society passed a resolution transferring these three petitioners from the unaided institution to its own aided institution.

4. On 16th January 2017, the proposal was sent by the Society to respondent nos. 2 and 3 for approval of the said transfer of the petitioners from unaided to aided institution of the Society, since the unaided institution had to be closed down. On 24th January 2017, the above proposal was rejected by respondent no. 3 on the ground that there is no such Government Resolution which provides for transfer from unaided institution to aided institution.

5. It is on the above backdrop that the present petition came to be filed on 28th August 2019 after more than 2½ years, challenging the above communication dated 24th January 2017.

SUBMISSIONS OF PETITIONERS AND RESPONDENT NO. 4 AND 5 :-

6. Learned counsel for the petitioners submitted that there is no express prohibition under the Maharashtra Public Universities Act, 2016 (2016 Act), which prohibits such a transfer. He, therefore, submitted that, in the absence of any express prohibition, it should be presumed that such a transfer is permissible. Learned counsel for the petitioners relied upon the decision of this Court in Writ Petition No. 2960 of 2012 (Dattu s/o Bhima Thorat Vs. The State of Maharashtra and Others) dated 11th October 2012, where according to him a similar issue arose with regard to the assistant teachers who were sought to be transferred from unaided to aided institution and such a transfer was approved by this Court. Learned counsel for respondent no. 4 and 5 institution supported the petitioners. Learned counsel for the petitioners and respondent no. 4 and 5, therefore, prayed for allowing the petition by directing respondents nos. 1 to 3 to approve the transfer.

SUBMISSIONS OF RESPONDENT NOS. 1 TO 3 – STATE :-

7. Per contra, learned AGP for respondent nos. 1 to 3 vehemently opposed the petition and submitted that there is no such provision for transfer from unaided to aided in the 2015 Act. She submitted that if such a transfer is accepted, then the provisions of recruitment insofar as the aided institution is concerned would become redundant. It is her submission that what cannot be permitted directly cannot be permitted indirectly by approving transfer from unaided to aided institution. Learned counsel also relied upon letter dated 4th March 2016, Exhibit C to the petition, wherein it is stated that the vacancy created in aided institution of the respondent – Society has to be filled by appointment. It is her submission that, without there being an express provision permitting authorizing approval of the proposal, the management cannot unilaterally compel respondent State to approve the transfer, which would lead to the State bearing the salary of the petitioners. She submitted that the decision relied upon by the petitioner in the case of Dattu s/o Bhima Thorat (Supra) is distinguishable on facts, since in that case there was no such communication regarding filling up of the vacancy by appointment. She, therefore, prayed for dismissal of the petition.

ANALYSIS AND CONCLUSIONS :-

8. We have heard learned counsel for the petitioners, learned AGP for respondent State and learned counsel for respondent no. 4 and 5 institution and, with their assistance, have perused the documents brought to our notice.

9. At this stage, it would be apposite to reproduce the relevant provisions of the 2016 Act, which reads as under :-

                    “8. Control of State Government on universities :

                    (1) Without prior approval of the State Government, the university shall not, --

                    …

                    (g) take any decision regarding affiliated colleges resulting in increased financial liability, direct or indirect, for the State Government.

                    …

                    (3) ...

                    However, the unaided teachers and employees who are rendered surplus in university departments, affiliated or conducted colleges and institutions shall not be eligible, for absorption at the aided vacancies in university departments, affiliated or conducted colleges and institutions. ……………….”

10. At the outset, learned counsel for the petitioners and respondents failed to bring to the notice of this Court any provisions under the Maharashtra Public Universities Act, 2016, which entitles the Society to transfer its employees from unaided to aided institution though specific query was raised by the Court and all the counsel agreed that applicable Act is 2016 Act. The Court later on while studying the matter found that this was not correct.

11. Section 8(3) of the Maharashtra Public Universities Act, 2016, which specifically deals with this issue, expressly provides that the unaided teachers and employees who are rendered surplus in university departments, affiliated or conducted colleges and institutions shall not be eligible for absorption at the aided vacancy in universities, departments, affiliated or conducted colleges and institutions. The statutory provision uses the expression “shall not be eligible.…..”. In our view this mandatory provision expressly bars what is sought by the present petitioners. Therefore, in our view, in the teeth of this express bar, the prayer sought by the petitioner cannot be granted and would be contrary to the express provision.

12. Section 8(3) as it existed in the erstwhile Act, namely, The Maharashtra Universities Act, 1994 did not have express bar which is now in the present Act i.e. The Maharashtra Public Universities Act, 2016. This clearly indicates the intention of legislature not to permit transfers from unaided to aided institution under the 2016 Act.

13. In the 2016 Act, there is a provision under Section 119 which provides for the proposal to be considered by the Management Council for transfer of the management of colleges and institution, subject to permission of the State Government. There is no such provision which provides for consideration by the State Government of the proposal for transfer of staff of unaided institute to aided institute.

14. Section 8(1) of the 2016 Act provides that prior approval of the State Government is mandatory with regard to any decision regarding affiliated colleges resulting in increasing financial liability, directly or indirectly, for the State Government. In our view, looking at the provisions relating to aided institute, the transfer from unaided to aided institute would result in an increase in financial liability since State will have to pay salary of the petitioners and, therefore, the State Government would be justified in refusing the proposal for approval more so since it would result into bypassing candidates waiting in queue for getting employed in aided institution.

15. In our view, the effect of the transfer sought would lead to an increase in the financial burden of the State, since the State will have to bear the salary of such transferred staff. In such a case, there has to be an express provision in the 2016 Act, which provides for such transfer which as observed above there is express bar. In the absence of any such provision in the 2016 Act, the petitioner cannot seek writ of mandamus against the State for approving the proposal sent by the Society for transfer from unaided to aided institution.

16. In case of aided institution, there are specific provisions relating to filling up of the vacant posts. If the writ sought for is allowed, then the provisions and procedure governing aided institution relating to recruitment or filling up of the vacancies would be rendered redundant. It is settled position that any interpretation which would lead to provisions being rendered redundant should not be accepted. Therefore, even on this count, the prayers sought for by the petitioner cannot be granted.

17. It is important to note that under the Maharashtra Employees of Private Schools (Conditions of Service) Regulation Rules, 1981, Rule 41A provides for transfer of a teacher from unaided school or partially aided school to the vacant post in partially aided school or division, subject to fulfillment of conditions specified therein. There is no such provision under the Maharashtra Public Universities Act, 2016. If the legislature intended to permit transfer from unaided to aided institution under the Maharashtra Public Universities Act, 2016 then there would have been a similar provision under the said 2016 Act. In the absence of any such provision and on there being express bar under Section 8(3) of 2016 Act, it is clear that the legislature did not intend to provide for transfer from unaided to aided institution governed by the Maharashtra Public Universities Act, 2016.

18. Learned AGP is justified in submitting that, by communication dated 04.03.2016, it was directed that the Society should fill up the vacancy by appointment. The said communication is not challenged by the Society. Therefore, any action of the Society contrary to such unchallenged communication cannot be considered by the State.

19. The reliance placed by the learned counsel for the petitioner on the decision in the case of Dattu s/o Bhima Thorat (Supra) is distinguishable on facts, since in that case there was no such communication issued by the State to the educational institution directing it to fill up the post by appointment. Similarly, the decision was not under the provisions of the Maharashtra Public Universities Act, 2016 where there is express bar but was under MEPS Act, prior to insertion of Rule 41A. Therefore, the said decision would not be applicable to the facts of the present case and would not assist the case of the petitioner any further.

20. The petition is filed in August 2019 challenging communication of January 2017 i.e. after 2½ years. There is no reason given for the delay except vaguely stating that they were knocking doors of the respondents. In our view, the present petition is only an afterthought and hit by delay and laches in the absence of any explanation.

21. During the course of hearing, on a query being raised by the Court, learned counsel for respondent nos. 4 and 5 – institution Society, as to whether they are willing to bear the salary of the petitioners if the transfer from unaided to aided is permitted, respondent nos. 4 and 5 did not agree.

22. For all the above reasons, the petition stands dismissed.

23. Rule is discharged.

24. No order as to costs.